R. v. Lupien, [1970] SCR 263

Supreme Court of Canada

R. v. Lupien, [1970] S.C.R. 263

Date: 1969-11-17

Her Majesty The Queen Appellant;

and

Jean Lupien Respondent.

1968: November 13; 1969: November 17.

Present: Martland, Judson, Ritchie, Hall and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Evidence—Act of gross indecency—Psychiatric evidence of state of mind of accused—Intent—Admissibility—Criminal Code, 1953-54 (Can.), c. 51, s. 149.

The respondent was convicted of attempting to commit an act of gross indecency. He was found by the police in a hotel bedroom in bed with another man, who was a female impersonator, and their respective positions in relation to each other were such as to justify the police in thinking that an act of gross indecency was taking place or was about to take place. The respondent seemed stunned after the entry of the police and during the interview that then took place. His defence was that he had believed his companion to be a woman. He sought to support his own evidence in this regard by the evidence of a psychiatrist. The trial judge excluded the psychiatric evidence based on interviews and tests which was tendered for the purpose of showing that the respondent had a certain type of defence mechanism which made him react violently against any homosexual activity and that he therefore would not have knowingly engaged in the homosexual practices which formed the subject of the charge.

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The majority of the Court of Appeal held the evidence to be admissible, set aside the conviction and directed a new trial. The Crown appealed to this Court.

Held (Ritchie and Spence JJ. dissenting): The appeal should be allowed and the conviction restored.

Per Martland and Judson JJ.: The evidence in question was inadmissible. The psychiatrist was being tasked for an opinion, not as to whether the respondent was mentally capable of formulating an intent to commit the crime, but as to whether he did, on the facts of this case, formulate such an intent. There is no authority which establishes that the evidence of a psychiatrist can be introduced for a purpose such as this. What is sought to be done here is to enable a professional man to express his view to the jury upon the issue of the intent of the accused, upon evidence which is not before the jury, and which is, in part, hearsay evidence from the accused himself. The decision of this Court in Wilband v. R., [1967] S.C.R. 14, is not contrary to this conclusion.

Per Hall J.: The trial judge should have admitted all the evidence which the psychiatrist was prepared to give. Whatever other causes there may be for the condition of homosexuality, psychological factors are of great importance. It follows that the evidence of psychiatrist is particularly relevant in cases involving homosexuality and the admissibility of opinion evidence from psychiatrists must be determined by its relevancy to the matter in issue at the trial. The evidence was relevant to the defence being put forward on behalf of the respondent, it was therefore admissible and the trial judge erred in rejecting it.

However, this was a proper case for the application of s. 592(1)(b)(iii) of the Criminal Code. The evidence against the respondent was overwhelming and the verdict would necessarily have been the same even if the jury had heard the opinion which the psychiatrist was prepared to give.

Per Ritchie and Spence JJ., dissenting: The trial judge should have admitted the evidence in question. The fact that the methods pursued by the psychiatrist in reaching his opinion necessitated dependence on information obtained from the respondent and others which was not before the jury, does not make his opinion inadmissible although it may well be a fact to be considered in assessing the weight to be attached to it. The admission of the psychiatrist’s

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evidence as to the respondent’s normal state of mind would not have offended the rule against the admissibility of hearsay. On the record, the evidence was tendered for the purpose of proving the doctor’s opinion that this particular man had a certain type of defence mechanism that made him react violently against homosexual behaviour. The question of whether or not a man is homosexually inclined or otherwise sexually perverted is one upon which an experienced psychiatrist is qualified to express an opinion and if such opinion is relevant, as it is here, it should be admitted at a trial such as this even if it involves the psychiatrist in expressing his conclusion that the accused does not have the capacity to commit the crime with which he is charged.

APPEAL by the Crown from a majority judgment of the Court of Appeal for British Columbia[1], setting aside the conviction of the respondent and directing a new trial. Appeal allowed and conviction restored, Ritchie and Spence JJ. dissenting.

W.G. Burke-Robertson, Q.C., for the appellant.

G.A. Martin, Q.C., and R.V. Carter, for the respondent.

The judgment of Martland and Judson JJ. was delivered by

MARTLAND J.—This is an appeal by the Crown from a judgment of the Court of Appeal for British Columbia¹, Davey C.J. dissenting, which set aside the conviction of the respondent of attempting to commit an act of gross indecency, and directed a new trial.

The facts are as follows:

On February 3, 1967, in the early hours of the morning, the respondent was observed leaving a cabaret with a person dressed and made up as a woman and taking a taxi to a hotel where, after registering under a false name, the two went to a room. Police officers listened at the locked door for some minutes, heard male voices conversing

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in French, obtained the key for the room from the hotel clerk and entered. They found the respondent and the other person naked on a bed. They noticed that the other person was a male, still wearing the blond female wig and heavy facial makeup in which he had been seen earlier. Although the officers saw no activity between the two on the bed, at the time of entry, their position was such that the respondent’s head was lying a very short distance from the female impersonator’s genital organs. The officers saw the respondent swing around on the bed away from that position. The respondent seemed stunned after the entry and during the interview that then took place with the police officers.

The respondent’s defence was that he had believed his companion to be a woman.

The legal issue to be determined in this appeal is as to the admissibility of psychiatric evidence tendered on behalf of the respondent, which the trial judge ruled was inadmissible, but which the majority of the Court of Appeal held to be admissible.

The nature of the proposed evidence was described by counsel for the respondent in the following statement to the Court at trial:

The purpose for which I am attempting to tender this evidence is for the Doctor to describe what is the normal state of mind of Mr. Lupien, and on that basis compare the normal state of mind to the events that occurred in the room. When that is done then the Doctor has a norm from which to draw, upon which to base his opinion. Now that fundamentally is the basis upon which this evidence is being tendered.

Counsel then proceeded to review the nature and extent of the proposed psychiatric evidence as follows:

The Doctor will say that this man had a certain type of defensive mechanism that made him react violently to any homosexual overtone. He will say that is the normal state. And then he will compare that opinion with what occurred this night and say, “Taking the two together and having regard to the impact of one upon the other I have the following opinion to say, namely, he must have believed this

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person was a woman,” and in so far his perception was diminished because of the things I did state in the hypothetical question, that because his perception was diminished one of two things occur, either he was not consciously aware of the genital organ he saw in front of him in the sense of being able to understand the person was a male or as soon as he became aware of it he should have rejected it and it would be inconceivable for him not to reject it.

The psychiatric examination involved the obtaining of information from the respondent and the psychiatrist said:

This is where I would have to assume the truthfulness of what he said referable to his background, his attitudes, his feelings, his beliefs, those things that would allow me to gain some idea and some opinion as to the sort of person that this man is, basically. As far as an answer to the question as to the state of this man’s mind at the time or what happened at that time or what his thinking was at that time, no, it was not necessary to rely upon the truthfulness of what he had to say.

Essentially, the opinion would be that, based upon the psychiatric examination, the respondent’s defence must be true.

In criminal trials, psychiatric evidence is most frequently introduced in cases where a plea of insanity is raised. There the issue is as to mental capacity and the opinions of experts on the subject of disease of the mind are clearly relevant and admissible.

In cases under s. 661 of the Criminal Code, involving the determination as to whether or not the accused is a dangerous sexual offender, the Court is required to hear the evidence of at least two psychiatrists. The reason for this provision would appear to be that the Court is being asked to forecast the likelihood, in the future, of a particular form of behaviour. The issue is not as to guilt in respect of a crime. It was in respect of this kind of inquiry that Fauteux J., delivering the judgment of the Court in Wilband v. R.[2], defined the permissible sources of information upon which the psychiatrist could properly rely, including second-hand information.

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In Fisher v. R.[3], which involved a charge of murder, the defence was that the accused was top drunk to have been capable of forming the requisite intent. The evidence of the Crown consisted largely of a statement given by the accused, which gave details of his movements before and after the killing, which he admitted. Psychiatric evidence was admitted in that case, in relation to the issue of mental capacity. The witness, having read the statement and being asked a hypothetical question, in which were included substantially the material facts related in the statement, stated that, in his opinion, anyone capable of doing what the accused was alleged to have done, would have the capacity to form an intent to murder, even if he had consumed 25 glasses of beer, or more.

There is no submission by the respondent in this case as to incapacity to form an intent to commit the crime charged, on the basis of insanity, drunkenness, or any other cause. The evidence which counsel for the respondent sought to lead was not to show that he was mentally incapable of forming the intent to commit the crime with which he was charged. Its purpose was to establish (partly on the basis of what the respondent had told the witness) that because the respondent normally reacted violently to homosexual practices he must have been telling the truth when, in the proved situation in which he was discovered, he said he thought his companion was a women. In other words, the psychiatrist is being asked for an opinion, not as to whether the respondent was mentally capable of formulating an intent, but as to whether he did, on the facts of this case, formulate such intent. We have not been referred to any Canadian or English authority which establishes that the evidence of a psychiatrist can be introduced for a purpose such as this. If such evidence is held to be admissible in a case of this kind, then there would seem to be no reason why, on a charge of murder, psychiatric evidence could not be led as to the innate abhorrence of the accused

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in respect of physical violence, or on a charge of theft, of the innate respect of the accused for private property rights.

I agree with the view expressed by Davey C.J. in this case:

The opinion that Lupien would not have knowingly engaged in the acts alleged is in the particular circumstances of this case too dangerous to be admitted, because without any necessity it comes too close to the very thing the jury had to find on the whole of the evidence.

The jury is required to determine the intent of the accused upon the evidence before it. What is sought to be done here is to enable a professional man to express his view to the jury upon that issue, upon evidence which is not before the jury, and which is, in part, hearsay evidence from the accused himself. In my opinion evidence of this kind should not be admitted.

I do not regard the decision of this Court in the Wilband case, supra as being contrary to this conclusion. As I have already indicated, the psychiatric evidence in question in that case was required to be heard by virtue of s. 661(2) of the Criminal Code on a hearing to determine whether an accused person, already convicted, was a dangerous sexual offender. That determination involved an inquiry as to whether he was a person likely to cause injury, pain or other evil to any person through failure to control his sexual impulses or was likely to commit a further sexual offence. On that issue Parliament has required that the Court have the assistance of evidence from at least two psychiatrists. The Wilband case held that, in giving their evidence, they were entitled to form an opinion through recognized psychiatric procedures and to consider all possible sources of information.

In the present case the issue is as to guilt on the basis of proved facts, which already exist, not a forecast as to future conduct. In this case there is no statutory requirement to hear psychia-

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tric evidence. It is sought to adduce such opinion evidence on the very issue which the jury is bound to determine on the facts proved before it.

For these reasons, I would allow the appeal and restore the conviction and sentence.

The judgment of Ritchie and Spence J.J. was delivered by

RITCHIE J. (dissenting)—This is an appeal brought by the Attorney General of British Columbia under the provisions of s. 598(1)(a) of the Criminal Code from a judgment of the Court of Appeal of British Columbia[4] (Davey C.J. dissenting) whereby that Court set aside the conviction of the respondent for attempting to commit an act of gross indecency and ordered a new trial limited to that issue.

The respondent was found by the police in a hotel bedroom in bed with another man, who was a female impersonator, and there is, in my view, no doubt that their respective positions in relation to each other were such as to justify the police in thinking that an act of gross indecency was taking place or was about to take place.

The respondent’s main defence was that at all times, until just before the police entered the room, he thought that his companion was a woman, and it was sought to support his own evidence in this regard by the evidence of Dr. Newman, a highly qualified psychiatrist, who was present throughout the trial and who had interviewed the respondent and others and subjected the respondent to certain psychiatric tests for the purpose of determining what his normal state was in relation to sex.

Counsel for the Crown took objection to the introduction of this evidence from Dr. Newman and after lengthy argument from counsel on both sides, the learned trial judge ruled that questioning by defence counsel in this regard should be limited to asking the doctor a hypothetical question based on the assumption of the truth of the evidence adduced at the trial in order to

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obtain his opinion as to the effect which the respondent’s lack of sleep, heavy work schedule and consumption of liquor had had on his state of mind at the time when he was found in such a compromising position by the police officers in the early hours of the morning.

The learned trial judge, however, excluded the psychiatric evidence based on interviews and tests which was tendered for the purpose of showing that, in Dr. Newman’s opinion, Lupien had a certain type of defence mechanism which made him react violently against any homosexual activity and that he therefore would not have knowingly engaged in the homosexual practices which formed the subject of the charge.

The members of the Court of Appeal were unanimous in expressing the opinion, with which I agree, that the doctor’s opinion given in answer to the hypothetical question which was put to him was properly admitted in evidence, but the majority of the Court, in ordering a new trial, took the view that the learned trial judge had erred in excluding the doctor’s opinion based on the interviews he had conducted and on the psychiatric tests and procedures to which he subjected the respondent. It is the dissenting opinion of the learned Chief Justice in this latter regard which forms the basis of this appeal.

In excluding the opinion formed by the doctor as a result of his own investigations and tests, the learned trial judge cited the decision of this Court in Bleta v. The Queen[5], where it was said, at p. 564:

The question of whether or not an accused person was in a state of automatism so as not to be legally responsible at the time when he committed the acts with which he is charged, is a question of fact, and indeed may be the most vital question of fact in a criminal case, and it is because the opinion of an expert witness on such a question can serve only to confuse the issue unless the proven facts upon which it is based have been clearly indicated to the jury that the practice has grown up of requiring counsel,

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when seeking such an opinion, to state those facts in the form of a hypothetical question.

The case of Bleta v. The Queen, supra, was concerned with the proper way in which to elicit an opinion from an expert witness based upon evidence which has been adduced in his presence at the trial. The sentence cited by the learned trial judge from the decision of this Court is directly followed in the same paragraph by these words:

In cases where the expert has been present throughout the trial and there is conflict between the witnesses, it is obviously unsatisfactory to ask him to express an opinion based upon the evidence which he had heard because the answer to such a question involves the expert in having to resolve the conflict in accordance with his own view of the credibility of the witnesses and the jury has no way of knowing upon what evidence he based his opinion. Where, however, there is no conflict in the evidence, the same difficulty does not necessarily arise and different considerations may therefore apply.

The Bleta case came to this Court on appeal from a judgment of the Court of Appeal for Ontario which had allowed an appeal by the Crown and ordered a new trial on the ground, inter alia, that a doctor called for the defence “was improperly permitted to express an opinion based on his assessment of the evidence.” There is no such suggestion in the present case and I do not think that the Bleta case is to be taken as deciding that a counsel is precluded from eliciting the opinion of a doctor as to a person’s state of health based on his medical knowledge and on his questioning of his patient out of the presence of the jury.

It was contended in the present case that Dr. Newman’s opinion as to the way in which the respondent would normally react to homosexual advances was inadmissible as offending the rule against the introduction of hearsay evidence in that it must of necessity have been based upon what he was told by the respondent and others in the course of the interviews he conducted and on the results of the tests which he had carried out.

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The truth of any statements made to the doctor in the course of his psychiatric enquiry was not at issue in the present case. What was being sought here was evidence of the opinion which he had formed as the result of applying his medical knowledge of an analysis of the respondent’s disposition as manifested by his words, attitudes and reactions when subjected to questioning, and to other psychiatric procedures designed to reveal his true character. It is the admissibility or inadmissibility of an opinion so formed which is at issue here and, in my view, the fact that the methods pursued by the psychiatrist in reaching his opinion necessitated dependence on information obtained from the respondent and others which was not before the jury, does not make his opinion inadmissible although it may well be a factor to be considered in assessing the weight to be attached to that opinion. If it were otherwise, the Courts would be denied many medical opinions based on clinical methods of diagnosis.

In the case of Wilband v. Her Majesty the Queen[6], the point was taken that certain evidence given by psychiatrists under the provisions of s. 661(2) of the Criminal Code was inadmissible as offending against the hearsay rule, and in the course of his reasons for judgment, Mr. Justice Fauteux had this to say, at p. 21:

Dealing with hearsay:—The evidence, in this case, indicates that to form on opinion according to recognized normal psychiatric procedures, the psychiatrist must consider all possible sources of information, including second-hand source information, the reliability, accuracy and significance of which are within the recognized scope of his professional activities, skill and training to evaluate. Hence, while ultimately his conclusion may rest, in part, or second-hand source material, it is nonetheless an opinion formed according to recognized normal psychiatric procedures. It is not to be assumed that Parliament contemplated that the opinion which the psychiatrists would form and give to assist the Court would be formed by methods other than those recognized in normal psychiatric procedures. The value of a psychiatrist’s opinion may be affected to

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the extent to which it may rest on second-hand source material; but that goes to the weight and not to the receivability in evidence of the opinion, which opinion is no evidence of the truth of the information but evidence of the opinion formed on the basis of that information.

It is true that in the Wilband case Mr. Justice Fauteux was considering psychiatric evidence on the issue of whether an accused person who had already been convicted was “a dangerous sexual offender”, and that it was the status of the accused rather than his guilt or innocence which was at issue, but I am satisfied that what was said in that case in relation to the hearsay rule applies with equal force to the present circumstances.

In view of the above, I am of the opinion that the admission of the psychiatric evidence sought to be adduced from Dr. Newman as to the respondent’s normal state of mind would not have offended the rule against the admissibility of hearsay, but this is far from the end of the matter as the dissent of the learned Chief Justice is based on broader grounds. In the course of his reasons for judgment he said:

I would exclude the evidence on the broad ground that it was not admissible for the purpose it was tendered. It must be clearly understood what that purpose was, so I reiterate that it was to show that Lupien’s normal personality and his defence mechanisms would cause him to reject homosexual advances or commerce, and so in the opinion of the experts he would not knowingly have engaged in them. They sought to explain the evidence on the ground that Lupien must have honestly believed Boisvert to be a woman, or by impairment of his understanding and judgment.

The opinion that Lupien would not have knowingly engaged in the acts alleged is in the particular circumstances of this case too dangerous to be admitted, because without any necessity it comes too close to the very thing the jury had to find on the whole of the evidence. But there is a more basic objection. Put in simple English the doctors were being invited to say that Lupien was a normal man, and as a normal man he would be instinctively repelled by and recoil from a homosexual act. The jurors were the proper people to say what a normal

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man would do in those circumstances for that would depend upon their knowledge of people.

I agree with the Chief Justice that if the evidence had been tendered for the purpose of showing that Lupien was a normal man, the conclusion as to how he would have acted under the circumstances would have been a question for the jury; but, with all respect, as I understand the record, the evidence was not tendered for this purpose at all but rather for the purpose of proving the doctor’s opinion that this particular man bad a certain type of defence mechanism that made him react violently against homosexual behaviour. The evidence which the learned trial judge excluded was described by the respondent’s counsel in the following terms:

Now, here the doctor will say—and I am going to be a little bit inept in doing it—the doctor will say that this man had a certain type of defensive mechanism that made him react violently to any homosexual overtone. He will say that is the normal state. And then he will compare that opinion with what occurred this night and say, “Taking the two together and having regard to the impact of one upon the other I have the following opinion to say, namely, he must have believed this person was a woman”, and (2) in so far his perception was diminished because of the things I did state in the hypothetical question, that because his perception was diminished one of two things occur, either he was not consciously aware of the genital organ he saw in front of him in the sense of being able to understand the person was a male or (2) as soon as he became aware of it he should have rejected it and it would be inconceivable for him not to reject it.

As I understand it, the evidence thus sought to be adduced was directed towards obtaining Dr. Newman’s opinion to the effect that the respondent was so constituted as to be incapable of formulating the intention to commit a homosexual act, and it appears to me that the question of whether or not a man has homosexual tendencies or inclinations is one which is well adapted to the diagnosis of a psychiatrist and that such an

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opinion formed in this area of human behaviour is relevant and admissible in a case such as the present one.

This was not a question of adducing character evidence in the sense of reputation, and I think that the rule laid down in 1865 by Cockburn C.J., in Reg. v. Rowton[7], to the effect that evidence of character can only be introduced by seeking evidence of the accused’s general reputation in the neighbourhood to which he belongs, is singularly inappropriate to the introduction of evidence from psychiatrists as to the accused’s disposition.

The Rowton case was decided many years before the development of psychiatry as an accepted branch of medicine and we were not referred to any case in which the rule there stated was applied so as to exclude such evidence.

In the course of his reasons for judgment in the case of Fisher v. The Queen[8], with which nine members of this Court were “in substantial agreement” (see [1961] S.C.R. 535 at 538) Aylesworth J.A. said at page 21, speaking of the evidence of the pyschiatrist called by the Crown in that case:

He was, of course, assuming the facts given him as an hypothesis to be true, giving his opinion upon one of the vital issues to be decided by the jury, but that does not per se render his opinion inadmissible. …Psychiatry is a comparatively modern and special branch of medical science which deals with the study of the mind, the working of the mind, the mental state of an individual as demonstrated by his conversation, attitude and actions. I entertian no doubt that Dr. Easton as a specialist in psychiatry for many years and with the experience which his position entails, is qualified to express an opinion upon the mental capacity of an individual such as appellant to form a certain intent,…

In the Fisher case the accused, who was charged with murder, had given a statement to the police in which he described in great detail his activities during the evening up until the time when the murder was alleged to have taken place. In the course of the cross‑examination of certain Crown

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witnesses it became apparent that an attempt was being made to make out a defence of drunkenness and before closing the case for the prosecution, the Crown called Dr. Baston, the Director of Psychiatry at the Ontario Hospital in New Toronto, who was asked a hypothetical question based in large measure on the statement made by the accused to the police in answer to which he expressed the opinion that anyone able to do what the appellant was alleged to have done could have the capacity to form the intent to murder, even after he had consumed 25 glasses of beer or more. It appears to me that the opinion so sought by the Crown came as close as possible to being evidence of the very thing that the jury had to find if the defence of drunkenness was to be negated and the accused convicted. In approving the admission of the psychiatrist’s evidence, Aylesworth J.A. concluded, at page 21:

The relation of appellant’s actions and conduct, as posed to the doctor, to appellant’s mental capacity, was surely a matter upon which the witness could call into play his special knowledge in that field. The fact that the witness did not examine the appellant, in my opinion, can have no bearing upon the question of the admissibility of his evidence; the whole basis of his evidence, as has been said already, was the effect of appellant’s activities as demonstrating to an expert in the field of psychiatry, the presence or absence of a specific degree of mental capacity. While the value of that evidence was for the jury, it was in my view, admissible evidence.

(The italics are my own.)

What was sought to be introduced in the present case was evidence from a specialist in the field of psychiatry as to the absence of a specific degree of behavoural capacity and I think that Mr. Justice Aylesworth’s language applies and that “while the value of that evidence was for the jury it was… admissible evidence.”

I am far from saying that as a general rule psychiatric evidence of a man’s disinclination to commit the kind of crime with which he is charged should be admitted, but the present case is con-

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cerned with gross indecency between two men and I think that crimes involving homosexuality stand in a class by themselves in the sense that the participants frequently have characteristics which make them more readily identifiable as a class than ordinary criminals. See Reg. v. Thompson[9]. In any event, it appears to me that the question of whether or not a man is homosexually inclined or otherwise sexually perverted is one upon which an experienced psychiatrist is qualified to express an opinion and that if such opinion is relevant it should be admitted at a trial such as this even if it involves the psychiatrist in expressing his conclusion that the accused does not have the capacity to commit the crime with which he is charged.

For all these reasons, as well as for those expressed in the reasons for judgment rendered by Mr. Justice Bull on behalf of the majority of the Court of Appeal, I would dismiss this appeal.

HALL J.—The facts relative to this appeal are set out in the reasons of my brothers Martland and Ritchie.

I agree with my brother Ritchie that the learned trial judge should have admitted all the evidence which the psychiatrist, Dr. Newman, was prepared to give.

Homosexuality is not a disease of the mind nor a mental illness nor a condition arising out of mental incapacity or deficiency. It is a sexual attraction and interest between members of the same sex. There are all gradations of the condition from those at the one end of the scale who have never had a normal sexual impulse to those at the other end who are only homosexual under exceptional conditions; e.g., when they are totally segregated from the opposite sex, and in their case their homosexuality generally disappears as soon as they return to a normal environment. In between, others have both homosexual and heterosexual impulses and are known as “bisexuals”. In whatever category the homosexual falls, his condition is an acquired aberration from the normal state. No one is destined at birth to be a homosexual any more than any given individual is earmarked to be an alcoholic or a drug addict.

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Heredity plays no part in the development. Environment is said to be the decisive factor.

The literature on the subject of homosexuality is very divergent in attributing specific causes or reasons for the condition, but all writers are agreed that whatever other causes there may be psychological factors are of great importance and are to be considered in what might be termed an ascending scale of complexity of explanation. Psychiatry has concerned itself in a special way with the study of homosexuality, and

…throughout psychiatry one finds that the structure of the personality is an interplay between environment and constitutional endowment, so much so that it is almost possible to devise an equation that constitution X the environment = a constant. (“They Stand Apart”, Windmill Press, London, 1955, p. 78.)

Accordingly it follows that the evidence of psychiatrists is particularly relevant in cases involving homosexuality and the admissibility of opinion evidence from psychiatrists must be determined by its relevancy to the matter in issue at the trial. In the present case the learned trial judge admitted all the evidence being tendered from Dr. Newman except the opinion he was prepared to give to the effect that Lupien’s normal personality and his defence mechanisms would cause him to reject homosexual advances and that he would not knowingly have engaged in them. Dr. Newman was allowed to answer the hypothetical question put to him based on the assumption of the truth of the evidence adduced at the trial but was not permitted to give the opinion above set out based on tests made by and for him and in conversations with Lupien.

It is a question where the line between admissibility and inadmissibility is to be drawn. If the evidence was relevant to the defence being put forward on behalf of Lupien, and I think it was, then it was admissible and the learned trial judge erred in rejecting it.

It is true, as Davey C.J.B.C. points out in his dissent, that the answer which the psychiatrist was expected to give “comes too close to the very

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thing the jury had to find on the whole of the evidence”. I do not think that this is a valid reason for rejecting the evidence. Actually it cannot be considered an innovation in regard to medical evidence. Psychiatrists are permitted to testify that from their examination and study, sometimes long after the event, of an accused, including conversations with him and from facts proven in evidence, that the accused was incapable of forming the intent necessary to constitute the crime with which he is charged. That type of evidence is very close, if not identical, to the conclusion the jury must come to in such a case if it is to find that the accused was not guilty because he did not have intent necessary to support conviction. The weight to be given the opinion of the expert is entirely for the jury, and it is the function of the trial judge to instruct the jury that the responsibility for weighing the evidence is theirs and theirs alone.

The next question for decision is whether the error in this instance was fatal to a valid conviction or whether the provisions of s. 592(1)(b)(iii) which read:

592. (1) On the hearing of an appeal against a conviction, the court of appeal

(b) may dismiss the appeal where…

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (ii) of paragraph (a) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;

should be applied.

The conditions under which this provision should be invoked are set out in the reasons of Cartwright J. (now C.J.C.) in Colpitts v. The Queen[10] as follows:

A number of authorities which should guide the Court of Appeal in deciding whether, misdirection

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having been shewn, it can safely be affirmed that no substantial wrong or miscarriage of justice has occurred are quoted in the reasons of my brother Spence. Upon reading these it will be observed that, once error in law has been found to have occurred at the trial, the onus resting upon the Crown is to satisfy the Court that the verdict would necessarily have been the same if such error had not occurred. The satisfaction of this onus is a condition precedent to the right of the Appellate Court to apply the terms of the subsection at all. The Court is not bound to apply the subsection merely because this onus is discharged.

The section recognizes that there are cases in which, notwithstanding error on the part of the learned trial judge, the appeal court may in its discretion, where the weight of the evidence impels it to do so, conclude that no substantial wrong or miscarriage of justice has occurred. This is such a case. The evidence against the accused was overwhelming, and in my view the verdict would necessarily have been the same even if the jury had heard the opinion which Dr. Newman was prepared to give.

I think that this is a proper case for the application of the provisions of s. 592(1)(b)(iii). I would, accordingly, allow the appeal and restore the conviction and sentence.

Appeal allowed and conviction restored, RITCHIE and SPENCE JJ. dissenting.

Solicitor for the appellant: G.L. Murray, Vancouver.

Solicitors for the respondent: Braidwood, Nuttall & MacKenzie, Vancouver.