Appellate Courts are not Triers of Fact: An Error of Evidence Law in R v Grover

On November 22, the Supreme Court of Canada (“SCC”) delivered its decision in R v Grover, [2007] 3 SCR 510. The succinct decision was summarized by Tom Schreiter in an earlier post, but I would like to comment on an aspect of the decision as well. Briefly, Mr. Grover was convicted of attempting to obstruct justice by attempting to alter and falsify testing and maintenance records for smoke alarms following a fire, contrary to section 139(2) of the Criminal Code, RSC 1985, c C-46. At trial, the trial judge found that the documents were false, and that from all of the circumstances, Mr. Grover knew that they were false. The Saskatchewan Court of Appeal (“SKCA”) set aside Mr. Grover’s conviction, however, finding that the verdict was not one that a properly instructed jury, acting judicially, could reasonably have rendered. The appeal court based its conclusion on the view that the controversial actions of Mr. Grover were capable of more than one explanation.

The dissenting judge at the SKCA emphasized the fact that Mr. Grover testified at the trial. While the majority of the SKCA hypothesized an alternate version of events in setting aside the conviction, the dissenting judge said that “[w]here the accused testifies and offers an explanation for his or her actions, which the trial judge then rejects, it is not the task of a court of appeal to come up with another rational explanation” (para 26). The SCC endorsed the dissenter’s reasoning, holding that it was not open to the SKCA to acquit Mr. Grover on the basis of speculation about a possible explanation of his conduct, especially an explanation that was “flatly contradicted” by the accused’s own testimony at trial. As Tom accurately states, the SCC “ruled quite forcefully” that the finder of fact’s conclusions are to be respected.

The SKCA, in my view and in the eyes of the SCC, made a notable mistake with regard to the law of evidence. I wish to mention it only because the SCC’s short decision did not specifically address the appeal court’s central mistake of law. In my view, by creating their own explanation for Mr. Grover’s actions, the SKCA ignored the premise that credibility is primarily assessed by observing the demeanour of the witness or the accused in live court. The trier of fact, in such a situation, can gauge the accused’s reaction to questions, the degree of commitment to the statement made, and his or her sincerity and honesty, among other considerations. This is also an important factor behind the inadmissibility of hearsay: the truth of the contents of a hearsay statement cannot be tested in live court, where it can most accurately be assessed.

With this principle in mind, it is extremely problematic that the findings of the trial judge were overturned by the appeal court in such a fashion. The trial judge had the benefit of observing Mr. Grover’s own testimony, and convicted the accused based in part on these observations. The SKCA, without the aid of similar live testimony, created a possible explanation for Mr. Grover’s inculpatory actions and ignored this central principle of the law of evidence. While other mistakes may have also caught the eye of the SCC in its overturning of the appeal court’s decision, this is the most significant error of law in my view of the case.