R. v. Abbey, [1982] 2 SCR 24

SUPREME COURT OF CANADA

R. v. Abbey, [1982] 2 S.C.R. 24

Date: 1982-07-22

Her Majesty The Queen Appellant;

and

Robert Mark Abbey Respondent.

File No.: 16589.

1981: December 16; 1982: July 22.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law — Defence of insanity — Hypomania — Accused knew actions to be wrong — Delusion that immune from punishment if caught — Whether or not accused rendered incapable of appreciating the nature and quality of his act — Criminal Code, R.S.C. 1970, c. C-34, s. 16.

Evidence — Hearsay — Whether or not trial judge erred in treating as factual the hearsay evidence on which expert opinion based.

Respondent was found not guilty on account of insanity, of importing cocaine into Canada and of unlawful possession of cocaine for the purpose of trafficking. A hypomaniac, respondent knew he was doing wrong but believed that, if caught, he would not be punished. The trial judge found that respondent's incapacity to appreciate the nature and quality of his acts met the test of s. 16(2), and more particularly, that he did not "appreciate" the consequences of punishment associated with the commission of the offence. This appeal is from a judgment of the British Columbia Court of Appeal upholding the verdict reached by the trial judge.

Held: The appeal should be allowed.

The defence of insanity was not open to respondent. Accused's failure, because of his delusions, to appreciate the penal sanctions attaching to the crime did not bring him within the ambit of the first arm of the insanity defence. The requirement that the accused be able to perceive the consequences of the physical act is a restatement, specific to the defence of insanity, of the principle of mens rea as a requisite element in the commission of a crime. The mental element must be proved with respect to all circumstances, and consequences, that form part of the actus reus. Punishment is not an element of the crime itself, but may be the result of the commission of the criminal act. "Wrong", used in the second half of s. 16(2), means wrong according to

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law, and as it has been established that respondent's act was forbidden by law, respondent's inability to "appreciate" the penal consequences was irrelevant to the question of legal sanity.

Irresistible impulse does not exist as a defence but may be symptomatic of a disease of the mind giving rise to a defence of insanity. The trial judge's comments were made in the context of his consideration of the insanity defence and specifically rejected a defence of diminished responsibility.

The trial judge erred in accepting as factual much of the hearsay evidence related by an expert in the course of giving his opinion. The expert's opinion, however, was admissible even if based on second-hand evidence, for that opinion is not determinative of an issue but a question of fact to be accepted or rejected as the judge or jury see fit.

Cooper v. The Queen, [1980] 1 S.C.R. 1149; Schwartz v. The Queen, [1977] 1 S.C.R. 673; R. v. Borg, [1969] S.C.R. 551, considered; R. v. Barnier, [1980] 1 S.C.R. 1124; Kjeldsen v. The Queen, [1981] 2 S.C.R. 617; Codere (1916), 12 Cr. App. R. 21; R. v. Harrop (1940), 74 C.C.C. 228; R. v. Crook (1979), 1 Sask. R. 273; R. v. Rabey (1977), 37 C.C.C. (2d) 461; R. v. Creighton (1908), 14 C.C.C. 349; Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965; Turner (1974), 60 Crim. App. R. 80; Wilband v. The Queen, [1967] S.C.R. 14; R. v. Dietrich (1970), 1 C.C.C. (2d) 49; R. v. Rosik, [1971] 2 O.R. 47; Phillion v. The Queen, [1978] 1 S.C.R. 18; R. v. Perras (1972), 8 C.C.C. (2d) 209, referred to.

APPEAL from a judgment of the British Columbia Court of Appeal (1981), 60 C.C.C. (2d) 49, 21 C.R. (3d) 63, 29 B.C.L.R. 212, dismissing an appeal from a judgment of Spencer C.C.J. finding respondent not guilty on account of insanity. Appeal allowed.

Eugene G. Ewaschuk, Q.C., and S. David Frankel, for the appellant.

Josiah Wood, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—Robert Mark Abbey was tried by a judge sitting alone on two charges (i) importing

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cocaine into Canada and (ii) unlawful possession of cocaine for the purpose of trafficking. His sole defence was that he was insane at the material time. The trial judge gave effect to that defence. He found Abbey not guilty on account of insanity and the Court of Appeal of British Columbia dismissed a Crown appeal. The matter has now, by leave, reached this Court.

I

The Facts and History of the Case

The facts surrounding the commission of the offence are not in dispute. Pursuant to s. 582 of the Criminal Code Abbey admitted, amongst others, the following facts alleged against him, for the purpose of dispensing with proof. On Sunday, May 13, 1979, Abbey arrived at the Vancouver International Airport on C.P. Air Flight No. 421 from Lima, Peru. He entered Canada carrying a brown shoulder bag containing two clear plastic bags the contents of which weighed 5.5 ounces and analyzed to be approximately 50 per cent pure cocaine. After disembarkation, Abbey proceeded directly to the Canada Customs primary counter where he presented his passport and a signed customs declaration. He then obtained his suitcase from a baggage carousel and proceeded to the Customs secondary counter. Abbey placed the suitcase and shoulder bag on the counter. The Customs Inspector looked into the shoulder bag and observed a camera case and underneath it two plastic bags of white powder, the cocaine. The following conversation ensued between the Customs Inspector, Jung, and Abbey:

Jung: (holding the two plastic bags of white powder). "What is it?"

Abbey: "You got me."

Jung: "What is it?"

Abbey: "It's coke."

R.C.M.P. Constable Giesbrecht arrived on the scene:

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Giesbrecht: (indicating the brown shoulder bag). "What's in here?"

Abbey: "Naturally cocaine." Giesbrecht: "How much?"

Abbey: "130 to 150 grams."

Giesbrecht: "You need not say anything, however, anything you do say may be given in evidence. You understand this?"

Giesbrecht: "What's the white powder?"

Abbey: "Cocaine."

Giesbrecht: "You brought the cocaine into the country?"

Abbey: "Yes."

Giesbrecht: (indicating the brown shoulder bag). "Did you bring this suitcase into the country?"

Abbey: "Yes."

Later in the day Abbey gave the police a signed statement in which he said that in the last two weeks of April, 1979, while still in Canada, he had received $900 from three individuals on the express understanding that he would purchase 13 grams of cocaine for them in Peru. The two plastic bags contained 158.7 grams of cocaine, the "street value" of which was $76,320, if cut to 13 per cent purity, or $18,150 if sold, uncut, by the ounce. It was a profit venture. In his statement to police which was submitted in evidence, Abbey was asked if there were anything he would like to say with respect to the importation of cocaine. He replied:

It was just there. I've been down there many times and when you see it for five dollars. I was going to school and [sic] the Philippines and it was the perfect way to have a perfect year. 1 can't believe 1 did it.

As I have said, the only defence raised was s. 16(2) of the Criminal Code, insanity. Section 16 of the Code reads:

16. (1) No person shall be convicted of an offence in respect of an act or omission on his part while he was insane.

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(2) For the purposes of this section a person is insane when he is in a state of natural imbecility or has disease of the mind to an extent that renders him incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission is wrong.

(3) A person who has specific delusions, but is in other respects sane, shall not be acquitted on the ground of insanity unless the delusions caused him to believe in the existence of a state of things that, if it existed, would have justified or excused his act or omission.

(4) Every one shall, until the contrary is proved, be presumed to be and to have been sane.

As witnesses, the Crown called the customs inspectors and R.C.M.P. officers who searched and questioned Abbey at the airport. They said that Abbey appeared "normal" in their dealings with him. Abbey did not testify. The defence called only one witness, Dr. Vallance, a psychiatrist. In rebuttal the Crown called another psychiatrist, Dr. Eaves. No other witnesses gave testimony.

Dr. Vallance testified that he first saw Abbey approximately 10 weeks after the commission of the offence. Dr. Vallance's testimony was based on his interviews with Abbey, his interviews with Abbey's mother, his review of a medical report prepared by another psychiatrist, and his discussions with other doctors who were involved in treating Abbey. In particular, Dr. Vallance relied on Abbey's description of the events surrounding his trip to South America as indicative of his mental state at the material time. Dr. Vallance's opinion was that Abbey, at all material times, was suffering from a disease of the mind, a manic illness, known as hypomania. While Abbey appreciated that he was bringing cocaine into Canada and knew that what he was doing was wrong, he believed that, if caught, he would not be punished. Dr. Vallance said:

He had a considerable disturbance of mood. He had delusional ideas. He had hallucinatory experiences. It's difficult under circumstances like that to fully appreciate what you are doing, particularly when the feelings and delusional ideas are tangled up with what you are doing. If you feel that you are for some delusional idea inordinately powerful or safe then that impairs good

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judgment. I am sure he had some appreciation of what he was doing.

Dr Vallance further testified that, while Abbey was not rendered totally incapable of appreciating the nature and quality of his acts by reason of the disease of mind from which he suffered, there was a degree of impairment of judgment. He had the feeling that he was being looked after by some outside force that was feeding him strength and that no harm would come to him and even if he did get caught it did not matter because somehow he would be looked after. Dr. Vallance made reference to Abbey's delusional belief that he was committed to a particular path of action which he could not change and his further delusional idea, while in Lima, Peru, that he had "astro-travelled" back to Vancouver already and that in getting on the plane in Lima to fly home he was simply having the body follow where the "rest" had already gone.

Dr. Eaves, in rebuttal, was of the opinion that the disease of the mind experienced by Abbey, hypomania, would "not be substantially enough to render him incapable of appreciating the nature and quality of his actions ... not to know that his actions were wrong".

The trial judge found that Abbey suffered from a disease of the mind. This was common ground. Both doctors agreed, however, that Abbey knew what he was doing and he knew that it was wrong. They disagreed on their assessment of the degree of Abbey's capability as of May 13, 1979. The judge found that disease of the mind incapacitated his ability to appreciate the nature and quality of his acts to the degree required to meet the test of s. 16(2). More particularly, Abbey did not "appreciate" the consequences of punishment associated with the commission of the offence. After referring to the decision of this Court in Cooper v. The Queen, [1980] 1 S.C.R. 1149, the trial judge did find that Abbey "had the capacity to appreciate the nature of the act of importing and of possessing the Cocaine". He continued:

As I understand the evidence and the submissions of counsel, the Accused had the capacity to appreciate the nature of the act of importing and of possessing the

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Cocaine. He also had the capacity to appreciate the immediate consequences of those acts. That is to say that they were illegal; that he should not commit them overtly; that if he succeeded he must then deliver some of the Cocaine to his friends who gave him the money for it, and find someone through another friend who would buy the rest at a large profit to himself. He had the capability, in that sense, of analysing the knowledge of what he was about, and he—in using the word "analysing" I adopt the definition given by Mr. Justice Estey in the Supreme Court of Canada decision, Regina v. Barnier (1980) 2 W.W.R. 659.

The trial judge, however, did not stop there. He went on to consider "whether the law requires that an accused also be able to appreciate, in the sense of which I have read from Mr. Justice Estey's decision, the consequences that may be personal to him. That is to say, the consequence of punishment."

In finding Abbey not guilty by reason of insanity the judge concluded that "one, who like Abbey suffers from the delusion that he is protected from punishment by some mysterious external force which comes to him, as described in the evidence of Dr. Vallance, has his ability to appreciate the nature and quality of his acts incapacitated to the degree required to meet the test of Section 16, Subsection 2. He is, by disease of the mind, deprived of the ability to assess an important consequence of his act. He is deprived of the effect of the penal sanctions ...."

The Crown appealed, contending that the trial judge had erred in law in directing himself to the law applicable to the defence of insanity. The appeal was dismissed.

The Crown has now appealed to this Court, on the grounds raised in the British Columbia Court of Appeal:

1) The trial judge erred in holding that a person who by reason of a disease of the mind does not "appreciate" the personal penal consequences of his actions is insane within the meaning of Section 16(2) of the Criminal Code.

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2) The trial judge erred in giving effect to a defence of "irresistible impulse".

3) The trial judge misdirected himself with respect to the use which could be made of "hearsay" evidence introduced during the testimony of the psychiatrists who were called as witnesses.

II

Consequences

The First Arm of Section 16(2)

The question raised in the first ground of appeal is therefore whether "appreciation of the nature and quality of an act" is limited to appreciation of the physical consequences of the act or also includes appreciation of the penal consequences to the accused. Taggart J.A., speaking for the Court of Appeal, said that Cooper v. The Queen, supra, and R. v. Barnier, [1980] 1 S.C.R. 1124 made it clear that there is a distinction between "know" and "appreciate" and that the words "appreciate the nature and quality of his acts" connote more than a mere knowledge of the physical nature of the acts being committed. With respect, I agree. The British Columbia Court failed, however, to deal with the question of what it is an accused must fail to "appreciate" before he can be found to be legally insane. The Court simply accepted the trial judge's conclusion that somebody who, because of a disease of the mind, has the delusion that he is protected from punishment by some mysterious external force, is incapacitated from appreciating the nature and quality of his acts.

The defence of insanity in s. 16(2) of the Criminal Code has received lengthy consideration by this Court in several recent judgments: Cooper v. The Queen, supra, R. v. Barnier, supra, and, most recently, Kjeldsen v. The Queen, [1981] 2 S.C.R. 617. As stated in Cooper v. The Queen, at p. 1152, s. 16(2) of the Criminal Code "does not set out a test of insanity but, rather the criteria to be taken into account in determining criminal responsibility." With some hesitation the trial judge came to the conclusion that:

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... one, who like Abbey suffers from the delusion that he is protected from punishment by some mysterious external force which comes to him, as described in the evidence of Dr. Valiance, has his ability to appreciate the nature and quality of his acts incapacitated to the degree required to meet the test of Section 16, Subsection 2. He is, by disease of the mind, deprived of the ability to assess an important consequence of his act. He is deprived of the effect of the penal sanctions in restraining him from the commission of a crime as it should restrain us all.

With respect, the trial judge has confused the "ability to perceive the consequences, impact and results of a physical act" (Cooper v. The Queen, at p. 1162) with a belief, however unjustified, that the legal sanction imposed for the commission of the prohibited act, the "legal consequences", was somehow inapplicable to him. The delusion under which Abbey was supposedly labouring was that he would not get caught, or, if caught, would benefit from some undefined immunity to prosecution. Such a delusion by no means brings him under the first arm of the insanity test in s. 16(2) of the Criminal Code as developed in the recent cases.

According to s. 16(2) a person is insane when he has a disease of the mind to an extent that renders him incapable of

i) appreciating the nature and quality of an act,

or

ii) knowing that an act is wrong.

As the recent decisions dealing with s. 16(2) have noted, the wording in the Criminal Code is slightly different than in the English M'Naghten rules which are the inspiration for the section. The concern of the recent cases has been to set the limits for the defence, limits which are broader than those in the M'Naghten rules. The M'Naghten rules, under what is termed the first arm of the test, require the accused to be incapable of knowing the nature and quality of his act. As has been pointed out by the commentators, a narrow literal interpretation of this test is such that "nobody is hardly ever really mad enough to be within it"

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(Baron Bramwell quoted by GA. Martin in "Insanity as a Defence" (1966), 8 Crim. L.Q. 240, at p. 243).

As the Court said in Cooper v. The Queen at p. 1161:

To "know" the nature and quality of an act may mean merely to be aware of the physical act, while to "appreciate" may involve estimation and understanding of the consequences of that act. In the case of the appellant, as an example, in using his hands to choke the deceased, he may well have known the nature and quality of that physical act of choking. It is entirely different to suggest, however, that in performing the physical act of choking, he was able to appreciate its nature and quality in the sense of being aware that it could lead to or result in her death.

It is the use of the word "consequences" in this context which, unfortunately, led the trial judge astray. "Consequences" in Cooper v. The Queen, R. v. Barnier and Kjeldsen v. The Queen refer to the physical consequences of the act. All three cases were murder cases, violent crimes in which there was a victim who suffered the "consequences" of the accused's actions.

The requirement, unique to Canada, is that of perception, an ability to perceive the consequences, impact, and results of a physical act. An accused may be aware of the physical character of his action (i.e., in choking) without necessarily having the capacity to appreciate that, in nature and quality, that act will result in the death of a human being. This is simply a restatement, specific to the defence of insanity, of the principle that mens rea, or intention as to the consequences of an act, is a requisite element in the commission of a crime [Cooper v. The Queen, at pp. 1162-63].

In Schwartz v. The Queen, [1977] 1 S.C.R. 673, Mr. Justice Martland said at p. 700:

The Codere case, in my opinion correctly, decided that "nature and quality" dealt with the physical character of the act. If, therefore, a person who has committed a crime did not, by reason of disease of the mind, know what he was doing, he is not to be convicted, because it really was not his act.

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In Codere (1916), 12 Cr. App. R. 21 (C.C.A.), Reading L.C.J. considered the application of the M'Naghten rules at pp. 26-27 and in particular the expression "nature and quality of the act":

It is said that "quality" is to be regarded as characterising the moral, as contrasted with the physical, aspect of the deed. The Court cannot agree with that view of the meaning of the words "nature and quality." The Court is of opinion that in using the language "nature and quality" the judges were only dealing with the physical character of the act, and were not intending to distinguish between the physical and moral aspects of the act. That is the law as it has been laid down by judges in many directions to juries, and as the Court understands it to be at the present time.

See also R. v. Harrop (1940), 74 C.C.C. 228 (Man. C.A.), at p. 230; R. v. Crook (1979), 1 Sask. R. 273 (Sask. C.A.), at p. 303.

Although there is some controversy in academic circles, I adopt the more traditional view espoused by Glanville Williams (Criminal Law, The General Part, 2nd ed. (1961), para. 166, at p. 525) that a delusion falling under the "first arm" of the insanity defence negatives an element of the crime, the mens rea. It may also, as Martin J.A. pointed out in R. v. Rabey (1977), 37 C.C.C. (2d) 461, notwithstanding the existence of mens rea in the formal sense of intention, foresight, or knowledge with respect to the actus reus, exempt from liability if the criteria of insanity are met. As the Court observed in Cooper the requirement that the accused be able to perceive the consequences of a physical act is a restatement, specific to the defence of insanity, of the principle of mens rea, or intention as to the consequences of an act, as a requisite element in the commission of a crime. The mental element must be proved with respect to all circumstances, and consequences, that form part of the actus reus. As the Crown in this case correctly points out, "While punishment may be a result of the commission of a criminal act it is not an element of the crime itself". A delusion which renders an accused "incapable of appreciating the nature and quality of his act" goes to the mens rea of the offence and brings into operation the "first arm" of s. 16(2): he is not guilty by reason of insanity. A delusion which renders an accused

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incapable of appreciating that the penal sanctions attaching to the commission of the crime are applicable to him does not go to the mens rea of the offence, does not render him incapable of appreciating the nature and quality of the act, and does not bring into operation the "first arm" of the insanity defence.

Abbey was charged with importing and trafficking in cocaine. There is no dispute as to the fact that he carried cocaine into the country. In his statement to police, it was his admitted intention to import cocaine for the purposes of trafficking. In other words, Abbey appreciated that the actus reus of each of the offences charged was being committed. Both the psychiatrist called for the defence, and the psychiatrist who testified on behalf of the Crown, stated that Abbey appreciated the nature and quality of his act. The judge erred, in my view, in going on to say that a failure to appreciate the penal sanctions ("consequence of punishment") brought the accused within the ambit of the "first arm" of the insanity defence of s. 16(2).

The Second Arm of Section 16(2)

Should the question of "personal penal consequences" be relevant at all, it is more appropriately discussed within the context of the second arm of s. 16(2) i.e. "knowing that an act ... is wrong". Glanville Williams in his Criminal Law, The General Part, supra, at p. 478 says:

It has been determined that this phrase [nature and quality] refers to the physical character of the act, not its legal quality; legal right and wrong are cared for by the second question ... [citing Codere, supra, at p. 27].

This Court having decided in Schwartz v. The Queen, supra, that "wrong" means wrong according to law, and it being established that Abbey

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knew his act was "wrong", his inability to "appreciate" the penal consequences is really irrelevant to the question of legal insanity. There seems to be no doubt on the evidence, and on the judge's findings, that Abbey knew that he was doing an act forbidden by law.

With respect, the trial judge homogenized the first and second arms of s. 16(2), collapsing the one into the other in, for example, the following passage from his judgment:

As I understood the evidence and the submission of counsel, the Accused had the capacity to appreciate the nature of the act of importing and of possessing the Cocaine. He also had the capacity to appreciate the immediate consequences of those acts. That is to say that they were illegal; that he should not commit them overtly....

The second arm of s. 16(2) is concerned with cognitive capabilities, with knowledge, and not with appreciation of consequences. Section 16(2) speaks in terms of knowledge of wrongness, not appreciation of wrongness. One must, I think, draw a distinction between what might be termed "result" crimes and what might be termed "knowledge" crimes. In respect of the former it is correct to speak of appreciation of consequences. The capacity to appreciate the nature and quality of his act refers to the physical character of the act. It requires both an appreciation of the factors involved, and sufficient mental capacity to measure and foresee the consequences of the conduct.

With respect, however, to the second arm of s. 16(2), knowledge that it is wrong, Martland J. set out the test in the Schwartz case at p. 701:

In brief, it is my opinion that the effect of s. 16(2) is to provide protection to a person suffering from disease of the mind who has committed a crime if, in committing the crime, he did not appreciate what he was doing, or, if he did have that appreciation, he did not know that he was committing a crime.

In a note on Schwartz v. The Queen, supra, entitled "Section 16 and 'Wrong' ", 18 Cr.L.Q. 413, Professor Mewett submits that the question that

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ought to be asked is "whether the accused, because of a disease of the mind (first hurdle) was rendered incapable (second hurdle) of knowing that this act was something that he ought not to do (third hurdle)" (at p. 415). If he was capable of knowing that an act was contrary to law, and that he ought not to do an act contrary to law, then, in the opinion of Professor Mewett, the defence should not apply.

When one is considering the legal aspects of a crime such as the importation of a narcotic the principal inquiry should be directed not to appreciation of physical consequences but to knowledge of wrongness. The trial judge said, "This man knew it was a crime, knew there was penalty, but by delusion believed himself protected." Counsel for Abbey said in argument that he had to accept the fact that he could not bring Abbey's state of mind into the second half of s. 16(2). On these findings, in my opinion, the defence of insanity was not open to Abbey.

I agree with the submission of counsel for the Crown that s. 16(3) of the Code can be of no assistance to Abbey as his delusion could not in any way "justify" or "excuse" his actions. In any event, any defence which could be raised under subsection (3) could also be raised under subsection (2). See the McRuer Report [Report of the Royal Commission on the Law of Insanity as a Defence in Criminal Cases, (1956)], p. 36.

I am of the view that the trial judge erred in law in holding that a person who by reason of disease of the mind does not "appreciate" the penal consequences of his actions is insane within the meaning of s. 16(2) of the Criminal Code.

III Irresistible Impulse

The second ground of appeal is the submission that the trial judge erred in giving effect to a defence of "irresistible impulse". The submission rests upon the following passage from the judgment

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at trial, and in particular the words "he believed himself irrevocably committed":

I must also note a second question closely connected with the delusion I have already discussed. It involves the delusion which I find existed with Abbey and which also satisfies the test of Section 16, Subsection 2, that while he was in Peru he thought he should not go through with the importing and possession of Cocaine, but he believed himself irrevocably committed to it. That was not in the sense that having arranged with his friends he was bound to honour the arrangement, but in the sense that he was committed to a path of action which he was, by reason of a force acting upon him, powerless to change.

The Crown maintains that the trial judge found that this "second delusion" independently of any other delusions, rendered Abbey legally insane. Such a finding, the Crown contends, gives effect to a defence not recognized in Canadian law, that of irresistible impulse. What was said by Cartwright C.J. in R. v. Borg, [1969] S.C.R. 551, is cited in support of this proposition.

There is no issue here at all. Both the majority and minority opinions in R. v. Borg deny the existence of a defence, as such, of irresistible impulse. Both the majority and minority opinions in Borg, however, recognize that irresistible impulse may be a symptom or manifestation of a disease of the mind which may give rise to a defence of insanity.

When an accused pleads insanity there is a sense in which it is true to say that irresistible impulse of itself is not a defence. However, there are two senses in which it is not true to say that irresistible impulse of itself is not a defence.

There is no legal presumption of insanity merely from the existence of an irresistible impulse. If an accused presents no medical evidence of disease of the mind but merely pleads that he was acting under an irresistible impulse, a jury is not entitled to infer that the man was insane. In that sense irresistible impulse is not of itself a defence. However, if there is medical evidence of disease of the mind as there was here and yet the only symptoms of that disease of the mind are irresistible impulses, the

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jury may conclude that the accused is insane [per Hall J., at p. 570].

There is no error in the trial judgment in this respect. The trial judge did not give effect to an independent defence of irresistible impulse. His comments with respect to the "second delusion" were made in the context of his consideration of the insanity defence. He specifically rejected the existence of a defence of diminished responsibility in Canada.

I agree with the British Columbia Court of Appeal that the reasons of the trial judge should be understood in the sense that Abbey suffered from a disease of the mind which resulted in two delusions; the first was that some mysterious external force would protect him from punishment; the second that he believed himself irrevocably committed to the course of action of importing cocaine; and that these delusions taken together rendered him incapable of appreciating the nature and quality of his acts. The trial judge did not equate the "delusion" with a defence of irresistible impulse and, that being the case, such authorities as R. v. Borg, supra, R. v. Creighton (1908), 14 C.C.C. 349 and other authorities to a similar effect cited by Crown counsel have no application to the case at bar.

IV Hearsay Evidence

As a third ground of appeal the Crown contends that the trial judge misdirected himself with respect to the use which could be made of hearsay evidence introduced during the testimony of the psychiatrists who were called as witnesses.

Dr. Vallance testified that during the course of his interviews Abbey told him of various delusions, visions, hallucinations and sensations which he had experienced in the six months preceding his arrest. Dr. Vallance also testified that Abbey had described certain symptoms of the disease to his mother several months prior to the commission of the offence. In his testimony, Dr. Vallance recounted several incidents of bizarre and unstable conduct by Abbey both before his departure for

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Peru and during his stay. Abbey had told him, Dr. Vallance testified, that four days prior to his actual departure for Peru he had missed a flight and, in a rage, kicked in a window at Vancouver airport. Dr. Vallance was also told by Abbey of certain experiences in Peru: "he could see lights and follow the lights and would interpret those phenomenon with ideas that there was some power outside of him that was communicating with him. He would do strange things, like run out into the fields. He was licking the wetness from trees". The Crown submits that the trial judge accepted and treated as factual much of this hearsay evidence related by Dr. Vallance in the course of giving his opinion. The point is well taken.

A general principle of evidence is that all relevant evidence is admissible. The law of evidence, however, reposes on a few general principles riddled by innumerable exceptions. Two major exceptions to this general principle are hearsay evidence and opinion evidence. There are also exceptions to the exceptions. "Expert witnesses may testify to their opinion on matters involving their expertise" (Cross on Evidence, 5th ed. (1979), at p. 20) and may also, incidentally, base their opinions upon hearsay.

A major difficulty encountered by counsel and the courts alike has been identifying hearsay. There exists a "superstitious awe . . . about having any truck with evidence which involves A's telling the court what B said to him" (Cross, "What should be done about the Rule Against Hearsay", [1965] Crim. L.R. 68, at p. 82). Phipson suggests three reasons for this:

(1) Failure to appreciate that the hallmark of a hearsay statement is not only the nature and the source of the statement but also the purpose for which it is tendered.

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(2) The absence of any comprehensive judicial formulation of the rule—no doubt because "it is difficult to make any general statement about the law of hearsay which is entirely accurate."

(3) The multiplicity of formulations found in textbooks upon the subject. [Phipson on Evidence 12th ed. (1976), Supplemented to 1980, para. 625 at pp. 263-64.]

The main concern of the hearsay rule is the veracity of the statements made. The principal justification for the exclusion of hearsay evidence is the abhorrence of the common law to proof which is unsworn and has not been subjected to the trial by fire of cross-examination. Testimony under oath, and cross-examination, have been considered to be the best assurances of the truth of the statements of facts presented. Not all statements by a witness of that which he heard someone else say are, however, necessarily hearsay. A felicitous formulation of the distinction between hearsay and non-hearsay evidence is found in the Privy Council decision in Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965 at p. 970:

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.

What is sometimes loosely and erroneously referred to as hearsay evidence may in fact be "original evidence" as Cross terms it:

When a witness is asked to narrate another's statement for some purpose other than that of inducing the court to accept it as true, his evidence is said to be "original". Original evidence may therefore be defined as evidence of the fact that a statement was made, tendered without reference to the truth of anything alleged in the statement [Cross on Evidence, 5th ed. (1979), at p. 8, emphasis added].

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Opinion Evidence

Witnesses testify as to facts. The judge or jury draws inferences from the facts. "In the law of evidence 'opinion' means any inference from observed fact, and the law on the subject derives from the general rule that witnesses must speak only to that which was directly observed by them" (Cross on Evidence, supra, at p. 442). Where it is possible to separate fact from inference the witness may only testify as to fact. It is not always possible, however, to do so and the "law makes allowances for these borderline cases by permitting witnesses to state their opinion with regard to matters not calling for special knowledge whenever it would be virtually impossible for them to separate their inferences from the facts on which those inferences are based" (ibid.)

With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert's function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. "An expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary" (Turner (1974), 60 Crim. App. R. 80, at p. 83, per Lawton L.J.)

An expert witness, like any other witness, may testify as to the veracity of facts of which he has first-hand experience, but this is not the main purpose of his or her testimony. An expert is there to give an opinion. And the opinion more often than not will be based on second-hand evidence. This is especially true of the opinions of psychiatrists.

As stated by Fauteux J. in Wilband v. The Queen, [1967] S.C.R. 14 at p. 21:

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The value of psychiatrist's opinion may be affected to 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.

In the Wilband case counsel for Wilband had attempted to have declared inadmissible as hear-say opinion evidence because it was based in part on prison records, material not proved in open court. Fauteux J. found in fact the prison records were not relied upon to any significant extent by the psychiatrists in the formation of their opinion but the decision does stand for the proposition that the second-hand nature of the basis of the opinion does not "contaminate" the opinion. This is consistent with the acceptance of expert evidence based, as it often is, upon hypothetical questions. For the judge or jury the expert's opinion is a question of fact which may be accepted or rejected as seen fit. The opinion, even if uncontradicted, is not determinative of an issue.

Thus an expert opinion based on second-hand evidence is admissible, if relevant. The problem arose in R. v. Dietrich (1970), 1 C.C.C. (2d) 49 (Ont. C.A.), as to second-hand evidence itself which formed the basis of the opinion. Gale C.J.O. reached the conclusion that "Put shortly, if an expert is permitted to give his opinion, he ought to be permitted to give the circumstances upon which that opinion is based" (at p. 65). Testimony as to circumstances upon which the opinion is based is not introduced, and cannot be introduced, in order to establish the veracity of the second-hand evidence. It is thus not hearsay evidence. Jessup J.A. correctly stated the law in R. v. Rosik, [1971] 2 O.R. 47:

1. In my view, a psychiatrist expressing an opinion as to a mental or emotional condition of an accused can relate in evidence, as Dr. Gray did, what he has been told by the accused when such information is a basis of his opinion .... The hearsay rule does not operate to exclude such evidence because it is not admitted to

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prove the fact of what the expert has been told: see Wigmore on Evidence, 3rd ed.; vol. VI, s. 1720, p. 70, approved by Gale C.J.O., in the Dietrich case. The trial Judge should have so instructed the jury and it would have been proper for him also to point out that there was no sworn evidence that the accused ingested drugs or consumed the quantity of alcohol integral to Dr. Gray's opinion ... [at p. 84-85, emphasis added].

Jessup J.A.'s view was recently confirmed by this Court in Phillion v. The Queen, [1978] 1 S.C.R. 18. After citing the excerpt from Subramaniam v. Public Prosecutor which is quoted above with respect to hearsay evidence, Ritchie J. went on to say, at p. 24:

Statements made to psychiatrists and psychologists are sometimes admitted in criminal cases and when this is so it is because they have qualified as experts in diagnosing the behavioural symptoms of individuals and have formed an opinion which the trial judge deems to be relevant to the case, but the statements on which such opinions are based are not admissible in proof of their truth but rather as indicating the basis upon which the medical opinion was formed in accordance with recognized professional procedures.

The danger, of course, in admitting such testimony is the ever present possibility, here exemplified, that the judge or jury, without more, will accept the evidence as going to the truth of the facts stated in it. The danger is real and lies at the heart of this case. Once such testimony is admitted, a careful charge to the jury by the judge or direction to himself is essential. The problem, however, as pointed out by Fauteux J. in Wilband resides not in the admissibility of the testimony but rather the weight to be accorded to the opinion. Although admissible in the context of his opinion, to the extent that it is second-hand his testimony is not proof of the facts stated. Lawton L.J. in Turner, supra, spoke of this "elementary principle" which is "frequently overlooked":

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Thereupon the judge commented that the report contained "hearsay character evidence" which was inadmissible. He could have said that all the facts upon which the psychiatrist based his opinion were hearsay save for those which he observed for himself during his examination of the appellant such as his appearance of depression and his becoming emotional when discussing the deceased girl and his own family. It is not for this Court to instruct psychiatrists how to draft their reports, but those who call psychiatrists as witnesses should remember that the facts upon which they base their opinions must be proved by admissible evidence. This elementary principle is frequently overlooked [at p. 82, emphasis added].

In the present case Abbey did not testify. Dr. Valiance testified, in the course of his opinion, as to many events and experiences related to him during several interviews. This testimony, while admissible in the context of the opinion, was not in any way evidence of the factual basis of these events and experiences. The trial judge in his decision fell into the error of accepting as evidence of these facts, testimony which if taken to be evidence of their existence would violate the hear-say rule. There was no admissible evidence properly before the Court with respect to: the delusions experienced by the accused; the accused having described the symptoms of his disease to his mother some six months prior to the commission of the offence; the accused having seen a psychiatrist before leaving for Peru; the accused's unstable conduct at the airport some days prior to leaving for Peru or his bizarre behaviour in Peru.

In my view the trial judge erred in law in treating as factual the hearsay evidence upon which the opinions of the psychiatrist were based.

Counsel for Abbey said that the passages in which the trial judge seemed to take symptoms as findings of fact were merely "unfortunate language". But it goes further than that. As Woods J.A. said in R. v. Perras (1972), 8 C.C.C. (2d) 209, at p. 213, "The evidence of a physician stating what a patient told him about his symptoms is not evidence as to the existence of the symptoms. To accept it as such would be to

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infringe the rule against hearsay." It was appropriate for the doctors to state the basis for their opinions and in the course of doing so, to refer to what they were told not only by Abbey but by others, but it was error for the judge to accept as having been proved the facts upon which the doctors had relied informing their opinions. While it is not questioned that medical experts are entitled to take into consideration all possible information in forming their opinions, this in no way removes from the party tendering such evidence the obligation of establishing, through properly admissible evidence, the factual basis on which such opinions are based. Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist.

V Conclusion

Thus the trial judge erred in two respects. There was no admissible evidence of important facts regarding Abbey's conduct upon which the medical opinions were based. And the judge misconstrued the recent cases dealing with the interpretation of the insanity defence in s. 16(2). A failure to "appreciate" the penal sanctions attaching to an offence does not render the accused "incapable of appreciating the nature and quality" of his act so as to bring the insanity defence into play.

The appeal should be allowed. The judgments at trial and on appeal should be set aside, and a new trial ordered on both counts.

Appeal allowed.

Solicitor for the appellant: R. Tassé, Ottawa.

Solicitor for the respondent: Josiah Wood, Vancouver.