R. v. Grover, 2007 SCC 51, [2007] 3 SCR 510

                                                 SUPREME COURT OF CANADA

Between:

Her Majesty The Queen

Appellant

and

Jagdish Lal Grover

Respondent

Coram: Bastarache, Binnie, Deschamps, Fish, Abella, Charron and Rothstein JJ.

______________________________

R. v. Grover, [2007] 3 S.C.R. 510, 2007 SCC 51

Her Majesty The Queen                                                                                                    Appellant

v.

Jagdish Lal Grover                                                                                                         Respondent

Indexed as:  R. v. Grover

Neutral citation:  2007 SCC 51.

File No.:  31808.

2007:  November 6; 2007:  November 22.

Present:  Bastarache, Binnie, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for saskatchewan

Criminal law — Appeals — Powers of court of appeal — Accused convicted of attempting to obstruct justice by attempting to alter and falsify testing and maintenance records for smoke alarms following fire — Court of Appeal setting aside conviction on finding that accused’s conduct after fire capable of more than one explanation — Not open to Court of Appeal to acquit accused on basis of speculation about possible explanation of his conduct after fire that was contradicted by his own testimony — Accused’s conviction restored — Criminal Code, R.S.C. 1985, c. C‑46, ss. 139(2) , 686(1) (a)(i).

The accused was convicted of attempting to obstruct justice on a charge which arose out of a fire in residential premises managed by him.  The trial judge rejected the accused’s evidence and concluded that the documents relating to smoke detectors were false and were known by the accused to be false.  A majority of the Court of Appeal, however, set aside the conviction because in its view the verdict was not one that a properly instructed jury, acting judicially, could reasonably have rendered.  The accused’s conduct, it found, was equally consistent with the conclusion that he, perhaps ignorant of the fact that the required inspection had not taken place, simply considered it crucial that the inspection records be in perfect order.

Held:  The appeal should be allowed and the conviction should be restored.

Where the accused testified and offered an explanation for his or her actions, which the trial judge rejected, it was not open to the Court of  Appeal to acquit on the basis of speculation about a different possible explanation of conduct that was flatly contradicted by the accused’s own testimony.  [2-3]

Cases Cited

Referred to:  R. v. Yebes, [1987] 2 S.C.R. 168.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, ss. 139(2) , 686(1) (a)(i).

APPEAL from a judgment of the Saskatchewan Court of Appeal (Cameron, Jackson and Smith JJ.A.), [2007] 5 W.W.R. 241, 226 C.C.C. (3d) 84, [2006] S.J. No. 802 (QL), 2006 SKCA 146, setting aside the accused’s conviction and entering an acquittal.  Appeal allowed.

Anthony B. Gerein, for the appellant.

Morris P. Bodnar, Q.C., for the respondent.

The following is the judgment delivered by

1                                   The Court — At trial, the respondent was convicted of attempting to obstruct justice contrary to s. 139(2)  of the Criminal Code, R.S.C. 1985, c. C-46 .  The charge arose out of a fire that occurred on March 3, 2005 in residential premises owned by a numbered company, which he managed.  The Crown alleged that the respondent attempted to alter and falsify records relating to the testing and maintenance of smoke alarms at the premises.  In convicting the respondent, the trial judge held:

These documents were false in representing that the smoke alarms in the house were checked and tested on January 25th, 2005.

From all of the circumstances, I conclude that Mr. Grover knew that they were false.

                                                                            . . .

. . . As I have said, I do not accept the evidence of Mr. Grover.

                                                                            . . .

. . . Being aware of his own history of violations in connection with smoke alarms, being aware of the terrible consequences of this fire, being aware of his interview with fire inspector Farrell and police sergeant Ecklund, Mr. Grover was attempting to direct the focus of the fire investigation away from the smoke alarms in the house, and away from himself.  He was attempting to avoid being charged with a violation or an offence, whether by the fire department or by the police service.

2                                   The respondent’s conviction was set aside by the Saskatchewan Court of Appeal pursuant to s. 686(1) (a)(i) of the Criminal Code  because, in the view of the majority, the verdict was not one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Yebes, [1987] 2 S.C.R. 168, at p. 185.  This conclusion was based on the view that the controversial actions of the accused after the fire were capable of more than one explanation.  Of particular interest was a visit he had made to the hospital to try to see his tenants who were victims of the fire.  The Crown argued that the purpose of the visit was to persuade the tenants to sign an inspection document that the respondent knew to be false.  The trial judge accepted the tenant’s testimony that the respondent had asked her to sign a document indicating that the smoke alarms had been inspected.  However, the majority in the Saskatchewan Court of Appeal said that the respondent’s conduct was equally consistent with the conclusion that the respondent, possibly ignorant of the fact that the required inspection had not in fact taken place, simply considered “it crucial that in this case the inspection records be in perfect order” ([2007] 5 W.W.R. 241, 2006 SKCA 146, at para. 14).  Jackson J.A., dissenting, was of the view that:

As to whether there could be any other rational explanation for Mr. Grover’s actions, it is important to note that Mr. Grover testified.  He said that he had attended at the hospital out of compassion for the victims.  He did not say he went up to the hospital to have the tenants sign an incomplete form.  Where the accused testifies and offers an explanation for his or her actions, which the trial judge then rejects, it is not the task of a court of appeal to come up with another rational explanation. [para. 26]

3                                   We agree.  It was not open to the Court of Appeal to acquit the respondent on the basis of speculation about a possible explanation of his conduct that was flatly contradicted by his own testimony.  Accordingly, the appeal is allowed.  The decision of the Saskatchewan Court of Appeal is set aside and the conviction is restored.

Appeal allowed.

Solicitor for the appellant:  Attorney General for Saskatchewan, Regina.

Solicitors for the respondent:  Bodnar & Campbell, Saskatoon.