Boivin v. R., [1970] SCR 917

Supreme Court of Canada

Boivin v. R., [1970] S.C.R. 917

Date: 1970-04-28

Jean-Jacques Boivin Appellant;

and

Her Majesty the Queen Respondent.

1969: November 14; 1970: April 28.

Present: Fauteux, Abbott, Martland, Ritchie, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Criminal law—Capital murder—Insanity—Planned and deliberate—Evidence—Criminal Code, 1953-54 (Can.), c. 51, ss. 16, 202A, 597A.

The appellant was convicted by a jury of the capital murder of his wife. He related to the police officers, who testified to these facts, that on December 16, 1965, he killed his wife of three months by firing at her with a rifle. The shot was fired about one hour after his arrival from work and shortly after they both had supper. He stated that it was during supper that he had decided to kill his wife. He contended that at the time he committed the act, he was the victim of a mental disease which deprived him of the ability to appreciate the nature of the act he was committing and which caused him to act under an irresistible impulsion and without reflexion. He alleged also that, at any rate, the act had been committed without prior planning and without deliberation or premeditation. The verdict of the jury was affirmed by a majority judgment of the Court of Appeal. The accused appealed to this Court.

Held (Hall, Spence and Pigeon JJ. dissenting): The appeal should be dismissed.

Per Fauteux, Abbott, Martland and Ritchie JJ.: The Court of Appeal has rightly held that the instructions given on the law by the presiding judge were according to the law and that, in view of the evidence, the jury could validly dismiss as not proven the contention that, at the time of the act, the appellant was insane, within the meaning of s. 16 of the Criminal Code. Upon the facts that the accused himself voluntarily and freely disclosed, it was open to the jury to find all the elements of capital murder. On the question that he was the victim of a mental disease which deprived him of the ability to distinguish the nature of his act and which caused him to act under an irresistible impulse and without reflexion, it was the jury’s exclusive responsibility to

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assess each witness, each testimony heard, and to judge on the whole. The defence’s contention was dismissed by the jury. The Court should not attempt to substitute its opinion for that of the jury.

Per Hall and Pigeon JJ., dissenting: The jury was entitled to find on the evidence that the appellant was not insane within the meaning of s. 16 of the Criminal Code when he killed his wife. On the question as to whether the killing was planned and deliberate within the meaning of s. 202A(2)(a) of the Code, the evidence does not support a verdict of capital murder. The appellant was not a normal person. The circumstances as given in evidence all negative planning and deliberation and constitute an almost classic case of an impulsive and senseless killing. Any other view of the evidence merely equates planning and deliberation with intention. However, the evidence supports a charge of non-capital murder and a verdict for that offence should be entered.

Per Spence J., dissenting: The evidence both as to the circumstances which occurred and as to the mental condition of the accused given by the psychiatrists failed to provide a basis on which the jury could find the additional ingredient of deliberation had been present. There was no evidence that the jury could act upon to find that the act of the accused in the homicide was a planned and deliberate act and that therefore he was guilty of capital murder. The evidence including the psychiatric evidence has not the degree of probative force that is required to satisfy the burden upon the Crown to prove that the act of the accused was a deliberate act. A verdict of non capital murder should be substituted.

APPEAL from a majority judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], affirming a conviction of capital murder. Appeal dismissed, Hall, Spence and Pigeon JJ. dissenting.

Paul Martineau, Q.C., for the appellant.

Charles Letellier de St-Just, for the respondent.

The judgment of Fauteux, Abbott, Martland and Ritchie JJ. was delivered by

FAUTEUX J.—Appellant was charged with committing the offence of capital murder on the

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person of Rita Boivin, his wife, on December 16, 1965, in the city of Hull, Province of Quebec.

On that charge, it was contended by the accused, firstly, that at the time he committed the act, [TRANSLATION] “he was the victim of a mental disease which deprived him of the ability to appreciate the nature of the act he was committing and which caused him to act under an irresistible impulse and without reflection”. He alleged also that, at any rate, the act had been committed without prior planning and without deliberation or premeditation.

On January 28, 1967, a jury, presided over by Mr. Justice Paul Ste-Marie, dismissed these contentions and found the accused guilty of capital murder. On the same day, Boivin was sentenced to death, as required by the law applicable at that time. However, as has happened in other cases involving the death penalty, his sentence was commuted to life imprisonment.

On the appeal prescribed by law, the verdict of the jury was affirmed by a majority judgment of the Court of Queen’s Bench (Appeal Side)[2], composed of Hyde, Rinfret, Taschereau, Owen and Brossard JJ. Rinfret and Brossard JJ., dissenting, would have substituted for the jury’s verdict, affirmed by their colleagues, a verdict of non-capital murder. Hence the appeal to this Court.

The evidence shows that, on December 16, 1965, in the city of Hull, appellant killed his wife, Rita Boivin, by firing at her with a rifle. Appellant admitted it, the same day, first to his landlord and neighbour, Henri Pagé, and then to officers of the Hull city police. This fact, which is not in question, occurred in the following circumstances according, in particular, to the details given by the appellant to the police officers.

The Boivin couple, three months married, lived in a small apartment in a house owned and occupied by Henri Pagé. On that day, December 16, 1965, appellant went to work as usual at the Dominion Bureau of Statistics, where he was employed as a clerk. Towards the

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end of the afternoon, at 4:45 p.m., he returned to his home. The shot was fired an hour and fifteen minutes after his arrival, that is at 6:00 p.m., according to the evidence of Henri Pagé who heard the shot and to whom Boivin applied for help a few minutes later. Meanwhile, between 4:45 and 6:00 p.m., the Boivins, who were going out that evening to play “sand bags” with a friend, had supper. After the meal, Rita Boivin cleared the table, washed the dishes, and went to her room to get dressed for the planned outing. During that time, Boivin took a handful of cartridges from a box in a small bookcase placed in the kitchen, near the bedroom door, then went to the living room, took down his rifle from the wall and loaded it. He then sat on a chair in the living room, facing the door of the kitchen, and waited for his wife to come out of the bedroom. As soon as she did, he shot her. The bullet entered the victim’s back. Boivin stated subsequently that it was during supper that he had decided to kill his wife.

The accused did not testify before the jury. The facts related by him to the police officers, who testified to them, are not disputed. On the basis of these facts, it was open to and rested with the jury to decide whether in shooting his wife Boivin had deliberately committed an act planned during supper. The jury obviously had the duty of considering, in conjunction with the above facts, all the evidence adduced in support of the allegation that, when he fired at Rita Boivin, the accused was the victim of a mental disease which deprived him of the ability to appreciate the nature of the act he was committing, and which caused him to act under an irresistible impulse and without reflection.

On the matter, the jury heard, amongst others, three experts on mental illness: Dr. Roger Pelletier, on behalf of the defence, and Doctors Paul Larivière and Louis Charles D’Aoust, on behalf of the Crown.

Dr. Pelletier saw Boivin for the first time in October 1963, at the request of his father, Rodolphe-Charles Boivin, who was worried

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about the depressive moods and behaviour of his son and who gave evidence to that effect at the trial. From then on, Dr. Pelletier followed appellant’s case, seeing him at various intervals. In May 1964, he had him hospitalized a few weeks for psychiatric treatment. Thereafter, he stopped seeing him for some time and saw him briefly for the last time with his wife, Rita Boivin, some three weeks before the events of December 16, 1965. He saw him again two days after that date. According to Dr. Pelletier’s diagnosis, Boivin was suffering from schizophrenia, a mental state which, he said, had reached psychotic proportions at the time of the killing of his wife, and which prevented him from appreciating the nature of the act he committed under an irresistible impulse. In short, and in the opinion of Dr. Pelletier, Boivin was then insane and incapable of premeditation.

Seven months after the deed, Boivin was examined by Dr. Larivière, at the psychiatric ward of Bordeaux Jail where he was detained. According to Dr. Larivière, Boivin was calm and cooperative, a man of superior intellect and presenting no mental disease in progress and no psychosis. At that time, he was not insane. Dealing with the question at the time of the act, Dr. Larivière relied on what he was told by the accused concerning what happened on December 16, as well as on reports made by Dr. Pelletier, Dr. D’Aoust and hospital staff; that enabled him, as he stated, to make [TRANSLATION] “an approximate and retrospective diagnosis” as of December 16, 1965. In his opinion, at the time of the act, Boivin [TRANSLATION] “distinguished right from wrong, and he knew that killing was wrong, that one must not kill”. The doctor rejected the diagnosis of schizophrenia. According to him, Boivin presented schizoid personality patterns. He was depressive and, at one point, his emotional balance was upset. It is then, he stated, that the impulsive act of December 16 took place. On the other hand, it was stated by the witness that where a person decides to do something a half hour before doing it, premeditation exists. In his opinion, Boivin’s action [TRANSLATION] “could be more or less deliberate” because he was in a

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state of emotional unbalance and had been tense for several weeks or several months, and that this condition seemed to increase with time. In short, Dr. Larivière expressed the opinion that, at the time he shot his wife, Boivin was not insane; as to the question of his being capable of planning and committing deliberately the act of which he is accused, the testimony of the doctor, considered as a whole, is perplexing and, in my view, scarcely allows one to ascertain his exact opinion.

Dr. D’Aoust was a Montreal Juvenile Court consultant in psychiatry, from 1957 to 1959. From 1959 to 1962, he was assigned to the psychiatric ward of Bordeaux Jail. Since 1962, his work with the Justice Department of the Province of Quebec consists in making expert psychiatric assessments, at the jail’s observation centre, for the Courts. He makes about 60 to 80 such expert assessments per month, usually at the request of the Department of the Attorney General. It is possible that, because of the evidence of these various professional activities, the jury, although not failing to recognize Dr. Pelletier’s qualifications, may have found that Dr. D’Aoust had more experience in cases involving offences or criminal acts. It is perhaps fitting to observe here that in his evidence Doctor Pelletier stated:

[TRANSLATION] … I am not pretending to be an authority in forensic psychiatry. Probably Doctor D’Aoust would be better qualified than I in forensic psychiatry.

Dr. D’Aoust had Boivin under his responsibility for over a year at the observation centre of the jail where the latter was held pending trial. During this period, he interviewed Boivin many times, had him under observation and kept himself informed of the daily reports made by officers of his department. Moreover, he considered the file prepared by Dr. Pelletier on the case, as well as all the evidence given in court. The first examination made by Dr. D’Aoust took place six days after the December 16, 1965 events, and the last about twenty days before the trial which began at the end of January, 1967.

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Dr. D’Aoust disclaimed the diagnosis of schizophrenia which, in his opinion, is a serious psychosis. Had the accused suffered from schizophrenia on December 16, 1965, he would still show signs of it, and the doctor did not detect any, no more than he detected persecution delirium in Boivin. According to him, Boivin shows schizoid personality patterns which, he states, is not insanity, but a kind of personality presenting neurotic but not psychotic symptoms and not adding up to insanity symptoms. In short, in the doctor’s opinion, Boivin is not an insane person and was not one when he shot his wife. He added that, although some psychiatrists think otherwise, he is one of those who believe that, in the case of a person who is not insane, the irresistible impulse does not exist and that there is always free will, that is to say, the choice of doing or not doing a thing. He adds that, obviously there are things which are done mechanically, but always under control of the will and intelligence.

Taking into account the facts and opinions they had to consider to comply with the directions on law given to them by the presiding Judge, could the jury validly reach the conclusion they arrived at, namely, that the contention of the defence should be dismissed and that the indictment was well founded.

It should be rioted first that all the Court of Appeal judges were unanimous in holding (i) that the instructions given on the law by the presiding judge were according to the law and (ii) that, in view of the evidence, the jury could validly dismiss as not proven the contention that, at the time of the act appellant was insane, within the meaning of s. 16 of the Criminal Code. With these views I respectfully agree.

The true issue in this appeal is precisely the question of fact on which the judges were divided in the Court of Appeal. Although the dissenting judges agreed with their colleagues that the presiding judge gave the jury “clear and precise” instructions on the difference between non‑capital murder and capital murder, they were nevertheless of the opinion that, in appreciating the facts, the jury should have concluded that appellant suffered from characterized neurosis, which

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prevented him [TRANSLATION] “from committing his crime deliberately”, as Rinfret J. expressed it, or, as Brossard J. expressed it, from relating the commission of his crime [TRANSLATION] “to a plan and a resolution wittingly formed, removing therefrom any element of impulsiveness and spontaneity”. For these reasons, the dissenting judges would have substituted a verdict of non-capital murder to that of capital murder, which implies that, in their opinion, as in that of their colleagues of the majority, the jury could validly set aside, as without basis, the defense of insanity at the time of the act. The point on which the dissenting opinion is based is precisely one of the points particularly considered by the jury. In fact, after deliberating for nearly two hours, they returned to ask the presiding judge for a direction as to their duty, should they be of the opinion that, without being insane, the accused suffered from neurosis at the time of the crime. The presiding judge then told them clearly that, if the accused suffered from neurosis, they should ask themselves and decide whether he had committed the act with which he was charged willingly and deliberately and that, if they had a reasonable doubt on that point, they had to give the benefit of the doubt to the accused. Then the judge asked them if this explanation answered their question and the jury replied affirmatively. A few moments later, they returned to the courtroom to deliver their verdict.

Upon the facts that the accused himself voluntarily and freely disclosed to police officers, who testified thereto before the jury, it was open to the latter to find all the elements of capital murder. Appellant contended that at the time when he fired the shot at Rita Boivin, [TRANSLATION] “he was the victim of a mental disease which deprived him of the ability to distinguish the nature of his act and which caused him to act under an irresistible impulse and without reflection”. Of course, the accused was not bound to convince the jury beyond a reasonable doubt of the merits of this contention, and the onus of satisfying the jury beyond all reasonable doubt that the charge against appellant was well-founded rested on the Crown at all times. But it was the jury’s exclusive responsibility to assess

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each witness, each testimony heard on the matter, and to judge on the whole. The defence’s contention was dismissed by the jury.

The guiding principle in this matter is not altered by the fact that questions of mixed law and fact and questions of fact, as well as questions of law, are within the jurisdiction of this Court in cases such as the one now before us. The principle is similar to that which governs on questions of fact in a court of appeal and which is explained and expressed, inter alia in Rex v. Dobchuk[3]. In that case, Mr. Justice Richards, delivering the judgment of the Court, stated, at page 320:

We have come to the unanimous view that there is evidence upon which the jury could make the finding of guilty; that the verdict cannot be considered unreasonable; and that it can be supported upon the evidence. It is not then the duty or right of a Court of Appeal to reverse the verdict, even if the members of a Court think there is doubt as to the guilt of the accused. The Court should not attempt to substitute its opinion for that of the jury and we cannot do so in this case.

The accused has had a fair trial. The duties of the jury were explained at length by the presiding Judge and there was no misdirection.

After anxious consideration, I have reached the conclusion that the appeal should be dismissed.

The judgment of Hall and Pigeon JJ. was delivered by

HALL J.—I have had the opportunity of reading the reasons of my brother Fauteux and I agree with him and with the judges of appeal that the jury was entitled to find on the evidence that the appellant was not insane within the meaning of s. 16 of the Criminal Code when he killed his wife. The question of importance in this appeal is whether the killing was planned and deliberate within the meaning of s. 202A(2)(a) as that section read at the time the crime was committed (December 16, 1965) so as to make the crime capital murder if planned and deliber-

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ate, or non-capital murder, and on this question, with respect, I cannot agree that the evidence supports a verdict of capital murder.

While the appellant was found not insane within s. 16, he was, on any view of the evidence, not a normal person. He had suffered mental illness and been in hospital for psychiatric treatment. That fact is and was admitted. The circumstances as given in evidence all negative planning and deliberation and constitute an almost classic case of an impulsive and senseless killing. In my opinion, any other view of the evidence merely equates planning and deliberation with ‘intention’. Certainly the appellant had to have an intention to kill within the meaning of s. 201 of the Criminal Code otherwise he could not be guilty of murder at all. This was made clear in More v. The Queen[4], where Cartwright J. (as he then was) said at pp. 533-4:

In the circumstances of this case, the defence of insanity having been expressly disclaimed, there were really only two questions for the jury. The first was whether the appellant meant to cause the death of his wife; if this was answered in the affirmative he was guilty of murder. The second, which arises under s. 202A(2) (a) of the Criminal Code, was whether this murder was planned and deliberate on his part; if this was answered in the affirmative he was guilty of capital murder.

The evidence that the murder was planned was very strong, but, as was properly pointed out to the jury by the learned trial judge, they could not find the accused guilty of capital murder unless they were satisfied beyond a reasonable doubt not only that the murder was planned but also that it was deliberate. The learned trial judge also rightly instructed the jury that the word “deliberate”, as used in s. 202A(2)(a), means “considered not impulsive”.

Other meanings of the adjective given in the Oxford Dictionary are “not hasty in decision”, “slow in deciding” and “intentional”. The word as used in the subsection cannot have simply the meaning “intentional” because it is only if the accused’s act was intentional that he can be guilty of murder and

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the subsection is creating an additional ingredient to be proved as a condition of an accused being convicted of capital murder.

I am of opinion that the verdict of capital murder should be set aside on the ground that it cannot be supported by the evidence and the appellant should, accordingly, be acquitted on the charge of capital murder. The evidence does support a charge of non-capital murder, and I am in agreement with Rinfret and Brossard JJ. that a verdict of non-capital murder should be entered.

As my brother Fauteux points out, the appellant was sentenced to death by the learned trial judge, but the sentence was commuted to life imprisonment so that, regardless of the outcome of this appeal, the appellant remains sentenced to imprisonment for life and to that extent his position is not affected by the result of this appeal except in regard to an eventual parole, the consideration of which is outside the jurisdiction of this Court in any event.

SPENCE J. (dissenting)—I have had the opportunity of reading the reasons of my brother Fauteux (now Chief Justice of Canada) and also of my brother Hall, and I have come to the conclusion that I would dispose of the appeal in the same fashion as would my brother Hall.

This is an appeal from a conviction of the appellant by Mr. Justice Paul Ste-Marie on a charge of capital murder affirmed by a majority judgment of the Court of Queen’s Bench (Appeal Side) for the Province of Quebec[5]. The jurisdiction of the Supreme Court of Canada upon this appeal is that outlined in s. 597A of the Criminal Code enacted by Statutes of Canada, 1960‑61, c. 44, s. 11, and is as follows:

597A. Notwithstanding any other provision of this Act, a person

(a) who has been sentenced to death and whose conviction is affirmed by the court of appeal, or

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(b) who is acquitted of an offence punishable by death and whose acquittal is set aside by the court of appeal,

may appeal to the Supreme Court of Canada on any ground of law or fact or mixed law and fact.

“Capital murder”, in so far as we are concerned with it under the circumstances present in this appeal and which have been outlined in considerable detail in the judgment of the present Chief Justice, is defined in s. 202A(2)(a) of the Criminal Code as enacted in Statutes of Canada, 1960-61, c. 44, s. 1, which section reads:

202A. (2) Murder is capital murder, in respect of any person, where

(a) it is planned and deliberate on the part of such person,

As pointed out in the reasons of both the present Chief Justice of this Court and my brother Hall, the whole issue upon this appeal is whether the murder was a planned and deliberate one. The evidence bearing upon that issue falls into two classifications: firstly, the evidence as to the actual circumstances which occurred and, secondly, the expert evidence given by the psychiatrists in reference to the mental condition of the accused man. In so far as the evidence as to the circumstances which occurred are concerned, I adopt the description given by my brother Hall, i.e., that such evidence negatives planning and deliberation and describes an almost classic case of an impulsive and senseless killing.

I turn next to the evidence given by three psychiatrists as to the mental condition of the accused man. In considering that evidence, it must be remembered that the defence advanced by counsel on behalf of the accused person was that at the moment when he fired the shot which killed his wife the accused was the victim of a mental disease which deprived him of the ability to distinguish the nature of the act that he committed and which caused him to act under an irresistable influence without reflection. It will be seen that, at any rate, the first part of that defence is one which is aimed exactly at the defence of insanity as dealt with in s. 16 of the Criminal Code. I am of the opinion that the evidence of the three psychiatrists, Dr. Pelletier,

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who gave evidence on behalf of the accused, and Drs. Larivière and D’Aoust, who gave evidence for the Crown, was all concerned with whether or not the accused had established that defence of insanity under the provisions of s. 16 of the Criminal Code. The onus of establishing such defence was upon the accused under the provisions of s. 16(4) of the Criminal Code. Dr. Pelletier and Dr. D’Aoust were particularly concerned with the issue of whether the mental disease had deprived the accused of his ability to distinguish the nature of his act.

The verdict of the jury finding the accused guilty of capital murder, of course, implies that the accused was guilty of murder in the ordinary sense, for without first finding upon that issue the jury could not continue to determine whether or not the accused were guilty of capital murder. The evidence, both as to the circumstances and that given by Dr. D’Aoust, would permit the jury, if they accepted Dr. D’Aoust’s evidence, to come to that conclusion and neither in the Court of Queen’s Bench (Appeal Side) nor in this Court was there any issue as to whether the accused should have been convicted of murder in the ordinary sense. The issue, as I have said, was whether the jury should have convicted the accused of capital murder and that involved the finding that the homicide had, in addition to being intentional, been a planned and deliberate act.

As pointed out by my brother Hall in More v. The Queen[6], Cartwright J. (as he then was), at pp. 533-4, defined the additional ingredient which must be present, in order to find that the act was a deliberate one, was to determine whether the action was considered and not merely impulsive and that any definition of “deliberate” as being “intentional” could not be accepted for such an interpretation would fail to give any meaning to the additional ingredient required for the offence of capital murder. In arriving at this conclusion, Cartwright J. (as he then was) quoted only the definition in the Oxford Dictionary. It would appear that the distinction

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which he sought to make and which I am also seeking to make is brought out in Webster’s Third New International Dictionary, 1961, where “deliberate” is defined:

(1) characterized by or resulting from unhurried, careful, thorough, and cool calculation and consideration of effects and consequences: not hasty, rash or thoughtless.

(2) characterized by presumed or real awareness of the implications or consequences of one’s actions or sayings by fully conscious and often willful intent.

(3) slow, unhurried, and steady as though allowing time for decision on each individual action involved.

and where the learned author proceeds to point out that “pre-meditated” emphasizes previous planning and intent but does not necessarily indicate consideration of consequences attributing this distinction to Mr. Justice Benjamin Cardozo.

The evidence both as to the circumstances which occurred and as to the mental condition of the accused given by Drs. Pelletier and D’Aoust failed to provide a basis on which the jury could find the additional ingredient of deliberation had been present. Dr. Larivière did deal with such an issue in his evidence. I have read the evidence and I agree with the conclusion of the present Chief Justice of this court that Dr. Larivière’s evidence is so indecisive that it does not assist in the determination of whether or not the ingredient of deliberation was present at the time the accused acted. Perhaps that conclusion may best be illustrated by quoting a question put to the doctor by the Court and his reply:

[TRANSLATION]

BY THE COURT:

Q. If the act was committed several hours after he thought of it, this would no longer be an act committed all of a sudden?

A. No; this shows cold and deliberate premeditation on his part, and the existence of a reasonable and conscious motive;—which is not to be found here.

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I am therefore of the opinion that even if this Court were confined to consideration of a question of law alone there was no evidence that the jury could act upon to find that the act of the accused in the homicide was a planned and deliberate act and that therefore he was guilty of capital murder. We are, therefore, justified in coming to a conclusion such as Duff C.J. stated in The King v. Comba[7]:

We have no doubt that the facts adduced have not the degree of probative force that is required in order to satisfy the test formulated by this rule; … In this case, the statement would be that we have no doubt that the evidence including the psychiatric evidence has not the degree of probative force that is required to satisfy the burden upon the Crown to prove that the act of the accused was a deliberate act.

For these reasons, I would adopt the view of my brother Hall that the appeal from the conviction for capital murder should be allowed and a verdict of non-capital murder should be substituted therefor.

Appeal dismissed, HALL, SPENCE and PIGEON JJ. dissenting.

Solicitor for the appellant: Paul A. Martineau, Hull

Solicitor for the respondent: Charles Letellier de St-Just, Hull