R v Grant: The Tale of Two Tests
On March 5, 2015, the Supreme Court of Canada (“SCC”), in R v Grant, 2015 SCC 9 [Grant], unanimously dismissed the Crown’s appeal, concluding that the trial judge had erred in law in treating the evidence relating to the alleged abduction of P.W. as known third party suspect evidence and in requiring Mark Edward Grant to establish on a balance of probabilities that the alleged abduction of P.W. took place. On these grounds, Karakatsanis J. upheld the order from the Manitoba Court of Appeal (“MBCA”) for a new trial (see 2013 MBCA 95).
Candace Derksen, a 13 year old girl, went missing after school on November 30, 1984. Her body was later discovered tied up in a shed in an industrial yard on January 17, 1985. She had died of hypothermia resulting from exposure.
In May 2007, Grant was arrested and charged with first degree murder on the basis of newly tested DNA evidence. Grant denied any involvement in the abduction-murder. At trial, he sought to adduce evidence of the alleged involvement of an unknown third party suspect, which related to the alleged abduction of 12 year old P.W. on September 6, 1985. Grant had been in custody at the time of the second abduction. Grant argued that the modus operandi and other physical evidence indicated that the same person had abducted both Derksen and P.W.
The similarities between the two cases are as follows: both victims were of a similar age; both were abducted after school on the same day of the week (being Friday); both were found with their hands and feet tied; both were discovered in the same industrial area; a Wrigley’s gum wrapper was discovered at both scenes (however, in the Derksen murder, it was found in the deceased’s pocket, suggesting it may have been her’s); there was no evidence of physical or sexual assault in either case; and the bindings on the wrists of both girls were tied with a “Granny Knot.”
Two Competing Tests
The primary issue in this case concerns which test should be applied when the defence wishes to lead unknown third party suspect evidence: the known third party and similar fact evidence tests outlined in R v Grandinetti,  1 SCR 27 [Grandinetti], and R v Handy,  2 SCR 908 [Handy], respectively, or the admissibility test established in R v Seaboyer; R v Gayme,  2 SCR 577 [Seaboyer]. The answer is the admissibility test.
Known Third Party and Similar Fact Evidence Tests
As advocated for by the trial judge, the present case warranted the application of the known third party suspect test, followed by the test for similar fact evidence.
According to Grandinetti, for evidence relating to a known third party suspect to have any probative value, the evidence must show a “sufficient connection between the third party and the crime…” (Grandinetti, para 47). This sufficient connection can be established by demonstrating that the third party had the motive, opportunity, and the propensity to commit the crime. Although the evidence need only be inferential, the inferences “must be reasonable, based on the evidence, and not amount to speculation.” The court further stated that, “[w]ithout this link, the third party evidence is neither [logically] relevant nor probative” (para 47).
Although similar fact evidence is presumptively inadmissible due to its highly prejudicial effects, such evidence can be admitted where, based on the similarity of the alleged act, the Crown “satisf[ies] the trial judge on a balance of probabilities that…the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception” (Handy, para 55). Additionally, according to R v Arp,  3 SCR 339 [Arp], where similar fact evidence is led by the Crown to establish the “identity of the perpetrator of the crime,…” the Crown must satisfy that trial judge that, on a balance of probabilities, “the same person committed the alleged similar acts” (Arp, para 48).
Contrary to the trial judge’s opinion, the MBCA contended that the appropriate test was the admissibility test established in Seaboyer.
The first stage of the admissibility test requires that the defence must establish the logical relevance of the evidence. The defence-led evidence of the unknown third party suspect will be logically relevant if the accused can demonstrate “a sufficient connection – or similarity – between the crime charged and another crime the accused could not possibly have committed to support the logical inference that the same person committed both crimes” (Grant, para 7).
Additionally, since Grant intended to utilize the unknown third party suspect evidence to support his defence that he did not abduct and murder Derksen, it was also necessary for Grant to point to evidence on the record that would give the defence an “air of reality.” The air of reality test requires a trial judge to determine whether there is some evidence that is “reasonably capable of supporting the inferences required for the defence to succeed” (R v Cinous,  2 SCR 3, para 83 [Cinous]).
The second stage requires that the trial judge balance the probative value of the evidence against any prejudicial effects it may have if admitted. As explained in Seaboyer, for defence-led evidence “the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence…” [emphasis added] (Seaboyer, 611). (In comparison, prejudicial evidence led by the Crown need only outweigh its probative value in order to be inadmissible.)
The first error of the trial judge was to apply a test for known third party suspect evidence to a case concerning unknown third party suspect evidence. The consequence of such an application would ultimately amount to the placement of an unrealistic burden on the accused since it would require the establishment of the motive, opportunity or propensity of an unknown individual. As such, there exists “no principled reason to require that the connection be established by evidence relating directly to the third party where that individual is unknown” (Grant, para 26) [emphasis added].
The trial judge also erred in attempting to contort the similar fact evidence test to fit the facts of Grant. While the evidence in question was “akin to similar-fact evidence[,]…” it was not led by the Crown but rather by the defence (para 32). As a result, the test that governs its admissibility is the test established in Seaboyer, not Handy.
For the defence, evidence concerning an unknown third party suspect is only similar fact evidence to the extent that “its probative value is derived from the similarity between the incidents where it is impossible for the accused to have committed the uncharged offence” (para 34). The particular problem with this is that the test for similar fact evidence would shift the onus to the accused to prove on a balance of probabilities that the same person committed the alleged similar acts.
Not only is this inconsistent with the lower evidential burden of the accused to put a defence in issue by adducing sufficient evidence “upon which a properly instructed jury acting reasonably could acquit” (Cinous, para 49), it also imposes a persuasive burden on the accused to prove his innocence by rendering such defence-led evidence presumptively inadmissible (Grant, para 34). While the known third party and similar fact evidence tests employed by the trial judge may provide insights into the underlying concerns and principles of Grant, “they should not be stretched beyond the particular circumstances that they were designed to address” (para 6).
As a result, Karakatsanis J. concluded that “the admissibility of evidence concerning an unknown third party suspect is best determined in accordance with the broader, principled approach to the admission of evidence found in Seaboyer” (para 37). The primary rationale for this was that the admissibility test allows a trial judge to tailor the evaluation and weighing of the probative value and prejudicial effect of the evidence if it is admitted to the specific facts of a case.
In my opinion, both the MBCA and Karakatsanis J. were warranted in concluding that the evidence was relevant, thus satisfying the first stage of the admissibility test, since the similarities between the two cases clearly make it more likely that the same person committed both crimes. Additionally, the evidence that Grant was in custody at the time of the P.W. incident, and therefore could not have committed the second offence, coupled with the similarities between the two offences, is reasonably capable of supporting the inference that an unknown third party committed both offences. As such, there is an air of reality to the unknown third party suspect defence.
Although neither the MBCA nor the SCC weighed the high probative value of the evidence against its potential prejudicial effect, it can be reasoned that the prejudicial effect would not significantly outweigh its probative value. First, it is unlikely that the evidence would unduly arouse the jury’s emotions of prejudice, hostility or sympathy. Second, while the evidence may create a side issue that may distract the jury from the main issues of the case, its effect would not be unduly.
Third, it is obvious that the evidence will consume a greater amount of time then if the evidence were not admitted, however, it would not do so unduly. Fourth, the evidence will likely not occasion an unfair surprise for the Crown. Lastly, the evidence will likely not usurp the function of the jury since the jury will still be required to determine whether or not the evidence provides reasonable doubt.
What is most important about Grant is that it illustrates the detrimental consequences that can arise from applying an incorrect test. Based on the application of the known third party and similar fact evidence tests, the trial judge concluded that the evidence was insufficiently probative to justify the impact its admission would have on the length and complexity of the trial. In light of how compelling the logic is in both the MBCA and SCC decisions, it is difficult to speculate how the trial judge could have reached any other conclusion than the decision that was arrived at by the MBCA, namely that the evidence was highly relevant.