SUPREME
COURT OF CANADA
Between:
Tommy
Bouchard-Lebrun
Appellant
and
Her
Majesty The Queen
Respondent
-
and -
Attorney
General of Canada and Attorney General of Ontario
Interveners
Official English Translation
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella,
Charron, Rothstein and Cromwell JJ.
Reasons for
Judgment:
(paras. 1 to 92)
|
LeBel J. (McLachlin C.J. and Binnie, Deschamps, Fish,
Abella, Charron, Rothstein and Cromwell JJ. concurring)
|
R. v. Bouchard‑Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575
Tommy
Bouchard‑Lebrun Appellant
v.
Her Majesty
The Queen Respondent
and
Attorney General of Canada and Attorney
General
of Ontario Interveners
Indexed as: R. v. Bouchard‑Lebrun
2011 SCC 58
File No.: 33687.
2011: May 16; 2011: November 30.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish,
Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for quebec
Criminal
law — Defences — Mental disorder — Accused assaulting two individuals while in
state of toxic psychosis resulting from voluntary consumption of drugs —
Whether toxic psychosis whose symptoms are caused by state of self‑induced
intoxication can be “mental disorder” — Whether s. 33.1 of Criminal
Code limits scope of defence of not criminally responsible on account of mental
disorder — Criminal Code, R.S.C. 1985, c. C‑46, ss. 16 , 33.1 .
B brutally assaulted
two individuals while he was in a psychotic condition caused by drugs he had
taken a few hours earlier. As a result of these incidents, B was charged with
aggravated assault. The trial judge convicted B on the basis that all the
elements of s. 33.1 of the Criminal Code (“Cr. C.”), which
provides that self‑induced intoxication cannot be a defence to an offence
against the bodily integrity of another person, had been proven beyond a
reasonable doubt. B then tried unsuccessfully on appeal to obtain a verdict of
not criminally responsible on account of mental disorder under s. 16 Cr. C.
The Court of Appeal held that s. 33.1 Cr. C. applied in this
case.
Held:
The appeal should be dismissed.
A
court must consider the specific principles that govern the insanity defence in
order to determine whether s. 16 Cr. C. is applicable. If
that defence does not apply, the court can then consider whether the defence of
self‑induced intoxication under s. 33.1 Cr. C. is
applicable if it is appropriate to do so on the facts of the case.
Intoxication and insanity are two distinct legal concepts.
An
accused who wishes to successfully raise the insanity defence must meet the
requirements of a two‑stage statutory test. The first stage involves
characterizing the mental state of the accused. The key issue to be decided at
trial at this stage is whether the accused was suffering from a mental disorder
in the legal sense at the time of the alleged events. The second stage of the
defence provided for in s. 16 Cr. C. concerns the effects of
the mental disorder. At this stage, it must be determined whether, owing to
his or her mental condition, the accused was incapable of knowing that the act
or omission was wrong. In the instant case, it is not in dispute that B was
incapable of distinguishing right from wrong at the material time. Therefore,
the only issue in this appeal is whether the psychosis resulted from a “mental
disorder” within the meaning of s. 16 Cr. C.
Toxic
psychosis does not always result from a “mental disorder”. In Stone,
Bastarache J. proposed an approach for distinguishing toxic psychoses that
result from mental disorders from those that do not. This approach is
structured around two analytical tools, namely the internal cause factor and
the continuing danger factor, and certain policy considerations.
The
internal cause factor, the first of the analytical tools, involves comparing
the accused with a normal person. The comparison between the accused and a
normal person will be objective and may be based on the psychiatric evidence.
The more the psychiatric evidence suggests that a normal person, that is, a
person suffering from no disease of the mind, is susceptible to such a state,
the more justified the courts will be in finding that the trigger is external.
Such a finding would exclude the condition of the accused from the scope of
s. 16 Cr. C. The reverse also holds true.
In
this case, the application of the first factor suggests that the drug-taking is
an external cause. It seems likely that the reaction of a normal person to
taking drugs would indeed be to develop toxic psychosis. This strongly
suggests that B was not suffering from a mental disorder at the time he
committed the impugned acts. And the rapid appearance of psychotic symptoms
generally indicates that B’s delusions can be attributed to an external
factor. In addition, the psychotic symptoms B experienced began to diminish
shortly after he took the drugs and continued to do so until disappearing
completely. The Court of Appeal held that the disappearance of the symptoms
showed that the symptoms of toxic psychosis coincided with the duration of B’s
intoxication. It could thus say that B suffered from no disease of the mind
before committing the crimes and once the effects of his drug-taking had
passed. There is no valid reason to depart from this conclusion.
The
second analytical tool, the continuing danger factor, is directly related to
the need to ensure public safety. In this case, there is no evidence
indicating that B’s mental condition is inherently dangerous in any way.
Provided that B abstains from such drugs in the future, which he is capable of
doing voluntarily, it would seem that his mental condition poses no threat to
public safety.
In
this context, B was not suffering from a “mental disorder” for the purposes of
s. 16 Cr. C. at the time he committed the assault. A
malfunctioning of the mind that results exclusively from self‑induced
intoxication cannot be considered a disease of the mind in the legal sense,
since it is not a product of the individual’s inherent psychological makeup.
This is true even though medical science may tend to consider such conditions
to be diseases of the mind.
The
foregoing conclusion leads to the question whether s. 33.1 Cr. C.
is applicable. This provision applies where three conditions are met:
(1) the accused was intoxicated at the material time; (2) the
intoxication was self‑induced; and (3) the accused departed from the
standard of reasonable care generally recognized in Canadian society by
interfering or threatening to interfere with the bodily integrity of another
person. Where these three things are proved, it is not a defence that the
accused lacked the general intent or the voluntariness required to commit the
offence. Section 33.1 Cr. C. therefore applies to any mental
condition that is a direct extension of a state of intoxication. There is no
threshold of intoxication beyond which s. 33.1 Cr. C. does not
apply to an accused, which means that toxic psychosis can be one of the states
of intoxication covered by this provision. It is so covered in the case at
bar. The Court of Appeal therefore did not err in law in holding that
s. 33.1 Cr. C. was applicable rather than s. 16 Cr. C.
Cases Cited
Applied:
R. v. Stone, [1999] 2 S.C.R. 290; discussed: R.
v. Daviault, [1994] 3 S.C.R. 63; Cooper v. The Queen, [1980] 1
S.C.R. 1149; Leary v. The Queen, [1978] 1 S.C.R. 29; referred to: Director
of Public Prosecutions v. Beard, [1920] A.C. 479; R. v. Daley, 2007
SCC 53, [2007] 3 S.C.R. 523; R. v. Robinson, [1996] 1 S.C.R. 683; R.
v. Bernard, [1988] 2 S.C.R. 833; R. v. Huppie, 2008 ABQB 539
(CanLII); R. v. King, [1962] S.C.R. 746; Rabey v. The Queen,
[1980] 2 S.C.R. 513, aff’g (1977), 17 O.R. (2d) 1; R. v. Parks, [1992] 2
S.C.R. 871; Perka v. The Queen, [1984] 2 S.C.R. 232; R. v. Ruzic,
2001 SCC 24, [2001] 1 S.C.R. 687; R. v. Chaulk, [1990] 3 S.C.R. 1303; R.
v. Swain, [1991] 1 S.C.R. 933; Winko v. British Columbia (Forensic Psychiatric
Institute), [1999] 2 S.C.R. 625; R. v. Simpson (1977), 35 C.C.C.
(2d) 337; R. v. Luedecke, 2008 ONCA 716, 269 O.A.C. 1; R. v. Oakley
(1986), 24 C.C.C. (3d) 351; R. v. Mailloux (1985), 25 C.C.C. (3d) 171,
aff’d [1988] 2 S.C.R. 1029; R. v. Moroz, 2003 ABPC 5, 333 A.R. 109; R.
v. Snelgrove, 2004 BCSC 102 (CanLII); R. v. Lauv, 2004 BCSC 1093
(CanLII); R. v. Fortin, 2005 CanLII 6933; R. v. Paul, 2011 BCCA
46, 299 B.C.A.C. 85; R. v. Malcolm (1989), 50 C.C.C. (3d) 172; R. v.
D.P., 2009 QCCQ 644 (CanLII); R. v. Vickberg (1998), 16 C.R. (5th)
164; R. v. Chaulk, 2007 NSCA 84, 257 N.S.R. (2d) 99.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 7 , 11 (d).
Criminal
Code, R.S.C. 1985, c. C‑46, ss. 2 , 16 , 33.1 , 266 (a),
268 , 348(1) (a), 463 , Part XX.1.
Authors Cited
Alexander, Larry, and Kimberly Kessler Ferzan with contributions by
Stephen J. Morse. Crime and Culpability: A Theory of Criminal Law.
New York: Cambridge University Press, 2009.
Barrett, Joan, and Riun Shandler. Mental Disorder in Canadian
Criminal Law. Toronto: Thomson/Carswell, 2006 (loose‑leaf updated
2011, release 2).
Canada. House of Commons. House of
Commons Debates, vol. 133, 1st Sess., 35th Parl., June 22,
1995, p. 14470.
Parent, Hugues. “Les
Troubles psychotiques induits par une substance en droit pénal
canadien: analyse médicale et juridique d’un concept en pleine évolution” (2010), 69 R. du B. 103.
Parent, Hugues. Responsabilité pénale et troubles mentaux:
Histoire de la folie en droit pénal français, anglais et canadien. Cowansville,
Qué.: Yvon Blais, 1999.
APPEAL from a judgment of the Quebec Court of Appeal (Thibault, Rochette and Gagnon JJ.A.), 2010 QCCA 402, 260 C.C.C. (3d) 548, 76 C.R.
(6th) 59, [2010] Q.J. No. 1672 (QL), 2010 CarswellQue 9208, affirming the
convictions for aggravated assault and assault entered by Decoste J.C.Q., 2008 QCCQ 5844 (CanLII), [2008] J.Q. no 6218
(QL), 2008 CarswellQue 6362 (sub nom. R. v. Lebrun). Appeal dismissed.
Véronique Robert and
Roland Roy, for the appellant.
Guy Loisel and Pierre
DesRosiers, for the respondent.
Ginette Gobeil and François
Joyal, for the intervener the Attorney General of Canada.
Robert E. Gattrell and Joan Barrett, for the intervener the Attorney General of
Ontario.
English version of the judgment of the
Court delivered by
LeBel J. —
I. Introduction
[1]
In this appeal, the Court must decide whether a
toxic psychosis that results from a state of self‑induced intoxication
caused by an accused person’s use of chemical drugs constitutes a “mental
disorder” within the meaning of s. 16 of the Criminal Code, R.S.C.
1985, c. C‑46 (“Cr. C.”), and thus exempts the appellant from
criminal responsibility for an offence involving interference with the bodily
integrity of another person. In general, this case also gives the Court an
opportunity to review the respective scopes of the insanity defence and the
defence of self‑induced intoxication.
[2]
The appellant brutally assaulted two individuals
while he was in a psychotic condition caused by chemical drugs he had taken a
few hours earlier. He seriously injured one of the individuals by stomping on
his head. The victim suffered serious and permanent harm. After being
convicted by the Court of Québec on two counts of aggravated assault and
assault (2008 QCCQ 5844 (CanLII)), the appellant tried unsuccessfully on appeal
to obtain a verdict of not criminally responsible on account of mental disorder
(2010 QCCA 402, 260 C.C.C. (3d) 548). With leave of this Court, the appellant
is now appealing the judgment of the Quebec Court of Appeal, which rejected the
argument that a toxic psychosis resulting from the voluntary consumption of
drugs is a “mental disorder” within the meaning of s. 16 Cr. C.
[3]
For the reasons that follow, I find that the
judgment of the Court of Appeal is correct in law. I would therefore dismiss
the appeal.
II. Main Facts
[4]
The relevant facts of this case are not in
dispute. For the purposes of this appeal, it will suffice to mention that the
appellant, Tommy Bouchard‑Lebrun, and a long‑time acquaintance of
his, Yohann Schmouth, had smoked marijuana and taken amphetamines during the
day on October 23, 2005. In the evening, they decided to go to Amqui so
the appellant could visit his parents. They took the bus from Rivière‑du‑Loup,
where the appellant lived, to the last stop in Mont‑Joli. They were
still intoxicated when they got on the bus.
[5]
When they arrived in Mont‑Joli during the
night on October 24, the appellant and his friend decided to hitchhike to
Amqui. At about 1:30 a.m., Gilles Tremblay, an old acquaintance of the
appellant’s family, picked them up in his car. At that time, no signs of
intoxication were apparent from the appellant’s behaviour. At trial,
Mr. Tremblay stated that he had not noticed anything unusual about the
appellant at any time during the car trip. His statements confirmed
Mr. Schmouth’s testimony that the appellant was [translation] “OK” again when they were around Val‑Brillant,
a municipality about 15 kilometres from Amqui. Therefore, it seems that
the drugs taken by the appellant during the day on October 23 had ceased
to have effect before he arrived in Amqui with Mr. Schmouth.
[6]
In Amqui, the two young men purchased ecstasy
pills of a type known as “poire bleue”, which they took during the
night on October 24. During the hours that followed, the appellant and
Mr. Schmouth decided to go and beat up Dany Lévesque, who was known as
“Pee‑Wee”, for the real or imagined reason that he wore an [translation] “upside‑down cross”
around his neck. Around 5:00 a.m., the appellant and Mr. Schmouth
illegally entered the building where Mr. Lévesque lived. Roger Dumas, who
lived on the second floor of the building, was woken up by noise coming from
the ground floor and went down to Mr. Lévesque’s apartment to find out
what was going on. The two occupants of the building met in the stairs
and realized that the appellant and Mr. Schmouth were there, and the
latter two then brutally attacked Mr. Lévesque by punching and kicking him
many times.
[7]
Mr. Dumas saw that Mr. Lévesque could
not defend himself against his two attackers and tried to intervene. The
appellant grabbed him and threw him violently down the stairs. Mr. Dumas
lay on the floor at the bottom of the stairs. The appellant went down to where
he was and stomped on his head. The assault left Mr. Dumas disabled, and
he will have to spend the rest of his life in a hospital.
[8]
At the time of the assault, the appellant was
highly intoxicated because of the effects of the “poire bleue” pill
he had taken a few hours earlier. In addition to the “normal” symptoms of
intoxication resulting from the use of that drug, the highly toxic pill had
produced a striking and, according to the appellant, unanticipated effect on
him, as it caused a complete dissociation between the appellant’s subjective
perceptions and the objective reality. To put it bluntly, he was [translation] “on another planet”. Two
witnesses at the trial stated that he [translation]
“started acting weird” and was “completely out of it” after taking the “poire bleue”
pill.
[9]
In actual fact, the appellant experienced an
episode that might be described as religious delirium in light of its symptoms.
It was after taking the drug that he became obsessed with the “upside‑down
cross” supposedly worn by Mr. Lévesque. During the attack, he made
statements of a religious nature that, although coherent, were basically
absurd. For example, he said that the Apocalypse was coming. At one point, he
raised his arms in the air and asked the victims and the helpless witnesses to
the attack whether they believed in him. After referring a few times to God
and the Devil once the attack was over, he blessed Mr. Dumas’s spouse by
making the sign of the cross on her forehead. Mr. Dumas was still lying
on the floor when the appellant then left the scene very calmly as if nothing
had just happened.
[10]
It has never been in dispute, in any of the
courts, that the appellant was in a serious psychotic condition at the time of
the offences and that the effects of that condition diminished gradually until
they disappeared on October 28, 2005. The essential issue in this appeal
is instead how that psychosis affects the appellant’s criminal responsibility.
I will consider this issue later in these reasons. For now, it will suffice to
note that, according to the evidence, the appellant had never experienced a
psychotic episode such as this prior to the incidents in question. He had no
underlying disease of the mind, nor was he addicted to a particular substance.
Although he described himself at trial as an [translation]
“occasional user” of drugs, the evidence does not establish that he “abused”
drugs — if it can be said that occasional drug use does not constitute abuse,
that is.
[11]
As a result of these incidents, the appellant
was charged with committing aggravated assault on Mr. Dumas and
Mr. Lévesque contrary to ss. 266 (a) and 268 Cr. C., and
with breaking and entering a dwelling‑house with intent to commit an
indictable offence and attempting to break and enter a place other than a
dwelling-house contrary to ss. 348(1) (a) and 463 Cr. C.
He pleaded not guilty to all the charges against him.
III. Judicial History
A.
Court of Québec, 2008 QCCQ 5844 (CanLII)
(Judge Decoste)
[12]
At a trial before a judge alone, the appellant
raised one defence. Although he admitted that he had committed the acts on
which the charges were based, he claimed that, at the time, he had been under
the effects of a psychotic condition induced by Mr. Schmouth’s spiritual
influence. The defence’s position was that this psychotic condition had
prevented the appellant from exercising judgment to assess what impact his drug‑taking
on October 23 and 24, 2005 might have (para. 31). As a result, he
was exempt from criminal liability for the commission of the acts for which he
had been charged.
[13]
Two psychiatrists were heard at trial, one for
the Crown and the other for the defence. They were in agreement that the appellant
had been suffering from [translation]
“a severe psychosis that made him incapable of distinguishing right from wrong”
(para. 33) at the time he committed the acts in question. However, the
experts disagreed about the origin of the psychosis. Dr. Roger Turmel,
the defence’s expert, stated that the appellant’s psychosis had resulted mainly
from [translation] “the mystical
atmosphere” into which he had been plunged by Mr. Schmouth. In
Dr. Turmel’s opinion, “even Mr. [Bouchard‑]Lebrun’s decision to
take drugs was not made freely but was influenced in a way by the control his
friend exerted over him” (para. 31). The Crown’s expert disagreed with
this. According to Dr. Sylvain Faucher, the circumstances required for
psychosis resulting from a third party’s influence were not present in
this case. He concluded instead that, at the material time, the appellant had
been suffering from toxic psychosis, that is, psychosis caused by the
consumption of toxic substances (para. 37).
[14]
Judge Decoste accepted Dr. Faucher’s
opinion and found that the appellant had been suffering from toxic psychosis at
the time he committed the offences (para. 41). In Judge Decoste’s
view, because of that state of extreme intoxication, the appellant had to be
acquitted on the counts of breaking and entering with intent to commit a
criminal offence and attempting to break and enter. He then convicted the
appellant on the counts of aggravated assault on Mr. Dumas and assault on
Mr. Lévesque, referring for that purpose to s. 33.1 Cr. C.,
which provides that self‑induced intoxication cannot be a defence to an
offence against the bodily integrity of another person (para. 51).
[15]
In a separate judgment (2008 QCCQ 8927
(CanLII)), Judge Decoste sentenced the appellant to imprisonment for five
years for the offence of aggravated assault and three months concurrent
for that of common assault.
B.
Quebec Court of Appeal, 2010 QCCA 402, 260
C.C.C. (3d) 548 (Thibault, Rochette and Gagnon JJ.A.)
[16]
The appellant appealed the guilty verdict and
the related sentence to the Quebec Court of Appeal. In the appeal against
the verdict, his defence and arguments changed. He no longer claimed that his
psychotic condition had resulted from Mr. Schmouth’s spiritual influence.
After conceding that he had acted under the influence of a toxic psychosis, he
instead argued that the defence of mental disorder should have been applicable
as a result of this condition, since the evidence at trial showed that he had
been incapable of distinguishing right from wrong at the material time
(para. 18).
[17]
In general terms, the appellant argued that the
trial judge had confused the insanity defence under s. 16 Cr. C.
with the defence of self‑induced intoxication under s. 33.1 Cr.
C. He therefore asked the Court of Appeal to disregard s. 33.1 and
find that he was not criminally responsible on the basis that his toxic
psychosis on the night of October 24, 2005 was a “mental disorder” within
the meaning of s. 16 Cr. C.
[18]
The Court of Appeal rejected the appellant’s
arguments. Thibault J.A., writing for the court, began by expressing
disagreement with the premise on which they were based, namely that the
development of a psychotic condition was [translation]
“unforeseeable” in this case (para. 32). She noted that, on the contrary,
Dr. Faucher’s testimony had proved that 50 percent of PCP users and
13 percent of amphetamine users were likely to develop such a condition (ibid.).
She added that the appellant seemed to be one of those people, since the
effects of his psychosis had lasted as long as he had remained intoxicated
(para. 34).
[19]
Thibault J.A. then pointed out that
according to the line of authority based on R. v. Daviault, [1994] 3
S.C.R. 63, the defence of self‑induced intoxication was available in
extreme cases to accused persons charged with general intent offences. She
added that the enactment by Parliament of s. 33.1 Cr. C. had
limited this defence to non‑violent offences.
[20]
To conclude her analysis, Thibault J.A.
considered the scope of s. 16 Cr. C., which concerns the
insanity defence. She acknowledged that the courts had held that the defence
was available to an accused person suffering from an underlying mental disorder
whose mental condition had [translation]
“deteriorated even more” as a result of drug use (para. 77). However, she
pointed out that this Court had clearly held in Cooper v. The Queen,
[1980] 1 S.C.R. 1149, that transitory psychosis induced by drug use cannot
be considered a “disease of the mind” within the meaning of ss. 2 and 16 Cr.
C. She accordingly held that because of the appellant’s psychotic
condition at the time he assaulted his victims, his insanity defence under
s. 16 of the Criminal Code could not succeed.
[21]
In this regard, Thibault J.A. added that
the appellant had no underlying disease of the mind and had become perfectly
sane again once the effects of the “poire bleue” had passed.
Finally, in her opinion, the appellant’s argument was an attempt to circumvent
Parliament’s intent by making it possible for an accused person to plead self‑induced
intoxication to avoid criminal liability for an offence against the bodily
integrity of another person (para. 79), whereas the explicit purpose of
the enactment of s. 33.1 Cr. C. had been to preclude such an
outcome.
[22]
The Court of Appeal also dismissed the appeal
against sentence on the basis that the sentences imposed by the trial judge,
though harsh, were not unreasonable (para. 85).
IV. Analysis
A. Issues
[23]
This appeal raises the following issues:
1. Does s. 33.1 Cr. C. limit the scope of the
defence of not criminally responsible on account of mental disorder provided
for in s. 16 Cr. C.?
2. Can a toxic psychosis whose symptoms are caused by a
state of self‑induced intoxication be a “mental disorder” within the
meaning of s. 16 Cr. C.?
B. Understanding the Nature of the Issue in This Appeal:
Response to Daviault and Interplay Between Sections 16 and 33.1 Cr.
C.
[24]
The appellant concedes that the evidence in the
record shows that his toxic psychosis resulted exclusively from his
state of self‑induced intoxication the night of October 24, 2005.
Although he disagrees with the failure of the courts below to take his
predisposition to such a psychiatric disorder into account, he is not
specifically submitting that they erred in rejecting the argument that his
intoxication had triggered a latent disease of the mind. Indeed, his counsel
stated at the hearing in this Court that she was not raising this as a ground
of appeal (transcript, at p. 4).
[25]
Nevertheless, the appellant’s position leads to
the same result. It amounts in substance to arguing that a single episode of
intoxication can be a “mental disorder” within the meaning of s. 16 Cr.
C. if it produces abnormal effects on the accused, such as psychotic
symptoms. The syllogism proposed by the appellant comes down to this: since
toxic psychosis is an abnormal effect of intoxication, it necessarily affects
only those whose psyches are particularly fragile or vulnerable. As a result,
this toxic psychosis must be considered a mental disorder from a legal
standpoint.
[26]
Thus, the appellant is arguing indirectly that
the toxic psychosis he developed after taking a “poire bleue” pill
resulted from an underlying disease of the mind that became apparent as a
result of his intoxication. But because of the obstacles presented by the
evidence in the record and the trial judge’s findings of fact in relation to
this argument, the appellant does not focus on his personal situation.
Instead, he relies on an argument of general application. According to him, any
toxic psychosis, even one that results, as the trial judge found in this case,
from a single episode of intoxication, must be considered a “mental disorder”
within the meaning of s. 16 Cr. C. (A.F., at para. 48). The
appellant’s reasoning therefore rests on the premise that intoxication can
never be the real or underlying cause of toxic psychosis and that toxic
psychosis must originate in a pre‑existing mental condition.
[27]
The corollary to this argument is that a person
in a psychotic condition should never, from a legal standpoint, be considered
merely to be intoxicated (transcript, at p. 11). The appellant thus
contends that the Court of Appeal confused the defence of self‑induced
intoxication with that of mental disorder under s. 16 Cr. C.
in holding that s. 33.1 Cr. C. applied in this case (A.F., at
para. 34). More specifically, the appellant argues that
Thibault J.A. erred in writing that [translation]
“[h]is submission would have the effect of rendering s. 33.1 Cr. C.
meaningless and [disregarding] the clearly expressed legislative intent of
preventing individuals who reach a state of extreme intoxication by voluntarily
consuming drugs or alcohol from avoiding criminal liability” (para. 79).
In his opinion, this passage wrongly suggests that s. 33.1 Cr. C.
limits the scope of the defence of not criminally responsible on account of
mental disorder.
[28]
The appellant adds that the passage in question
is incorrect in law because Parliament, in enacting s. 33.1 Cr. C.,
endorsed the position taken by the dissenting judges in Daviault that,
owing to policy considerations, the defence of self‑induced intoxication
should not be available in the case of a general intent offence. He points out
that those dissenting judges had acknowledged that [translation] “toxic psychosis remained a defence under
s. 16” (A.F., at para. 74). The appellant therefore submits that the
dissent in Daviault struck a judicious balance and gave effect to
society’s wish to punish reprehensible acts committed by persons who decide
voluntarily to become intoxicated, but not to punish those who lack the mental
capacity to form any culpable intent. In his view, Sopinka J.’s reasons
support his position that [translation]
“those who become mentally ill as a result of drug use are fragile and
vulnerable individuals who are predisposed to mental disorders” (A.F., at
para. 84). But the appellant raises no arguments regarding the
constitutionality of s. 33.1 Cr. C., which means that only the
interpretation and application of that provision are in issue.
[29]
Before I respond to the appellant’s argument
that s. 33.1 Cr. C. must not be interpreted as changing the
scope of the defence of mental disorder, it will be helpful to briefly
summarize the case law that led to the enactment of that provision. There are
three seminal cases in this regard. The first is the decision of the House of
Lords in Director of Public Prosecutions v. Beard, [1920] A.C. 479, in
which Lord Birkenhead set out the following three rules (as
summarized by Bastarache J. in R. v. Daley, 2007 SCC 53, [2007] 3
S.C.R. 523, at para. 34):
(1) That
intoxication could be a ground for an insanity defence if it produced a disease
of the mind.
(2) That
evidence of drunkenness which renders the accused incapable of forming the specific
intent essential to constitute the crime should be taken into consideration
with the other facts proved in order to determine whether or not he had this
intent.
(3) That evidence of drunkenness falling short of a proved
incapacity in the accused to form the intent necessary to constitute the crime,
and merely establishing that his mind was affected by drink so that he more
readily gave way to some violent passion, does not rebut the presumption that a
man intends the natural consequences of his acts.
[30]
In Beard, therefore, the House of Lords
stated the principle that intoxication can be raised as a defence in respect of
a specific intent offence in certain circumstances. This principle still
represents the state of the law in Canada on this question, although it is
subject to the qualification of Lord Birkenhead’s third rule in R. v.
Robinson, [1996] 1 S.C.R. 683 (Daley, at para. 40). In Robinson,
this Court held that the third of the rules from Beard, which was based
on the capacity of the accused to form a specific intent, violated
ss. 7 and 11 (d) of the Canadian Charter of Rights and Freedoms ,
because it required a jury to convict even if there was a reasonable doubt that
the accused possessed actual intent. The Court therefore replaced this
rule with one to the effect that intoxication can be a defence if it prevented
the accused from forming the actual specific intent to commit the offence.
[31]
Since Beard, it has thus been possible to
apply the intoxication defence to acquit an accused charged with a specific
intent offence or, where the nature of the offence so permits, to convict the
accused of a lesser included offence requiring only general intent. Another
question that subsequently arose was whether an accused could also use the
defence of self‑induced intoxication to raise a reasonable doubt about mens rea
where the offence required only general intent. In Leary v. The Queen,
[1978] 1 S.C.R. 29, this Court answered this question in the negative. In that
case, the Court established the principle that the recklessness shown by an
accused in becoming voluntarily intoxicated can constitute the fault element
needed to find that a general intent offence has been committed (Daley,
at para. 36; see also the reasons of McIntyre J. in R. v. Bernard,
[1988] 2 S.C.R. 833).
[32]
In Daviault, however, a majority of the
Court held that the “substituted mens rea” rule from Leary
was contrary to ss. 7 and 11 (d) of the Charter .
Cory J. stated that “[a] person intending to drink cannot be said to be
intending to commit a sexual assault” (p. 92). He added that “to deny
that even a very minimal mental element is required for sexual assault offends
the Charter in a manner that is so drastic and so contrary to the
principles of fundamental justice that it cannot be justified under s. 1
of the Charter ” (ibid.). The Court thus cast aside the Leary
rule in Daviault and established the principle that accused persons who
were in a “state akin to automatism or insanity” at the time they committed an
act constituting a general intent offence would be legally entitled to raise a
reasonable doubt concerning the required mental element (pp. 99‑100).
[33]
Sopinka J. wrote a strong dissent in Daviault.
In his view, there was no reason to abandon the Leary rule, since the
application of that rule did not relieve the Crown of the responsibility of
proving “the existence of a mens rea or any of the other elements
of the offence of sexual assault which are required by the principles of
fundamental justice” (p. 115). He felt that the validity of the Leary
rule was also reinforced by sound policy considerations, including society’s
right “to punish those who of their own free will render themselves so
intoxicated as to pose a threat to other members of the community”
(p. 114).
[34]
Less than a year after Daviault,
Parliament enacted s. 33.1 Cr. C. to ensure that “intoxication may
never be used as a defence against general intent violent crimes such as sexual
assault and assault” (House of Commons Debates, vol. 133, 1st
Sess., 35th Parl., June 22, 1995, at p. 14470). The section reads as
follows:
33.1 (1) [When defence not
available] It is not a defence to an offence referred to in subsection (3)
that the accused, by reason of self‑induced intoxication, lacked the
general intent or the voluntariness required to commit the offence, where the
accused departed markedly from the standard of care as described in
subsection (2).
(2) [Criminal fault by reason of intoxication] For the
purposes of this section, a person departs markedly from the standard of
reasonable care generally recognized in Canadian society and is thereby
criminally at fault where the person, while in a state of self‑induced
intoxication that renders the person unaware of, or incapable of consciously
controlling, their behaviour, voluntarily or involuntarily interferes or
threatens to interfere with the bodily integrity of another person.
(3) [Application]
This section applies in respect of an offence under this Act or any other Act
of Parliament that includes as an element an assault or any other interference
or threat of interference by a person with the bodily integrity of another
person.
[35]
In a general sense, the appellant can reasonably
argue that Parliament implicitly endorsed Sopinka J.’s dissent in Daviault
by enacting s. 33.1 Cr. C. However, the enactment of that
provision did not revive the Leary rule. It did not actually codify the
position taken by the dissenting judges in Daviault; rather, it limited
the scope of the rule stated by the majority. This means that the principles
set out in Daviault still represent the state of the law in Canada,
subject, of course, to the significant restriction set out in s. 33.1 Cr.
C. Daviault would still apply today, for example, to enable an accused
charged with a property offence to plead extreme intoxication. Indeed, the
fact that the appellant was acquitted at trial on the charges against him under
ss. 348(1) (a) and 463 Cr. C. affords an eloquent example of
this.
[36]
This being said, the appellant is right to say
that s. 33.1 Cr. C. should not be interpreted so as to limit the
scope of s. 16 Cr. C. Intoxication and insanity are two distinct
legal concepts. As defences to criminal charges, they have different logics
and each of them is governed by its own principles.
[37]
First of all, it is important to understand that
the application of s. 16 Cr. C. and that of s. 33.1 Cr.
C. are mutually exclusive. For s. 33.1 Cr. C. to apply, the
court must reach a conclusion in law that the accused lacked the general intent
or the voluntariness required to commit the offence by reason of self‑induced
intoxication. The absence of this intent or voluntariness would then
preclude a finding that the incapacity of the accused was caused by a disease
of the mind (R. v. Huppie, 2008 ABQB 539 (CanLII), at para. 21).
Conversely, the fact that an accused was intoxicated at the material time
cannot support a finding that s. 33.1 Cr. C. applies if the accused
establishes that he or she was incapable of appreciating the nature and quality
of his or her acts by reason of a mental disorder.
[38]
This general principle does not seem
particularly contentious. If the accused was intoxicated and in a psychotic
condition at the material time, the problem the court faces is to identify a
specific source for his or her mental condition, namely self‑induced
intoxication or a disease of the mind, and determine whether it falls within
the scope of s. 33.1 or s. 16 Cr. C. This appears to be all
the more difficult to do in cases in which the mental health of the accused was
already precarious prior to the incident in question, even if his or her
problems had not yet been diagnosed at the time, and in which the psychosis
emerged while the accused was highly intoxicated. Yet this identification of
the source of the psychosis plays a key role, since it will ultimately
determine whether the accused will be held criminally responsible for his or
her actions.
[39]
The law, as it now stands, includes a fairly
general framework for resolving this difficult question. The starting point
must be the legal concept of “disease of the mind” as defined by
Dickson J. in Cooper, the leading case:
In
summary, one might say that in a legal sense “disease of the mind” embraces any
illness, disorder or abnormal condition which impairs the human mind and its
functioning, excluding however, self‑induced states caused by alcohol
or drugs, as well as transitory mental states such as hysteria or
concussion. [Emphasis added; p. 1159.]
[40]
There is of course some correlation between
“self‑induced states caused by alcohol or drugs”, which the Court, in Cooper,
excluded from the definition of the legal concept of “disease of the mind” for
the purposes of s. 16 Cr. C., and the states of intoxication now
covered by s. 33.1 Cr. C. However, where an accused raises a
defence of mental disorder, it important that the legal analysis of the
situation follow a logical order. The court must not begin its analysis by
considering whether the mental condition of the accused at the material time is
covered by s. 33.1 Cr. C. Such an approach would reverse the
steps of the appropriate analytical process and disregard the nature of the
defence raised by the accused. And as a result of it, the legal
characterization exercise required by s. 16 Cr. C. would
depend on the interpretation of the concept of causation in issue in
s. 33.1 Cr. C. The court must instead consider the specific
principles that govern the insanity defence in order to determine whether
s. 16 Cr. C. is applicable. If that defence does not apply,
the court can then consider whether s. 33.1 Cr. C. is applicable if
it is appropriate to do so on the facts of the case.
[41]
These observations, which are necessary to
broadly delineate the respective scopes of ss. 16 and 33.1 Cr. C.,
do not dispose of the appellant’s main argument regarding the actual content of
the insanity defence. The appellant submits that Cooper’s exclusion of
“self‑induced states caused by alcohol or drugs” applies only to the
normal effects of intoxication (transcript, at p. 20). In this context,
what remains to be determined is whether a toxic psychosis that results
exclusively from a state of intoxication, which the appellant views as an
“abnormal effect” of intoxication, constitutes a “mental disorder” for the
purposes of s. 16 Cr. C. or is excluded by Cooper.
[42]
It is therefore necessary to take a closer look
at the scope of Cooper’s exclusion of “self‑induced states caused
by alcohol or drugs” from the ambit of s. 16 Cr. C. I will
come back to this later. For now, I wish to point out that the appellant’s
criticism of the Court of Appeal’s position on the interplay between
ss. 16 and 33.1 Cr. C. is unfounded. Contrary to the appellant’s
assertion, Thibault J.A. did not infer that s. 33.1 Cr. C.
limits the scope of the defence of mental disorder provided for in s. 16 Cr. C.
She stated clearly that no overlap is possible in the application of these
provisions and simply concluded that, as the law stands in Canada, [translation] “an accused suffering from
a psychosis caused by the consumption of drugs in circumstances analogous to
the ones in the case before us” cannot be found to have a disease of the mind
for the purposes of s. 16 Cr. C. (para. 77). After
noting that the appellant had to be considered from a legal standpoint to have
been intoxicated at the material time, Thibault J.A. added that the
appellant’s argument was an indirect way to avoid the application of
s. 33.1 Cr. C.
[43]
Thus, the fundamental issue at this point is
whether the Court of Appeal erred in law in holding that s. 33.1 Cr. C.
was applicable in this case rather than s. 16 Cr. C. To
resolve it, I must consider the legal principles and judicial policy considerations
that underlie the interpretation and application of the defence provided for in
s. 16 Cr. C.
C. Defence Provided for in Section 16 Cr. C.: An
Exception to the General Principle of Criminal Responsibility
[44]
The defence of not criminally responsible on
account of mental disorder, which Parliament codified in s. 16 Cr. C.,
addresses concerns that are very legitimate in a democratic society. Insofar
as the principles governing this defence are properly applied, a verdict of not
criminally responsible on account of mental disorder protects the integrity of
our country’s criminal justice system and the collective interest in ensuring
respect for its fundamental principles. A review of the fundamental principles
of criminal law that underlie the defence of mental disorder confirms the
importance of this defence in Canadian criminal law.
[45]
According to a traditional fundamental principle
of the common law, criminal responsibility can result only from the commission
of a voluntary act. This important principle is based on a recognition that it
would be unfair in a democratic society to impose the consequences and stigma
of criminal responsibility on an accused who did not voluntarily commit an act
that constitutes a criminal offence.
[46]
For an act to be considered voluntary in the
criminal law, it must be the product of the accused person’s free will. As
Taschereau J. stated in R. v. King, [1962] S.C.R. 746, “there can
be no actus reus unless it is the result of a willing mind at liberty to
make a definite choice or decision, or in other words, there must be a
willpower to do an act whether the accused knew or not that it was prohibited
by law” (p. 749). This means that no one can be found criminally
responsible for an involuntary act (see Dickson J.’s dissenting reasons in
Rabey v. The Queen, [1980] 2 S.C.R. 513, which were endorsed on
this point in R. v. Parks, [1992] 2 S.C.R. 871).
[47]
An individual’s will is expressed through
conscious control exerted by the individual over his or her body (Perka v.
The Queen, [1984] 2 S.C.R. 232, at p. 249). The control may be
physical, in which case voluntariness relates to the muscle movements of a
person exerting physical control over his or her body. The exercise of a
person’s will may also involve moral control over actions the person wants to
take, in which case a voluntary act is a carefully thought out act that is
performed freely by an individual with at least a minimum level of intelligence
(see H. Parent, Responsabilité pénale et troubles mentaux: Histoire de
la folie en droit pénal français, anglais et canadien (1999), at
pp. 266‑71). Will is also a product of reason.
[48]
The moral dimension of the voluntary act, which
this Court recognized in Perka, thus reflects the idea that the criminal
law views individuals as autonomous and rational beings. Indeed, this idea can
be seen as the cornerstone of the principles governing the attribution of
criminal responsibility (L. Alexander and K. K. Ferzan with
contributions by S. J. Morse, Crime and Culpability: A Theory of
Criminal Law (2009), at p. 155). When considered from this
perspective, human behaviour will trigger criminal responsibility only if it
results from a “true choice” or from the person’s “free will”. This principle
signals the importance of autonomy and reason in the system of criminal
responsibility. As the Court noted in R. v. Ruzic, 2001 SCC 24, [2001]
1 S.C.R. 687:
The
treatment of criminal offenders as rational, autonomous and choosing agents is
a fundamental organizing principle of our criminal law. Its importance is
reflected not only in the requirement that an act must be voluntary, but also
in the condition that a wrongful act must be intentional to ground a
conviction. . . . Like voluntariness, the requirement of a guilty
mind is rooted in respect for individual autonomy and free will and
acknowledges the importance of those values to a free and democratic society
. . . . Criminal liability also depends on the capacity to choose —
the ability to reason right from wrong. [Emphasis added; citation omitted;
para. 45.]
[49]
This essential basis for attributing criminal
responsibility thus gives rise to a presumption that each individual can
distinguish right from wrong. The criminal law relies on a presumption that
every person is an autonomous and rational being whose acts and omissions can
attract liability. This presumption is not absolute, however: it can be
rebutted by proving that the accused did not at the material time have the
level of autonomy or rationality required to attract criminal liability. Thus,
criminal responsibility will not be imposed if the accused gives an excuse for
his or her act that is accepted in our society, in which there is “a
fundamental conviction that criminal responsibility is appropriate only where
the actor is a discerning moral agent, capable of making choices between right
and wrong” (R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1397). In Ruzic,
the Court recognized the existence of a principle of fundamental justice that
“only voluntary conduct — behaviour that is the product of a free will and
controlled body, unhindered by external constraints — should attract the
penalty and stigma of criminal liability” (para. 47).
[50]
Insanity is an exception to the general criminal
law principle that an accused is deemed to be autonomous and rational. A
person suffering from a mental disorder within the meaning of s. 16 Cr.
C. is not considered to be capable of appreciating the nature of his or her
acts or understanding that they are inherently wrong. This is why
Lamer C.J. stated in Chaulk that the insanity provisions of the Criminal
Code “operate, at the most fundamental level, as an exemption from criminal
liability which is predicated on an incapacity for criminal intent”
(p. 1321 (emphasis deleted)).
[51]
The logic of Ruzic is that it can also be
said that an insane person is incapable of morally voluntary conduct. The
person’s actions are not actually the product of his or her free will. It is
therefore consistent with the principles of fundamental justice for a person
whose mental condition at the relevant time is covered by s. 16 Cr. C.
not to be criminally responsible under Canadian law. Convicting a person who
acted involuntarily would undermine the foundations of the criminal law and the
integrity of the judicial system.
[52]
However, the defence of mental disorder remains
unique. It does not result in acquittal of the accused, but instead leads to a
verdict of not criminally responsible. That verdict triggers an administrative
process whose purpose is to determine whether the accused is a significant
threat to the safety of the public, to take any necessary action to control
that threat and, if necessary, to provide the accused with appropriate care. A
verdict of not criminally responsible on account of mental disorder thus gives
effect to society’s interest in ensuring that morally innocent offenders are
treated rather than punished, while protecting the public as fully as possible.
[53]
An accused who is found not criminally
responsible becomes subject to the scheme established in Part XX.1 of the Criminal
Code . Parliament adopted the current scheme after this Court had held in R.
v. Swain, [1991] 1 S.C.R. 933, that a Criminal Code provision
requiring the automatic and indeterminate detention of an accused found not
criminally responsible violated the right to liberty guaranteed by s. 7 of
the Charter . In Winko v. British Columbia (Forensic Psychiatric
Institute), [1999] 2 S.C.R. 625, McLachlin J. (as she then was)
explained the principles underlying the application of Part XX.1 of the Criminal
Code as follows:
In
summary, the purpose of Part XX.1 is to replace the common law regime for
the treatment of those who offend while mentally ill with a new approach
emphasizing individualized assessment and the provision of opportunities for
appropriate treatment. Under Part XX.1, the NCR accused is neither
convicted nor acquitted. Instead, he or she is found not criminally
responsible by reason of illness at the time of the offence. This is not a
finding of dangerousness. It is rather a finding that triggers a balanced
assessment of the offender’s possible dangerousness and of what treatment‑associated
measures are required to offset it. Throughout the process the offender is
to be treated with dignity and accorded the maximum liberty compatible with
Part XX.1’s goals of public protection and fairness to the NCR accused.
[Emphasis added; para. 43.]
[54]
With these general considerations in mind, I
will now review the conditions that must be met for s. 16 Cr. C. to
apply in order to determine, in particular, whether those conditions are met in
this case. After this review, I will consider issues related specifically to
toxic psychoses that result from a state of self‑induced intoxication.
D. Requirements of the Defence of Not Criminally Responsible on
Account of Mental Disorder
[55]
Section 16(2) Cr. C. provides
that “[e]very person is presumed not to suffer from a mental disorder so as to
be exempt from criminal responsibility”. An accused who seeks to avoid
criminal responsibility on this ground must prove on a balance of probabilities
that, at the material time, he or she was suffering from “a mental disorder
that rendered the person incapable of appreciating the nature and quality of
the act or omission or of knowing that it was wrong” (s. 16(1) Cr. C.).
In Chaulk, this Court held that imposing this burden of proof on the
accused infringed the presumption of innocence guaranteed by s. 11 (d)
of the Charter but that this was nonetheless a reasonable limit on that
presumption in a free and democratic society.
[56]
An accused who wishes to successfully raise the
defence of mental disorder must therefore meet the requirements of a two‑stage
statutory test. The first stage involves characterizing the mental
state of the accused. The key issue to be decided at trial at this stage is
whether the accused was suffering from a mental disorder in the legal sense at
the time of the alleged events. The second stage of the defence provided for
in s. 16 Cr. C. concerns the effects of the mental disorder.
At this stage, it must be determined whether, owing to his or her mental
condition, the accused was incapable of “knowing that [the act or omission] was
wrong” (s. 16(1) Cr. C.).
[57]
In the instant case, it is not in dispute that
the appellant was incapable of distinguishing right from wrong at the material
time. The trial judge wrote that [translation]
“[a]t the time the criminal acts were committed, the accused did not realize
what he was doing and was in a serious psychotic condition; there is no real
dispute about this” (para. 2). Therefore, the only issue in this appeal
is whether the psychosis resulted from a “mental disorder” within the meaning
of s. 16 Cr. C.
(1)
Incapacity Must Result From a Disease of the
Mind
[58]
The Criminal Code does not contain a
precise definition of the “mental disorder” concept for the purposes of
s. 16 Cr. C. Section 2 Cr. C. simply
provides that the term “mental disorder” means “a disease of the mind” (“toute
maladie mentale” in French). Because of the circular nature of this
definition, the courts have had to gradually delineate this legal concept over
time.
[59]
The line of authority based on Cooper
clearly confirms that the scope of the legal concept of “mental disorder” is
very broad. In Cooper, Dickson J. stated that the “disease of the
mind” concept includes “any illness, disorder or abnormal condition which
impairs the human mind and its functioning” (p. 1159). In Rabey,
Dickson J. explained that “the concept is broad, embracing mental
disorders of organic and functional origin, whether curable or incurable,
temporary or not, recurring or non‑recurring” (p. 533). While it
must be borne in mind that a verdict of not criminally responsible triggers a
special mechanism for the management of the accused, the inclusive nature of
the definition of “mental disorder” can be explained in particular by
Parliament’s wish to give the public a high level of protection from persons
who could be a threat to others (J. Barrett and R. Shandler, Mental
Disorder in Canadian Criminal Law (loose‑leaf), at p. 4‑12).
[60]
The “mental disorder” concept continues to
evolve, which means that it can be adapted continually to advances in medical
science (R. v. Simpson (1977), 35 C.C.C. (2d) 337 (Ont. C.A.)). As
a result, it will undoubtedly never be possible to define and draw up an
exhaustive list of the mental conditions that constitute “disease[s] of the
mind” within the meaning of s. 2 Cr. C. As Martin J.A.,
writing for the Ontario Court of Appeal, stated in R. v. Rabey (1977),
17 O.R. (2d) 1, this concept “is not capable of precise definition”
(p. 12). It is thus flexible enough to apply to any mental condition
that, according to medical science in its current or future state, is
indicative of a disorder that impairs the human mind or its functioning, and
the recognition of which is compatible with the policy considerations that
underlie the defence provided for in s. 16 Cr. C.
(2) Characterizing a Mental Condition as a “Mental Disorder” Is a Legal
Exercise With a Medical and Scientific Substratum
[61]
For the purposes of the Criminal Code ,
“disease of the mind” is a legal concept with a medical dimension. Although
medical expertise plays an essential part in the legal characterization
exercise, it has long been established in positive law that whether a
particular mental condition can be characterized as a “mental disorder” is a
question of law to be decided by the trial judge. In a jury trial, the judge
decides this question, not the jury. As Martin J.A. stated in an oft‑quoted
passage from Simpson, “[i]t is the function of the psychiatrist to
describe the accused’s mental condition and how it is considered from the
medical point of view. It is for the Judge to decide whether the condition
described is comprehended by the term ‘disease of the mind’” (p. 350). If
the judge finds as a matter of law that the mental condition of the accused is
a “mental disorder”, it will ultimately be up to the jury to decide whether, on
the facts, the accused was suffering from such a mental disorder at the time of
the offence.
[62]
Thus, the trial judge is not bound by the
medical evidence, since medical experts generally take no account of the policy
component of the analysis required by s. 16 Cr. C. (Parks,
at pp. 899‑900). Moreover, an expert’s opinion on the legal issue
of whether the mental condition of the accused constitutes a “mental disorder”
within the meaning of the Criminal Code has “little or no evidentiary
value” (R. v. Luedecke, 2008 ONCA 716, 269 O.A.C. 1, at para. 113).
[63]
The respective roles of the expert, the judge
and the jury were summarized in R. v. Stone, [1999] 2 S.C.R. 290.
Writing for the majority, Bastarache J. stated the following:
Taken
alone, the question of what mental conditions are included in the term “disease
of the mind” is a question of law. However, the trial judge must also
determine whether the condition the accused claims to have suffered from
satisfies the legal test for disease of the mind. This involves an assessment
of the particular evidence in the case rather than a general principle of law
and is thus a question of mixed law and fact. . . . The question of
whether the accused actually suffered from a disease of the mind is a question
of fact to be determined by the trier of fact. [Citation omitted;
para. 197.]
[64]
The central issue in this appeal is a question
of law within the meaning of Stone. It is common ground that the
appellant was in a psychotic condition that prevented him from distinguishing
right from wrong. The main issue is whether a toxic psychosis caused
exclusively by a single episode of intoxication constitutes a “mental disorder”
within the meaning of s. 16 Cr. C.
[65]
It can be seen at this point that the
appellant’s position poses a serious problem. To argue that toxic psychosis
must always be considered a “mental disorder” is to say that the legal
characterization exercise under s. 16 Cr. C. depends
exclusively on a medical diagnosis. If the appellant’s position were accepted,
psychiatric experts would thus be responsible for determining the scope of the
defence of not criminally responsible on account of mental disorder. This
argument conflicts directly with this Court’s consistent case law over the past
three decades and cannot succeed. It would shift the responsibility for
deciding whether the accused is guilty from the judge or jury to the expert.
E. Specific Problem of a Toxic Psychosis That Results From the
Voluntary Consumption of Alcohol or Drugs
[66]
An additional reason for rejecting the
appellant’s central argument has to do with the very diverse reality
encompassed by the term “toxic psychosis”. In the case law, this term usually
refers to the symptoms of the accused as diagnosed by psychiatrists. However,
medical science does not always identify the causes of toxic psychosis as
precisely as is required in law. Although toxic psychosis is always related to
exposure to a toxic substance, the circumstances in which it may arise can vary
a great deal. This is readily apparent from a review of the case law on this
point (see R. v. Oakley (1986), 24 C.C.C. (3d) 351 (Ont. C.A.); R. v.
Mailloux (1985), 25 C.C.C. (3d) 171 (Ont. C.A.), aff’d [1988] 2 S.C.R.
1029; R. v. Moroz, 2003 ABPC 5, 333 A.R. 109; R. v. Snelgrove,
2004 BCSC 102 (CanLII); R. v. Lauv, 2004 BCSC 1093 (CanLII); R. v.
Fortin, 2005 CanLII 6933 (C.Q.); R. v. Paul, 2011 BCCA 46, 299
B.C.A.C. 85).
[67]
Many factors might contribute to a state of
substance‑induced psychosis, including the fact that symptoms of a
paranoid personality disorder are active at the time drugs are taken (Mailloux),
the combined effect of exposure to toxic vapours and a period of intense stress
(Oakley), dependence on certain drugs, such as cocaine (Moroz and
Snelgrove), heavy drug use during the days and hours leading up to the
commission of the crime (Lauv and Paul), and withdrawal following
a period of excessive drinking (R. v. Malcolm (1989), 50 C.C.C.
(3d) 172 (Man. C.A.)). It seems that this diversity of circumstances can be
attributed to variations in psychological makeup and psychological histories
from one accused to another, as well as in the nature of the drug use that
contributed to their psychoses. The quantity and toxicity of the drugs taken
also seem to have a significant effect in this regard. As a result, in each
new situation, the case turns on its own facts and cannot always be fitted
easily into the existing case law.
[68]
Because of the heterogeneous nature of the
circumstances in which a toxic psychosis at the material time may be medically
diagnosed, I consider it unwise to adopt an approach as broad as the one
proposed by the appellant. In Cooper, this Court instead urged the
courts to exercise particular caution where an accused person’s mental
condition was closely related to an episode of intoxication contemporaneous
with the offence. In my opinion, the Court, in its decision in Cooper,
recommended a contextual approach that was intended to strike a fair
balance between the need to protect the public from persons whose mental state
is inherently dangerous and the desire to impose criminal liability solely on
persons who are responsible for the state they were in at the time of the
offence. Since this contextual approach means that a court must base its
analysis on the particular circumstances of the case before it, I cannot accept
the recent decisions or opinions that seem to suggest that toxic psychosis is
always a disease of the mind within the meaning of the Criminal Code (see,
inter alia, Snelgrove, at para. 234; Lauv, at
para. 18; Fortin, at para. 57; R. v. D.P., 2009 QCCQ
644 (CanLII), at para. 25; and H. Parent,
“Les Troubles psychotiques induits par une substance en droit pénal
canadien: analyse médicale et juridique d’un concept en pleine évolution”
(2010), 69 R. du B. 103, at p. 119).
[69]
When confronted with a difficult fact situation
involving a state of toxic psychosis that emerged while the accused was
intoxicated, a court should start from the general principle that temporary
psychosis is covered by the exclusion from Cooper. This principle is
not absolute, however: the accused can rebut the presumption provided for in
s. 16(2) Cr. C. by showing that, at the material time, he or
she was suffering from a disease of the mind that was unrelated to the
intoxication‑related symptoms. To determine whether an accused has
discharged the burden of proof in this respect, the court should adopt the
“more holistic approach” described by Bastarache J. in Stone (para.
203). As the Attorney General of Ontario suggested in this Court, it is
ultimately this “more holistic approach” that will enable a court to determine
whether the mental condition of an accused at the material time constitutes a
“mental disorder” for the purposes of s. 16 Cr. C. (Factum, at
paras. 22‑23).
[70]
In Stone, Bastarache J. proposed a
flexible approach structured around two analytical tools and certain
policy considerations. The purpose of the approach is to help the courts
distinguish mental conditions that fall within the scope of s. 16 Cr. C.
from those covered by Cooper’s exclusion of “self‑induced states
caused by alcohol or drugs” (p. 1159). In other words, a court should use
this approach to determine whether a medically diagnosed disease of the mind
constitutes a mental disorder in the legal sense.
[71]
The internal cause factor, the first of
the analytical tools described in Stone, involves comparing the accused
with a normal person. In that case, Bastarache J. noted that “the trial
judge must consider the nature of the trigger and determine whether a normal
person in the same circumstances might have reacted to it by entering an
automatistic state as the accused claims to have done” (para. 206). The
comparison between the circumstances of the accused and those of a normal
person will be objective and may be based on the psychiatric evidence. The
more the psychiatric evidence suggests that a normal person, that is, a person
suffering from no disease of the mind, is susceptible to such a state, the more
justified the courts will be in finding that the trigger is external. Such a
finding would exclude the condition of the accused from the scope of s. 16
Cr. C. The reverse also holds true.
[72]
Although the trigger associated with the
internal cause factor often involves a “psychological blow”, there is no reason
why it cannot consist of alcohol or drug use contemporaneous with the offence.
What must therefore be determined is what state a normal person might have
entered after consuming the same substances in the same quantities as the
accused. Since certain factors such as fatigue and the pace of consumption may
influence the effects of drugs, this comparison must take account of all the
circumstances in which the accused consumed the drugs that triggered the
psychotic condition. If a normal person might also have reacted to similar
drug use by developing toxic psychosis, it will be easier for the court to find
that the mental disorder of the accused was purely external in origin (Rabey
(S.C.C.), at pp. 519 and 533; see also Moroz, at para. 46) and
was not a disease of the mind within the meaning of the Criminal Code .
[73]
The second analytical tool, the continuing danger
factor, is directly related to the need to ensure public safety. The
purpose of this factor is to assess the likelihood of recurring danger to
others. Where a condition is likely to present a recurring danger, there is a
greater chance that it will be regarded as a disease of the mind. To assess
this danger, the court must consider, among other factors, “the psychiatric
history of the accused and the likelihood that the trigger alleged to have
caused the automatistic episode will recur” (Stone, at para. 214).
[74]
Although Bastarache J.’s reasons were not
explicit in this regard, it stands to reason that danger will be recurring only
if it is likely to arise again independently of the exercise of the will of the
accused. The recurrence of danger is not a factor linked to voluntary
behaviour by the accused. This conclusion is consistent with the idea that the
effect of the defence provided for in s. 16 Cr. C. is to
exempt from criminal responsibility an accused whose actions are morally
involuntary. The purpose of the defence of mental disorder is to ascertain
whether the mental condition of the accused poses an inherent danger,
that is, a danger that persists despite the will of the accused. As a
corollary to this principle, a danger to public safety that might be
voluntarily created by the accused in the future by consuming drugs
would not be the result of a “mental disorder” for the purposes of s. 16 Cr. C.
[75]
In Stone, Bastarache J. also stated
that “a holistic approach to disease of the mind must also permit trial judges
to consider other policy concerns which underlie this inquiry”
(para. 218). The main policy consideration continues to be the need to
protect society from the accused through the special procedure set out in
Part XX.1 of the Criminal Code . Thus, if the circumstances of a
case suggest that a pre‑existing condition of the accused does not
require any particular treatment and is not a threat to others, the court
should more easily hold that the accused was not suffering from a disease of the
mind at the time of the alleged events.
[76]
The contextual approach required by Stone
makes it possible to define the scope of this appeal. The purpose of the
appeal is not to identify a rule to be applied to every case of toxic
psychosis. And because every case has distinctive characteristics, it would be
counterproductive to try to formulate an exhaustive definition of the mental
conditions covered by Cooper’s exclusion of “self‑induced states
caused by alcohol or drugs”. The instant case concerns just one type of toxic
psychosis, namely one that resulted exclusively from a single episode of
self‑induced intoxication.
[77]
Although the courts can seek assistance from the
existing case law, it would be preferable for them to engage in an
individualized analysis that takes account of the specific circumstances of
each case. This means that the courts should determine on a case‑by‑case
basis, applying the “more holistic approach” from Stone, whether the
mental condition of each accused is included in or excluded from the definition
of “disease of the mind” proposed by Dickson J. in Cooper. This
approach is consistent with the line of authority based on Rabey, in
which this Court endorsed Martin J.A.’s opinion that “[p]articular
transient mental disturbances may not . . . be capable of being
properly categorized in relation to whether they constitute ‘disease of the
mind’ on the basis of a generalized statement and must be decided on a case‑by‑case
basis” (pp. 519‑20).
F. Application of the Principles to This Appeal
[78]
In accordance with the approach set out above, I
must now determine whether the appellant was suffering from a “mental disorder”
within the meaning of s. 16 Cr. C. at the material time. To
do this, it will be helpful to begin by referring to the trial judge’s main
findings of fact. Judge Decoste found that the appellant, who was highly
intoxicated at the material time, was in a psychotic condition caused by the
voluntary consumption of drugs. He wrote that [translation] “the psychotic condition the accused was in when
he committed these criminal acts originated in his drug use during the moments
leading up to them” (para. 41). I would also note that the appellant’s
central argument is based on the contention that toxic psychosis is necessarily
a “mental disorder” within the meaning of s. 16 Cr. C. because
it is an “abnormal effect” of intoxication that affects only those who have a
psychological predisposition or whose psyches are particularly fragile.
[79]
The evidence in the record does not support the
distinction drawn by the appellant between “normal effects” and “abnormal
effects” of intoxication. Nor is it compatible with the argument that only
persons who are predisposed to a mental disorder are likely to develop toxic
psychosis as a result of drug use. For example, Dr. Faucher testified at
trial that he saw cases of toxic psychosis [translation]
“every week” (A.R., at p. 967). As Thibault J.A. noted, the same
witness also stated that half (50 percent) of subjects who take drugs
containing PCP are likely to develop a psychotic condition when intoxicated.
It thus appears that toxic psychosis is unfortunately a fairly frequent
phenomenon that seems to result from the high toxicity of chemical drugs.
[80]
The application of the first factor from Stone
thus suggests that the taking of one “poire bleue” pill is a
specific external factor that contradicts the appellant’s argument, since it
seems likely that the reaction of a normal person to such a pill would indeed
be to develop toxic psychosis. This strongly suggests that the appellant was
not suffering from a mental disorder at the time he committed the impugned
acts.
[81]
The rapid appearance of psychotic symptoms
generally indicates that the delusions of the accused can be attributed to a
specific external factor. Dr. Faucher’s expert assessment, which the
trial judge preferred to that of Dr. Turmel, an expert called by the
defence, revealed that the rapid reversal of symptoms is characteristic of a
toxic psychosis caused by an episode of self‑induced intoxication (A.R.,
at pp. 954‑59). Moreover, Professor Parent has written on this
topic that [translation]
“delusions that subside at the same rate as the drug are usually signs of Substance
Intoxication” (“Les Troubles psychotiques induits par une substance
en droit pénal canadien: analyse médicale et juridique d’un concept en pleine
évolution”, at p. 123 (emphasis in original)). Such delusions therefore
do not result from a disease of the mind within the meaning of the Criminal Code .
[82]
In the instant case, the psychotic symptoms
experienced by the appellant began to diminish shortly after he took the “poire bleue”
pill and continued to do so until they disappeared completely on
October 28, 2005. The Court of Appeal held that the disappearance of the
symptoms showed that the symptoms of toxic psychosis coincided with the
duration of the appellant’s intoxication. Thibault J.A. could thus say
that [translation] “[t]he
appellant suffered from no [disease of the mind] before committing the crimes,
and once the effects of the drug consumption had passed, he was entirely sane”
(para. 77). I see no valid reason to depart from this conclusion.
[83]
As for the second factor from Stone,
there is no evidence indicating that the mental condition of the accused is
inherently dangerous in any way. Provided that the appellant abstains from
such drugs in the future, which he is capable of doing voluntarily, it would
seem that his mental condition poses no threat to public safety. Although I
will not adopt a definitive position on this question, I might have concluded
otherwise if the appellant had a dependency on drugs that affected his ability
to stop using them voluntarily. The likelihood of recurring danger might then
be greater.
[84]
Finally, after considering all the circumstances
of this case, I am satisfied that there is no valid reason to initiate the
special procedure provided for in Part XX.1 of the Criminal Code .
An accused whose mental condition at the material time can be attributed
exclusively to a state of temporary self‑induced intoxication and who
poses no threat to others is not suffering from a “mental disorder” for the
purposes of s. 16 Cr. C. The scheme of Part XX.1 applies
only if the accused actually suffered from a disease of the mind at the
material time. It is not intended to apply to accused persons whose temporary
madness was induced artificially by a state of intoxication.
[85]
In this context, I conclude that the appellant
was not suffering from a “mental disorder” for the purposes of s. 16 Cr. C.
at the time he committed the assault. He has failed to rebut the presumption
that his toxic psychosis was a “self‑induced stat[e] caused by alcohol or
drugs” in accordance with the definition in Cooper. A malfunctioning of
the mind that results exclusively from self‑induced intoxication
cannot be considered a disease of the mind in the legal sense, since it is not
a product of the individual’s inherent psychological makeup. This is true even
though medical science may tend to consider such conditions to be diseases of
the mind. In circumstances like those of the case at bar, toxic psychosis
seems to be nothing more than a symptom, albeit an extreme one, of the accused
person’s state of self‑induced intoxication. Such a state cannot justify
exempting an accused from criminal responsibility under s. 16 Cr. C.
[86]
This conclusion takes account of the policy
considerations referred to by Dickson J. in Cooper. In light of
Dr. Faucher’s expert assessment of the frequency of toxic psychosis in circumstances
analogous to the ones in the instant case, the appellant’s position, if
adopted, would affect the integrity of the criminal justice system in ways that
would be difficult to accept. If everyone who committed a violent offence
while suffering from toxic psychosis were to be found not criminally
responsible on account of mental disorder regardless of the origin or cause of
the psychosis, the scope of the defence provided for in s. 16 Cr. C.
would become much broader than Parliament intended. These considerations
reinforce the conclusion that the toxic psychosis of the appellant in this case
is covered by Cooper’s exclusion of “self‑induced states caused by
alcohol or drugs”.
[87]
The lack of evidence that the appellant was
suffering from an underlying mental disorder certainly simplifies the legal
characterization exercise under s. 16 Cr. C. From a factual
standpoint, this case seems quite clear: as in Paul, the only reasonable
conclusion is that the appellant’s mental condition is covered by the exclusion
from Cooper. Contrary to the conclusion the appellant is asking this
Court to draw, it would be unreasonable to assume, absent any evidence to back
up such a claim, that the real cause of his toxic psychosis was an underlying
mental disorder. In addition, no Canadian court has applied the defence
provided for in s. 16 Cr. C. in the context of toxic psychosis
without evidence showing that the accused suffered from an underlying disease
of the mind.
[88]
In light of the case law, it is plausible to
expect that the courts will have to perform this legal characterization
exercise in circumstances much more difficult than the ones in the case at
bar. One example would be a case in which the mental condition of the accused
indicates an underlying mental disorder but the evidence also shows that the
toxic psychosis was triggered by the consumption of drugs of a nature and in a
quantity that could have produced the same condition in a normal person. In
such circumstances, the courts should be especially meticulous in applying the
“more holistic approach” from Stone.
G. Section 33.1 Cr. C. Applies in This Case
[89]
The foregoing conclusion leads to the question
whether s. 33.1 Cr. C. is applicable. This provision applies
where three conditions are met: (1) the accused was intoxicated at
the material time; (2) the intoxication was self‑induced; and
(3) the accused departed from the standard of reasonable care generally
recognized in Canadian society by interfering or threatening to interfere with
the bodily integrity of another person (see, generally, R. v. Vickberg
(1998), 16 C.R. (5th) 164 (B.C.S.C.); R. v. Chaulk, 2007 NSCA 84, 257
N.S.R. (2d) 99). Where these three things are proved, it is not a defence that
the accused lacked the general intent or the voluntariness required to commit
the offence.
[90]
The self‑induced intoxication to which
s. 33.1 Cr. C. refers is limited in time. It corresponds to
the period during which the substance consumed by the accused produced its
effects. Section 33.1(2) Cr. C. leaves no doubt about this.
It provides that a person “is . . . criminally at fault where the
person, while in a state of self‑induced intoxication that renders the
person unaware of, or incapable of consciously controlling, their
behaviour, voluntarily or involuntarily interferes or threatens to interfere
with the bodily integrity of another person”. Section 33.1 Cr. C.
is intended to prevent an accused from avoiding criminal liability on the
ground that his or her state of intoxication at the material time rendered
the accused incapable of forming the mental element or having the
voluntariness required to commit the offence.
[91]
Section 33.1 Cr. C. therefore
applies to any mental condition that is a direct extension of a state of
intoxication. It is also important to understand that no distinction based on
the seriousness of the effects of self‑induced intoxication is drawn in
this provision. The appellant’s suggestion that it applies only to the “normal
effects” of intoxication is wrong. There is no threshold of intoxication
beyond which s. 33.1 Cr. C. does not apply to an accused,
which means that toxic psychosis can be one of the states of intoxication
covered by this provision. It is so covered in the case at bar. The Court of
Appeal therefore did not err in law in holding that s. 33.1 Cr. C.
was applicable rather than s. 16 Cr. C.
V. Conclusion
[92]
For all these reasons, the appeal must be
dismissed.
Appeal
dismissed.
Solicitors
for the appellant: Roy & Robert, Montréal.
Solicitor
for the respondent: Criminal and Penal Prosecutions of Quebec,
Matane.
Solicitor for the intervener the Attorney General of
Canada: Attorney General of Canada, Montréal.
Solicitor for the
intervener the Attorney General of Ontario: Attorney General of
Ontario, Toronto.