R. v. Grandinetti, 2005 SCC 5, [2005] 1 SCR 27

                                                 SUPREME COURT OF CANADA

Between:

Cory Howard Grandinetti

Appellant

v.

Her Majesty the Queen

Respondent

Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

______________________________

R. v. Grandinetti, [2005] 1 S.C.R. 27, 2005 SCC 5

Cory Howard Grandinetti                                                                                Appellant

v.

Her Majesty The Queen                                                                               Respondent

Indexed as:  R. v. Grandinetti

Neutral citation:  2005 SCC 5.

File No.:  30096.

2004:  October 15; 2005:  January 27.

Present:  McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for alberta

Criminal law — Evidence — Confessions — Admissibility — Person in authority — Accused admitting crime to undercover police officers — Whether undercover police officers “persons in authority” — Whether inculpatory statements properly admitted at trial without voir dire to determine their voluntariness.

Criminal law — Evidence — Possible involvement of third party in commission of offence — Accused charged with first degree murder — Trial judge excluding evidence suggesting that victim might have been killed by third party — Whether evidence should have been admitted — Whether sufficient connection between third party and crime.

Significant circumstantial evidence linked the accused to the murder of his aunt.  To obtain additional evidence against him, the police began an undercover operation.  Several officers, posing as members of a criminal organization, worked at winning the accused’s confidence.  To encourage him to talk about the murder, they suggested that they could use their corrupt police contacts to steer the murder investigation away from him.  The accused eventually confessed his involvement in the murder.  At no time was he aware of the true identities of the undercover officers.  After a jury trial, the accused was convicted of first degree murder.  The trial judge ruled that the accused’s inculpatory statements to the undercover officers were admissible, holding that the undercover officers could not be persons in authority and that no voir dire on voluntariness was necessary.  She also ruled that evidence of the possibility that a third person might have committed the murder should be excluded, finding that there was insufficient evidence of a link between the third party and the murder.  A majority of the Court of Appeal upheld the rulings and the accused’s conviction.

Held:  The appeal should be dismissed.

To ensure fairness and to guard against improper coercion by the state, statements made out of court by an accused to a person in authority are admissible only if the statements were voluntary.  The question of voluntariness is not relevant unless there is a threshold determination that the confession was made to a “person in authority”.  A “person in authority” is generally someone engaged in the arrest, detention, interrogation or prosecution of an accused.  Absent unusual circumstances, an undercover officer is not usually viewed, from an accused’s perspective, as a person in authority.  In this case, the accused failed to discharge the evidentiary burden of showing that there was a valid issue for consideration, namely, whether, when he made the confession, he believed that the person to whom he made it was a person in authority.  The accused believed that the undercover officers were criminals, not police officers, albeit criminals with corrupt police contacts who could potentially influence the investigation against him.  Where, as here, an accused confesses to an undercover officer he thinks can influence his murder investigation by enlisting corrupt police officers, the state’s coercive power is not engaged.  The statements, therefore, were not made to a person in authority and a voir dire on voluntariness was unnecessary. [34-45]

Evidence of the possible involvement of a third party in the commission of an offence is admissible if it is relevant and probative.  The evidence is relevant and probative if there is a sufficient connection between the third party and the crime.  Here, the trial judge made no error in excluding from the jury the theory that P might have killed the accused’s aunt.  With respect to motive, P’s threats against the victim relating to drug dealings were not sufficiently connected to the murder.  The threat incident took place over a year before the murder and there was no evidence that P contacted the victim after this incident.  In addition, the victim had stopped selling drugs eight months before she was murdered.  The other two possible motives relied on by the defence were based on speculation, not evidence.  On the issue of opportunity, while P was released from remand three days before the victim was killed, this opportunity evidence, standing alone, is an insufficient link between P and the murder.  Similarly, absent some connection to the murder, the evidence of P’s bad character and propensity for violence is inadmissible. [46-61]

Cases Cited

Applied:  R. v. Hodgson, [1998] 2 S.C.R. 449; referred to:  R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Todd (1901), 4 C.C.C. 514; R. v. Berger (1975), 27 C.C.C. (2d) 357; R. v. McMillan (1975), 7 O.R. (2d) 750, aff’d [1977] 2 S.C.R. 824; R. v. Fontaine, [2004] 1 S.C.R. 702, 2004 SCC 27; R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms .

APPEAL from a judgment of the Alberta Court of Appeal (Côté, Conrad and McFadyen JJ.A.) (2003), 339 A.R. 52, 312 W.A.C. 52, 178 C.C.C. (3d) 449, [2003] A.J. No. 1330 (QL), 2003 ABCA 307, upholding the accused’s conviction for first degree murder.  Appeal dismissed.

Patrick C. Fagan and Gregory R. Dunn, for the appellant.

Goran Tomljanovic, for the respondent.

The judgment of the Court was delivered by

1                                   Abella J. — The appellant, Cory Grandinetti, was convicted of first degree murder following a jury trial.  There are two issues arising out of the trial that form the basis of this appeal.  The first is whether inculpatory statements made by the accused were properly admitted without holding a voir dire to determine their voluntariness.  The statements were made by the accused to undercover police officers pretending to be members of a criminal organization.  The second is whether evidence that a third party might have committed the murder should have been admitted.  In my view, the trial judge did not err in connection with either issue, and the appeal should be dismissed.

I.       Background

2                                   Connie Grandinetti was Mr. Grandinetti’s aunt.  She was found dead in a ditch outside Fort Saskatchewan on April 10, 1997.  She had been shot twice in the back of her head at close range.

3                                   Significant circumstantial evidence linked Cory Grandinetti to the murder.  In July 1996, Connie Grandinetti hired a lawyer to enforce payment of child support from her ex-husband Jeff Grandinetti, Cory Grandinetti’s uncle.  On January 15, 1997, her lawyer applied to the court for arrears of $12,000 and ongoing child support of $1,000 per month.  Jeff and Connie Grandinetti were unable to reach a settlement and the child support action was adjourned until April 18, 1997, eight days after the murder.

4                                   At the end of February 1997, Jeff Grandinetti asked a friend to lend him $10,000.  He travelled from Edmonton to Calgary to pick up the cash.

5                                   Cory Grandinetti told his ex-girlfriend in March 1997 that his uncle Jeff Grandinetti wanted Connie Grandinetti killed.  He also told her that his uncle had obtained the money, and that he, Cory, planned to kill his aunt with an overdose of heroin.

6                                   On April 4, 1997, Cory Grandinetti travelled to Calgary.  He was carrying two vials of heroin and a gun.  On the evening of April 9, 1997, he borrowed his grandfather’s truck and said he was going to visit his Aunt Diane.  Instead, he picked up Connie Grandinetti at approximately 8:00 p.m. in front of her apartment building.  He is the last known person to see her alive.

7                                   In July 1997, with few leads to investigate but suspicious that Cory Grandinetti was involved, the RCMP began an undercover operation, Project Kilometer, in an attempt to obtain additional evidence against him.  Several police officers posed as members of a criminal organization and worked at winning Cory Grandinetti’s confidence.  Mr. Grandinetti thought the criminal enterprise he was dealing with was a large international organization involved in drug trafficking and money laundering.  He was led to believe that this organization was moving to Calgary, that he had been chosen as its Calgary contact, and that he could potentially make hundreds of thousands of dollars by participating in the organization’s criminal activities.

8                                   As part of Project Kilometer, the police engaged Mr. Grandinetti in criminal activities, including money laundering, theft, receiving illegal firearms, and selling drugs.  A number of police officers were involved in this operation, including Constable Keith Pearce, known to the appellant as “Mac”, Corporal Gordon Rennick, known as “Dan”, and Constable Robert Johnston, known as “Zeus”.  “Mac” posed as the head of the criminal organization.  At no time was the appellant aware of the true identity of the undercover officers.

9                                   From the beginning, the undercover officers encouraged Mr. Grandinetti to talk about his aunt’s murder, but he consistently refused to do so.  By late October, the undercover officers decided a new tactic was necessary.  They began trying to convince the appellant that they had contacts in the police department who were prepared to act unlawfully, and that they had been able to use those contacts in the past to influence an investigation.  On October 30, 1997, the undercover officers convinced Mr. Grandinetti that they had managed to have a murder charge against “Dan” reduced to aggravated assault by using their police connections to relocate a witness and retrieve incriminating photos.  They reinforced the perception that they had corrupt police contacts on November 13, 1997, when “Mac” told Mr. Grandinetti that he had easily learned the name of the investigator on the Connie Grandinetti murder investigation.

10                               To further encourage Mr. Grandinetti to talk about Connie Grandinetti’s murder, the undercover officers suggested to him that they could use their corrupt police contacts to steer the Connie Grandinetti murder investigation away from him.  When he continued to balk at talking about the murder, they told him that he might be a liability to their organization because of the ongoing murder investigation.  They forcefully suggested he “come clean” with them to protect the organization from possible police interference.

11                               This led Mr. Grandinetti to confess his involvement in the murder, provide details to the undercover officers, and take them to the location where Connie Grandinetti was killed.  The confessions were recorded.  On the basis of his confessions to the undercover officers, Mr. Grandinetti was arrested on December 9, 1997.

12                               At trial, Nash J. made two rulings that form the core of this appeal:  first, she ruled that Mr. Grandinetti’s inculpatory statements to the undercover officers were admissible; and second, she excluded evidence of the possibility that a third person might have committed the murder.

13                               The defence position at trial was that the undercover officers were “persons in authority” because Mr. Grandinetti believed they could influence the investigation into the murder of his aunt through the corrupt police officers they claimed to know.  This, the defence argued, shifted the burden to the Crown to prove either that Mr. Grandinetti did not reasonably believe the undercover officers were persons in authority, or that the statements were made voluntarily.  The Crown, on the other hand, argued that the undercover officers could not be persons in authority because the accused must believe that the recipient of a confession can influence the investigation or prosecution by aiding, not thwarting, the state’s interests.

14                               The trial judge held a voir dire to determine the threshold issue, namely whether Mr. Grandinetti had met his evidentiary burden of showing that there was a valid issue about whether the undercover officers were or could be persons in authority.  For this purpose, the defence called three witnesses:  Corporal Rennick, Constable Johnston, and Mr. Grandinetti.

15                               The trial judge ruled that the undercover officers could not be persons in authority, that no voir dire on voluntariness was necessary, and that the statements were admissible.  She found that Mr. Grandinetti was totally unaware of the true identity of the undercover officers, and, in fact, had a collegial relationship with them.  She emphasized that the “person in authority” test is largely a subjective one, based on the reasonable beliefs of the accused.  She concluded that logic and reason required that the definition of “person in authority” be limited to people the accused believes are acting in collaboration with the authorities.  In her view, the undercover officers could not be considered persons in authority because Mr. Grandinetti viewed them not as acting for or in collaboration with the interests of the state, but rather against those interests.

16                               The second disputed ruling of the trial judge was her decision, after two voir dires, to exclude defence evidence suggesting that Connie Grandinetti may have been killed by a third party, Rick Papin.  The two voir dires were held to assess the relevance and probative value of the evidence.

17                               During the first voir dire, the defence tendered evidence of threats made to Connie Grandinetti by Rick Papin.  The only witness was Dustin Grandinetti, Connie Grandinetti’s son.  He testified that his mother sold cocaine from 1995 to 1996, but that she had stopped selling drugs by the spring of 1996.  Ms. Grandinetti had once paid her son $100 to drive her to a location where she sold cocaine.  Dustin Grandinetti testified that this incident was the only personal knowledge he had of his mother’s drug dealing.  Although he had met Rick Papin once or twice, he never saw him deliver drugs to his mother.

18                               Most of Dustin Grandinetti’s testimony consisted of hearsay statements.  He testified that Connie Grandinetti told him she had stopped using Mr. Papin as her drug supplier, and had begun selling drugs for someone else for less than Mr. Papin charged.  She also told him that she became afraid of Mr. Papin in early 1996.

19                               The second voir dire on this issue was much more extensive than the first. The trial judge considered not only the testimony of those who gave evidence on the voir dire, but also the evidence Cory Grandinetti gave at trial.  In the presence of the jury, Mr. Grandinetti had testified that he picked up his aunt at approximately 8:00 p.m. on April 9, 1997, and that she was looking for cocaine.  He said they went to several bars.  Ms. Grandinetti went inside each bar for a few minutes while her nephew waited outside.  Mr. Grandinetti and his aunt also went to a corner store, but left after waiting for twenty minutes.  According to Mr. Grandinetti, his aunt was looking for someone, but did not tell him who the person was.  Later, they drove to a house where they talked.  Ms. Grandinetti told him about the problems she had had in the last year with Rick Papin, who was both her former lover and former cocaine supplier.  She told Mr. Grandinetti that when the relationship ended, so did the cocaine sales.  She said that she felt she was not allowed to sell cocaine for anyone else.  Mr. Grandinetti’s evidence was that he dropped Ms. Grandinetti off at a bar just after midnight.

20                               Mr. Grandinetti testified on the voir dire as well.  He stated that Connie Grandinetti told him that Rick Papin had beaten up some of her customers, broken into her home, held a knife to her throat, and threatened to kill her.  According to him, she had also indicated that she was gathering information to expose Rick Papin as an informant, and that she was afraid of Mr. Papin.

21                               Lawrence Berlinguette, Connie Grandinetti’s boyfriend at the time of her death, testified on the second voir dire that Mr. Papin, along with his associate, Calvin Dominique, broke into their apartment on March 21, 1996.  Mr. Dominique hit Mr. Berlinguette in the face and broke his nose.  Mr. Papin had a hunting knife and put the blade to Connie Grandinetti’s throat, ordering her to stay away from his customers.  Mr. Papin also told Ms. Grandinetti that he did not want her dealing drugs in town, and slapped her in the face a few times.  Mr. Papin and Mr. Dominique claimed that Connie Grandinetti owed them money, and accused her of informing on them to the police.  The incident lasted approximately ten minutes.

22                               Calvin Dominique and Rick Papin were charged with several offences arising out of this incident, but the Crown entered a stay of all proceedings on November 26, 1996.  The day after the assault, Mr. Berlinguette and Ms. Grandinetti moved from their apartment to the other side of the  city.

23                               Mr.  Berlinguette’s evidence was that although he and Connie Grandinetti sold cocaine for Mr. Papin from February 8, 1996 until March 21, 1996, neither of them had any contact with Mr. Papin or Mr. Dominique after March 21, 1996.  He also stated that Ms. Grandinetti had stopped using and selling drugs eight months before her death.

24                               Elaine McGilvery, Rick Papin’s common‑law spouse from January 1995 until February 1996, also gave evidence on the second voir dire.  She testified that during their relationship, Mr. Papin was involved in cocaine trafficking and Connie Grandinetti was his runner.  In late February or early March 1996, she said, Mr. Papin believed Connie Grandinetti had ripped him off and informed on him to the police.  She was unaware of any contact between Ms. Grandinetti and Mr. Papin after March 21, 1996, but by that point, her relationship with Rick Papin had ended.  Ms. McGilvery also testified that after the break-in, Connie Grandinetti told her she was afraid of Rick Papin.

25                               According to Ms. McGilvery, Mr. Papin was physically and verbally abusive to her.  He held a knife to her throat in February 1996, and threatened to kill her a few times in 1996.  On January 18, 1997, he choked and threatened her while she was in a bar because he was angry at her because he had hidden a gun at her place and wanted it back.  Ms. McGilvery testified that she had no personal knowledge that Mr. Papin carried a gun, and that she had never seen him with a gun.  She did, however, say that she found a gun in her residence which she believed was placed there by Mr. Papin.  She reported the January 18 incident to the police, resulting in Mr. Papin being arrested and charged with several offences, including assault.  As a result of the charges arising from the January 18 assault on Ms. McGilvery, and a separate charge of threatening Ms. McGilvery, Mr. Papin was held in custody from January 18, 1997 until April 7, 1997.

26                               During the summer of 1996, Ms. McGilvery became involved with Ricky Whitford, who was in the Remand Centre with Mr. Papin from January to April 1997.  Ricky Whitford had known Mr. Papin since 1985.  Ms. McGilvery said she told Mr. Whitford that Mr. Papin was a police informant, and that Mr. Whitford wanted to expose Mr. Papin.

27                               Mr. Whitford’s evidence on the second voir dire was that one to two weeks before Connie Grandinetti’s death, he told his cousin, Calvin Dominique, that Connie Grandinetti could get information to establish that Mr. Papin was a police informant. Mr. Whitford planned to show the documentation establishing that Mr. Papin was an informant to everyone at the Remand Centre in the hopes that Mr. Papin would be stabbed or beaten up.  He also said that Ms. McGilvery told him that Ms. Grandinetti was afraid of Mr. Papin.

28                               Mr. Whitford testified that although Mr. Papin used to assault people at parties regularly, the last time he had seen him exhibit violent behaviour was in 1993. He also said that he had seen Mr. Papin with a nine‑millimetre handgun and a .357 Smith and Wesson.

29                               Mr. Whitford’s evidence was also that Mr. Papin was angry at Ms. McGilvery and blamed her for his incarceration.

30                               Terry Garnett, the deputy director of security for the Edmonton Remand Centre, testified on the voir dire that Rick Papin was detained from January 18, 1997 to April 7, 1997 at the Remand Centre.  According to him, the records showed that neither Mr. Dominique, Ms. McGilvery, nor Ms. Grandinetti visited Mr. Papin while he was in custody.

31                               Constable Dennis Hartl, who also gave evidence on this voir dire, arrested Connie Grandinetti on January 7, 1997 on a charge of selling cocaine to an undercover police officer on March 1, 1996.  She was never formally charged.  The sale was made on behalf of Rick Papin.  After her arrest, Ms. Grandinetti provided information about a number of drug dealers, but she did not provide any information about Mr. Papin.  She also told Constable Hartl that she was not afraid of Mr. Papin and was willing to testify against him on the break-and-enter charge arising from his 1996 assault in her apartment.

32                               The trial judge, after conducting the two voir dires, ruled that there was insufficient evidence of a link between Rick Papin and the murder of Connie Grandinetti, and excluded the evidence.

33                               The jury found Cory Grandinetti guilty of the murder of his aunt.  Mr. Grandinetti appealed his conviction to the Alberta Court of Appeal ((2003), 339 A.R. 52).  The majority (McFadyen and Côté JJ.A.) upheld the rulings and dismissed the appeal.  Conrad J.A. dissented, holding that it was possible to conclude that the undercover police officers were persons in authority, therefore necessitating a voluntariness voir dire, and that there was a sufficient link between Rick Papin and Connie Grandinetti’s murder to make the evidence admissible.  The basis of this appeal is a challenge to the rulings of the trial judge admitting the confessions and excluding the evidence that Rick Papin might have committed the murder.

II.      Analysis

A.     The Admissibility of the Inculpatory Statements

34                               The confessions rule ensures that statements made out of court by an accused to a person in authority are admissible only if the statements were voluntary. The relevant principles were canvassed by this Court in R. v. Hodgson, [1998] 2 S.C.R. 449, and R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38.  In Oickle, at paras. 47-71, the Court set out the factors relevant to the voluntariness inquiry.  The issue argued on this appeal by the appellant was whether the impugned statements were made to a “person in authority” within the meaning of Hodgson, and not whether they were free and voluntary within the meaning of Oickle.

35                               The rule, the policies supporting it, and the definition of “person in authority”, were all considered in Hodgson.  Cory J. expressed the rule’s rationale as follows:

The rule is based upon two fundamentally important concepts: the need to ensure the reliability of the statement and the need to ensure fairness by guarding against improper coercion by the state.

. . .

It cannot be forgotten that it is the nature of the authority exerted by the state that might prompt an involuntary statement. . . . In other words, it is the fear of reprisal or hope of leniency that persons in authority may hold out and which is associated with their official status that may render a statement involuntary. . . .  This limitation [i.e., the person in authority requirement] is appropriate since most criminal investigations are undertaken by the state, and it is then that an accused is most vulnerable to state coercion. [paras. 48 and 24]

The underlying rationale of the “person in authority” analysis is to avoid the unfairness and unreliability of admitting statements made when the accused believes himself or herself to be under pressure from the uniquely coercive power of the state.  In Hodgson, although explicitly invited to do so, the Court refused to eliminate the requirement for a “person in authority” threshold determination.  As Cory J. stated, were it not for this requisite inquiry,

all statements to undercover police officers would become subject to the confessions rule, even though the accused was completely unaware of their status and, at the time he made the statement, would never have considered the undercover officers to be persons in authority. [para. 25]

36                               There is no doubt, as the Court observed in Hodgson, at para. 26, that statements can sometimes be made in such coercive circumstances that their reliability is jeopardized even if they were not made to a person in authority.  The admissibility of such statements is filtered through exclusionary doctrines like abuse of process at common law and under the Canadian Charter of Rights and Freedoms , to prevent the admission of statements that undermine the integrity of the judicial process.  The “abuse of process” argument was, in fact, made by Mr. Grandinetti at trial, but was rejected both at trial and on appeal, and was not argued before us.

37                               In Hodgson, the Court delineated the process for assessing whether a confession should be admitted.  First, there is an evidentiary burden on the accused to show that there is a valid issue for consideration about whether, when the accused made the confession, he or she believed that the person to whom it was made was a person in authority.  A “person in authority” is generally someone engaged in the arrest, detention, interrogation or prosecution of the accused.  The burden then shifts to the Crown to prove, beyond a reasonable doubt, either that the accused did not reasonably believe that the person to whom the confession was made was a person in authority, or, if he or she did so believe, that the statement was made voluntarily.  The question of voluntariness is not relevant unless the threshold determination has been made that the confession was made to a “person in authority”.

38                               The test of who is a “person in authority” is largely subjective, focusing on the accused’s perception of the person to whom he or she is making the statement.  The operative question is whether the accused, based on his or her perception of the recipient’s ability to influence the prosecution, believed either that refusing to make a statement to the person would result in prejudice, or that making one would result in favourable treatment.

39                               There is also an objective element, namely, the reasonableness of the accused’s belief that he or she is speaking to a person in authority.  It is not enough, however, that an accused reasonably believe that a person can influence the course of the investigation or prosecution.  As the trial judge correctly concluded:

[R]eason and common sense dictates that when the cases speak of a person in authority as one who is capable of controlling or influencing the course of the proceedings, it is from the perspective of someone who is involved in the investigation, the apprehension and prosecution of a criminal offence resulting in a conviction, an agent of the police or someone working in collaboration with the police.  It does not include someone who seeks to sabotage the investigation or steer the investigation away from a suspect that the state is investigating.

(Alta. Q.B., No. 98032644C5, April 30 1999, at para. 56)

40                               Although the person in authority test is not a categorical one, absent unusual circumstances an undercover officer will not be a person in authority since, from the accused’s viewpoint, he or she will not usually be so viewed.  This position is supported by precedent.  As Cory J. explained in Hodgson:

The receiver’s status as a person in authority arises only if the accused had knowledge of that status.  If the accused cannot show that he or she had knowledge of the receiver’s status (as, for example, in the case of an undercover police officer) . . ., the inquiry pertaining to the receiver as a person in authority must end. [para. 39]

See also Rothman v. The Queen, [1981] 1 S.C.R. 640, at p. 664; R. v. Todd (1901), 4 C.C.C. 514 (Man. K.B.), at p. 527.

41                               The appellant conceded that undercover officers are usually not persons in authority.  His position is that although undercover officers are not usually persons in authority, when an undercover operation includes as part of its ruse a suggested association with corrupt police, who the accused is told could influence the investigation and prosecution of the offence, the officers qualify as persons in authority.

42                               However, under the traditional confession rule,

a person in authority is a person concerned with the prosecution who, in the opinion of the accused, can influence the course of the prosecution.

(R. v. Berger (1975), 27 C.C.C. (2d) 357 (B.C.C.A.), at p. 385, cited in Hodgson, at para. 33)

43                               This, it seems to me, is further elaborated in Hodgson by Cory J._s description of a person in authority as someone whom the confessor perceives to be “an agent of the police or prosecuting authorities”, “allied with the state authorities”, “acting on behalf of the police or prosecuting authorities”, and “acting in concert with the police or prosecutorial authorities, or as their agent” (paras. 34-36 and 47).  He amplified this theory as follows:

Since the person in authority requirement is aimed at controlling coercive state conduct, the test for a person in authority should not include those whom the accused unreasonably believes to be acting on behalf of the state. Thus, where the accused speaks out of fear of reprisal or hope of advantage because he reasonably believes the person receiving the statement is acting as an agent of the police or prosecuting authorities and could therefore influence or control the proceedings against him or her, then the receiver of the statement is properly considered a person in authority. In other words, the evidence must disclose not only that the accused subjectively believed the receiver of the statement to be in a position to control the proceedings against the accused, but must also establish an objectively reasonable basis for that belief. . . .

. . .

. . . there is no catalogue of persons, beyond a peace officer or prison guard, who are automatically considered a person in authority solely by virtue of their status.  A parent, doctor, teacher or employer all may be found to be a person in authority if the circumstances warrant, but their status, or the mere fact that they may wield some personal authority over the accused, is not sufficient to establish them as persons in authority for the purposes of the confessions rule. . . . [T]he person in authority requirement has evolved in a manner that avoids a formalistic or legalistic approach to the interactions between ordinary citizens. Instead, it requires a case‑by‑case consideration of the accused’s belief as to the ability of the receiver of the statement to influence the prosecution or investigation of the crime. That is to say, the trial judge must determine whether the accused reasonably believed the receiver of the statement was acting on behalf of the police or prosecuting authorities. [paras. 34 and 36]

44                               The appellant believed that the undercover officers were criminals, not police officers, albeit criminals with corrupt police contacts who could potentially influence the investigation against him.  When, as in this case, the accused confesses to an undercover officer he thinks can influence his murder investigation by enlisting corrupt police officers, the state’s coercive power is not engaged.  The statements, therefore, were not made to a person in authority.

45                               The accused having failed to discharge the evidentiary burden of showing that there was a valid issue for consideration, a voir dire on voluntariness became unnecessary.

B.      The Evidence of Possible Third Party Involvement

46                               Evidence of the potential involvement of a third party in the commission of an offence is admissible.  In R. v. McMillan (1975), 7 O.R. (2d) 750 (C.A.), aff’d  [1977] 2 S.C.R. 824, Martin J.A. stated the simple underlying premise to be:

[I]t [is] self‑evident that if A is charged with the murder of X, then A is entitled, by way of defence, to adduce evidence to prove that B, not A, murdered X. [p. 757]

However, as he explained, the evidence must be relevant and probative:

Evidence directed to prove that the crime was committed by a third person, rather than the accused, must, of course, meet the test of relevancy and must have sufficient probative value to justify its reception.  Consequently, the Courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value. [p. 757]

47                               The requirement that there be a sufficient connection between the third party and the crime is essential.  Without this link, the third party evidence is neither relevant nor probative.  The evidence may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation.

48                               The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence:  R. v. Fontaine, [2004] 1 S.C.R. 702, 2004 SCC 27, at para. 70.  If there is an insufficient connection, the defence of third party involvement will lack the requisite air of reality:   R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29.

49                               The trial judge correctly formulated the legal test for admitting third party evidence:

The cases establish that an accused may adduce evidence tending to show that a third person committed the offence.  The disposition of a third person to commit the offence is probative and admissible provided that there is other evidence tending to connect the third person with the commission of the offence.

(Ruling (voir dire), Appellant’s Record, at p. 64)

The remaining question, therefore, is whether she correctly applied the test to the facts in holding that there was an insufficient connection between Rick Papin and the murder of Connie Grandinetti for the jury to hear the evidence.

50                               The appellant argued that there was evidence tending to show that Rick Papin had motive, opportunity and the propensity to murder Connie Grandinetti.

51                               With respect to motive, the appellant relied first on the March 21, 1996 threat incident.  There is no doubt that threats can, under some circumstances, provide evidence of motive or disposition.  But, there must be a sufficient connection between the threats and the crime before evidence of the threats is admissible.  In this case, I agree with the trial judge that there is not a sufficient connection between the March 21, 1996 threat incident  and the April 10, 1997 murder.  The threats were made when Mr. Papin believed that Connie Grandinetti was selling cocaine from another supplier to his customers.  However, Mr. Berlinguette gave uncontradicted evidence that Ms. Grandinetti had stopped selling drugs eight months prior to her murder.  Since the evidence showed that Ms. Grandinetti was no longer selling drugs to Mr. Papin’s customers, that motive was extinguished.

52                               Moreover, the threat incident occurred more than a year before the murder, and, according to Mr. Berlinguette, Ms. Grandinetti never saw Mr. Papin again.  There was, in fact, no evidence that there was any contact between Rick Papin and Connie Grandinetti after March 21, 1996.

53                               The appellant also argued that Mr. Papin might have known that Connie Grandinetti was a police informant and might have feared that she would inform on him.  According to the appellant, Mr. Papin could have learned that Connie Grandinetti was a police informant in one of two ways: either from the police themselves, since Mr. Papin was also an informant, or from the fact that Mr. Papin was also part of the investigation that led to Connie Grandinetti’s 1997 arrest for selling drugs in 1996.

54                               I see no basis for interfering with the trial judge’s conclusion that there was insufficient evidence reasonably to infer that Mr. Papin’s motive for killing Ms. Grandinetti was either to punish her for, or prevent her from, informing on him.  Constable Hartl, the officer who arrested Connie Grandinetti in January 1997 for selling drugs the previous March, never suggested in his evidence that anyone was told about Ms. Grandinetti’s decision to become a police informant.  He also testified that despite becoming an informant, Connie Grandinetti never informed on Rick Papin.  It is nothing more than speculation to suggest that the police betrayed Ms. Grandinetti by telling Mr. Papin that she was a confidential informant.  Further, there was uncontradicted evidence that Mr. Papin blamed Ms. McGilvery, not Ms. Grandinetti, for his incarceration in early 1997.

55                               There was, moreover, no evidence that Rick Papin knew of Connie Grandinetti’s January 7, 1997 arrest.  Although the appellant speculated that Mr. Papin might have been subject to arrest or interrogation as part of the same investigation that led to Ms. Grandinetti’s arrest, there was no evidence that that ever happened.

56                               The appellant argued in the alternative that Mr. Papin might have learned from Mr. Dominique that Connie Grandinetti was planning to provide information to Mr. Whitford exposing Mr. Papin as an informant.  According to Mr. Whitford’s evidence, he told Mr. Dominique about Connie Grandinetti’s involvement in his plan.  According to the appellant’s submissions, this could lead to the inference that Mr. Dominique told Mr. Papin about it, especially since the two men had been close associates.  According to the prison records, Mr. Dominique never visited Mr. Papin while he was incarcerated.  There is no evidence as to whether the two ever spoke on the phone.

57                               Mr. Dominique did not testify.  Without his testimony, no direct evidence supports the theory advanced by the appellant.  None of the evidence indicated that there was even any contact between Mr. Dominique and Mr. Papin while Mr. Papin was incarcerated at the Remand Centre in the months before Connie Grandinetti’s death.  There was also some evidence that Mr. Papin and Mr. Dominique had a falling out, namely the fact that Mr. Whitford was discussing exposing Mr. Papin’s informant status with Mr. Dominique, something he was unlikely to do if Mr. Dominique was still Mr. Papin’s “right-hand man”.

58                               The arguments amount to a chain of speculation joined by gossamer links. There was simply not enough evidence that Mr. Papin had a motive for killing Connie Grandinetti.

59                               The opportunity evidence relied on by the appellant was that Mr. Papin was released from prison three days before Connie Grandinetti was killed.  Standing alone, this evidence is palpably unprobative.  As the trial judge found:

There is no evidence that Rick Papin had the opportunity to commit the murder.  There is no evidence that he had access to or contact with Connie Grandinetti when she was killed.  Although the evidence establishes that he was not in custody, that fact alone, in my view, is not evidence of opportunity as that factor has been considered by the courts.

(Ruling (voir dire), Appellant’s Record, at p. 71)

The fact that Mr. Papin was released from the Remand Centre on April 7, 1997 is an insufficient link between him and the murder on April 10, 1997.

60                               The appellant argues additionally that there is ample evidence of Rick Papin’s bad character and propensity for violence.  I agree.  There was evidence that Rick Papin owned a gun, threatened his spouse verbally and physically, and had previously been jailed for assault.  All of this evidence, however, is inadmissible in the absence of evidence connecting Mr. Papin and the murder.

61                               I am therefore of the view that the trial judge made no error in excluding from the jury the theory that Rick Papin might have killed Ms. Grandinetti.  The threat incident, which took place over a year before the murder, was not sufficiently connected to the murder.  The two other possible motives were based on speculation, not evidence. The opportunity evidence was insufficient, and the propensity evidence was, standing alone, deficient because it lacked a sufficient link to the murder.

62                               Accordingly, I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant:  Bascom, Fagan, Dunn, Calgary.

Solicitor for the respondent:  Attorney General of Alberta, Calgary.