Chartrand v. R., [1977] 1 SCR 314

Supreme Court of Canada

Chartrand v. R., [1977] 1 S.C.R. 314

Date: 1975-06-26

Réal Chartrand Appellant;

and

Her Majesty The Queen Respondent.

1975: May 26; 1975: June 26.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law—Capital murder—Defence of insanity—Inadequacy of charge to jury—Inflammatory nature of Crown prosecutor’s argument—Criminal Code, s. 16.

Appellant was convicted for the capital murder of a police officer. The Court of Appeal upheld the conviction. Appellant did not deny the facts, but claimed that at the time the crime was committed he was mentally ill and therefore insane in the sense of s. 16 of the Criminal Code. He also claimed that the judge’s charge to the jury was not adequate and that the Crown prosecutor used inflammatory language in his argument.

Held: The appeal should be dismissed.

A study of the evidence does not enable us to establish on a balance of probabilities that appellant was an insane person within the meaning of s. 16(2) of the Criminal Code, and thus to rebut the presumption of s. 16(4), namely, that he was sane. Although he was mentally ill, appellant was capable of distinguishing between right and wrong and was therefore technically sane. What the evidence reveals on the subject of the inner pathological process cannot be taken into consideration under our criminal legislation, which does not recognize the diminished responsibility theory.

So far as the grounds alleging prejudice caused to appellant by the judge’s charge to the jury and by the argument of the Crown prosecutor are concerned, there is nothing that could be the basis of intervention by this Court.

R. v. Borg, [1969] S.C.R. 551, applied; Pisani v. The Queen, [1971] S.C.R. 738, referred to.

APPEAL from a decision of the Court of Appeal of Quebec, affirming the conviction pronounced by a jury in the Court of Queen’s Bench. Appeal dismissed.

Réal Chartrand, (in person).

François Beaudoin, for the respondent.

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The judgment of the Court was delivered by

DE GRANDPRE J.—Upon being convicted for the capital murder of police officer Gabriel Labelle, which was committed on October 12, 1971, appellant brought an appeal to the Court of Appeal which dismissed it unanimously. He now asks this Court to grant him a new trial.

Appellant appeared at the hearing alone, having dispensed with the services of his counsel a few weeks earlier. It should be added, however, that the latter had first prepared the brief that was submitted to the Court by Chartrand, who referred to it frequently during the hearing.

As emphasized by Gagnon J., speaking for the Court of Appeal, and as admitted in the brief presented by appellant, the latter had without any doubt committed the homicide. The grounds of appeal of appellant are of a different nature and the inscription in appeal expresses them in the following terms, to which I do not think I should make any alteration:

[TRANSLATION] 1. Did the Court of Appeal err in ruling that even if the judge, in his charge to the jury, did not make an adequate summary of the defence by “not dealing with the observations of the expert witnesses concerning the pre-psychotic tendencies of the accused”, no prejudice had been caused to appellant?

2. Did the Court of Appeal err in dismissing the appeal, even though the judge did not outline the defence theory to the jury?

3. Did the Court of Appeal err in ruling that the evidence did not establish that appellant, although mentally ill, was not insane in the sense of s. 16 of the Criminal Code?

4. Did the Court of Appeal err in ruling that the argument of counsel for the prosecution was not inflammatory and was not prejudicial to the accused?

The main ground is unquestionably the third one and I am dealing with it forthwith in order to determine whether the Court of Appeal was justified in holding that, in the words of Gagnon J.:

[TRANSLATION] It must therefore be concluded—and the evidence taken as a whole, as well as the evidence most favourable to appellant considered separately, does

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not leave any alternative—that although Chartrand was mentally ill, he was not an insane person in the sense of s. 16(2) of the Criminal Code.

The starting point of the analysis undertaken by the Court of Appeal, the conclusion of which is to be found in the paragraph which I have just quoted, is evidently s. 16 of the Criminal Code. The reasons of Gagnon J. contain the assumption made by the Court of Appeal:

[TRANSLATION] Starting from the presumption that Chartrand was sane, (Cr. C. s. 16(4)), the Court must determine whether it was established, not beyond all reasonable doubt but on a balance of probabilities, that appellant was an insane person, that is to say:

“(having) 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” (s. 16(2) Cr. C).

This statement is unassailable and there was no criticism of it by appellant.

Does the detailed study of the evidence relating to the defence of insanity undertaken by the Court of Appeal, which I shall not reiterate here, justify its conclusion that on October 12, 1971, appellant was not insane within the meaning of s. 16 of the Criminal Code? After a careful reading of all the relevant testimony, I have no hesitation in stating my concurrence with this conclusion. The following extract taken from the cross-examination by the Crown prosecutor of Dr. A. Maufette, who was treating appellant at the Institut Pinel, is particularly enlightening:

[TRANSLATION] Q. Well then, Doctor, the question is: according to the examinations you made of the accused and the treatments you gave him in the days preceding October twelfth (12), nineteen hundred and seventy-one (1971), was Mr. Chartrand able to understand the nature and quality of his actions?

A. Yes.

Q. Was his mental condition such that he was able to distinguish between right and wrong?

A. Yes.

Q. Similarly, according to what you know about October twelfth (12), nineteen hundred and seventy-one (1971), was Mr. Chartrand, on October twelfth (12), nineteen hundred and seventy-one

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(1971), the date on which whatever… the events with which he is charged occurred, was he not able to distinguish between right and wrong?

A. Yes.

Q. And did he also understand the nature and quality of his actions?

A. Yes.

There is nothing in the evidence to contradict this statement.

Appellant’s argument emerges from this portion of the testimony given by Dr. L. Béliveau, the medical director of the Institut Pinel, when he was cross-examined by the Crown prosecutor:

[TRANSLATION] A. …Then “The Mask of Sanity”, what it says is that… is:

“The psychopathic personality is a psychosis not technically demonstrable, maximally concealed by another surface of intact function and manifested only in behaviour.”

What this means is that there are really no methods of demonstrating this technically in terms of… of the criteria for diagnosing the illness, if you will. A bit like those used by psy… by experts to find out whether a person is sane or not according to the McNaughton Rule. In such an instance the person must, technically speaking, be diagnosed as being… as being sane.

In other words, it is not possible to demonstrate technically the underlying psychotic process, okay?

Without going so far as to say that perhaps I am not of the opinion that Mr. Chartrand is psychotic in all respects, I did mention prepsychotic a few minutes ago.

Q. What you described to us… your example of a miracle?

A. Yes, that’s right. In addition, however, even though I must answer your question by telling you that in this respect he is capable of distinguishing between right and wrong, and so forth, I think I should nevertheless add this remark, that okay, I answered your questions, but there are schizophrenics and there are seriously ill psychotics who… who must be confined in psychiatric hospitals for the remainder of their lives, who are capable of distinguishing between right and wrong.

Q. Yes, but that’s not the case with Mr. Chartrand.

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A. No, it is not, but I think that it is important for… No, indeed, this is not the case with Mr. Chartrand.

Q. For sure.

A. And still… they are, I think… what I’m driving at is that this is perhaps not one of the best criteria for determining in the final analysis whether a person is ill or not. And just as a five-or six-year old is perhaps unable at any given time to distinguish between right and wrong, that in itself doesn’t mean he is ill. What I mean is, I must answer your questions by telling you that he is capable of distinguishing between right and wrong—he understands the nature of his actions, and so forth—but that does not in itself mean that there is not an inner pathological process at work that can prompt him to exhibit a form of behaviour that is unacceptable, dangerous, violent and so on, as well as a psychotic process that would be clearly, if you will, obvious in another person.

Chartrand was therefore able to distinguish between right and wrong, and although he was ill, he was technically sane. What the witness adds on the subject of the inner pathological process cannot be taken into consideration under our criminal legislation, which does not recognize the diminished responsibility theory. Our duty clearly is to apply the law as it reads, as this Court did in R. v. Borg[1]. The medical facts are summarized by Cartwright C.J., speaking for the majority: (at p. 560)

It appears to me that if the view of Dr. Spaner’s evidence most favourable to the accused were taken by the jury it could be said to show, (i) that Borg was suffering from a disease of the mind called a psychopathic state and that he fitted into the classification of the aggressive, anti-social, impulse-ridden type of personality, (ii) that he had very few healthy coping mechanisms or ways of defending himself against impulses such as homicidal or sexual ones, (iii) that this lack of impulse control is chronic, (iv) that a major characteristic of this impulse type of personality is being emotionally unbalanced by the illness, that the moral issues cannot be differentiated, that he does not have the moral ethical part of his mind functioning most of his life but ‘most important of all he can have normal cognitive functioning—that is the knowing part of his mind functioning’, (v) that the impulse is so powerful his

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judgment is impaired but he can still have intellectual functioning, (vi) that the effect of alcohol is unpredictable; it can wipe away any controls or it might even calm him; it is impossible to say, (vii) that Borg hates authoritarian figures and under the influence of his anti-social impulse driven, aggressive impulses, he can kill, (viii) that if the force of the impulse cannot be resisted ‘at that moment’, and this is a symptom of what he suffers from—an impulse—psychotic state—an irresistible impulse when he neither reasons nor deliberates, (ix) that the irresistible impulse is both a symptom of the disease of the mind and the disease itself, (x) that he operates sometimes with normal intellect, sometimes with a little better than normal intellect and sometimes like a little boy.

These facts were more favourable to the accused than was the evidence in the case at bar, especially as there were two additional factors that are not to be found here:

(a) no doctor had stated that Borg was capable of appreciating the nature and quality of his acts;

(b) Borg’s sister had given a detailed description of Borg’s unhappy childhood, and of the persecution and ill treatment to which he had been subjected.

Notwithstanding this, the conclusion reached by Cartwright C.J. and the majority judges was to dismiss the defence of insanity: (at p. 561)

It appears to me that the effect of Dr. Spaner’s evidence is that, in his opinion, at the time of the shooting Borg may have been acting under an irresistible impulse such as the Doctor had described. There is no evidence that Borg himself had that view and the portions of his statement and of his answers read to the jury far from suggesting anything in the nature of an impulse action indicate a careful and deliberate plan which it took him some hours to carry out. The actions and statements of Borg after the shooting indicate that he was well aware of what he had done and that it was wrong. The evidence taken as a whole falls far short of being sufficient to satisfy the onus of proof on the balance of probabilities which rests on the defence when insanity is alleged.

The Court of Appeal was therefore justified in finding that appellant, at the time when these events occurred, was not suffering from insanity in the legal sense.

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Logically, since appellant is undeniably the person who committed the homicide, and since his defence of insanity was not established by the weight of the evidence, his other grounds are no longer applicable. However, since the Court of Appeal has considered them and they have been argued in this Court, I shall consider them briefly. They are of two different types:

(1) in his charge to the jury, the judge did not deal with the defence theory and did not make an adequate summary of the observations of the expert witnesses, which was prejudicial to appellant;

(2) in his argument the Crown prosecutor used inflammatory language that was prejudicial to appellant.

So far as the judge’s charge is concerned, the solution is to be found once again in Borg, in which Cartwright C.J., after emphasizing that the evidence relating to the defence of insanity was heard at the end of the trial and should have been fresh in the minds of the jurors when the judge gave his charge, as is the case here, and after acknowledging that the judge had neither analysed nor summarized this evidence, quotes a passage from his charge which substantially affirms the obligation to weigh all the evidence and discusses possible verdicts. I am of the opinion that in the case at bar, the judge gave the jury instructions that were at least equivalent. Furthermore, in Borg, the Alberta Court of Appeal ordered a new trial because “the learned trial judge failed to review the substantial parts of the evidence… and to instruct the jury as to how the law was to be applied to the facts as they found them and thereby misdirected the jury by such non-direction”. This judgment was quashed and the conviction reinstated, the majority supporting Cartwright C.J. in his conclusion: (at p. 561)

It is not surprising that the learned and experienced counsel for the defence did not request the judge to give a further charge involving a detailed examination of the Doctor’s evidence. Such a request, if acceded to, would have resulted in the judge having to point out to the jury how far the evidence fell short of indicating that the accused was other than sane at the time of the shooting.

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After considering all the evidence that had any relevance to the defence of insanity I am satisfied that, in the particular circumstances of this case, the charge on this branch of the matter, considered as it must be in the light of all the evidence in the record, was sufficient in law and more favourable to the accused than it could have been if the judge had made a detailed analysis of Dr. Spaner’s evidence before the jury.

The same conclusion applies in the case at bar.

As to the ground based on the inflammatory language allegedly used by the Crown prosecutor, we have considered it not only by reading the text of the printed record but also by listening to the tape recording which we ordered to be produced at appellant’s request. I should note in passing that, before the hearing, appellant was able to listen to this tape himself. Although the language at times was rather colourful, and the Crown prosecutor on two occasions described himself as a psychopath, which the judge immediately noted for the purpose of correction, I see nothing in this argument that could be the basis of intervention by this Court in the light of the applicable rules set forth in various cases, such as Pisani v. The Queen[2].

For all of the above reasons and for those given by Gagnon J., I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Proulx & Lévesque, Montreal.

Solicitor for the respondent: François Beaudoin, St-Jérôme, Que.