November 1st, 2014
by Juan De Villa
On November 14, 2014, the Supreme Court of Canada (“SCC”) will hold a hearing for the appeal of Her Majesty the Queen v Mark Edward Grant [Grant]. The main issues the SCC will address are what the test should be for admitting evidence relating to a third party suspect that is unknown and what the appropriate threshold is for admitting similar fact evidence put forward by the accused.
In November 1984, Candace Derksen went missing after leaving school. She was 13 years old at the time. In January of the following year, she was found dead in an industrial yard shed. She was hogtied, frozen, and had died of hypothermia.
In 2007, new DNA evidence led to the arrest of Mark Edward Grant, whose DNA matched hairs that were found on Derksen’s body and on the twine that was used to restrain her. Grant was convicted at trial and sentenced to life imprisonment without eligibility for parole for 25 years.
Grant raised ten grounds of appeal, including challenges to the reasonableness of the verdict, the judge’s instructions to the jury regarding the expert testimony given on the DNA evidence, and rulings on the admissibility of evidence. The SCC appeal will be limited to the latter issue.
At the Manitoba Court of Appeal, Justice Monnin allowed Grant’s appeal on the grounds that the trial judge had erred in refusing to let Grant put forward similar fact evidence involving an unknown third party suspect.
The Excluded Evidence
In September 1985, during a period in which Grant was in custody, a young girl, P.W., was abducted and later found alive in a boxcar 2.6 km where Derksen’s body was found earlier that year.
Aside from the geographical and temporal similarities noted above, the same brand of gum wrapper was found at both scenes and both victims were tied using a “Granny Knot.” Grant argued that this evidence suggested that the same unknown person abducted both Derkson and P.W.. According to police reports, investigators believed that there was a connection between the two abductions and brought P.W. to Derkson’s memorial service in the hope that she would recognize her abductor.
At the voir dire, the defence argued that the evidence from P.W.’s file should be admissible as evidence of the involvement of a third party and/or as similar fact evidence. The trial judge ultimately excluded the evidence of the unknown third party suspect because of a concern that it lacked the probative value necessary to outweigh the prejudicial effect allowing the evidence would have on the trial.
In excluding the evidence, the trial judge noted problems that arose during P.W.’s testimony at the voir dire. P.W. maintained that the abduction had taken place when she was aggressively interviewed by the police prior to the voir dire, but during cross-examination by the Crown, she agreed to the suggestion that the 1985 incident had never happened. Defence counsel expressed concern that the conduct of the police officers amounted to police interference in the proceedings.
Because of the issues that arose in P.W.’s testimony, the trial judge was not convinced that the abduction had occurred on a balance of probabilities. As a result, he concluded that the similar fact evidence Grant wanted to present pointing to an unknown third party suspect did not have the probative value necessary to justify further complicating an already lengthy and complex trial.
Justice Monnin took issue with the trial judge’s application of the law in refusing to admit the evidence of P.W.’s abduction. Specifically, he expressed a concern that the trial judge had set the threshold for admitting the evidence too high and stated that the judge had made factual and credibility findings that he was not entitled to make at that point.
Third Party Suspect and/or Similar Fact Evidence
In R v Grandinetti,  1 SCR 27 [Grandinetti], the SCC clarified that, when an accused person’s defence is that a third party committed the offence, there must be evidence connecting that person with the commission in order for the third party evidence to be probative and admissible. Note, however, that the third party suspect in Grandinetti was a known person, unlike Grant. The SCC will, therefore, have to address the question of whether the principle in Grandinetti applies in cases where the third party suspect is an unknown person.
Recognizing the complications of applying Grandinetti to a case where the alleged third party suspect is unknown, Justice Monnin characterized the evidence Grant wanted to put forward as similar fact evidence.
Similar fact evidence is rarely put forward by an accused and the jurisprudence on the issue is expressly concerned with evidence adduced by the Crown. In R v Handy,  2 SCR 908 [Handy], the SCC stated that the prosecution must satisfy the judge on a balance of probabilities that the probative value of the similar fact evidence outweighs its potential prejudicial effect in order for that evidence to be admissible.
In finding that the trial judge should have admitted Grant’s similar fact evidence, Justice Monnin pointed to the principle inR v Seaboyer; R v Gayme,  2 SCR 577, which states that the power to exclude evidence is narrower when it is sought to be adduced by the accused rather than the Crown. Relevant evidence brought forward by the defence should, therefore, be admissible unless its prejudicial effect substantially outweighs its probative value. Justice Monnin concluded that this principle should apply to similar fact evidence presented by an accused.
Justice Monnin thus found that the trial judge erred because a balance of probabilities standard was applied pursuant toHandy when all that should have been required was that there was some evidence on which a properly instructed jury could find a reasonable doubt. He also stated that the trial judge’s concerns regarding the prejudicial effect allowing the evidence would have on the length and complexity of the trial did not substantially outweigh its probative value. The defence was, therefore, prevented from placing its full answer before the jury.
Different concerns can arise depending on whether evidence is sought to be adduced by the Crown or by the defence. The test in Handy, for example, stems from a concern with prohibiting the inference that an accused person has committed an act simply because he or she has committed similar acts before. This concern, however, is not present when the similar fact evidence is presented by the accused.
Considering the necessary procedural protections granted to accused persons, it is unlikely that the Crown’s appeal will be successful. In any event, the SCC’s eventual decision in Grant will clarify what test to apply when an accused’s defence is that an unknown third party committed the offence, and whether an accused’s onus is the same as the Crown’s when seeking to adduce similar fact evidence.
[filed: Criminal Law]