R. v. Gruenke

R. v. Gruenke
Collection
Supreme Court Judgments
Date
1991-10-24
Report
[1991] 3 SCR 263
Case number
21410
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Stevenson, William; Iacobucci, Frank
On appeal from
Manitoba
Subjects
Evidence
Notes
SCC Case Information: 21410
Decision Content
R. v. Gruenke, [1991] 3 S.C.R. 263
Adele Rosemary Gruenke Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Gruenke
File No.: 21410.
1991: May 10; 1991: October 24.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.
on appeal from the court of appeal for manitoba
Evidence ‑‑ Privilege ‑‑ Religious communications ‑‑ Church member accused with murder ‑‑ Communications between pastor and church member about involvement of murder admitted into evidence ‑‑ Counsel allowed time to argue point in absence of jury ‑‑ Whether communications protected by common law privilege ‑‑ Alternatively, whether communications protected confidential communications, and therefore inadmissible, both on the basis of the common law and of s. 2 (a) of the Canadian Charter of Rights and Freedoms ‑‑ Whether absence of formal voir dire denied a fair trial ‑‑ Whether charge to jury such as to deny fair trial ‑‑ Canadian Charter of Rights and Freedoms, s. 2 (a).
This appeal from a conviction for first degree murder involves the admissibility of evidence, given by a pastor and lay counsellor of a fundamentalist Christian church, regarding communications made to them by the appellant about her involvement in the crime. The Crown's theory was that the appellant had enlisted the aid of her boyfriend in the planning and commission of the murder, which she committed, to stop the victim's sexual harassment of her and to benefit from the provisions of his will. The evidence of the appellant's pastor and the lay counsellor, which directly supported the Crown's theory, was ruled admissible at trial. The communications between the appellant, the pastor and the lay counsellor took place when the lay counsellor, on hearing of the victim's death two days earlier, visited the appellant. When the appellant began speaking of her involvement in the murder, the pastor was called and the conversation continued.
The appellant and her co‑accused unsuccessfully appealed their convictions to the Manitoba Court of Appeal. Appellant was granted leave to appeal to this Court; the co‑accused did not appeal to this Court.
At issue here was whether the communications were protected by common law privilege, or alternatively, were protected confidential communications, and therefore inadmissible, on the basis of the common law and of s. 2 (a) of the Canadian Charter of Rights and Freedoms . Other issues related to the absence of a voir dire and to the fairness of the trial judge's charge to the jury.
Held: The appeal should be dismissed.
Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Stevenson and Iacobucci JJ.: The fact that English and Canadian courts have not, as a matter of practice, compelled members of the clergy to disclose confidential religious communications, does not answer the question of whether there is a legal common law privilege for religious communications. The existence of a limited statutory religious privilege in some jurisdictions does not indicate that a common law privilege exists; rather, it indicates that the common law did not protect religious communications and that the statutory protection was accordingly necessary.
Whether a prima facie privilege exists for religious communications is essentially a policy issue. As a general principle, all relevant evidence is admissible. The policy reasons supporting a class privilege for religious communications must be as compelling as the reason underlying the class privilege for solicitor‑client communications: that the relationship and the communications between solicitor and client are essential to the effective operation of the legal system. Such communications are inextricably linked with the very system which desires the disclosure of the communication. Religious communications, notwithstanding their social importance, are not inextricably linked with the justice system in that way.
While the value of freedom of religion, embodied in s. 2 (a), is significant in particular cases, this value need not necessarily be recognized in the form of a prima facie privilege in order to give full effect to the Charter guarantee. The extent (if any) to which disclosure of communications will infringe an individual's freedom of religion depends on the particular circumstances involved. Relevant factors include the nature of the communication, the purpose for which it was made, the manner in which it was made, and the parties to the communication.
The Wigmore test as to whether or not a communications is privileged requires that: (1) the communications must originate in a confidence that they will not be disclosed; (2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. This test is consistent with a principled approach to the question which properly takes into account the particular circumstances of each case. These criteria are not carved in stone and only provide a general framework within which policy considerations and the requirements of fact‑finding can be weighed and balanced on the basis of their relative importance in the particular case before the court. They do not preclude the identification of a new class on a principled basis.
A case-by-case analysis allows the courts to determine whether, in the particular circumstances, the individual's freedom of religion will be imperilled by the admission of the evidence. This analysis must begin with a "non‑denominational" approach. The fact that the communications were not made to an ordained priest or minister or that they did not constitute a formal confession will not eliminate the possibility of the communications' being excluded. All of the relevant circumstances must be considered and the Wigmore criteria must be applied in a manner sensitive to Canada's multicultural heritage. This will be most important at the second and third stages of the Wigmore inquiry. Such a case-by-case approach will avoid the problem of "pigeon‑holing".
The communications at issue here were properly admitted. They did not even satisfy the first requirement that they originate in a confidence that they would not be disclosed. The expectation of confidentiality is absolutely critical to qualify as "privileged" for without it the raison d'être of the privilege is missing.
The parties' statements and behaviour in relation to the communication ‑‑ and not the lack of a formal practice of "confession" in appellant's church ‑‑ indicated that these communications were more to relieve appellant's emotional stress than to give effect to a religious or spiritual purpose. While the existence of a formal practice of "confession" may well be a strong indication that the parties expected the communication to be confidential, the lack of such a formal practice is not, in and of itself, determinative.
The trial judge's failure to hold a formal voir dire and her decision to rule on the defence motion on the basis of argument and the testimony given at the preliminary inquiry did not deny appellant a fair trial. Although an issue of privilege arising in the course of a trial may well be best determined within the sanctuary of a voir dire, failure to follow this procedure does not necessarily render the trial unfair. The trial judge here essentially held an informal voir dire, without the jury being present, in that counsel were given an opportunity to submit evidence and argument on the defence's motion for the exclusion of the evidence. While the trial judge bears the ultimate responsibility for determining questions of admissibility, he or she is not required to do more than provide counsel with a reasonable opportunity to elicit evidence and give argument on the issues before making a ruling.
The charge to the jury was full and fair. The charge was not rendered unfair because the trial judge failed to remind the jury that the co‑accused's explanation of protecting the appellant could be considered in relation to her, despite the fact that it could not (because of excessive force) constitute a defence within the meaning of s. 37 of the Code for him. The verdict would not have been different even if the jury had been reminded of this point. Once the communications in question were before the jury, a first degree murder conviction was inevitable.
Per L'Heureux-Dubé and Gonthier JJ.: One of the primary aims of the adversarial trial process is to find the truth and all relevant information is, therefore, presumptively admissible. Statutory and common law exceptions exclude evidence that is irrelevant, unreliable, susceptible to fabrication, or which would render the trial unfair or, even if probative and trustworthy, because of some overriding social concern or judicial policy. The categories of privileged communications are very limited.
The question of whether or not there should be a recognized privilege for confidential religious communications is a question of policy. Several rationales for such a privilege have been put forward.
The first is utilitarian. Religious confidentiality is vitally important not only to the maintenance of religious organizations but also to their individual members. Without it, individuals would be disinclined to confide in their religious leaders. Its value is the value to society of religion and religious organizations generally. Second, the Charter guarantee of freedom of religion indicates that a legal privilege for confidential religious communications is commensurate with Canadian values. The third rationale relates to privacy, where the emphasis is placed on the benefit to the individual as opposed to society as a whole. The religious element in the pastor-penitent relationship promotes special values of privacy characteristic of that relationship, and makes the privacy rationale a possible justification towards the recognition of the privilege. As well, it would be impractical and futile to attempt to force the clergy to testify because often the cleric would refuse. Compelling disclosure, or charging a cleric with contempt, could bring disrepute to the system of justice. Indeed, admitting such evidence has been compared to admitting confessions made under duress to police.
Taken as a whole, neither the historical nor the jurisprudential data seems to support the existence of a class‑based privilege for religious communications at common law in England. Some Canadian provinces have, however, enacted legislation in that respect.
A human need for a spiritual counsellor exists and, in a system of religious freedom and freedom of thought and belief, must be recognized. While serving a number of other policy interests, the value to society of disclosure to and guidance from a spiritual counsellor, in total and absolute confidence, must supercede the truth‑searching policy. An ad hoc approach may overshadow the long-term interest served by the recognition of the privilege since the relationship of the confidence between pastor and penitent may not develop in the absence of an assurance that communications will be protected. Not every religious communication will be protected. The creation of the category simply acknowledges that our society recognizes that the relationship should be fostered, and that disclosure of communications will generally do more harm than good.
A first step involves verifying whether the communications fall into the pastor-penitent category at all. The communications must be intended to be of a religious or spiritual nature. This involves inquiring into: (1) whether the communication involves some aspect of religious belief, worship or practice; (2) whether the religious aspect is the dominant feature or purpose of the communication; (3) whether the communication would have been called into being without the religious aspect; and (4) whether the religious aspect of the communication was a good faith manifestation of a religious belief, worship or practice, or whether it was colourable. The communication must also meet the first two parts of the Wigmore test: (1) the communications must originate in a confidence that they will not be disclosed; (2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. The latter elements in the Wigmore test are answered by the recognition of a pastor-penitent category.
The requirement of confidentiality stresses that only private communications may be privileged. The analysis of this issue is a factual exercise, having regard to all the circumstances. An overly rigid application emphasizing the practice of the religious denomination should be avoided. The requirement or the availability of confidential communications such as confessions will not be determinative of the availability of the privilege, although it may be relevant. "Confessional" communications should accordingly not receive any "special privilege" going beyond the application of the principles defined here. The absence of a church practice of confession of sin is not determinative of the question of confidentiality.
The application of the privilege is narrowed by the requirement that confidentiality must be essential to the full maintenance of the relationship. The privacy interests of the religious leader and individual involved, in combination with the benefit to society of the relationship's confidentiality, will not be sufficient to pass the second criterion in every case. Determination of this issue will involve, among other things, a consideration of the nature of the particular relationship at bar and the nature of the cleric‑individual relationship in broader terms. The relationship envisaged in the privilege is one in which the individual approaches the religious leader with the intent of gaining religious or spiritual comfort, advice, or absolution.
The communications here did not originate in the confidence that they would not be disclosed. Although the people involved did converse in private, there is no evidence that the appellant believed or had reason to believe that the conversations were intended to be entirely confidential. Appellant felt remorse and sought out comfort, advice and guidance from her religious leaders. The evidence did not suggest an expectation of complete confidentiality but rather suggests that the appellant herself was preparing to divulge all the information the next day and wanted to tell her co‑accused of her intentions.
Cases Cited
By Lamer C.J.
Considered: Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449; referred to: Slavutych v. Baker, [1976] 1 S.C.R. 254; Cook v. Carroll, [1945] Ir. R. 515; Geffen v. Goodman Estate, [1991] 2 S.C.R. 353; Solosky v. The Queen, [1980] 1 S.C.R. 821; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.
By L'Heureux-Dubé J.
Referred to: Solosky v. The Queen, [1980] 1 S.C.R. 821; R. v. Snider, [1954] S.C.R. 479; Trammel v. United States, 445 U.S. 40 (1980); University of Pennsylvania v. Equal Employment Opportunity Commission, 110 S.Ct. 577 (1990); John Fairfax & Sons Ltd. v. Cojuangco (1988), 165 C.L.R. 346; McGuinness v. Attorney-General of Victoria (1940), 63 C.L.R. 73; R. v. Howse, [1983] N.Z.L.R. 246; Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Cloutier v. Langlois, [1990] 1 S.C.R. 158; Broad v. Pitt (1828), 3 Car. & P. 518, 172 E.R. 528; Garnet's Trial (1606), 2 How. St. Tr. 218; Wheeler v. Le Marchant (1881), 17 Ch. 675; R. v. Hay (1860), 2 F. & F. 4, 175 E.R. 933; Gill v. Bouchard (1896), 5 Que. Q.B. 138; Ouellet v. Sicotte (1896), 9 C.S. 463; R. v. Medina, (Ont. S.C., October 17, 1988, unreported); Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572; R. v. Seaboyer, [1991] 2 S.C.R. 577; Cook v. Carroll, [1945] Ir. R. 515; In re Keller (1887), 22 L.R.I. 158; Tannian v. Synnott (1903), 37 I.L.T. & Sol. J. 275; R. v. Lynch, [1954] Tas. S.R. 47; People v. Edwards, 248 Cal.Rptr. 53 (1988), cert. denied 109 S.Ct. 1158 (1989); Mullen v. U.S., 263 F.2d 275 (1959); Slavutych v. Baker, [1976] 1 S.C.R. 254; Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860.
Statutes and Regulations Cited
Articuli Cleri, 9 Edw. 2, c. 10 (Eng. 1315).
Canadian Charter of Rights and Freedoms , Preamble, ss. 2(a), (b), 27.
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 9.
Criminal Code, R.S.C. 1970, c. C‑34, s. 37.
Evidence Act, R.S.N. 1970, c. 115, s. 6.
Evidence Act (Tasmania), 1910, s. 96(1).
Evidence Act (Victoria), 1958, No. 6246, s. 28.
Evidence Amendment Act (No. 2) (New Zealand) 1980, s. 31.
Evidence (Religious Confessions) Amendment Act (New South Wales), 1989.
Authors Cited
Bentham, Jeremy. Rationale of Judicial Evidence, vol. IV. London: Hunt and Clark, 1827.
Campbell, Simone, Sr. "Catholic Sisters, Irregularly Ordained Women and The Clergy‑Penitent Privilege" (1976), 9 U.C. Davis L. Rev. 523.
Canada. Law Reform Commission. Law of Evidence Project, Study Paper No. 12. Evidence: Professional Privileges Before the Courts. Ottawa: Law Reform Commission, 1975.
Canada. Law Reform Commission. Report on Evidence. Ottawa: Law Reform Commission, 1975.
Chambers, Robert and Mitchell McInnes. Commentary on R. v. Church of Scientology and Zaharia (1989), 68 Can. Bar Rev. 176.
Cole, William A. "Religious Confidentiality and the Reporting of Child Abuse: A Statutory and Constitutional Analysis" (1988), 21 Colum. J.L. and Soc. Probs. 1.
Cotton, Barbara. "Is there a Qualified Privilege at Common Law for Non‑Traditional Classes of Confidential Communications? Maybe" (1990), 12 Advocates' Q. 195.
Goldsmith, Michael and Kathryn Ogden Balmforth. "The Electronic Surveillance of Privileged Communications: A Conflict in Doctrines" (1991), 64 S. Cal. L. Rev. 903.
Halsbury's Laws of England, 4th ed. (reissued), vol. 11(2). London: Butterworths, 1990.
Hogan, Edward A. "A Modern Problem on the Privilege of the Confessional" (1951), 6 Loyola L. Rev. 1.
Lindsay, James R. "Privileged Communications Part I: Communications with Spiritual Advisors" (1959), 13 N. Ir. L.Q. 160.
Lyon, J. Noel. "Privileged Communications ‑‑ Penitent and Priest" (1964‑65), 7 Crim. L.Q. 327.
McLachlin, Beverley. "Confidential Communications and the Law of Privilege" (1977), 2 U.B.C. L. Rev. 266.
Mitchell, Mary Harter. "Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion" (1987), 71 Minn. L. Rev. 723.
Ontario. Law Reform Commission. Report on the Law of Evidence. Toronto: Ontario Law Reform Commission, Ministry of the Attorney General, 1976.
Ontario. Royal Commission Inquiry into Civil Rights. Report of the Royal Commission Inquiry into Civil Rights, vol 2. (The McRuer Report). Toronto: Queen's Printer, 1968.
Plantamura, Michael G. "The Clergyman‑Penitent Privilege". In Scott N. Stone and Ronald S. Liebman, eds., Testimonial Privileges. Colorado Springs, Colo.: Shepard's/McGraw-Hill, 1983.
Pollock, Sir Frederick and Frederic William Maitland. The History of English Law Before the Time of Edward I, 2nd ed. (reissued). Cambridge: Cambridge University Press, 1968.
Reese, Seward. "Confidential Communications to the Clergy" (1963), 24 Ohio St. L.J. 55.
Reeves, John. History of the English Law, 2nd ed., vol. 2. New York: August M. Kelly, 1792. Reprinted South Hasensack, N.J.: Rothman Reprints, Inc. 1969.
Ryan, H. R. S. "Obligation of the Clergy not to Reveal Confidential Information" (1991), 73 C.R. (3d) 217.
Sim, Peter. "Privilege and Confidentiality: The Impact of Slavutych v. Baker on the Canadian Law of Evidence" (1984‑85), 5 Advocates' Q. 357.
Sopinka, John and Sidney N. Lederman. The Law of Evidence in Civil Cases. Toronto: Butterworths, 1974.
Stoyles, Robert L. "The Dilemma of the Constitutionality of the Priest‑Penitent Privilege ‑‑ The Application of the Religion Clauses" (1967), 29 U. Pitt. L. Rev. 27.
Tiemann, William Harold and John C. Bush, The Right to Silence: Privileged Clergy Communication and the Law, 2nd ed. Nashville: Abingdon Press, 1983.
Uniform Law Conference of Canada. Report of the Federal/Provincial Task Force on Uniform Rules of Evidence. Toronto: Carswell, 1982.
Wigmore, John Henry. Evidence in Trials at Common Law. McNaughton Revision, vol. 8. Boston: Little, Brown & Co., 1961.
Yellin, Jacob M. "The History and Current Status of the Clergy‑Penitent Privilege" (1983), 23 Santa Clara L. Rev. 95.
APPEAL from a judgment of the Manitoba Court of Appeal (1989), 55 Man. R. (2d) 289, 68 C.R. (3d) 382, dismissing an appeal from conviction by Krindle J. sitting with jury. Appeal dismissed.
Allan S. Manson, for the appellant.
J. G. B. Dangerfield, Q.C., for the respondent.
//Lamer C.J.//
The judgment of Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Stevenson and Iacobucci JJ. was delivered by
Lamer C.J. -- This case, an appeal from a jury conviction for first degree murder, involves the alleged inadmissibility of certain evidence: the testimony of a pastor and lay counsellor of the Victorious Faith Centre Church regarding communications made to them by the appellant regarding her involvement in the murder. The appellant argues that the communications were privileged, and therefore inadmissible, both on the basis of the common law and on the basis of s. 2 (a) of the Canadian Charter of Rights and Freedoms . Two further issues raised on appeal relate to the fairness of the trial judge's charge to the jury.
The appellant and her co-accused, Mr. Fosty, were convicted at trial and appealed unsuccessfully to the Manitoba Court of Appeal. Ms. Gruenke was granted leave to appeal to this Court; Mr. Fosty is not in appeal to this Court.
This case requires the Court to consider whether a common law prima facie privilege for religious communications should be recognized or whether claims of privilege for such communications should be dealt with on a case-by-case basis. The Court has also been invited to consider how the constitutional guarantee of freedom of conscience and religion impacts on these questions.
The Facts
The appellant was (at the time of the incident) a 22-year-old woman, trained in reflexology (reflexology is a form of therapy like acupressure). The victim, Philip Barnett, was an 82-year-old client of Ms. Gruenke who had befriended both Ms. Gruenke and her mother (the appellant's father died of leukemia when she was 15). Mr. Barnett loaned money to Ms. Gruenke to start her own reflexology business and had provided her with a car and an allowance. In his will, Mr. Barnett had left a life interest in his estate to the appellant. Ms. Gruenke testified that she considered Mr. Barnett to be a "surrogate father". At one point, Ms. Gruenke and the victim had lived together in a platonic relationship; however, she moved back to her mother's home after Mr. Barnett began to express jealousy over her relationships with men and to make unwelcome sexual advances toward her. After she moved home, Mr. Barnett would telephone her and visit her from time to time and his requests for sex became more and more insistent. Ms. Gruenke testified that she had become frightened of Mr. Barnett and did not want to be alone with him.
About the time Ms. Gruenke moved back home, she began to feel very ill and tired. She became convinced that she had leukemia (like her father) and began attending the Victorious Faith Centre (a born-again Christian Church) with the hope of receiving both physical and emotional healing. The church pastor, Ms. Harmony Thiessen, assigned a counsellor, Ms. Janine Frovich, to work with the appellant.
On November 28, 1986, Mr. Barnett telephoned Ms. Gruenke, again asking her to have sex with him, and insisted that he was coming over to see her. The appellant testified that she was frightened and asked her boyfriend (the co-accused) Mr. Fosty, to come over and wait outside in his car in case she needed him. Mr. Barnett arrived and Ms. Gruenke sat in his car and talked to him. According to Ms. Gruenke, Mr. Barnett suddenly pulled out of the driveway and drove off, saying that he had done a great deal for her and it was time for her to "repay his kindness". She said she attempted to jump out of the car while it was moving and a struggle ensued; eventually Mr. Barnett stopped the car. Ms. Gruenke testified that she struck Mr. Barnett with a piece of wood which was in the car and then the struggle continued outside with her and Mr. Barnett wrestling on the ground. She says then she saw Mr. Fosty's feet approaching, but could not recall much past this point, other than that she saw Mr. Barnett covered in blood before she and Mr. Fosty drove away. Later she remembered washing the car and going to a hotel with Mr. Fosty.
The testimony at trial revealed that the victim had been found in the front seat of his car which was in a ditch off the highway, not far from Ms. Gruenke's home. The victim's head had been severely battered with a heavy, blunt instrument consistent with a nail puller which Mr. Fosty had owned and had sold on the evening the victim was murdered. There was other physical evidence connecting Mr. Fosty and the appellant to the murder. Mr. Fosty did not testify at the trial, but the theory of the defence was that Mr. Fosty had killed Mr. Barnett in the course of defending Ms. Gruenke and that she had had little or nothing to do with the victim's death. The theory of the Crown was that Ms. Gruenke had enlisted the aid of Mr. Fosty in planning and committing the murder of Mr. Barnett both to stop his sexual harassment of Ms. Gruenke and to benefit from the provisions of his will.
The evidence of Harmony Thiessen (the pastor) and Janine Frovich (the counsellor), which was ruled admissible by the trial judge, directly supported the Crown's theory. The communications between the appellant, Pastor Thiessen and Ms. Frovich took place two days after Mr. Barnett's death. Ms. Frovich went to visit the appellant at her home after hearing of Mr. Barnett's death. After the appellant began to speak of her involvement in the murder, she and Ms. Frovich moved to the Frovich home, where there was a more "peaceful atmosphere", and Ms. Frovich telephoned Pastor Thiessen. The appellant and Ms. Frovich then met Pastor Thiessen at the church, where the discussion continued. Later, the appellant went home with Ms. Frovich and Mr. Fosty came by. I have reproduced the significant portions of this evidence below:
Pastor Thiessen:
Q:When you asked what this was all about, what did Ms. Gruenke tell you?
A:Well, she said that someone had been killed. That is the way it was put to me.
. . .
Q:Did you put another question to clarify what she had been speaking about? Did you ask her what she meant?
A:Yes.
Q:What did she say to that?
A:She said that she had killed this person, this older gentleman.
Q:Did she give this older gentleman a name?
A:Phil.
. . .
Q:And what did she tell you?
A: She said that her and - she went to pick up this old man, Phil, and that they went for a drive and that when they got to wherever, and I never asked her that detail, where it was, that she - she beat him up.
. . .
A:She told me that she had planned this. She thought about it. She went to pick him up. She went to pick him up to kill him.
Q:Did she tell you why she said that?
A:Because she was so angry with him.
Q:For what reason?
A:She told me that she had leukemia, that she believe [sic] she was dying, that Phil provided income for her and bought her treatment and whatnot to take care of it, that in exchange for that he was wanting sexual favours from her. We didn't really go into what detail and that it had gone on for some time. When it had first started it was no big deal. They were friends, but as time went on he got to be something that she just hated. She felt manipulated by him.
Q:So she said then she planned to kill him.
A:Right.
Ms. Frovich:
Q:When I say "alone", you had an opportunity to speak to Miss Gruenke by yourself.
A:Yes, that's right.
Q:How did that conversation begin. What started the session.
A:There's lots of tension. I had made her something to eat because it was a concern of her mum that she have some nourishment, and after I fed the family they went downstairs to play and Adele [Gruenke] approached me about, what if someone had committed murder, could God forgive that. And, what if someone had committed murder, would they go to Hell. And I had this feeling, inside, that she was leading to something. So after a few of these "what if's" I said to her, what are you trying to tell me, Adele. And, she started weeping, and she told me, I killed Phil.
. . .
A:Pastor Harmony specifically asked her, does it look that bad.
Q:Is that when Miss Gruenke told you what had happened.
A:That's right.
Q:What did you [sic] say had happened.
A:That she had beat Phil so badly and Pastor Harmony said, well, how badly; And she said, so badly that his guts were hanging out of his head and there was blood all over.
Q:Did she say at that time what she used.
A:No. I know it was a weapon of some sort in the car at that time but she didn't specifically say what she used then.
Q:So while you were trying to determine how awful this was, this is when you learned about the injuries that Adele said she had inflicted.
A:That's right, and Pastor Harmony made a comment that she was aking [sic] her, what made you think you could get away with this. Adele said she had it preplanned to be looking like a robbery; and Pastor Harmony said, well you are not a professional.
. . .
Q:Now she spoke of this business of needing money and fear of dying and the sexual harassment, I suppose is the word, did she say anything further about how she came to do this.
A:She had made a date with Phil and they were going to go on -- she took him out of the city limits and so it would look like a robbery.
. . .
Q:Now, when you got home, was your husband there.
A:Yes, he was there.
Q:And did the three of you again continue this discussion.
A:Yes, we did. Adele made a comment that she would like to phone Jim Fosty because she felt that he needed to know that she was going to tell everybody the truth because they had made a prearrangement that if she got caught she would not implement [sic] him, so she felt he should know she was going to confess everything to the lawyer the next day so she asked if we would allow him to come into our home, and we said, sure.
. . .
Q:So you got yourselves ready for the evening, for the night, prepared a bed for her.
A:Hmm mm (yes).
Q:And Mr. Fosty appeared.
A:That's right.
. . .
A:He was very visibly upset. He seemed very warm and friendly with us, and very open, and he made a comment that this was a stupid plan and he wished he had never gone along with it.
. . .
Q:You and Adele retired to your bedroom.
A:That's right.
Q:In the bedroom did the subject of the death of Phil Barnett come up again.
A:Yes, it did.
Q:And what did Miss Gruenke had to say about that.
A:She felt very guilty about Jim's [Fosty] involvement in it. That she had to get him involved. And, she was very upset. She felt like she betrayed him by having to tell the truth but she also wanted him to have the opportunity to say the truth so he could have that feeling of no guilt, and she made a comment that he -- that Jim had also hit Phil and she looked a little upset that she had told me that. She said, I shouldn't have said that to you.
. . .
Q:Now during this period of time, you are alone after Mr. Fosty had made his comments to you and your husband, did she discuss any further what brought her to do this, or how she had come to do it, or when she decided to do it.
A:She said that she knew it had to be done by no later than Friday because - she didn't say why it had to be, but she was desperate. She said she had to have it done by Friday, and that she was thinking of various ways throughout the week to commit this murder.
. . .
And, she gave an example that she was thinking of different ways of murdering him. One was a drowning in the bathtub, but she though [sic] that might incriminate her more because her pictures are all over his apartment and she wasn't sure how she was going to dispose of the body, so she planned this one.
At the conclusion of the trial, the jury deliberated for five hours and returned a verdict of guilty of first degree murder for both accused. Both accused appealed unsuccessfully to the Manitoba Court of Appeal. Ms. Gruenke was granted leave to appeal to this Court on June 29, 1989.
Judgments Below
Manitoba Court of Queen's Bench (Krindle J., October 16, 1987 unreported)
1. Motion to Exclude Evidence
During the course of the trial, counsel for the appellant made a motion to have the prospective testimony of Pastor Thiessen and Janine Frovich excluded on the grounds that it constituted inadmissible privileged communications both under the common law and s. 2 (a) of the Charter . Counsel did not request that a formal voir dire be held and none was held (although the motion was heard in the absence of the jury). The trial judge relied on the transcript of the Preliminary Inquiry and on the submissions of counsel.
Krindle J., relying on Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449, held that there was no recognized class privilege accorded to priest and penitent relationships in Canada and, therefore, no prima facie entitlement to privilege. She stated that while it was not her preferred approach, she was bound to determine the admissibility of such communications on a case-by-case basis. Accordingly, she held that the evidence was admissible in this case based on the following reasons:
- The communications between the appellant and Ms. Frovich were not protected by any privilege because Ms. Frovich would not "qualify" as a priest as she was not an ordained Minister and was more akin to a social worker.
- The communications to Pastor Thiessen had already been revealed to the police and during the Preliminary Inquiry. "So, we are not talking about things becoming public that once were secret".
- Confidentiality of communications was not necessary to the operation of the Victorious Faith Church in the same way that it is to a priest in a confession. Rather, confidentiality was simply a means to effective "social working".
- The requirement that the witnesses testify as to what the appellant had told them did not interfere with the appellant's freedom of religion (or with others' freedom of religion). People would not be stopped from going to the Victorious Faith Center and were free to worship as they chose.
- The evidence to be gained was highly critical and could not have been obtained otherwise.
- The criminal charge in issue was the most serious known to law.
2. Jury Charge
Given that one of the grounds of appeal is that the jury charge was unfair, I will briefly describe certain relevant portions of Krindle J.'s charge to the jury.
In commenting on the evidence of a defence psychiatrist, Dr. Shane, who had questioned the appellant about her involvement in the murder under hypnosis and sodium amytal, Judge Krindle (presumably referring to Dr. Shane's statement that he was impressed with Ms. Gruenke's credibility under hypnosis) stated:
Dr. Shane is qualified to offer opinions in the realm of psychiatric medicine. He is not a lie detector machine. He is not an expert on who is telling the truth. He should not have commented before you on his opinion on credibility. He has no expertise in that area. I ask you to disregard any comments he may have made in that connection.
In reviewing the evidence of Pastor Thiessen and Ms. Frovich, Krindle J. highlighted the fact that Ms. Gruenke had not specifically denied having stated that she had considered killing Mr. Barnett by drowning him, despite the fact that she had not been asked about this either in direct or cross-examination.
In stating the theory of the Crown, Krindle J. made the following comments regarding the evidence of planning and deliberation:
I think you have to wonder and pay attention to the problem of what Fosty was doing sitting hidden in a car down the block. That strikes me as being an important piece of evidence when you are stopping to think about were people planning to do anything. Was there a plan. The Defense suggests that Fosty was sitting outside down the block in his car because Gruenke was frightened and was anticipating trouble. Gruenke herself says that her brother was home. She also says that she did not expect Phil [Barnett] to drive away with her in the car. As an aside to that, that is not consistent with what the women from the church recall her saying on that Sunday night. They say she told them, she asked Phil to go for a ride ostensibly to discuss their sexual problems but actually to get him out of town to kill him. In any event get him back to the car sitting down the block.
According to Gruenke she was shocked when Phil drove away with her in the car. She also says, however, that she expected Fosty to follow. I have a problem with it. If Gruenke was expecting to go nowhere with Phil why would she have Fosty parked in the car down the block. If she anticipated needing his help she would either need it at home or she needed it in her driveway. Why hide Fosty in a car some distance away. Why hide Fosty at all for that matter. Put him in the livingroom or in clear view if you think you are going to need help. I've tried to understand the Defense's position on why Fosty was hidden in a car down the block and I'm afraid I don't understand it. You heard the witness. You heard her explanation. I leave it to you and to your common sense. Can you think of a reasonable explanation as to why Fosty would be hidden in a car down the block to protect the Accused Gruenke who says she didn't expect to be going anywhere with Phil. [Emphasis added.]
In regard to Mr. Fosty's claim to the defence of defence or protection of another under s. 37 of the Criminal Code, R.S.C. 1970, c. C-34, the trial judge stated:
Finally, yesterday, Mr. Wolch mentioned the possibility of self defense and in defense of another. The law clearly recognizes the right of a person to defend himself or defend someone in his charge but the law is equally clear that there has to be a proportionality between the threat defended against and the degree of force used to repel that threat. The degree of force here is so manifestly excessive that I am not putting the defense of self defense to you for your consideration.
Having removed this defence from the jury, Krindle J. did not go on to say that the explanation (i.e., protecting Ms. Gruenke) could still be considered by the jury in determining whether and to what extent she had been involved in the murder.
Manitoba Court of Appeal (1989), 55 Man. R. (2d) 289, per Twaddle J.A.
The Court of Appeal found the allegation that the trial judge had failed to charge the jury adequately and fairly to be without merit. The charge was, in the court's view, full and fair as it affected the appellant. In this respect, Twaddle J.A. remarked that "[n]o doubt the charge was prejudicial to her, in the sense that it harmed her case