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CRIMINAL PROCEDURE - Trial judge’s duties - Charge or directions

Friday, September 29, 2017 @ 8:35 AM  


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Appeal by the accused from his conviction of manslaughter. The accused’s wife of three years drowned in the bathtub. At the time of her death, she was 20 weeks pregnant. She had recently learned that her husband was having an affair and the couple was engaged in counselling. Lorazepam, an anti-anxiety drug with sedating properties (which had not been prescribed to the accused’s wife), was found in her blood. A few days prior to the drowning, the accused’s wife was taken to hospital with symptoms of fatigue, confusion, loss of coordination and vomiting. Following her death, blood taken while she was in hospital was tested and found to contain lorazepam. At trial, the Crown advanced the theory that the accused had sedated his wife with the lorazepam and caused her to drown in the bathtub. The accused contended that his wife’s death was either an accident or a suicide and, in either case, he was not home when it happened. During deliberations, the jury asked the trial judge whether knowing that the accused’s wife was taking a bath and not stopping her was equivalent to causing her to get into the tub (knowing that she was under the influence of lorazepam). In his answer, the judge stated that it was open to the jury to find that the accused caused his wife’s death by a combination of having given her the drug and then having failed to prevent her from putting herself into an inherently dangerous situation that carried a risk of bodily harm or death. He also instructed the jury that it could find that the accused committed an unlawful act by failing to provide the necessaries of life, which included protecting her from drowning, without any lawful excuse. Defence counsel objected, submitting that the instruction provided an alternate route to liability that was completely different than that presented at trial. The accused was convicted of manslaughter and sentenced to 15 years’ imprisonment. The accused appealed his conviction on the grounds that the trial judge misapprehended the question posed by the jury and that his answer left the jury with an alternate route of liability not previously raised during the trial.

HELD: Appeal allowed. The answer to the jury’s question introduced a new, alternative theory of liability without affording the accused an opportunity to respond to it, compromising the fairness of the trial. The judge did not remind the jury that unless it was satisfied that the accused administered lorazepam to his wife without her knowledge, there would be no proof he caused her death by an unlawful act. Instead, he instructed the jury that there was another criminal offence that could suffice as an unlawful act forming the basis on which the jury could decide that the accused caused his wife’s death, namely failing to provide the necessaries of life. As a result, the trial judge’s answer expanded the basis upon which the accused could be found guilty of the offence charged, which was incompatible with the way the case had been conducted. The accused’s ability to provide a full answer and defence to the charge was compromised by the trial judge failing to afford him an opportunity to respond to the new theory of liability introduced by the answer. Accordingly, a new trial was ordered.

R. v. Grandine, [2017] O.J. No. 4794, Ontario Court of Appeal, J.C. MacPherson, J.M. Simmons and D.M. Brown JJ.A., September 15, 2017. Digest No. TLD-Sept252017011