R. v. Barnier, [1980] 1 SCR 1124

Supreme Court of Canada

R. v. Barnier, [1980] 1 S.C.R. 1124

Date: 1980-03-03

Her Majesty The Queen Appellant;

and

Guy Jean Barnier Respondent.

1979: October 18; 1980: March 3.

Present: Martland, Ritchie, Dickson, Beetz, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Murder—Defence of insanity—Meanings of the words “appreciating” and “knowing” in s. 16(2) of Criminal Code distinct and separate—Criminal Code, R.S.C. 1970, c. C-34, ss. 16(2), 613(1)(d).

Witnesses—Self-misdirection as to the law—Propriety of reference by witnesses to the law as it is said to be enunciated in specific judgments of the courts.

During a trial on a charge of murder in which the accused raised the defence of insanity, the trial judge instructed the jury that the words “appreciating” and “knowing” as they appear in s. 16(2) of the Criminal Code, have the same meaning. The issue as to the difference in meaning, if any, between “appreciating” and “knowing” arose in fact much earlier in the trial when, in the course of giving evidence, two psychiatrists called by the Crown revealed that they had found the accused to be insane within the meaning of that section, but after they had examined the judgment of this Court in Schwartz v. The Queen, [1977] 1 S.C.R. 673, they reversed themselves and found the accused not to be insane. The jury found the accused guilty. The Court of Appeal, acting under s. 613(1)(d) of the Criminal Code set aside the conviction (one member of the Court dissenting) and ordered that the accused “be kept in safe custody to await the pleasure of the Lieutenant Governor, this Court being of the opinion that although the appellant committed the act of murder charged against him he was insane at the time the act was committed so that he was not criminally responsible for his conduct.” From this decision the Crown appealed to this Court.

Held: The appeal should be dismissed.

One must commence the analysis of a statutory provision by seeking to attribute meaning to all the words used therein. In the definition of insanity in s. 16(2) of the Code, Parliament has employed two different words in the critical portion of the definition, which words in effect established two tests or standards in determining

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the presence of insanity. The subsection in form and substance provides that: a person is insane when he has a disease of the mind to an extent that renders him incapable (a) of appreciating the nature and quality of an act… or, (b) of knowing that an act is wrong. Under the primary canon of construction already referred to, ‘appreciating’ and ‘knowing’ must be different, otherwise the Legislature would have employed one or the other only. The meanings of the two verbs from which the participle form is derived are separate and distinct in the ordinary usage of language.

In the ordinary usage of these words it would appear that to appreciate embraces the act of knowing but the converse is not necessarily true. The verb “know” has a positive connotation requiring a bare awareness, the act of receiving information without more. The act of appreciating, on the other hand, is a second stage in a mental process requiring the analysis of knowledge or experience in one manner or another. It is therefore clear on the plain meaning of the section that Parliament intended that for a person to be insane within the statutory definition, he must be incapable firstly of appreciating in the analytical sense the nature and quality of the act or of knowing in the positive sense that his act was wrong. With these processes, the Schwartz case was in no way concerned.

The second issue involved the propriety of the reference by witnesses to the law as it is said to be enunciated in specific judgments of the courts. It was clear beyond dispute that the expert witnesses here had been misdirected as to the meaning of the Schwartz case and hence the definition of insanity prescribed by Parliament in the Criminal Code. This misdirection was taken up and restated to the jury in the charge by the presiding justice. In the result the jury heard expert opinion evidence which was founded on an erroneous understanding of the law of insanity, and hence their decision cannot stand.

The Court of Appeal correctly applied s. 613(1)(d) in finding the accused not guilty on account of insanity.

APPEAL by the Crown from a judgment of the Court of Appeal for British Columbia[1], allowing an appeal by the accused from his conviction on a charge of non-capital murder. Appeal dismissed.

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David Gibbons, for the appellant.

John P. MacKrow, for the respondent.

The judgment of the Court was delivered by

ESTEY J.—During a trial on a charge of murder in which the respondent raised the defence of insanity, the trial judge instructed the jury that the words “appreciating” and “knowing” as they appear in s. 16(2) of the Criminal Code, have the same meaning. The issue as to the difference in meaning, if any, between “appreciating” and “knowing” arose in fact much earlier in the trial when, in the course of giving evidence, two psychiatrists called by the Crown revealed that they had found the respondent-accused to be insane within the meaning of that section, but after they had examined the judgment of this Court in Schwartz v. The Queen[2], they reversed themselves and found the respondent-accused not to be insane. The jury found the appellant guilty. The Court of Appeal, acting under s. 613(1)(d) of the Criminal Code set aside the conviction (Maclean J.A. dissenting) and ordered that the respondent-accused “be kept in safe custody to await the pleasure of the Lieutenant Governor, this Court being of the opinion that although the appellant committed the act of murder charged against him he was insane at the time the act was committed so that he was not criminally responsible for his conduct.”

Before considering the impact of the Schwartz decision on this proceeding, it is helpful to turn to the evidence. The trial proceeded on the basis of an admission of facts pursuant to s. 582 in which the killing of the deceased by the respondent was admitted. The evidence revealed that the only apparent contact between the deceased and the accused was that the former was employed as Office Manager in the business where the respondent was employed and she (the deceased), in the course of her job, signed the letter terminating the respondent’s employment.

One of the psychiatrists called by the Crown, Dr. Whitman, gave a written opinion prior to trial

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to the effect that the accused “was unable to appreciate the nature and the quality of an act or [to know] that an act was wrong.” Another psychiatrist called by the Crown, Dr. Stephenson, testified that prior to trial he shared the opinion of Dr. Whitman. At trial both doctors testified that they had had the opportunity of examining the judgments of this Court In Schwartz v. The Queen, supra, with reference to the defence of insanity as contained in s. 16 of the Criminal Code and thereupon changed their minds and decided that the accused was sane within that definition.

In his examination-in-chief, Dr. Whitman stated with reference to his report of April 23 and thereafter with reference to his subsequent opinion:

Q. And what was your opinion as stated in that report?

A. The conclusion—I am of the opinion—this is a record of mine dated April the 23rd, 1976, and following my examination of the previous day, I am of the opinion that Banner’s presently as fit for trial as he is ever likely to be. I am of the opinion that at the time of the alleged offence he was suffering from a disease of the mind to such an extent that he was unable to appreciate the nature and quality of an act or knowing that an act was wrong.

Q. Now, following your rendering of that opinion, were you given a copy of a decision of the Supreme Court of Canada, Regina v. Schwartz, May 5th, 1976?

A. Yes.

Q. And did that decision deal with the definition of insanity set out in Section 16?

A. That is my understanding.

Q. And based upon the reasons of the majority of the members of the Supreme Court in that case, did you alter your opinion as to the legal sanity of the accused at the time of the offence?

A. I did.

Q. And what were the basis [sic] of your having done so?

A. My understanding, my Lord, of the meaning of the words “appreciate the nature and quality of an act as defined by the Supreme Court of Canada”, I had previously used that word in much more

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liberal and wider sense where I was of the opinion that the accused person was suffering from a disease of the mind.

Q. Now, assuming that the words “nature and quality of the act” refer to the physical character of the act, and assuming that the law is that if a person who has committed a crime did not, by reason of disease of the mind, know what he was doing, that he was not to be convicted, what is your opinion now as to whether the accused was at the time of the offence insane or sane within the definition?

A. It’s my opinion that at the time of the alleged offence while he suffered from a disease of the mind he was still able to appreciate the nature and quality of an act in that sense.

Q. Is it your opinion that he knew what he was doing?

A. Yes.

Q. Is it your opinion that when he pulled the trigger of the rifle, he knew what he was doing?

A. Yes.

Q. Is it your opinion that when he loaded the rifle with bullets including placing bullets in the firing chamber he knew what he was doing?

A. Yes.

…

Q. During the time described by the witnesses that the gun was shot in the offices, what is your opinion as to whether the accused realized the consequences of what he was doing?

A. Well, he would be aware in a physical sense the effect of discharging a rifle, high‑powered rifle pointing at someone, that that would cause serious injury or death.

Q. Now, with respect to the second aspect of the test, that is whether he knew that the act was wrong?

A. I believe that he knew that this was something which is prohibited by law from doing.

Under cross-examination Dr. Whitman testified as follows:

MR. MACKROW:

Q. All that I am getting at, then, doctor, is that were it not for these cases, you then would still be of the opinion that you were when you made that report on April 23rd?

A. Yes.

Q. As to both aspects, as to whether he was able to appreciate the nature and quality of his acts?

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A. That is the one that would decide the issue in my mind.

Dr. Stephenson, a psychiatrist called by the Crown, testified when examined in chief as follows:

Q. Alright, now, aside from the—in addition to your opinion that he was suffering from a mental disease, what other opinion did you form initially?

A. Initially I formed the opinion that he was suffering from a disease of the mind of such intensity and quality that he was unable to fully appreciate the nature and quality of his acts, and I was of the opinion that he had been in this state of mind for some considerable time before the commission of the alleged offence and that he was still in that state when I examined him on the 29th of April.

Q. Now, before I get into any question of any change of that opinion, did you also form an opinion on the 29th of April with respect to whether he knew what he was doing was wrong?

A. Yes, I did. And it was my opinion that he did know that what he was doing was wrong in the moral sense although he felt in his own mind justified in what he was doing.

Q. Was your opinion that he knew what he was doing was against the law?

A. Yes, it is my opinion that he did know that what he was doing was against the law.

Q. Now, with respect to your opinion, your opinion originally was that he was incapable of fully appreciating the nature and quality of his acts?

A. Yes, that’s true.

Q. Now, was the case of Regina v. Schwartz I already referred to given to you to read?

A. I had not—I was not aware of the Regina v. Schwartz case at the time 1 did my first examination and gave my first opinion and my opinion at that time was based on the more traditional interpretation of the understanding of the nature and quality of an act, appreciating the nature and quality of an act in that in my opinion at that time, to appreciate the nature and quality of an act one must be able to form an appropriate opinion, I should say, an opinion about the appropriateness of the act that one is to perform. For instance, whether one is justified in one’s own mind either, for instance, by reason of one’s own safety or the safety of others, in doing an act

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which in a cognitive sense one might know to be wrong and in my opinion Mr. Barnier at that time did feel by reason of his dillusional system and the narrowing down of his sort of responses to dillusions that what he was doing was justified, and that was my reason for saying at that time that he was unable to appreciate the nature and quality of his acts.

Q. Now, assuming for the time being that the law is that nature and quality deal with the physical act and that the test is whether a person suffering from a disease of the mind knows what he’s doing, what is your opinion now as to whether the accused at the time of the offence appreciated the nature and quality of his acts?

A. Assuming that the law is that, to appreciate the nature and quality of an act means to know that one is doing it, and to know the probable consequences of it, then I would have to say that by that definition Mr. Barnier does appreciate the nature and quality of his acts.

Q. Now, I understand you haven’t been here throughout the whole of the evidence, doctor?

A. That’s true.

Q. You have had an opportunity to read Exhibit 1, the Statement of Facts?

A. I read the Statement of Facts, yes.

Q. And you’ve heard the evidence given by the other medical witnesses here today?

A. Yes, I have.

Q. And based on the evidence which you are aware of as well as the observations you made of the accused in your interviews, is it your opinion that he knew that he had a rifle at the time of the alleged offence?

A. Yes, it’s my opinion that he did know he had a rifle.

Q. Do you have an opinion as to whether he knew whether it was loaded?

A. I don’t know whether it was loaded but I assume it was and if it was loaded I am sure he knew it was loaded.

Q. And do you have an opinion of whether he knew if he pointed a loaded rifle and pressed the trigger it would go off and strike the person he had pointed it to?

A. In my opinion, he was well aware of that.

On cross-examination Dr. Stephenson stated:

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Q. Doctor, I understand that before you were given a copy of the Schwartz decision to read your idea was that “appreciate” meant a little more than “know”, is that true?

A. That’s true.

Q. You felt that it must be able to form an opinion as to the appropriateness of what he was doing, as you said?

A. Yes, customarily once interpretation of the term “appreciate” as used in the Criminal Code was that an individual, in order to properly evaluate his behaviour, must be able to evaluate it from the point of view of reality function, must be able to evaluate what was going on in real terms and if he was able to do that, if his evaluation or reality was a denial of reality and a projection of his own imaginations or dillusions onto the situation, then certainly he wasn’t appreciating the nature and quality of his acts properly.

Q. In your idea then the word “appreciate” involves a proper appraisal and interpretation of the nature and quality of the act, is that true?

A. That’s true.

Q. Now, had you never seen or considered the Schwartz decision, your opinion would still be, I take it, that at the time of the act he was unable to appreciate the nature and quality of his act by reason of his mental illness?

A. Yes, using the old standard, old definition, that would be my opinion.

Q. And in between—I take it that a copy of the Schwartz decision, you were presented with this by Crown Counsel and it was discussed with you at that time?

A. Yes.

Q. And it was suggested to you, I take it, by Crown Counsel that the Schwartz decision in some way changed the law or modified it, is that true?

A. That was my understanding.

Dr. J.P. Duffy, called as a witness for the accused, testified on cross-examination concerning the state of mind of the accused as follows:

Q. Now, there is, of course, no question that the accused here suffered from a disease of the mind and I think you are aware that all of the psychiatric evidence tends to that direction?

A. Yes, I am.

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Q. Now, the definition, for our purposes here, has two aspects: one of involving an inability to appreciate the nature and quality of this act and one of—to deal with knowing that the act or omission is wrong. Let me deal with the latter part of that definition first. I am not sure if I follow your evidence insofar as that aspect is concerned. Was it your view that at the material time the accused did not know that his actions were wrong?

A. Yes.

Q. Now, I understand that you are familiar with a recent decision of the Supreme Court of Canada in Schwartz?

A. I have read it.

Q. Are you implying the language, when you come to your conclusion, as to that, with respect to that part of the definition that the Supreme Court was using, knowing that the act was legally wrong?

A. I am not implying either of the definitions used in the case you are referring to. I am talking about the words “to know” and I am bringing in—I hope I did bring in that there is no such thing as a static condition of mind, and that my opinion with regards to Mr. Barnier’s knowledge is specifically directed to the instant of commission. I would say that it’s perfectly consistent to find a person whose mental illness deprives him of knowledge at the time of the commission of the offence who can later give evidence that he could know—I think that’s the dilemma.

Q. But your view is that at the time of the commission of the offence that the accused did not know that his actions were wrong?

A. My position is that at the time of the commission of the offence the accused suffered from mental illness of such a degree as to render him incapable of appreciating the quality and nature of his actions, and that of such a degree as to prevent him from knowing?

Q. Knowing that his act was wrong?

A. Yes.

Q. That he was suffering from a disease of the mind to the extent that he did not know that it was wrong to shoot somebody with a gun?

A. Yes.

Q. And that he did not know that was against the law?

A. He may have had this knowledge before and he may have been able to talk about it afterwards but

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we are talking about one instant in time and we are attempting to make an artificial dicotomy [sic] and I can’t underline this too strongly. We are dealing with an instant of time.

All the psychiatrists in one way or another deal with the interpretation of the words “know and appreciate” as they appear in the definition of insanity contained in s. 16(2) of the Criminal Code, which I will set out later, and the alleged purport of Schwartz v. The Queen, supra. These witnesses of course are qualified as experts in a branch of medicine and not in the law. The position of a juror listening to such a discussion by a witness is very difficult. Such testimony does not assist the trier of fact, and the introduction of such evidence should be avoided. The instruction of the jury on questions of law is, of course, for the Court, and to have a discussion of the law reach the jury through a witness is at best confusing and at worst destructive of a fair and proper trial.

The charge to the jury given by the judge on the issue of insanity is as follows:

The next question to ask yourselves is whether the accused had a disease of the mind to an extent that rendered him at the time he fired that gun incapable of appreciating the nature and quality of the act of firing the rifle at Doreen Garbutt. I must tell you that as a matter of law the words ‘nature and quality’ refer to the physical character of the act. The questions to be asked are these: Did the accused know that he was pointing a loaded rifle at Doreen Garbutt? Did he know what the bullet would do to her if and when it hit her? If you find that he was incapable of understanding what he was doing, that is, that he was incapable of appreciating the nature and quality of the act, that he did not know what he was doing, the defence of insanity would succeed.

I will review the evidence of the psychiatrists later but at this point I must say to you that the law, as I have just given it to you, is the basis, as I understood the evidence, on which Dr. Whitman and Dr. Stephenson founded the opinions they expressed yesterday. Initially each of them had reached the opposite conclusion, namely, that the accused did not appreciate the nature and quality of his act. You may find it unsettling and disturbing that two highly qualified psychiatrists have been proceeding for some years on the interpretation of the law which is the wrong interpretation. You must take from me what I have said the law to be. The initial opinions of Dr. Whitman and Dr. Stephenson were

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based on what the Supreme Court of Canada in the case which you heard about, the Schwartz case has held to be wrong. You were entitled to be told that they had changed their opinions and to be told the reason for that change, a reason not related to any matter of fact but a reason related to the legal interpretation to be given to the word ‘appreciate’.

I repeat then, if you find on the balance of probabilities that the disease of the mind rendered the accused incapable of appreciating the nature and quality of his act the defence of insanity would succeed. Your verdict would be not guilty by reason of insanity. If, however, you find that he was capable of appreciating the nature and quality of what he was doing you must then ask yourselves whether the disease of the mind was such as to render him incapable of knowing that his conduct was wrong. When I use the word ‘wrong’ that means according to law, wrong in the sense that the act was forbidden by law. If you find on the balance of probabilities that he was incapable of knowing what he was doing was wrong in the sense that I have used that word, that is contrary to the law, then the defence of insanity would succeed. Your verdict would be not guilty by reason of insanity…

…Dr. Duffy said that the accused would know but would not appreciate. I have told you that as a matter of law those words have the same meaning for the purpose of section 16.

Against this background of evidence received in the course of the trial and the judge’s charge to the jury, I turn to the judgment of the majority in Schwartz v. The Queen, supra. It is imperative to recall that the question before this Court on that appeal was simply the meaning of the word ‘wrong’ as it is used in the definition of insanity in s. 16(2). The Court was not dealing with the balance of the subsection and no issue was raised with reference to that part of the definition of insanity relating to the capacity to appreciate and to know. One excerpt from the judgment of this Court as delivered by my brother Martland is sufficient to demonstrate that the Schwartz appeal has no bearing on the outcome of the issue now before us:

There is no evidence in the case which relates to the issue as to whether, at the time the offences were committed, the appellant, owing to disease of the mind, though appreciating the nature and quality of his acts, did not know that what he was doing was morally, or

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legally, wrong. That issue never arose on the facts of this case. There was no evidence to meet the onus imposed on the appellant by s. 16(4) to establish his insanity within the latter part of the definition in s. 16(2) no matter how the word “wrong” be interpreted. ([1977] 1 S.C.R. 673, at p. 694)

The question raised here cannot be answered by the application of any principle advanced in the disposition of the single and different issue which arose in Schwartz, supra.

I turn then to the crux of this appeal, namely the interpretation of the definition of insanity as found in subs. (2) of s. 16, and particularly the proper meaning in law of the words ‘appreciating’ and ‘knowing’ found in that definition. The subsection reads as follows:

(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.

(2) Aux fins du présent article, une personne est aliénée lorsqu’elle est dans un état d’imbécillité naturelle ou atteinte de maladie mentale à un point qui la rend incapable de juger la nature et la qualité d’un acte ou d’une omission, ou de savoir qu’un acte ou une omission est mauvais.

One must, of course, commence the analysis of a statutory provision by seeking to attribute meaning to all the words used therein. Here Parliament has employed two different words in the critical portion of the definition, which words in effect established two tests or standards in determining the presence of insanity. The subsection in form and substance provides that:

a person is insane when he has a disease of the mind to an extent that renders him incapable

(a) of appreciating the nature and quality of an act… or

(b) of knowing that an act is wrong.

(I have eliminated those words with which we are not here concerned.) Under the primary canon of construction to which I have referred, ‘appreciating’ and ‘knowing’ must be different, otherwise the

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Legislature would have employed one or the other only. The meanings of the two verbs from which the participle form is derived are separate and distinct in the ordinary usage of language.

“Appreciate” is defined in the Shorter Oxford Dictionary, 1959, as:

1. trans. To form an estimate of worth, quality, or amount…

2. …to be sensitive to, or sensible of, any delicate impression or distinction…

The definition assigned to “appreciate” in the Random House Dictionary of the English Language, 1973, is as follows:

2. to be fully conscious of; be aware of; detect: to appreciate the dangers of a situation…

The participle “appreciating” is rendered in French as “juger” which connotes a mental process approximating that of the verb “to appreciate.” In Harrap’s Standard French and English Dictionary, 1962, the verb is defined in part:

to think, believe; to be of opinion.

The definition of the verb “juger” as found in Larousse, 1952 is, in part:

Apercevoir, entre deux idées un rapport de convenance ou de disconvenance.

and in the 1975 Larousse:

porter une appréciation sur les êtres ou les choses.

On the other hand, the verb “to know” is defined in the Shorter Oxford Dictionary, 1959, as:

I …To recognize; to identify; to distinguish…

II. To be acquainted with (a thing, place, person); to be familiar with;… to have personal experience of (something) as affecting oneself.

…

III. 1. To be aware or apprised of… to become cognizant of, ascertain…

3. To apprehend or comprehend as fact or truth…

and in Random House, the verb “to know” is given these definitions:

1. to perceive or understand as fact or truth; to apprehend clearly and with certainty:…

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2. to have established or fixed in the mind or memory;

…

3. to be cognizant or aware of; be acquainted with (a thing, place, person, etc.), as by sight, experience, or report:

5. to be able to distinguish, as one from another:

The French version of s. 16(2) employs “savoir” where “knowing” is found in the English version. Harrap’s gives the meanings:

to know; to be aware of.

Larousse gives, inter alia, the following meaning:

avoir conscience de quelque chose.

In the ordinary usage of these words in the language, therefore, it would appear that to appreciate embraces the act of knowing but the converse is not necessarily true. This lies behind the comment in Black’s Legal Dictionary, 4th ed., 1951, at p. 130:

Appreciate may be synonymous with “know” or “understand.”

The verb “know” has a positive connotation requiring a bare awareness, the act of receiving information without more. The act of appreciating, on the other hand, is a second stage in a mental process requiring the analysis of knowledge or experience in one manner or another. It is therefore clear on the plain meaning of the section that Parliament intended that for a person to be insane within the statutory definition, he must be incapable firstly of appreciating in the analytical sense the nature and quality of the act or of knowing in the positive sense that his act was wrong. With these processes, of course, the Schwartz case was in no way concerned. The psychiatrists, in preparing for trial, either misconstrued the judgment and thereby the definition contained in s. 16, or the judgment was misconstrued for them in their preparation for testimony before the tribunal, and it matters not which is the case.

These words were the subject of comment in the Report of the Royal Commission on The Law of Insanity as a Defence in Criminal Cases (Canada

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Queen’s Printer, 1956) (Chairman, Chief Justice J.C. McRuer):

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)

The same process of interpretation of the words “knowing” and “appreciating” as they are employed in s. 16(2) may also be found in the judgment of this Court in Gary Albert Cooper v. The Queen[3] (reasons issued March 3, 1980, unreported), in a case also involving a charge of murder.

I turn now to the question of the propriety of the reference by witnesses to the law as it is said to be enunciated in specific judgments of the courts. In Stavroff v. The Queen[4] (judgment rendered October 2, 1979) this Court was concerned with the propriety of the presiding judge instructing the jury on the applicable law by making explicit reference to judgments of other courts, including those of this Court. Of that practice, McIntyre J. speaking on behalf of the Court stated:

While the adoption of this course by a trial judge will not always amount to error in law, it is generally to be avoided. The trial judge faces a task of great difficulty in charging a jury. He must explain the law and he must as well relate the law to the facts. While he is entitled to comment on and express opinions on the evidence, he must always keep in mind the separate functions of the judge and jury and avoid any interference with the jury’s prerogative to find facts. The trial judge is fully entitled to all the assistance he can find in the decided cases and other authorities and he is entitled to utilize the language of learned judges and authors in making his explanations and in answering questions.

I refer to that decision (although it deals not with instruction of witnesses by counsel or by their own

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research but rather with instruction of juries in the law by judges) because it illustrates the sensitivity of the courts to the practice of leaving to laymen the problem of the analysis of and the conclusions to be drawn from individual judgments of courts of law dealing with the same or similar issues. Whether the law be placed before the jury indirectly through a witness or directly by a judge, by reference to earlier decisions, the same risks and dangers exist. However, here the dangers are more pronounced because a witness, by misdirecting himfelf as to the law, can fatally mislead the trier of fact, be it judge or jury. Fortunately, the act of self-misdirection was detected here, as it generally will be, by one of the fundamental components of our adversarial trial system, namely the cross-examination of witnesses by the opposing interest. It is clear beyond dispute that the expert witnesses here had been misdirected as to the meaning of the Schwartz case and hence the definition of insanity prescribed by Parliament in the Criminal Code. This misdirection was taken up and restated to the jury in the charge by the presiding justice. In the result the jury heard expert opinion evidence which was founded on an erroneous understanding of the law of insanity. To compound the problem, the jury was not thereafter properly instructed by the presiding judge as to the law on this subject which was to be applied to the facts when found by the jury, in the process of determining the guilt or innocence of the accused. Hence the jury have not in law reached a determination on the charge under which the accused was delivered to their custody.

The circumstances of this appeal fall squarely within the specific provision made by Parliament in s. 613(1)(d), which provision has been applied by the Court of Appeal in finding the accused not guilty on account of insanity. Accordingly the appeal should be dismissed.

Appeal dismissed.

Solicitors for the appellant: Department of the Attorney-General for British Columbia, Vancouver.

Solicitor for the respondent: J.P. MacKrow, Vancouver.