Cooper v. R., [1980] 1 SCR 1149

Supreme Court of Canada

Cooper v. R., [1980] 1 S.C.R. 1149

Date: 1979-12-21

Gary Albert Cooper (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1979: May 31; 1979: December 21.

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Non-capital murder—Defence of insanity not pleaded but put to the jury by trial judge—“Disease of the mind”—“Appreciating the nature and quality of an act or omission”—Charge to the jury—Criminal Code, R.S.C. 1970, c. C-34, ss. 16, 613, 618(1)(a).

The appellant, an out-patient at the Hamilton Psychiatric Hospital, was charged with the murder of Denise Hobbs, an in-patient at the same institution. After a party at the hospital, the appellant unsuccessfully attempted to have sexual intercourse with the victim then choked her. Appellant had a lengthy psychiatric history. The defence of insanity was not raised at the trial. A psychiatrist was called by the defence to seek to establish that the accused did not have the capacity to form an intention to kill. In answer to a question put by the trial judge the psychiatrist testified that he did not think that the accused was suffering with a disease of the mind. None the less, the trial judge dealt with this issue of insanity in her charge to the jury. The jury found the appellant guilty of non-capital murder and he was sentenced to life imprisonment. An appeal was dismissed without written reasons, Dubin J.A. dissenting on the grounds that there was misdirection and non-direction amounting to misdirection in the trial judge’s charge to the jury on the defence of insanity. The appellant then appealed to this Court pursuant to s. 618(1)(a) of the Criminal Code on the basis of a dissent in the Court of Appeal on a question of law.

Held (Martland and Pratte JJ. dissenting): The appeal should be allowed.

Per Laskin C.J. and Dickson, Beetz, Estey and McIntyre JJ.: Section 16 of the Criminal Code does not set out a test of insanity but, rather, the criteria to be taken into account in determining criminal responsibility. The question raised by this appeal is whether there was evidence upon which a properly charged jury could conclude, on a balance of probabilities, that the appel-

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ty. The second is that there was non-direction, amounting to misdirection, in failing to relate the evidence of the psychiatrist on the issue as to whether the appellant was able to appreciate the nature and quality of the act. As to the first criticism, the trial judge did not treat the opinion of the psychiatrist that the accused was not suffering from a disease of the mind as determinative. The jury was told that if there was other evidence on this issue they were entitled to weigh it. There was no evidence to show a state of natural imbecility. As to the second criticism, it is desirable to stress the fact that the appellant elected not to raise the question of insanity: The trial judge cannot be criticized for not relating the evidence given in relation to another issue, to an issue which had not been raised at trial. The evidence does not establish an incapacity to appreciate the nature and quality of the appellant’s act. The onus of proving that he was not sane rested upon the appellant.

There was no substantial wrong or miscarriage of justice. The Court of Appeal was entitled to dismiss the appeal of the accused under ss. 613(1)(b)(iii) of the Criminal Code.

[Schwartz v. The Queen, [1977] 1 S.C.R. 673; R. v. Kemp, [1957] 1 Q.B. 399; Bratty v. A.-G. for Northern Ireland, [1963] A.C. 386; R. v. O’Brien, [1966] 3 C.C.C. 288; R. v. Rabey (1977), 37 C.C.C. (2d) 461; R. v. Simpson (1977), 35 C.C.C. (2d) 337; R. v. Rivett (1950), 34 Cr. App. Rep. 87; R. v. Laycock, [1952] O.R. 908, referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario[1], dismissing, by a majority, the appeal by the appellant from his conviction of non-capital murder. Appeal allowed, Martland and Pratte JJ. dissenting.

Alan D. Gold, for the appellant.

Edward F. Then, for the respondent.

The judgment of Laskin C.J. and Dickson, Beetz, Estey and McIntyre JJ. was delivered by

DICKSON J.—Issues fundamental to the design and range of the “insanity defence” and to notions of responsibility in our criminal justice system are before the Court in this appeal.

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The case opens up the broad and difficult question of the obligation of a trial judge to charge on insanity in circumstances where an accused has a lengthy psychiatric history, but the medical evidence is that he does not suffer from “disease of the mind”.

The appellant, Gary Albert Cooper, was charged with the murder of one Denise Hobbs, at the time an in-patient at the Hamilton Psychiatric Hospital. The appellant was an out-patient at the same institution. There was evidence that the appellant had been drinking during the day of October 8, 1975. That evening he arrived at a regularly scheduled dance held at a nearby church for patients of the hospital and there met Denise Hobbs with whom he was acquainted. At his invitation, the two left the dance to seek a bottle of pop and cigarettes. Ultimately, after an unsuccessful attempt at sexual intercourse, the appellant choked the deceased. The cause of death was asphyxiation by strangulation.

At trial, counsel for the defence directed argument to raising a doubt on the issue of intent and did not plead the “defence” of insanity. None the less, the trial judge, Madame Justice Van Camp, charged the jury on insanity, though in a manner vigorously challenged in this appeal. The jury found the appellant guilty of non-capital murder and an appeal was dismissed without written reasons, Dubin J.A. dissenting. At a later date Mr. Justice Dubin delivered lengthy reasons in dissent.

Section 16 of the Criminal Code does not set out a test of insanity but, rather the criteria to be taken into account in determining criminal responsibility. The section reads:

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

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

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

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

The question raised by this appeal is whether there was evidence from which a properly charged jury could conclude, on a balance of probabilities, that the appellant had disease of the mind to an extent that rendered him incapable of appreciating the nature and quality of the act of which he was charged, or of knowing that it was wrong. “Wrong” means legally wrong: Schwartz v. The Queen[2]. Before turning to the evidence adduced at trial, it will be convenient to consider this question at some length, for it raises two distinct legal issues fundamental to our defence of insanity under s. 16(2). First, the meaning to be ascribed to the phrase “disease of the mind”, and second, the interpretation to be given the words “incapable of appreciating the nature and quality of an act”.

I

Disease of the Mind

Let me say by way of commencement that, to date, the phrase “disease of the mind” has proven intractable, and has eluded satisfactory definition by both medical and legal disciplines. It is not a term of art in either law or psychiatry. Indeed, Glanville Williams (Textbook of Criminal Law at p. 592) says that the phrase is no longer in medical use. “It is a mere working concept, a mere abstraction, like sin.” (Wily & Stallworthy, Mental Abnormality and the Law (1962) at p. 20.) Although the term expresses a legal concept and a finding is made according to a legal test, psychiatric knowledge is directly linked to the legal conclusion, for medical testimony forms part of the evidence on which the trier of fact must reach its decision. But medical and legal perspectives differ. The divergence in the two philosophies is identified

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by Jerome Hall in “Psychiatry and Criminal Responsibility” (1956) 65 Yale L.J. 761 at p. 764:

“…we can easily perceive the perspective that psychiatry, and especially psycho‑analysis, draws from them (the sciences). Since it purports to the rigorously scientific, it takes a determinist position. Its view of human nature is expressed in terms of drives and dispositions which, like mechanical forces, operate in accordance with the universal laws of causation…

Its view (the criminal law) of human nature asserts the reality of free choice and rejects the thesis that the conduct of normal adults is a mere expression of imperious psychological necessity”.

Even medical experts are not given to agreement when asked to define “disease of the mind”. In “The Concept of Mental Disease in Criminal Law Insanity Tests” (1965-66) 33 U. Chic. L.R. 229, H. Fingarette illustrates the diversity in approach taken by psychiatric authorities in the quest for a definition of mental disease. He cites the following medical views, at p. 232-3:

(1) There is no such medical entity as mental disease, or we would do well not to use the phrase.

(2) Mental disease is psychosis but not neurosis.

(3) Mental disease is any significant and substantial mental disturbance, or is any condition at all which is authoritatively dealt with by the psychiatrist or physician treating mental conditions.

(4) Mental disease means substantial social maladaptation or incompetence or both as judged by legal criteria.

(5) Mental disease is the failure to realize one’s nature, capacities or true self.

He observes, at p. 238, that in spite of the inability of medical science to assist the law in reaching or agreeing upon a precise definition, the law is responsive to its different needs:

Nevertheless, it is crucial for our purposes to realize that the whole affair is initiated for legal purposes, that the definition is authoritatively formulated by lawmakers,

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and that the fundamental grounds justifying the enterprise are largely non-medical.

In R. v. Kemp[3], an oft-cited decision, the primary issue was whether arteriosclerosis came within the meaning of “disease of the mind”. Devlin J. agreed that there was an absence of medical opinion as to the categories of malfunction properly to be termed “diseases of the mind”, and rejected the idea that for legal purposes, a distinction should be made between diseases physical and mental in origin. In his view, arteriosclerosis is a disease of the mind and can provide a defence to a criminal charge. He reviewed the relationship between medical evidence and the legal conclusions to be drawn therefrom:

...Doctors’ personal views, of course, are not binding on me. I have to interpret the rules according to the ordinary principles of interpretation, but I derive help from their interpretations inasmuch as they illustrate the nature of the disease and the matters which from the medical point of view have to be considered in determining whether or not it is a disease of the mind, (at p. 406)

In Bratty v. A.-G. for Northern Ireland[4], Lord Denning agreed that the question of whether an accused suffers from a disease of the mind is properly resolved by the judge. He acknowledged that “the major mental diseases, which the doctors call psychoses are clearly diseases of the mind”, and that “any mental disorder which has manifested itseft in violence and is prone to recur is a disease of the mind”. (at p. 412)

In the Report of the Royal Commission on Capital Punishment (Eng.) (1949-1953), one finds a useful contribution to the discussion of what is meant by the phrases “mental disease” and “disease of the mind”. The Report reads at p. 73:

…For us, therefore, mental disease is only one part of mental disorders of all kinds, and broadly corresponds to what are often called major diseases of the mind, or psychoses; although it may also arise in cases, such as those of epilepsy and cerebral tumour, which are not ordinarily regarded by doctors as psychotic. Among the psychoses are the conditions known as schizophrenia,

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manic-depressive psychoses, and organic disease of the brain. Other conditions, not included under this term, are the minor forms of mental disorder—the neurotic reactions, such as neurasthenia, anxiety states and hysteria—and the disorders of development of the personality—psychopathic personality. We are aware that this classification will not be unconditionally endorsed by all psychiatrists, and that some would prefer to include under the term “disease of the mind” even the minor abnormalities we have referred to. We believe, however, that the nature of the distinction we have drawn will be clear to them, and will be acceptable to them as the basis for a discussion of criminal responsibility.

The classification advanced was arbitrary and recognized as being one which would not be acceptable to all psychiatrists. The passage cited makes it abundantly clear that “disease of the mind” can mean different things to different psychiatrists. To some, for example, it may include such things as neurasthenia, anxiety states, hysteria, and psychopathic personality. Others would exclude such disorders from the definition. It is equally manifest that in law some mental states may be recognized as possibly being within the definition, although, medically speaking, a psychiatrist might not so regard them. Hardening of the arteries is one example (R. v. Kemp, supra); psychomotor epilepsy (R. v. O’Brien[5]) is another. Thus to pose to a psychiatrist the bald question “Is D suffering from a disease of the mind?” and require a bald “yes” or “no” response really tells nothing because one is left in the dark as to the legal criteria applied.

Support for a broad and liberal legal construction of the words “disease of the mind” will be found in the writings of the renowned jurist, formerly Chief Justice of Australia, Sir Owen Dixon, who wrote:

The reason why it is required that the defect of reason should be “from disease of the mind”, in the classic phrase used by Sir Nicholas Tindal, seems to me no more than to exclude drunkenness, conditions of intense passion and other transient states attributable either to the fault or to the nature of man. In the advice delivered by Sir Nicholas Tindal no doubt the words “disease of

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the mind” were chosen because it was considered that they had the widest possible meaning. He would hardly have supposed it possible that the expression would be treated as one containing words of the law to be weighed like diamonds. I have taken it to include, as well as all forms of physical or material change or deterioration, every recognizable disorder or derangement of the understanding whether or not its nature, in our present state of knowledge, is capable of explanation or determination. (A Legacy of Hadfield, M’Naghten and Maclean, (1957) 31 A.L.J. 255 at 260). (Emphasis added.)

To the learned authors of Smith & Hogan Criminal Law (4th Ed) (1978) “It seems that any disease which produces a malfunction is a disease of the mind”. (at p. 164)

Recently, in Canada, the Ontario Court of Appeal contributed judicial direction in this area of the law, in the cases of R. v. Rabey[6] and R. v. Simpson[7], both of which were decided subsequent to the trial of the appellant. Judgment in Rabey postdates the decision of the Court of Appeal in the case at bar and is presently on appeal to this Court on an issue unrelated to those raised herein. Mr. Justice Martin, who wrote for the Court in both Rabey and Simpson, was not among the members of the Court who heard the Cooper appeal.

Simpson has greater significance for the present appeal. There, the accused appealed the finding of not guilty by reason of insanity on two charges of attempted murder. The facts, which indicate two incidents of stabbing, are not remarkable. As framed by Martin J.A., the issue was whether a personality disorder is a disease of the mind within the meaning of s. 16 of the Code. He held that, notwithstanding the psychiatric evidence, the question raised must be resolved as a question of law. But the legal position, as I understand it, is properly expressed in the following passage:

The term “disease of the mind” is a legal concept, although it includes a medical component, and what is meant by that term is a question of law for the judge… It is the function of the psychiatrist to describe the

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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”. (at p. 349-50)

As a matter of practice, the trial judge can permit the psychiatrist to be asked directly whether or not the condition in question constitutes a disease of the mind. Concerning the controversy over the classification of a “psychopathic personality”, Martin J.A. found implicit recognition in Canadian and British authorities for the proposition that such a disorder can constitute a disease.

The general principles, not in issue on the further appeal to this Court, were reiterated by Mr. Justice Martin in R. v. Rabey. Disease of the mind is a legal term. It is within the province of the judge to determine what mental conditions are within the meaning of that phrase and whether there is any evidence that an accused suffers from an abnormal mental condition comprehended by that term. More importantly, he held that if there is any evidence the accused did suffer such a disease in legal terms, the question of fact must be left with the jury.

I think Mr. Justice Dubin correctly characterizes the decision in Simpson as holding that “personality disorder” has been recognized as “being capable of constituting a ‘disease of the mind,”. I share his view that “there is no reason to give a narrow or limited interpretation to the term ‘disease of the mind,”. Admittedly, in Simpson, both of the psychiatrists stated that the personality disorder there in question did or could constitute a disease of the mind. While Martin J.A. in that case had little difficulty finding evidence that the appellant suffered from a “disease of the mind”, the case foundered upon the second segment of s. 16(2). It should also be kept in mind that Simpson presented an odd situation in which the Crown successfully raised the insanity defence against the wishes of the accused, who appealed the verdict of not guilty by reason of insanity.

What is interesting in these two cases for our purposes is the maintenance of a clear distinction

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between the weight to be given medical opinions expressed in evidence, however relevant, and the task of the trial judge to form an independent conclusion as to whether the mental condition falls within the legal concept.

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. In order to support a defence of insanity the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong.

Underlying all of this discussion is the concept of responsibility and the notion that an accused is not legally responsible for acts resulting from mental disease or mental defect. The principle was expressed long ago in Hawkins, Pleas of the Crown 1 (2d ed. 1724) where it is said:

The Guilt of offending against any Law whatsoever, necessarily supposing a wilful Disobedience can never justly be imputed to those, who are either uncapable of understanding it, or of conforming themselves to it…(at p. 1)

With great respect, in the case at bar the trial judge, in her charge to the jury, which I will discuss shortly, fell into error in that she confused the legal issue of whether the appellant’s disorder could constitute disease of the mind with the factual issue of whether the appellant was suffering from disease of the mind at the relevant time. Once the evidence is sufficient to indicate that an accused suffers from a condition which could in law constitute disease of the mind, the judge must leave it open to the jury to find, as a matter of fact, whether the accused had disease of the mind at the time the criminal act was committed. The more troublesome issue, where a defence of insanity has been pleaded, concerns the second criterion to be applied in determining criminal responsibility. As Martin J.A. pointed out in Rabey:

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In many, if not most cases involving the defence of insanity, the question whether the accused suffered from a disease of the mind is not the critical issue; the pivotal issue is whether a condition which, admittedly, constitutes a disease of the mind rendered the accused incapable of appreciating the nature and quality of the act or knowing that it was wrong. (at p. 474)

The real question in this case, in my view, is not whether the accused was suffering from a disease of the mind, but whether he was capable of appreciating the nature and quality of the act. The second question ought to have been left to the jury in clear terms.

II

Appreciate

In contrast to the position in England under the M’Naghten rules, where the words used are “knows the nature and quality of his act”, s. 16 of the Code uses the phrase “appreciating the nature and quality of an act or omission”. The two are not synonymous. The draftsman of the Code, as originally enacted, made a deliberate change in language from the common law rule in order to broaden the legal and medical considerations bearing upon the mental state of the accused and to make it clear that cognition was not to be the sole criterion. Emotional, as well as intellectual, awareness of the significance of the conduct, is in issue. The Report of the Royal Commission on Law of Insanity as a Defence in Criminal Cases (McRuer Report) (Canada, Queen’s Printer, 1956) contains a useful discussion on the point:

The word “appreciating”, not being a word that is synonymous with “knowing”, requires far-reaching legal and medical consideration when discussing Canadian law. It had its origin in the Stephen Draft Code. Not infrequently judicial reference is made to the New Oxford Dictionary for the definition of words used in Canadian statutes. The New Oxford Dictionary gives five different uses of the word “appreciate”, depending on the context. The one applicable to this statute is

“2. To estimate aright, to perceive the full force of.

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b. esp. to be sensitive to, or sensible of, any delicate impression or distinction.

Until the truth of any thing…be appreciated, its error, if any, cannot be detected.”

An examination of the civil law of England and Canada shows that there is an important difference between “know” or “knowledge” on the one hand and “appreciate” or “appreciation” on the other when used and applied to a given set of circumstances. This is best illustrated by the principles of law underlying those cases in which the maxim volenti non fit injuria is involved. There is a clear distinction between mere knowledge of the risk and appreciation of both the risk and the danger. (at p. 12)

To “know” the nature and quality of an act may mean merely to be aware of the physical act, while to “appreciate” may involve estimation and understanding of the consequences of that act. In the case of the appellant, as an example, in using his hands to choke the deceased, he may well have known the nature and quality of that physical act of choking. It is entirely different to suggest, however, that in performing the physical act of choking, he was able to appreciate its nature and quality in the sense of being aware that it could lead to or result in her death. In the opinion of the medical expert who testified at the trial, the appellant could have been capable of intending bodily harm and of choking the girl, but not of having intended her death.

Our Code postulates an independent test, requiring a level of understanding of the act which is more than mere knowledge that it is taking place; in short, a capacity to apprehend the nature of the act and its consequences. The position in law is well expressed in the McRuer Report at p. 12:

Under the Canadian statute law a disease of the mind that renders the accused person incapable of an appreciation of the nature and quality of the act must necessarily involve more than mere knowledge that the act is being committed, there must be an appreciation of the factors involved in the act and a mental capacity to measure and foresee the consequences of the violent conduct.

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It should be noted that the issue of appreciation of the nature and quality of the act was not before this Court in Schwartz v. The Queen (supra). The sole issue was the meaning of the word “wrong”. The decision in Schwartz should not be taken as authority for the proposition that “appreciating” the nature and quality of an act is synonymous with “knowing” the physical character of that act.

The test proposed in the McRuer Report, which I would adopt, (save for deletion of the word “fully” in the fourth line) is this:

The true test necessarily is, was the accused person at the very time of the offence—not before or after, but at the moment of the offence—by reason of disease of the mind, unable fully to appreciate not only the nature of the act but the natural consequences that would flow from it? In other words was the accused person, by reason of disease of the mind, deprived of the mental capacity to foresee and measure the consequences of the act? (at p. 13)

The legally relevant time is the time when the act was committed.

In R. v. O’Brien (supra) Ritchie J.A. referred to the McRuer Report and stated at pp. 301-2: “If an accused person is to be deprived of the protection of s. 16, he must, at the time of committing the offence, have had an appreciation of the factors involved in his act and the mental capacity to measure and foresee the consequences of it.” (His emphasis.)

In the Simpson decision, Martin J.A. offered the view that s. 16(2) exempts from liability an accused who, due to a disease of the mind, has no real understanding of the nature, character and consequences of the act at the time of its commission. I agree. With respect, I accept the view that the first branch of the test, in employing the word “appreciates”, imports an additional requirement to mere knowledge of the physical quality of the act. The requirement, unique to Canada, is that of perception, an ability to perceive the consequences, impact, and results of a physical act. An accused may be aware of the physical character of his action (i.e., in choking) without necessarily having the capacity to appreciate that, in nature and quality, that act will result in the death of a

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human being. This is simply a restatement, specific to the defence of insanity, of the principle that mens rea, or intention as to the consequences of an act, is a requisite element in the commission of a crime.

III

Evidence—non-medical

It will now be convenient to turn to the evidence because, as I understand him, counsel for the Crown concedes that if there was sufficient evidence to go to the jury on the question of insanity, the trial judge failed to deal adequately with insanity in her charge and effectively withdrew the insanity defence from the jury.

It is important to observe, at the outset, that the trial judge did charge the jury on insanity although, as I have stated, the defence was not raised by the appellant’s counsel. The judge felt the evidence sufficient to warrant an instruction to the jury on the issue, whatever the posture of defence counsel. In my opinion, she was correct in doing so, having regard to the evidence upon this issue, which I will now endeavour to summarize.

The Crown adduced evidence that before 7:00 p.m. on the night in question, a resident nursing assistant present at the church where the dance was being held, addressed the appellant upon his arrival. The appellant had a “faraway”, “dazed”, “blank” look in his eyes and appeared unresponsive. The appellant’s father testified that he received a phone call at approximately 8:15 p.m. from his son, who seemed excited and out of breath. The appellant, trying to speak quickly, was having difficulty “getting his words out”. He told his father, “Hello dad, how are you doing? Dad I just killed somebody…on James Street mountain steps… I was coming down the steps and thought somebody was following me… I jumped over the railing… I jumped out and grabbed hold of them”. In response to the question (“is he dead?”) the appellant said, “Yes. I felt for a heartbeat and a pulse. I dragged her out in the bushes”.

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Constable Slote of the Hamilton Police Force testified that he received a call at 8:39 p.m. from the appellant, who attested to having “just seen a murder”. The conversation was recorded on the police dispatcher:

I seen somebody kill a girl. I don’t know if he dragged her in the bushes or not… I was just coming down the James Street stairs and I heard a screams (sic), I don’t know, I’d just turned around and seen somebody grab some girl and drag her into the bushes… I don’t know, you know, if she’s dead or alive or what.

Slote considered it a crank call, as there was a lack of emotion in the caller’s voice. A police cruiser despatched to the phone booth and thereafter to Cooper’s apartment, was unable to locate the appellant.

The deceased was discovered the following morning, October 9, in the bushes near the James Street steps. Her upper body and part of her face were covered by her jacket and her brassiere, unfastened, was in place. Her slacks, also unfastened, were about her hips. Soil and leaves adhered to her back. There was no evidence of sexual intercourse. However, she had been undressed and an attempt made to redress her. There was no evidence of struggle and the deceased was neither battered nor badly bruised. Her strangulation was by hand, without the use of a rope or weapon.

At 11:35 a.m. that morning, the appellant was apprehended and detained by police officers until 12:10 p.m., at which time an interrogation commenced. At the time he was true to his story of having seen a murder committed by another person. To both officers in attendance, the appellant appeared mentally slow and spoke slowly.

The officers left the appellant to continue the investigation and returned to the interview at 7:25 p.m. Upon confronting him with additional facts and indicating that he would be charged with murder, the appellant said, “Hold it. Hold it. I didn’t mean to kill her”. The appellant offered to give a full statement (which I have paraphrased, except where in quotes):

I went to the church and bumped into Denise Hobbs. “...we went for a walk down the James Street stairs

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then I kissed her then she wanted to go back up then I grabbed her around the throat and choked her with my hands. Then I got scared and tried to feel for a pulse or something and got none so I ran downstairs for a phone booth.

...we were in the bushes standing up, I kissed her and I grabbed her around the throat and choked her I was afraid she would go back and tell them I was kissing her.” (Emphasis added)

The appellant did testify at trial. Defence counsel attempted to establish a lack of intention to commit the murder, supported by the evidence of the appellant’s intoxication and susceptibility to abnormal behavior.

The appellant was 31 years of age. His father, Albert Cooper, testified that as a young boy the appellant was subject to seizures, convulsions and sudden mood changes—he would quickly become very excited for no apparent reason, and then quickly calm down. Often the appellant would seem to be “far away” and “his mind was elsewhere”. Sometimes he would have blackouts and fall down. He heard things which were not there to be heard. His condition worsened as he got older. The appellant was first seen by psychiatrists at age seven. At age ten or twelve, he was treated for auditory hallucinations. He experienced a great deal of difficulty at school and at age 16 had progressed only as far as the 5th grade at a trade school. He held a series of menial jobs from which he was discharged after short periods of time. In his testimony, the appellant stated that he had been admitted to the Hamilton Psychiatric Hospital in 1965 (it was in fact in 1962) and remained until 1971, after which time he was an outpatient and still had contact with the doctors at the hospital. He married in April, 1972 (he had met his wife at the Psychiatric hospital) and had two children. He returned to the hospital for a period of fifteen days in 1974.

IV

Evidence—medical

Medical evidence relating to the appellant’s mental and behavioral problems is offered in the

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testimony of Dr. Sim. I think it useful to break down his evidence, reorganized slightly from the sequence in which it was given at trial, as follows:

(a) General history—

The hospital records indicated that the appellant was first seen at age seven, as he was failing at school and exhibited disturbing behavior. A condition of borderline mental deficiency was diagnosed at that time. He was re-examined at age eight and described as being wild, hyperactive and having a poor sense of reality. At ten, an abnormal EEG reading was discovered upon examination for his problem of narcolepsy (sleep seizures). At eleven, further IQ testing disclosed borderline deficiency and at age twelve, the appellant was treated by a psychiatrist for mental confusion and auditory hallucinations. He was admitted to the Hamilton Psychiatric Hospital as a young man and diagnosed as “without psychosis—borderline intelligence”. In 1965 his condition was described as “psychosis with mental deficiency”. Dr. Sim described psychosis in this way:

“Psychosis, basically, involves a break with reality in which the person may or may not be confused, and have other symptoms like hallucinations of his hearing, seeing, tasting, or smelling, feeling things that are not actually around, or can have such symptoms as delusions. And delusion is usually described as a false belief which cannot be changed by persuasion and/or reason.”

In 1965 there was a bizarre episode wherein the appellant was reported to have swallowed part of a lighter, his belt buckle, buttons from his clothing and a zipper from his trousers. In 1967 he swallowed part of a disassembled cigarette lighter. In 1967 he was re-diagnosed as “mental deficiency without psychosis”. Since, he has also been described medically as having “personality disorder, anti-social type with borderline mental retardation”. Other evidence indicated that the appel-

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lant was released from the hospital in 1971 and returned subsequently in 1974 for a period of 15 days.

(b) Electroencephalogram—

Dr. Sim reviewed the medical history of abnormal brainwave patterns (electrical discharges from the brain). All such tests (from March 1962 to June 1974) showed generalized abnormality, and in one or two of the EEG tests, there was abnormality in brainwaves from the temporal lobe. However, the EEG tests were suggestive, at most of an “epileptic diathesis” (tendency or propensity to epilepsy, without necessarily resulting in seizures). Dr. Sim could only say that it is possible that Cooper could experience epileptic seizures.

(c) Intelligence—

The appellant’s intellectual ability was measured on a number of occasions according to the full-scale intelligence quotient. His IQ ranged from 69 to 79, and was usually between 71 and 79. The normal IQ reading is in the region of 90 to 110. In Dr. Sim’s opinion, the appellant is of borderline intelligence (i.e., bordering on retardation or classification as an “outright mentally defective person”). The change-over is at an IQ of 70. To quote the doctor:

“…in summary (that) we are dealing with a male who has shown evidence of breaking with reality in the past. He has a long history of unstable, aggressive and inadequate behavior. He was unable to adjust at school, academically, socially, economically, in his marriage. He has some brainwave abnormalities which could more readily make this man more irritable and aggressive by alcohol than a person without these abnormalities. He is also of limited intelligence, having a borderline to high-grade defective level of IQ. Putting all this together, and bringing the stress—the fact that he was under stress financially and so forth, plus the alcohol and under the circumstances which are described as having occurred at the time, it would be my opinion that he would be in such a state of clouded consciousness that he would not be able to form the intent to kill.”

[Page 1168]

Dr. Sim agreed with the diagnosis of other psychiatrists of March 26, 1976, that the appellant had “personality disorder, mixed type, showing schizoid, anti-social, explosive and inadequate features, borderline mental retardation”. However, on direct examination, Dr. Sim was of the view that at the time of the killing, the appellant was not suffering from psychosis and in response to a question posed by the judge, he answered that at the time of the offence, the appellant was not suffering from a disease of the mind.

(d) Intention—

Dr. Sim expressed the opinion that although the appellant probably knew he was causing bodily harm, he was incapable of forming an intent to kill, and he could not have known that any harm he was causing might result in death.

At the conclusion of Dr. Sim’s evidence, the following questions were asked and answers given:

HER LADYSHIP: Dr. Sim, there are two questions in my mind arising from the evidence that I would like to put to you for your assistance, if possible.

THE WITNESS: Yes, My Lady?

HER LADYSHIP: The first one is, can you tell me whether the accused had a disease of the mind?

THE WITNESS: In my opinion, My Lady, at the time of the alleged offence, I do not think that this man was suffering with a disease of the mind.

HER LADYSHIP: The second question is this: I think you said that he had the capacity to form the intent to cause harm?

THE WITNESS: Yes.

HER LADYSHIP: If he had the capacity to form that intent, would he have the capacity to know that any harm he might intend would be likely to cause death?

THE WITNESS: No; I do not think that he had the capacity to know that any harm he was causing might result in death.

V

The charge

The charge on insanity was sketchy in the extreme. It was introduced with these words:

[Page 1169]

However, I do have to consider one further defence with you. I would prefer not to, but, as I look at it, it seems to me that the question will be in your minds and so I must discuss with you the question of insanity.

and concluded with these words:

With that evidence before you, again it would seem to me impossible for you to bring in a finding of not guilty by reason of insanity, but the evidence is yours to consider and it is your finding.

In the course of the charge on insanity the following was said:

The reason I have been reluctant to put this before you but have considered I should is that the evidence of Dr. Sim was that this man did not have a disease of the mind. However, if there is other evidence before you, you are entitled to weigh the evidence of Dr. Sim with the other evidence. The other evidence that you had was the evidence of his father as to the nature of the convulsions, the mood changes, the far-away looks, the low I.Q., the rapid speech, the blackouts, the falls, the hearing of things throughout his early life.

Crown counsel, commenting upon the charge, objected that it was unnecessary to put the insanity defence to the jury as that defence was not available to the accused. The judge replied:

I do agree that the charge on insanity was sparse; little attention was drawn to the evidence. I considered that it had to be put before the jury. I had hoped that by indicating that the evidence was so weak that it would not form a major part of their concern.

At the time of sentencing, counsel for the accused said:

In light of that, My Lady, I think his problem is more a psychiatric one than a penal system is geared to handle, and I ask Your Ladyship not to make a recommendation, or, I should say, an order, beyond the minimum period of ten years.

The judge replied:

I would agree that this is a matter in which, if there is any provision for psychiatric help, it should be obtained, and I will endeavour to make such a recommendation.

[Page 1170]

VI

Conclusions

In my opinion, there was evidence sufficient to require the judge to fully instruct the jury on the issue of insanity. The judge was of the opinion that that issue should go to the jury. With respect, the trial judge erred:

(1) in treating Dr. Sim’s reply to the judge’s isolated question as virtually determinative of the issue of whether the appellant had a “disease of the mind”. Although in practice it is often convenient to do so, in strictness a medical witness is not entitled to state that a particular condition is or is not a disease of the mind, since this is a legal question. Mental disease is not purely a matter of psychiatric definition. It is for the jury and not for medical men, of whatever eminence, to determine the issue. R. v. Rivett[8], at 94. The entire psychiatric history, if accepted by the jury, was such as would have entitled the jury to hold that the accused suffered from a disease of the mind within its legal meaning, regardless of whether one isolates the personality disorder. Personality disorders such as the appellant displayed at various stages of his life can constitute a disease of the mind. The real question before the jury was the extent to which the accused’s appreciation of the nature and quality of his act was impaired. Included in the evidence on this point was the evidence of Dr. Sim that the appellant lacked the capacity to form the intent to cause death;

(2) in failing to review adequately the evidence bearing upon the insanity issue and in failing to relate the evidence of the accused’s capacity to intend certain acts to the issue of insanity. The judge did not analyze the evidence of Dr. Sim or the other evidence as it may have related to the defence of insanity on the issue of whether the appellant appreciated the nature and quality of his act. Failure before the jury on the issues of

[Page 1171]

intent and intoxication did not preclude success on the issue of insanity. The insanity question should have been put to the jury in such a way as to ensure their due appreciation of the value of the evidence. R. v. Laycock[9];

(3) in concluding this portion of the charge in language which to all intents withdrew from the jury the essential determination of fact which it was its province to decide. If the issue was to go to the jury, then, in fairness to the accused, a much more careful charge was warranted. The issue should have been clearly left with the jury to decide. On a matter of such importance and having regard to the strong evidence of personality disorder, s. 613 of the Code should not be applied in this case.

Before concluding, I should state that Mr. Justice Dubin discussed at some length “natural imbecility”. I have refrained from doing so as I believe the present appeal can be decided without broaching that aspect of the case.

I would allow the appeal and order a new trial.

The following are the reasons delivered by

MARTLAND J. (dissenting)—The appellant was charged with the murder of Denise Hobbs at the City of Hamilton on October 8, 1975. The fact that he caused her death is not in issue.

At the time of the offence, Denise Hobbs was an in-patient at the Hamilton Psychiatric Hospital. The appellant was an out-patient. On the evening in question, he was attending a social function for hospital patients were he met the deceased whom he had known casually. He had been drinking during the course of the day. They left the group, at his suggestion at about 7 p.m., and went to a store where the deceased purchased a soft drink. Then they walked for about fifteen minutes to an area below the James Street mountain steps.

[Page 1172]

The appellant asked the deceased to remove her clothing, which she did. He attempted unsuccessfully to have sexual intercourse with her. He then grabbed her around the throat and choked her. He reached for her pulse and found none. The cause of death was asphyxiation by strangulation.

He telephoned his father at about 8 p.m. and said “Dad, I just killed somebody on the James Street Mountain steps”. He stated that he was going down the steps, thought someone was following him, jumped over the railing, then “jumped and grabbed hold of them”. He told his father that he had checked for a pulse, then “dragged her out in the bushes”.

At about 8:39 p.m., he telephoned the police and said:

I seen somebody kill a girl. I don’t know if he dragged her in the bushes or not… I was just coming down the James Street stairs and I heard a screams (sic), I don’t know, I’d just turned around and seen somebody grab some girl and drag her into the bushes… I don’t know, you know, if she’s dead or alive or what.

The body of the deceased was found at the location described by the appellant. Her clothing was in a state of disarray, consistent with her having been unclothed and partially reclothed. When initially questioned by the police, the appellant said he had witnessed a man attacking a girl, but some hours later in a statement to the police he admitted having caused her death.

The appellant was thirty-one years of age. He had a long history of psychiatric treatment, beginning at the age of seven. He was sporadically under psychiatric care from that age until he was seventeen. During the years from 1965 to 1971, he was a patient in a mental hospital. He was readmitted for a period of fifteen days in 1974. In the period from 1971 to the date of the offence, when he was not an in-patient, he was under out-patient care.

The defence of insanity was not raised at the trial. Instead, it was sought to establish through the evidence of a psychiatrist, Dr. Sim, that the appellant did not have the capacity to form an

[Page 1173]

intention to kill. Neither counsel for the appellant nor counsel for the Crown questioned Dr. Sim in relation to the defence of insanity. Dr. Sim’s evidence was directed solely to the question of the appellant’s capacity to form an intention to kill. He was not asked by either counsel whether the appellant was in a state of natural imbecility or whether his personality disorder was a disease of the mind, or whether his disorder rendered him incapable of appreciating the nature and quality of his act, or of knowing that the act was wrong.

The following are extracts from Dr. Sim’s evidence regarding the capacity of the appellant to form the intent to kill:

Q. Did he have the capacity to form the intent to cause some harm or bodily harm to an individual?

A. Yes; I think he knew, really, that, or probably knew that.

Q. He had that capacity?

A. Yes.

Q. And in fact didn’t he have the capacity to form the intent to choke?

A. To choke, yes; but not to kill, the result.

Q. With all due respect, doctor, you have admitted that you feel that he had the capacity to form the intent to choke, yet you say you don’t think he had the capacity to form the intent to kill?

A. I am talking about choke, cutting off the airway; not to go all the way to death, though.

Q. I accept that distinction. I accept “choke” means to cut off the airway, to deprive the person of a certain amount of air but not enough to kill; whereas, “to kill” is to kill?

A. Yes.

Q. I put it to you, aren’t you really splitting hairs, Dr. Sim, when you say the accused had the capacity to form the intent to choke, to cut off the airway of an individual, yet didn’t have the capacity to form the intent to kill?

A. I don’t think so.

…

Q. He did have the capacity to form the intent to choke, or cut off the airways, but you are saying he didn’t have the capacity to go all the way; is that correct?

[Page 1174]

A. I think so. I think it boils down that I think he probably knew he was doing her some harm, but I don’t think he intended to kill her.

Q. It is the capacity you should be directed to, doctor.

HER LADYSHIP: Yes, Dr. Sim. If I may interject, you are not permitted to give your opinion as to whether he intended to kill; you may only give an opinion as to whether he had the capacity.

THE WITNESS: I am sorry; yes. That is what I meant; I am sorry.

MR. TAKACH: YOU were talking about capacity, in any event.

THE WITNESS: Yes.

Q. What I am asking is, what is the difference in the two capacities?

A. I think you have to be more aware to have capacity to take life than you do to just put your hands around a person’s throat and to do them some harm, and be aware of doing some harm.

Q Isn’t this really splitting hairs; aren’t the issues very fine? Will you go that far with me?

A. Yes, I will.

Q. It is a very fine distinction, will you not agree?

A. Yes, I think so.

Following the examination, cross-examination and re-examination of Dr. Sim, he was asked by the trial judge whether the accused had a disease of the mind, to which his answer was:

In my opinion, My Lady, at the time of the alleged offence, I do not think that this man was suffering with a disease of the mind.

In her charge to the jury, the trial judge carefully reviewed the evidence of Dr. Sim in relation to the appellant’s capacity to form an intent to kill. Later in her charge, of her own volition, she proceeded to deal with the question of insanity. Her reason for so doing is stated as follows:

However, I do have to consider one further defence with you. I would prefer not to, but as I look at it, it seems to me that the question will be in your minds and so I must discuss with you the question of insanity.

[Page 1175]

She then proceeded to instruct the jury with respect to the law as to the defence of insanity. She went on to say:

The reason I have been reluctant to put this before you but have considered I should is that the evidence of Dr. Sim was that this man did not have a disease of the mind. However, if there is other evidence before you, you are entitled to weigh the evidence of Dr. Sim with the other evidence. The other evidence that you had was the evidence of his father as to the nature of the convulsions, the mood changes, the far-away looks, the low I.Q., the rapid speech, the blackouts, the falls, the hearing of things throughout his early life.

Now, what you must look to is whether he was insane at the time of the commission of the offence; not before it and not after it. There is the evidence of the lack of emotion when he phoned the police, although it is to be contrasted with the emotion of the phone call to his father. There is the evidence of the lack of intelligence, the low I.Q.; there is the evidence of Dr. Sim, apart from disease of the mind, but that evidence again, it seemed to me, did not show the alternative to a disease of the mind (namely, a state of natural imbecility), because that evidence, as I heard it, was that this man’s status was much higher than that; that this man was on the borderline of mental deficiency; that he would have been mentally defective at one time when that low reading was given, but that the reading that he had before him at the time, he would have had to say that he was of borderline intelligence, and he accepted another alternative definition; namely, borderline mental retardation.

With that evidence before you, again it would seem to me impossible for you to bring in a finding of not guilty by reason of insanity, but the evidence is yours to consider and it is your finding.

No objection of any kind was made on behalf of the appellant to the judge’s charge on the issue of insanity and no request was made for further instruction to the jury in relation to that defence.

The jury returned a verdict of guilty.

The first notice of appeal to the Court of Appeal for Ontario raised no issue as to the charge to the jury on the matter of insanity. In a supplementary notice of appeal filed two months later, it was

[Page 1176]

alleged that “the learned trial judge erred in law in withdrawing the defence of insanity”.

The appellant’s appeal was dismissed by a majority decision of the Court of Appeal without written reasons. There was a dissent by Dubin J.A., who filed written reasons later. The formal judgment states the ground of dissent as being “that there was misdirection and non‑direction amounting to misdirection in the learned trial judge’s charge to the jury on the defence of insanity”.

Section 16 of the Criminal Code, which deals with the defence of insanity, provides as follows:

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

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

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

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

There are two main criticisms of the charge to the jury in the dissenting reasons. The first is that there was misdirection, or non-direction amounting to misdirection, on the issue as to whether the accused was suffering from a disease of the mind or natural imbecility. The second is that there was non-direction, amounting to misdirection, in failing to relate the evidence of Dr. Sim on the issue as to whether the appellant was able to appreciate the nature and quality of the act.

As to the first criticism, it is said that the trial judge had treated as virtually determinative the opinion expressed by Dr. Sim that the appellant was not suffering from a disease of the mind.

[Page 1177]

While the trial judge, whose own question had evoked Dr. Sim’s opinion, obviously regarded that opinion as being of great weight, she did not treat it as determinative because, had she so regarded that opinion, she would not have put the issue of insanity before the jury. I have cited from the charge the passage in which she expressed reluctance to put the issue to the jury in the light of Dr. Sim’s evidence, but, none the less, she went on to tell the jury that if there was other evidence they were entitled to weigh it.

I agree with the trial judge’s expressed conclusion that there was no evidence to show a state of natural imbecility. Dr. Sim’s evidence does not support the existence of such a state.

As to the second criticism that the trial judge did not relate Dr. Sim’s evidence to the issue as to whether the appellant was able to appreciate the nature and quality of the act, it is desirable to stress again the fact that the appellant elected not to raise the question of insanity and, accordingly, evidence relating to that matter was not adduced. Dr. Sim was never asked whether, in his opinion, the appellant was capable of appreciating the nature and quality of his act. The trial judge is criticized for not relating his evidence, given in relation to another issue, i.e. the ability of the appellant to form an intent to kill, to an issue which had not been raised at the trial.

I have already cited the evidence of Dr. Sim that in his opinion the appellant had the capacity to form the intent to choke the deceased, i.e. to cut off the airway. He said that the appellant probably knew he was doing her harm, but “I don’t think he intended to kill her”.

The distinction made by Dr. Sim between the capacity to form an intent to kill and the capacity to form the intent to choke and thus do bodily harm is one of considerable subtlety and Dr. Sim himself admitted that it was “very fine”. I have doubts as to its validity and the fact that, in the face of this evidence, the jury convicted the appellant is some indication that they had similar doubts. But even if that distinction can be drawn

[Page 1178]

in respect of the issue of intent, it is not, in my opinion, of assistance as evidence of absence of capacity to appreciate the nature and quality of the appellant’s act.

Reliance is placed, in the dissenting reasons, on two passages in Dr. Sim’s evidence as showing that in his opinion the appellant was incapable of appreciating the nature and quality of his act. One of these I have already cited. The other was an answer given to a question by the trial judge. They are as follows:

Q. What I am asking is, what is the difference in the two capacities?

A. I think you have to be more aware to have capacity to take life than you do to just put your hands around a person’s throat and to do them some harm, and be aware of doing some harm.

…

HER LADYSHIP: The second question is this: I think you said that he had the capacity to form the intent to cause harm?

THE WITNESS: Yes.

HER LADYSHIP: If he had the capacity to form that intent, would he have the capacity to know that any harm that he might intend would be likely to cause death?

THE WITNESS: No; I do not think that he had the capacity to know that any harm he was causing might result in death.

Both of these passages, as well as the rest of Dr. Sim’s evidence, were related solely to the issue of intent. Section 16 of the Criminal Code is not concerned with intent. It can only come into operation after it has been determined that an offence has been committed. Subsection (1) provides that no person shall be convicted of an offence in respect of an act on his part while he was insane. The “act” in question here was the choking of the deceased. Subsection (2) provides that a person is insane if he has a disease of the mind to an extent that renders him incapable of appreciating the nature and quality of an “act”. This subsection also provides that a person is insane if he did not know that an act or omission was wrong, but that provision is not relied upon by the appellant in this case.

[Page 1179]

Dr. Sim’s evidence is that the appellant had the capacity to form an intent to choke, that he knew that choking entailed cutting off air and that it involved causing bodily harm. Thus he knew the nature and quality of the act which he committed. In my opinion, the fact that Dr. Sim was of the view that the appellant lacked the capacity to know that the harm which he was consciously inflicting might result in death does not bring him within the protection afforded by subs. 16(1). He appreciated the nature of his act, i.e. choking the deceased and he also appreciated the quality of his act, i.e. the cutting off of her airway.

The only other evidence having relevance to the question of the appellant’s capability to appreciate the nature and quality of his act is that of the appellant himself. He did not testify that he did not appreciate the nature and quality of his act. In giving evidence at trial, he professed to have no recollection of the strangulation. He said that he had kissed the deceased, that she had removed her clothes, that they both laid on the ground, but that he was unsuccessful in having sexual intercourse with her. They both got up, but he said he could not recall what happened next. He could not remember putting his hands on her neck, but could recall her going limp and falling.

The appellant was able to give a complete and detailed account of his activities both before and after the death of the deceased. It is only the very narrow time span of the actual strangulation which he alleged he could not recall.

As previously noted, after the death of the deceased, the appellant telephoned his father and said that he had just killed somebody. After his arrest, he gave a statement to the police and had no difficulty in recalling what had occurred. The following portion of the statement relates to the events leading up to the death and immediately after:

...There was a dance going on, or getting ready for a dance then I didn’t stay I came outside and I bumped into Denise Hobbs, she was talking to a patient, a guy

[Page 1180]

named Dennis. Then I asked Denise Hobbs if she wanted to go for a walk and she said yes and we went for a walk down the James Street stairs then I kissed her then I (sic) she wanted to go back up then I grabbed her around the throat and choked her with my hands. Then I got scared and tried to feel for a pulse or something and got none so I ran downstairs for a phone booth.

Question. How did she get in the bushes? We were in the bushes standing up, I kissed her then I grabbed her around the throat and choked her I was afraid she would go back and tell them I was kissing her.

It was admitted that this statement was made voluntarily.

The evidence of the appellant does not establish an incapacity to appreciate the nature and quality of the appellant’s act. His evidence as to lack of memory of the strangulation is inconsistent with his voluntary statement to the police, with some of his other testimony and with his actions after the event.

The onus of proving that the appellant was not sane at the time he killed the deceased rested upon him. The appellant did not seek to adduce evidence to fulfill that onus, because the defence of insanity was never raised at the trial. The psychiatrist whom he called as a witness testified that he did not have a disease of the mind.

The trial judge was obviously in doubt as to whether to charge the jury on the defence of insanity, but elected to do so. She charged the jury on the law applicable to that offence and no objection was taken by counsel for the appellant in respect of that charge.

The chief complaint against the charge is that there was a failure to relate the evidence of Dr. Sim to the question of the appellant’s capacity to appreciate the nature and quality of the act. But for the reasons already outlined, such a review would have had to point out that, according to Dr. Sim, the appellant did appreciate that he was choking the deceased, cutting off the airway and that he was causing bodily harm. The verdict given by the jury on the main issue of guilt is some

[Page 1181]

indication that they did not accept Dr. Sim’s “very fine” distinction between capacity to form the intent to choke and capacity to form the intent to kill.

In the light of all these circumstances, it is my opinion that, even if the jury had been charged in the manner suggested in the dissenting judgment in the Court of Appeal, the verdict of the jury would necessarily have been the same. There has been no substantial wrong or miscarriage of justice and the Court of Appeal was properly entitled to dismiss the appellant’s appeal from conviction under subs. 613(1)(b)(iii) of the Criminal Code.

PRATTE J. (dissenting)—I would dismiss the appeal.

Appeal allowed, MARTLAND and PRATTE JJ. dissenting.

Solicitors for the appellant: Greenspan, Gold & Moldaver, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.