Her Majesty The Queen Appellant v. Mark Edward Grant, 2015 SCC 9

SUPREME COURT OF CANADA Citation: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475 Date: 20150305 Docket: 35664 Between: Her Majesty The Queen Appellant and Mark Edward Grant Respondent Coram: Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ. Reasons for Judgment: (paras. 1 to 65) Karakatsanis J. (Abella, Rothstein, Cromwell, Moldaver, Wagner and Gascon JJ. concurring) r. v. grant, 2015 SCC 9, [2015] 1 S.C.R. 475 Her Majesty The Queen Appellant v. Mark Edward Grant Respondent Indexed as: R. v. Grant 2015 SCC 9 File No.: 35664. 2014: November 14; 2015: March 5.

Present: Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ. on appeal from the court of appeal for manitoba Criminal law — Defences — Evidence — Admissibility — Unknown third party suspect — Accused denied involvement in abduction-murder case — Accused sought to adduce evidence at trial that unknown third party suspect involved in similar alleged abduction which accused could not have committed — Trial judge found on balance of probabilities that alleged abduction had not happened and refused to admit evidence — Appropriate framework for determining admissibility of defence-led evidence concerning

unknown third party suspect — To what extent framework requires trial judge to assess and weigh evidence of unknown third partysuspect. In 2007, G was charged with the first degree murder of D, a notorious cold-case, on the basis of newly-tested DNAevidence. G denied any involvement in the murder, and sought to adduce evidence to suggest that, based on the modus operandi andother physical evidence, D’s abductor had also abducted W while G was in custody.

Having found that the same legal test applied to the admissibility of known third party suspect evidence and unknown thirdparty suspect evidence, the trial judge concluded on a balance of probabilities that the alleged abduction of W had not happened. Herefused to admit the evidence. G was convicted of second degree murder by the jury. The Manitoba Court of Appeal concluded that Gshould have been permitted to lead the evidence, allowed his appeal and ordered a new trial. Held: The appeal should be dismissed.

While the tests governing known third party suspect evidence and similar fact evidence may provide useful insights into theunderlying concerns and principles, they should not be stretched beyond the particular circumstances that they were designed to address.Instead, first principles governing the admissibility of evidence properly balance the competing interests that arise when the defenceseeks to lead evidence of an unknown third party suspect.

Defence-led evidence is admissible where (1) the evidence is relevant to a fact in issue, and (2) the probative value of theevidence is not substantially outweighed by its prejudicial effects. The trial judge must therefore first determine whether the evidence islogically relevant to an available defence. Where the defence’s theory is that an unknown third party committed the indicted crime, thisfactual foundation will be established by a sufficient connection between the crime for which the accused is charged and the allegedlysimilar incident(

s) suggesting that the crimes were committed by the same person, coupled with evidence that the accused could not havecommitted the other offence. Once a sufficient connection is shown, the evidence will be admissible unless its prejudicial effectssubstantially outweigh its probative value. This assessment is inherently individualized, and is capable of responding to various levelsand forms of prejudice. It does not require the accused to satisfy a higher admissibility threshold or require the trial judge to engage in anenhanced evaluation of the evidence.

The trial judge may not invade the province of the jury and determine the strength of the evidence. In this case, the trial judge erred in law in treating the evidence relating to the alleged abduction of W as known third partysuspect evidence and in requiring G to establish on a balance of probabilities that the alleged abduction of W took place. These errorsentitled the Court of Appeal to conduct its own assessment of the evidence.

It was entitled to conclude that there was evidence uponwhich the jury could find that the alleged crime against W had occurred and, having regard to the similarities, that it had been committedby the same person who killed D. The evidence that G could not have committed the offence against W and the evidence of similaritiesbetween the two offences would have provided some evidence capable of giving the unknown third party suspect defence an air ofreality.

While an appellate court is entitled to step into the shoes of the trial judge if the record permits, in this case, the Court of Appealwas not in the position to assess and weigh the extent of the probative value and the extent of prejudicial effect of the unknown thirdparty suspect evidence. The trial judge’s legal errors were clearly not minor, and do not attract the application of the curative proviso in s.686(1)(b)(iii) of the Criminal Code.

The verdict would not necessarily have been the same had the trial judge applied the correctprinciples in determining the test for the admissibility of this defence evidence. As this case must be re-tried in any event, the balancingof the probative value and the prejudicial effect of the evidence is best left for the trial judge. Cases Cited Applied: R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577; distinguished: R. v. Handy, 2002 SCC 56, [2002] 2S.C.R. 908; referred to: R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27; R. v. L. (D.O.), (SCC), [1993] 4 S.C.R.419; R. v. Corbett, (SCC), [1988] 1 S.C.R. 670; R. v.

Noël, 2002 SCC 67, [2002] 3 S.C.R. 433; Sweitzer v. The Queen, (SCC), [1982] 1 S.C.R. 949; R. v. Harrer, (SCC), [1995] 3 S.C.R. 562; R. v. Shearing, 2002 SCC 58,[2002] 3 S.C.R. 33; R. v. Arcangioli, (SCC), [1994] 1 S.C.R. 129; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3;McMillan v. The Queen, (SCC), [1977] 2 S.C.R. 824, aff’g (1975), (ON CA), 7 O.R. (2d) 750; State v.Scheidell, 227 Wis.2d 285 (1999); United States v. Stevens, 935 F.2d 1380 (1991); Wiley v. State, 74 S.W.3d 399 (2002); United States v.McVeigh, 153 F.3d 1166 (1998); Caldwell v. State, 356 S.W.3d 42 (2011); Davis v.

State, 413 S.W.3d 816 (2013); R. v. Arp, (SCC), [1998] 3 S.C.R. 339; R. v. B. (C.R.), (SCC), [1990] 1 S.C.R. 717; R. v. Scopelliti (1981), (ON CA), 34 O.R. (2d) 524; R. v. Pollock (2004), (ON CA), 187 C.C.C. (3d) 213; R. v. Kendall (1987), (ON CA), 35 C.C.C. (3d) 105; R. v. Sims (1994), (BC CA), 28 C.R. (4th) 231; R. v. Hamilton, 2003BCCA 490, 180 C.C.C. (3d) 80; R. v. Brousseau, 2006 QCCA 858; State v. Sullivan, 216 Wis.2d 768 (1998); R. v. Murphy, 2012 ONCA573, 295 O.A.C. 281; R. v. Underwood, 2002 ABCA 310, 170 C.C.C. (3d) 500; R. v. Clarke (1998), (ON CA), 129C.C.C. (3d) 1; R. v.

Jackson, 2013 ONCA 632, 301 C.C.C. (3d) 358, aff’d 2014 SCC 30, [2014] 1 S.C.R. 672; R. v. C. (T.) (2004), (ON CA), 189 C.C.C. (3d) 473; R. v. Humaid (2006), (ON CA), 37 C.R. (6th) 347; R. v. Hart, 2014SCC 52, [2014] 2 S.C.R. 544; R. v. Buzizi, 2013 SCC 27, [2013] 2 S.C.R. 248; R. v. Stinchcombe, (SCC), [1991] 3S.C.R. 326; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v.Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Morin, (SCC), [1988] 2 S.C.R. 345. Statutes and Regulations Cited Criminal Code, R.S.C. 1985, c.

C-46, ss. 278.1 to 278.91, 686(1)(b)(iii). Criminal Justice Act 2003 (U.K.), 2003, c. 44, s. 100(1)(b), (3)(c), (d). Authors Cited Cross on Evidence, 9th Australian ed. by John D. Heydon. Chatswood, N.S.W.: LexisNexis Butterworths, 2013. Phipson on Evidence, 18th ed. by Hodge M. Malek et al. London: Sweet & Maxwell, 2013.

APPEAL from a judgment of the Manitoba Court of Appeal (Chartier C.J.M. and Monnin and Hamilton JJ.A.), 2013 MBCA95, 299 Man. R. (2d) 202, 590 W.A.C. 202, 302 C.C.C. (3d) 491, [2014] 2 W.W.R. 239, [2013] M.J. No. 322 (QL), 2013 CarswellMan525 (WL Can.), setting aside a conviction for second degree murder entered by Joyal A.C.J. and ordering a new trial. Appeal dismissed. Amiram Kotler and Rekha Malaviya, for the appellant. Saul B. Simmonds, Vanessa Hébert and Laura Robinson, for the respondent. The judgment of the Court was delivered by Karakatsanis J. — I.

Introduction [1] In 2007, the respondent, Mark Edward Grant, was charged with the first degree murder of Candace Derksen, anotorious cold-case murder that occurred in Winnipeg, Manitoba, almost 23 years earlier. The Crown’s case depended substantially onthe recent analysis of small quantities of DNA found at the scene of the crime. Mr. Grant challenged the DNA evidence and sought tolead evidence suggesting that an unknown third party suspect had committed the crime. The trial judge refused to admit the evidence ofan allegedly similar offence committed within months of the Derksen murder, while Mr.

Grant was in custody on an unrelated matter.[1] Mr. Grant was subsequently convicted of second degree murder by the jury. The Manitoba Court of Appeal concluded that Mr. Grantshould have been permitted to lead the evidence.

It allowed his conviction appeal and ordered a new trial. [2] The issues before this Court are the appropriate framework for determining the admissibility of defence-ledevidence concerning an unknown third party suspect, and to what extent this framework requires the trial judge to assess and weigh theevidence. [3] Obviously, the identification of an accused as the perpetrator of the crime charged is essential to establishingcriminal liability. The burden to prove beyond a reasonable doubt that the person before the court is the guilty party rests squarely on theCrown.

In accordance with the presumption of innocence, the accused is never required to prove her innocence. An accused person’sCharter-protected right to make full answer and defence entitles her to challenge the Crown’s case and lead evidence to raise areasonable doubt about whether the accused committed the crime. [4] However, the accused’s rights are not the only interests at stake. The integrity of the administration of justicerequires that the proceedings stay focused on the indicted crime and not devolve into trials within a trial about matters that may not besufficiently connected to the case.

Such tangents risk causing delays, confusion and distractions that undermine the trial’s truth-seekingfunction. This risk is especially heightened where the defence seeks to introduce other alleged suspects or crimes into the trial. [5] The parties agree that balancing these interests requires the trial judge to evaluate the probative value of defence-led evidence of an unknown third party suspect against the elevated risks it poses to the integrity of the trial, but disagree about what thisevaluation entails.

The appellant the Manitoba Prosecution Service (the Crown) says that the trial judge must apply the stringentadmissibility tests developed for known third party suspect and similar fact evidence. The defence maintains that these tests place anunfair burden on the accused and that the general rules of admissibility adequately address the issues of relevance, probative value andprejudicial effects. [6] In my view, it is not helpful to slot evidence concerning an unknown third party suspect into categories that werenot designed to accommodate it.

While the tests governing known third party suspect evidence and similar fact evidence may provideuseful insights into the underlying concerns and principles, they should not be stretched beyond the particular circumstances that theywere designed to address. [7] Instead, first principles governing the admissibility of evidence properly balance the competing interests that arisewhen the defence seeks to lead evidence of an unknown third party suspect. In such cases, the defence must first establish the logicalrelevance of the evidence.

This may be done by demonstrating a sufficient connection ― or similarity ― between the crime charged andanother crime the accused could not possibly have committed to support the logical inference that the same person committed bothcrimes. Once this threshold is met, the evidence will be admissible unless its prejudicial effects substantially outweigh its probativevalue (R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577). [8] In this case, I conclude that the trial judge erred in evaluating and assessing the credibility of the unknown thirdparty suspect evidence on a balance of probabilities.

I agree with the Court of Appeal that a new trial is required. II. Facts [9] Candace Derksen, a 13-year-old girl, went missing after leaving school on Friday, November 30, 1984. Her bodywas discovered tied up in a shed in an industrial yard on January 17, 1985. She had died of hypothermia resulting from exposure. [10] In May 2007, Mr. Grant was arrested and charged with first degree murder on the basis of newly tested DNAevidence. [11] Mr. Grant denied any involvement in the abduction-murder, and sought to adduce evidence of the allegedinvolvement of an unknown third party suspect.

That evidence related to the alleged abduction of a 12-year-old girl (P.W.) after she leftschool on Friday, September 6, 1985, at a time when Mr. Grant was in custody. Mr. Grant argued that the modus operandi and otherphysical evidence indicated that the same person had abducted both Candace Derksen and P.W. A. Manitoba Court of Queen’s Bench

[12] In reviewing the applicable legal framework, Joyal A.C.J.Q.B. concluded that the legal test set out in R. v.Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, applies equally to admissibility of both unknown third party suspect evidence and knownthird party suspect evidence. Thus, evidence of an unknown third party suspect could be “admitted only after some threshold evidenceha[d] been demonstrated respecting a link between the third party, known or unknown, and the crime before the court” (trial transcript,A.R., vol. III, at p. 48).

The trial judge also referred to this Court’s jurisprudence for similar fact evidence and, specifically, to R. v.Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. [13] After reviewing the documentary and testimonial evidence adduced on the voir dire, the trial judge found that hewas “not, even on a balance of probabilities, able to conclude that the alleged offence [against P.W.] happened” (A.R., vol. I, at pp. 8-9). As a result, he found there could be no unknown third party suspect and thus “no useable similarities” (p. 9).

The trial judge concludedthat the evidence was not sufficiently probative to justify the impact its admission would have on the length and complexity of the trial,and ordered that the defence not make any reference to the P.W. incident. B. Manitoba Court of Appeal, 2013 MBCA 95, 299 Man. R. (2d) 202 [14] Before the Manitoba Court of Appeal, Mr. Grant appealed his conviction and brought a motion to adduce freshevidence relating to DNA analysis and juror bias. After rejecting several grounds relating to the conviction, Monnin J.A., writing for thecourt, held that the trial judge erred in not allowing Mr.

Grant to lead evidence relating to an alleged unknown third party suspect (paras.9-10, 78). [15] The Court of Appeal concluded that the trial judge made factual and credibility findings that “he was not entitled tomake” in determining admissibility and that he relied “almost exclusively on the viva voce evidence of P.W. to the exclusion of all of theother evidence before him, including P.W.’s two prior statements” (para. 68).

The trial judge erred in applying the balance ofprobabilities standard to determine whether the P.W. incident occurred; he should have instead applied the Seaboyer test that broadlygoverns the admissibility of defence-led evidence (paras. 73-74). Furthermore, in determining whether the defence theory had an air ofreality, all that was required was “some evidence” that could leave a jury with a reasonable doubt as to the accused’s guilt (para. 68). [16] The Court of Appeal characterized the evidence tendered in this case as “more akin to similar-fact evidence” than toknown third party suspect evidence (para. 72).

However, the court concluded that the test applicable to Crown-led similar fact evidencedoes not apply when such evidence is advanced by an accused; rather, defence-led similar fact evidence is admissible unless itsprejudicial effects substantially outweigh its probative value, in accordance with Seaboyer. [17] The Court of Appeal concluded that the evidence pertaining to the P.W. incident was “very relevant” and “pointed tothe possibility that the same person who killed Candace Derksen abducted P.W., if the jury so found that to have occurred” (para. 70). As Mr.

Grant was in custody at the time of the P.W. incident, this evidence “could provide the basis upon which a reasonable, properlyinstructed jury could acquit” (ibid.). The court concluded that, since the prejudicial effects of the evidence did not substantiallyoutweigh its probative value, Mr. Grant should have been permitted to place the evidence of the P.W. incident before the jury (para. 78). The court noted that this evidence was also relevant in assessing the evidence of the defence DNA expert that excluded Mr. Grant as asuspect.

The accused was denied his opportunity to make full answer, and this legal error was sufficient to set aside the conviction andorder a new trial. III. Analysis A. Principles Governing the Admission of Defence Evidence in Criminal Proceedings [18] The truth-seeking function of the trial creates a starting premise that all relevant evidence is admissible (R. v. L.(D.O.), (SCC), [1993] 4 S.C.R. 419; R. v. Corbett, (SCC), [1988] 1 S.C.R. 670). Evidence is logicallyrelevant where it has any tendency to prove or disprove a fact in issue (Corbett, at p. 715). [19] However, not all relevant evidence is admissible.

The trial judge must also balance the probative value of theevidence against the prejudicial effects of its admission (R. v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433; Corbett; Sweitzer v. The Queen, (SCC), [1982] 1 S.C.R. 949; Seaboyer; R. v. Harrer, (SCC), [1995] 3 S.C.R. 562). Evidence led by theCrown will be excluded where its prejudicial effects outweigh its probative value (Seaboyer). The presumption of the accused’sinnocence leads us to strike a different balance where defence-led evidence is concerned.

As this Court explained in Seaboyer, “theprejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed bylaw” (p. 611; see also R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; R. v. Arcangioli, (SCC), [1994] 1 S.C.R. 129). [20] In order for the judge to put a defence to the jury, the accused must point to evidence on the record that gives thedefence an air of reality (R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3).

The trial judge must determine whether there is some evidencethat is “reasonably capable of supporting the inferences required for the defence to succeed” (ibid., at para. 83). The air of reality testapplies to all defences, and acts as a threshold to ensure that “fanciful or far-fetched” defences are not put before the trier of fact (para.84). When applying this test, the trial judge must take the evidence to be true and must not assess credibility or make other findings offact (para. 54). [21] These principles are distinct, but may be interrelated.

In most cases, where the defence evidence relates to the factsunderlying the offence charged, the logical relevance and the admissibility of the evidence will be obvious. However, where theevidence refers to a factual matrix beyond the offence charged, its relevance to a fact in issue or an available defence may be less clear. In such circumstances, the gate-keeping role of the trial judge may require her to determine whether the evidence is logically relevantand connected to a defence that has an air of reality.

For example, while the degree of similarity may be logically relevant to whether thesame person committed the offence, it will not relate to a fact in issue at trial unless the defence has an air of reality. In this case, theunknown third party suspect defence will not have an air of reality unless there is evidence that the accused could not have committedthe other offence. Thus, logical relevance will sometimes be assessed with reference to whether the defence for which the evidence istendered is available. That said, the air of reality test set out in Cinous does not displace the Seaboyer admissibility test.

The air ofreality test and the Seaboyer admissibility test remain two distinct inquiries.

[22] These principles are firmly established in this Court’s jurisprudence and are not generally challenged by the partiesto this appeal. Instead, the dispute concerns their proper application to evidence concerning an unknown third party suspect. [23] The Crown argues that a modified version of Seaboyer must be applied, incorporating aspects of the tests governingsimilar fact and known third party suspect evidence. I disagree. As I discuss below, these tests are designed to respond to the particularrisks and benefits presented by particular types of evidence.

Where evidence does not fit within these categories ― where it does notpresent these specific risks and benefits ― its admission is governed directly by the general principles of admissibility set out in Corbettand Seaboyer. B.

The Known Third Party Suspect Test Does Not Provide the Proper Template for Determining the Relevance of UnknownThird Party Suspect Evidence [24] In order for evidence relating to a known third party suspect to have any probative value, the evidence must show asufficient connection between the third person and the crime for which the accused is charged (Grandinetti, at para. 47; McMillan v. TheQueen, (SCC), [1977] 2 S.C.R. 824). The defence points to such evidence to raise a reasonable doubt that someone elsecommitted the crime in question.

Evidence that this third person had the motive, the means, or the propensity to commit the crime willoften establish this sufficient connection. [25] As this Court recognized in McMillan, the sufficient connection test is nothing more than an elaboration of thelogical relevance analysis applied in the particular context of allegations that another, known individual committed the crime (pp. 828-29). Abella J. affirmed this point in Grandinetti, where she wrote: The requirement that there be a sufficient connection between the third party and the crime is essential.

Without this link, the third partyevidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on theevidence, and not amount to speculation. [para. 47] Without a sufficient connection between the third party and the crime, the evidence of a known third party suspect is simply not logicallyrelevant. [26] There is no principled reason to require that the connection be established by evidence relating directly to the thirdparty where that individual is unknown.

Such an articulation of the test ― designed, for example, to capture the motive, propensity oropportunity of a known third party to commit the crime ― would place an unrealistic burden on the accused. How could an accusedestablish the motive, propensity or opportunity of an unknown individual? (See, on this point, State v. Scheidell, 227 Wis.2d 285 (1999),at paras. 24-27.) [27] Where the third party’s identity is unknown, the nature of the connection must reflect a different factual matrix.

Insuch circumstances, the sufficient connection ― to anchor the relevance and probative value of the evidence ― generally arises fromsimilarities between the crime charged and another crime that the accused could not possibly have committed. [28] This focus on the similarities between the offences is not a formulation of a new, categorical test. Rather, it reflectsthe principles underlying Grandinetti which play out differently in different factual contexts.

Like known third party suspect evidence,“in the absence of some nexus with the alleged offence”, unknown third party suspect evidence will constitute mere speculation (R. v.McMillan (1975), (ON CA), 7 O.R. (2d) 750 (C.A.), at p. 758, aff’d (SCC), [1977] 2 S.C.R. 824).

Unless the circumstances and similarities to the other offence are sufficient to suggest that the same individual committed both crimes,unknown third party suspect evidence will not be logically relevant. [29] This is consistent with the approaches taken by other common law jurisdictions in assessing defence-led evidence ofsimilar acts.[2] [30] A finding of logical relevance does not end the admissibility inquiry. Even the Grandinetti sufficient connection testspeaks only to the probative value side of the Seaboyer equation.

Once the relevance threshold is met, the trial judge must still besatisfied that the probative value of the evidence tendered by the defence is not substantially outweighed by its prejudicial effects. C. The Admissibility Test for Crown-led Similar Fact Evidence Does Not Apply to Defence-led Evidence of the Similar Acts of aNon-accused [31] Similar fact evidence is, most commonly, evidence of the accused’s prior bad acts led by the Crown. Such evidenceis presumptively inadmissible, as its highly prejudicial effects generally outweigh its probative value (R. v. Arp, (SCC),[1998] 3 S.C.R. 339; Handy).

As this Court noted in R. v. B. (C.R.), (SCC), [1990] 1 S.C.R. 717, at p. 732, puttingevidence of the accused’s “prior immoral or illegal acts” before the jury inevitably results in a “heavy prejudice” to the accused.

Thepresumptive inadmissibility of this evidence is tied to both the moral aspect of this prejudice ― the danger that the trier of fact willwrongfully convict the accused simply to condemn her for her prior bad acts ― and the reasoning aspect of this prejudice ― the dangerthat the trier of fact will become distracted by the similar bad act evidence and accord it more weight than it merits (Handy, at paras.139-47).

Exceptionally, similar fact evidence will be admitted where, based on the similarity of the alleged acts, 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 itspotential prejudice and thereby justifies its reception” (Handy, at para. 55).

Where the Crown leads similar fact evidence to establish theidentity of the perpetrator, the Crown must satisfy the trial judge that, on a balance of probabilities, “the same person committed thealleged similar acts” (Arp, at para. 48). [32] In addition to applying the Grandinetti test for known third party suspects, the trial judge in the present case applieda “balance of probabilities” threshold test to determine whether the P.W. incident actually occurred. In so doing, he referred to theadmissibility test for Crown-led similar fact evidence, as set out in Handy.

The Court of Appeal found that the evidence in question was“akin to similar-fact evidence”, but noted that, because this is defence-led evidence, Seaboyer, not Handy, governs its admissibility(paras. 73-74).

[33] This conclusion is consistent with the approach taken by Canadian appellate courts where evidence of a non-accused’s similar acts is sought to be introduced. Appellate courts faced with this issue have consistently found that such evidence is notgoverned by the test applicable to evidence of an accused’s similar acts (see, for example, R. v. Scopelliti (1981), (ONCA), 34 O.R. (2d) 524 (C.A.); R. v. Pollock (2004), (ON CA), 187 C.C.C. (3d) 213 (Ont. C.A.), at para. 104; R. v.Kendall (1987), (ON CA), 35 C.C.C. (3d) 105 (Ont. C.A.); R. v. Sims (1994), (BC CA), 28 C.R.(4th) 231 (B.C.C.A.); R. v.

Hamilton, 2003 BCCA 490, 180 C.C.C. (3d) 80; R. v. Brousseau, 2006 QCCA 858). [34] Defence-led evidence concerning an unknown third party suspect is only similar fact evidence in the sense that itsprobative value is derived from the similarity between the incidents where it is impossible for the accused to have committed theuncharged offence. An onus requiring proof on a balance of probabilities is not consistent with the lower evidential burden of theaccused to put a defence in issue by adducing sufficient evidence “upon which a properly instructed jury acting reasonably could acquit”(Cinous, at para. 49).

Rendering such defence-led evidence presumptively inadmissible would effectively impose a persuasive burden onthe accused to prove her innocence. As this Court noted in Seaboyer, the test governing defence-led evidence must be accountable to“the fundamental tenet of our judicial system that an innocent person must not be convicted” (p. 611). [35] Moreover, unknown third party suspect evidence does not risk causing moral prejudice to the accused. Suchevidence is intended to be exculpatory when raised by an accused, as it was in this case.

Although the evidence engages some of thesame reasoning prejudice concerns as does evidence of the prior bad acts of the accused (Arp, at para. 40; Handy, at para. 37), thisprejudice can be addressed directly under Seaboyer. [36] To conclude, the balance of probabilities test governing the admissibility of similar fact evidence does not apply tounknown third party suspect evidence proffered by the accused.

The similarity of the acts goes to the relevance of the evidence, butimposing the onus of the Handy test on the accused is neither consistent with the presumption of innocence nor necessary to protect theaccused from moral prejudice. Any reasoning prejudice or risks to the integrity of the trial process engaged by this evidence are betteraddressed directly within the Seaboyer framework. D.

The Seaboyer Test Applies to the Admission of Unknown Third Party Suspect Evidence [37] In my view, the admissibility of evidence concerning an unknown third party suspect is best determined inaccordance with the broader, principled approach to the admission of evidence found in Seaboyer. Evaluating the admissibility of thisevidence under Seaboyer, rather than under disparate tests not designed for its particularities, allows the trial judge to tailor herevaluation and weighing of the probative value and prejudicial effects of the evidence to the specific facts presented.

In accordance withSeaboyer, once the evidence has been found to be relevant, unknown third party suspect evidence will be admitted unless its prejudicialeffects substantially outweigh its probative value. [38] As noted above, there are two components to the Seaboyer analysis. First, in applying Seaboyer, the trial judgemust assess the potential probative value of the evidence.

Where the evidence relates to an unknown third party suspect, probative valuewill depend in part on the strength of the connection or nexus between the two events ― that is, the degree of similarity between theindicted crime and the allegedly similar incident. As the Supreme Court of Wisconsin noted in Scheidell, “the greater the similarity,complexity, and distinctiveness of the events, as well as the relative frequency of the event, the stronger the case for admission” (para.41, citing State v.

Sullivan, 216 Wis.2d 768 (1998), at para. 54). [39] Second, the Seaboyer test is concerned with the potential prejudicial effects of the evidence. Unknown third partysuspect evidence, like Crown-led similar fact evidence, poses a particular risk of reasoning prejudice.

Introducing evidence of othercrimes that are sufficiently similar to the crime charged may risk “the distraction of members of the jury from their proper focus on thecharge itself aggravated by the consumption of time” (Handy, at para. 144). [40] However, these significant prejudicial effects must nonetheless be evaluated in accordance with the fundamentalprinciples governing criminal proceedings.

In giving constitutional protection to the accused’s rights to make full answer and defenceand to be presumed innocent until proven guilty, we must accept a certain amount of complexity, length, and distraction from theCrown’s case as a necessary concession to the actualization of those rights. (See, for example, Scheidell, at para. 65, per AbrahamsonC.J., dissenting in the result.) [41] Contrary to the Crown’s submissions, applying Seaboyer does not “mak[e] the test for admissibility turn on whetheror not the third party is named” (A.F., at para. 44).

Known third party suspect evidence is already subject to the Seaboyer admissibilitytest: do the prejudicial effects substantially outweigh the probative value? (See, for example, R. v. Murphy, 2012 ONCA 573, 295O.A.C. 281 (third party suspect evidence); R. v. Underwood, 2002 ABCA 310, 170 C.C.C. (3d) 500 (hearsay evidence of a third partysuspect).) Indeed, defence-led evidence is generally subject to Seaboyer (Shearing (defence cross-examination of a complainant); R. v.Clarke (1998), (ON CA), 129 C.C.C. (3d) 1 (complainant’s credibility); R. v.

Jackson, 2013 ONCA 632, 301 C.C.C.(3d) 358, aff’d 2014 SCC 30, [2014] 1 S.C.R. 672 (deceased victim’s criminal convictions); R. v. C. (T.) (2004), (ON CA), 189 C.C.C. (3d) 473 (Ont. C.A.) (third party records in the possession of the accused); Pollock (character evidence of a co-accused); R. v. Humaid (2006), (ON CA), 37 C.R. (6th) 347 (Ont. C.A.) (defence hearsay evidence); Hamilton (badcharacter evidence of the deceased)).

Thus, while the principles in Seaboyer will always apply, they play out differently in differentsituations. [42] As this discussion demonstrates, many of the concerns animating the specific tests governing the admissibility ofknown third party suspect and similar fact evidence are also addressed in the Seaboyer analysis. In all cases, the evidence must bebeyond mere speculation and conjecture. The value of the evidence must be balanced against the risks posed to the integrity of the trialwhen a party seeks to expand the ambit of the trial to individuals or events not directly related to the crime indicted. E.

The Trial Judge’s Role as Evidentiary Gatekeeper and the Seaboyer Test [43] The Crown argues that the trial judge, as gatekeeper, must assess the quality and reliability of evidence as part of theadmissibility inquiry. In light of the elevated risks posed by unknown third party suspect evidence, the Crown submits that the Court of

Appeal dangerously lowered the threshold for third party suspect evidence by applying the “some evidence” standard articulated inCinous. For the reasons that follow, I do not accept this submission. [44] The trial judge plays a fundamentally important role as evidentiary gatekeeper, tasked with preserving both the rightof the accused to make full answer and defence and the integrity of the trial process.

To fulfill this mandate, the trial judge engages in alimited weighing of the evidence to ensure that the jury only considers evidence (1) that is relevant to a fact in issue, including anavailable defence; and (2) whose probative value is not substantially outweighed by its prejudicial effects. These inquiries oftenoverlap.

However, the trial judge is not permitted to invade the province of the jury and determine the strength of the evidence (R. v.Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 98). [45] The trial judge must determine whether the evidence is logically relevant to an available defence ― one that can beput to the jury. The air of reality test requires the trial judge, taking the proposed evidence at its greatest strength, to determine whetherthe record would contain “a sufficient factual foundation for a properly instructed jury to give effect to the defence” (R. v.

Buzizi, 2013SCC 27, [2013] 2 S.C.R. 248, at para. 16). Where the defence’s theory is that an unknown third party committed the indicted crime, thisfactual foundation will be established by a sufficient connection between the crime for which the accused is charged and the allegedlysimilar incident(s), coupled with the impossibility that the accused committed the other offence. [46] The trial judge must also assess and balance the extent of the probative value and prejudicial effects of the evidencein accordance with Seaboyer.

Like the air of reality test, the Seaboyer admissibility test does not permit the trial judge to decide howmuch weight to give the evidence or to make findings of fact. Doing so would usurp the role of the jury and would place a persuasiveburden on the accused inconsistent with the presumption of innocence. [47] The Crown argues that the substantial prejudice arising from evidence concerning an unknown third party suspectrequires a higher threshold for both admissibility and putting the defence to the jury. However, substantial prejudice does not require ahigher threshold; it simply weighs heavier in the balance.

The Seaboyer admissibility test does not presuppose a particular level ofprejudice or probative value for certain categories of evidence; instead, it requires a trial judge to conduct the balancing processcontextually, based on the particularities of the evidence before her. As an inherently individualized assessment, it is capable ofresponding to various levels and forms of prejudice.

No other test or higher threshold is required to protect the integrity of the trialprocess. [48] The same is true of the “some evidence” threshold in the air of reality test, which the Crown argues the Court ofAppeal erred in applying in this case. This standard does not indirectly lower the threshold for unknown third party suspect evidence.

Rather, this standard, when used in conjunction with the requirement for a sufficient connection between the crimes, respects therequirements of Corbett, Seaboyer and Cinous, and properly balances the integrity of the trial process with the accused’s right to makefull answer and defence. [49] This conclusion does not, as the Crown submits it would, increase the scope of the Crown’s potential disclosureobligations such that compliance becomes impossible. The Crown continues to be required to disclose all relevant evidence to thedefence (R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, at pp. 336-40).

The application of the Stinchcombe testobviously depends on the circumstances of each case and each disclosure request. [50] In this case, the disclosure request was based on notes by the lead investigator in the police file on the Derksenmurder concerning a similar crime (the P.W. incident) that was “very probably” connected to the Derksen murder (A.R., vol. II, at p.135). The evidence for which disclosure was sought was clearly relevant. [51] Where the similarities or the temporal or geographic connections between the charged crime and the crime(

s) forwhich disclosure is sought are insufficient, the evidence will not be relevant, and disclosure will not be required. Allowing the defenceto establish a sufficient connection with reference to the crimes, rather than to the suspect, does not extend the Crown’s duty ofdisclosure. [52] Nor does this conclusion jeopardize the Crown’s ability to protect the privacy interests of individuals implicated inunrelated criminal matters or the confidentiality of ongoing investigations.

The disclosure test remains one of relevancy, and thelegislative measures that restrict disclosure to protect the privacy interests of individuals implicated in criminal matters continue to apply(see, for example, Criminal Code, R.S.C. 1985, c. C-46, ss. 278.1 to 278.91; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390). Moreover, the Crown exercises discretion with respect to the manner and timing of disclosure, thus allowing the Crown to delaydisclosure to ensure the safety of individuals involved in an ongoing investigation (Stinchcombe, at pp. 339-40).

This discretionarydecision, like all other exercises of Crown discretion in disclosure matters, must be justified on review (Stinchcombe, at p. 340). F.

Summary of Analysis [53] To summarize, any elevated risks of prejudice that arise when an accused seeks to introduce evidence of an unknownthird party suspect do not require the accused to satisfy a higher admissibility threshold or require the judge to engage in an enhancedevaluation of the evidence.

Existing rules achieve the appropriate balance of maintaining the integrity of the trial process whileprotecting the right of an accused to make full answer and defence to the charges against her. [54] Thus, defence evidence is admissible where (1) the evidence is relevant to a fact in issue; and (2) the probative valueof the evidence is not substantially outweighed by its prejudicial effects. Where the connection between the evidence and a fact in issueat trial is not obvious, the air of reality test may help a trial judge in determining if the evidence tends to prove a defence that maybecome available.

Relevant evidence concerning an unknown third party suspect will only be excluded where its prejudicial effectssubstantially outweigh its probative value. G. Application to the Facts [55] The trial judge erred in law in treating the evidence relating to the P.W. incident as known third party suspect

evidence. The connections tying a known third party to the charged crime ― generally motive, opportunity or propensity ― do not fitthe context of an unknown third party suspect. He also erred in requiring the accused to establish on a balance of probabilities that thealleged abduction took place. There is no such evidentiary burden on the accused where he seeks to rely on the defence that an unknownthird party committed the crime in question.

To the extent that the trial judge made findings of probative value and prejudicial effects,those findings are intimately tied to the incorrect balancing tests he used, and thus cannot be relied upon. [56] These errors entitled the Court of Appeal to conduct its own assessment of the evidence (Housen v. Nikolaisen, 2002SCC 33, [2002] 2 S.C.R. 235, at paras. 31-35). The court considered P.W.’s viva voce testimony and her prior statements to the police,which the trial judge had accepted (for the purposes of the voir dire) for the truth of their contents, in accordance with R. v.

Khelawon,2006 SCC 57, [2006] 2 S.C.R. 787. The court also considered other statements that had been admitted on the voir dire for the truth oftheir contents with the Crown’s consent, and other evidence pertaining to the incident, including the police reports noting a possibleconnection between the P.W. incident and the Derksen murder. [57] The Court of Appeal concluded that the evidence was “very relevant” and that its probative value arose from themarked similarities between the alleged abduction of P.W. and the crime for which Mr. Grant is charged. In each case, the victim was ofa similar age.

Both victims left school at the same time of day, on the same day of the week, nine months apart. Both were left inunlocked shed-like premises in the same industrial area of Winnipeg, 2.6 kilometres apart. Both victims were found abandoned withtheir hands and feet tied with similar knots. In neither case was there evidence of physical or sexual assault.

The same type of gumwrapper was found at both scenes (although, in the crime charged, it was found in the deceased’s pocket, suggesting it may have beenhers). [58] I cannot accept the Crown’s submission that these similarities are insufficient on any test and that the evidence reliedupon by the Court of Appeal would not be available at trial.

As the Crown cannot resile from its concession that the various statementswere admissible for their truth for the purpose of determining admissibility, the Court of Appeal was entitled to rely upon this voir direevidence in assessing its potential probative value. [59] The Court of Appeal was entitled to conclude that there was evidence upon which the jury could find that thesubsequent crime had occurred and, having regard to the similarities, that it had been committed by the same person who killed CandaceDerksen.

In light of the evidence that the accused could not have committed the other offence, there was some evidence capable ofgiving the unknown third party suspect defence an air of reality. [60] The Court of Appeal applied Seaboyer as follows: It is left to be decided whether this relevant evidence should be excluded because its prejudicial effect substantially outweighed itsprobative value. In this case, the only prejudicial effect would be the impact this evidence would have had on the trial process in whatwas an already complicated and lengthy trial.

From his reasons, the judge was obviously concerned about this impact. In my view, thatconcern did not substantially outweigh the probative value. [para. 78] [61] Seaboyer requires the court to measure and weigh the extent of probative value and the extent of the prejudicialeffect of the evidence. Obviously, this balancing is highly fact driven and best done by the trial judge. The prejudicial effects of thisevidence primarily concern the impact on the complexity, focus, and length of the trial process. To some extent, the trial judge can crafta process that will limit these prejudicial effects.

However, the trial judge did not address this issue in any detail. [62] While an appellate court is entitled to step into the shoes of the trial judge if the record permits, in this case, theCourt of Appeal was not in the position to assess and weigh the extent of the probative value of the unknown third party suspect evidenceand the extent of prejudicial effect of this evidence. [63] The trial judge’s legal errors were clearly not minor, and do not attract the application of the curative proviso in s.686(1)(b)(iii) of the Criminal Code.

The verdict would not necessarily have been the same had the trial judge applied the correctprinciples in determining the test for the admissibility of this defence evidence (R. v. Morin, (SCC), [1988] 2 S.C.R. 345,at p. 374). This case must be re-tried in any event. In these circumstances, the balancing of the Seaboyer factors is best left for the trialjudge. [64] Before this Court, Mr. Grant also submitted a motion to adduce fresh evidence relating to DNA analysis and jurorbias.

Because of my finding with respect to the admission of evidence relating to an unknown third party suspect, it is not necessary todeal with that motion. IV. Disposition [65] The appeal is dismissed, and the Manitoba Court of Appeal’s decision to order a new trial is upheld. Appeal dismissed. Solicitor for the appellant: Attorney General of Manitoba, Winnipeg. Solicitors for the respondent: Gindin, Wolson, Simmonds, Roitenberg, Winnipeg.