Vaillancourt v. R., [1976] 1 SCR 13

Supreme Court of Canada

Vaillancourt v. R., [1976] 1 S.C.R. 13

Date: 1975-02-13

René Vaillancourt (Plaintiff) Appellant;

and

Her Majesty the Queen (Defendant) Respondent.

1975: January 29, 30; 1975: February 13.

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Evidence—Expert evidence—Psychiatric opinion—Admissibility—Examination of accused at instance of Crown without notice or court order—Criminal Code, ss. 465(c), 543, 608.2.

Appellant was arrested on February 1, 1973, and held in custody. At the request of the Crown a number of psychiatrists examined the accused at various dates all a considerable time prior to the preliminary hearing. There was no judicial determination that such examination should be permitted and it appeared that on the dates in question appellant was not represented by counsel although he had been interviewed by duty counsel under the provisions of the Ontario Legal Aid Scheme. At trial the judge admitted the evidence of these psychiatrists when they were called to testify in reply as witnesses for the Crown. The Court of Appeal decided inter alia that the trial judge had not erred in admitting this evidence and dismissed the appeal.

Held: The appeal should be dismissed.

As was said in the Court of Appeal, while it would be preferable for the Crown to seek a Court order for psychiatric examination of an accused under arrest and to advise defence counsel, where applicable, of their intention to have such examination, the Crown’s failure so to do is not by itself a basis for the exclusion of the psychiatric evidence. As there does not appear to be a provision in the Criminal Code or elsewhere which would authorize a court to give an order for examination of an accused in the circumstances of his confinement in the Toronto Jail all a court can do is to express regret that no such provision exists and that therefore no Court order had been obtained.

R. v. Lafrance (1972), 8 C.C.C. (2d) 22, referred to.

APPEAL from a judgment of the Court of Appeal[1] for Ontario dismissing an appeal from a

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conviction by Donnelly J., with a jury, of capital murder. Appeal dismissed.

Arthur Maloney, Q.C., and Clare E. Lewis, for the appellant.

David Watt, for the respondent.

The judgment of the Court was delivered by

SPENCE J.—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on January 25, 1974, wherein that Court dismissed an appeal by the accused from his conviction on October 1, 1973, at a trial before Donnelly J. and a jury of the offence of capital murder. The judgment of the Court of Appeal has since been reported in (1974), 16 C.C.C. (2d) 137. That report contains a very detailed account of all the circumstances and I, therefore, do not intend to repeat them in these reasons.

After counsel for the accused had presented his argument before the Court of Appeal for Ontario, that Court called upon counsel for the Crown to argue only grounds of appeal which counsel for the accused had, in his notice of appeal, designated as grounds 1, 2 and 5.

In this Court, after counsel for the appellant (the accused) had presented his argument, the Court called upon counsel for the Crown to reply only on ground of appeal 1. This ground of appeal, as set out in the appellant’s notice of appeal to this Court, was as follows:

THE COURT OF APPEAL FOR THE PROVINCE OF ONTARIO ERRED IN HOLDING THAT THE LEARNED TRIAL JUDGE WAS CORRECT IN ADMITTING THE EVIDENCE OF THE PSYCHIATRISTS CALLED TO TESTIFY IN REPLY AS WITNESSES FOR THE CROWN.

Ground of appeal No. 1 before the Court of Appeal for Ontario was cited in the reasons given by the Chief Justice of Ontario as follows:

THE LEARNED TRIAL JUDGE ERRED IN ADMITTING THE EVIDENCE OF THE PSYCHIATRISTS CALLED TO TESTIFY IN REPLY AS WITNESSES FOR THE CROWN.

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It will be seen that it is exactly the same ground of appeal.

I have carefully perused the reasons given by Gale C.J.O. for the dismissal of this ground of appeal. I am in complete agreement with them and have very little to add. There is one matter, however, upon which I feel it only proper to express concern.

The appellant, after his arrest on February 1, 1973, was, of course, held in custody. He appeared in police court in the City of Toronto on February 2, 1973, and on February 9, 1973, for remand. On each of those occasions, he was taken by detectives of the Toronto Police Department to be interviewed by a solicitor who was the designated duty counsel present under the provisions of the Ontario Legal Aid scheme. There is no other indication of any kind that until after the examinations by Crown psychiatrists, to which I shall refer, the appellant consulted or retained any other legal counsel. The duties of the duty counsel under the provisions of the Ontario Legal Aid scheme are set out in Reg. 557 (R.R.O. 1970) under The Legal Aid Act, R.S.O. 1970, c. 239, and I quote paras. 69 and 89 of such regulations:

69. Where a person has been taken into custody or summoned and charged with an offence, he may obtain before any appearance to the charge the assistance of duty counsel who shall,

(a) advise him of his rights and take such steps as the circumstances require to protect his rights, including representing him on an application for remand or adjournment or for bail or on the entering of a plea of guilty and making representations with respect to sentence where a plea of guilty is entered;

89. The customary solicitor and client relationship shall exist between a solicitor and his client.

The Crown called in reply the following professional witnesses:

Dr. Joseph Thomas Marotta, who testified that on September 5, 1973, he had seen the appellant at the request of Dr. Davidson, a psychiatrist who had testified on behalf of the defence, and that he had conducted an EEG examination of the appel-

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lant which examination revealed no abnormality of any description. It is to be noted that this witness had performed his service at the request of the defence and I am not dealing further with his evidence.

Dr. Peter Watts Rowsell, who testified that he examined the accused February 9, 1973, at the Don Jail in Toronto. This examination was made at the request of counsel for the Crown. There is nothing to show that the accused had any notice that he was to be so examined nor was anyone who in any way represented him consulted. Dr. Rowsell gave expert opinion evidence as to the mental condition of the appellant.

Dr. David Lang Common, the consultant psychiatrist at the Toronto Jail, examined the appellant at the Toronto Jail on February 12, 1973. He testified that upon seeing the appellant, he introduced himself and said “I am Dr. Common. I am the jail psychiatrist and I have been asked by Mr. Whitehead, the superintendent, to examine you”, to which the appellant replied, “What! Do I have to see another psychiatrist? There is nothing wrong with me”. Again, there is no evidence that there was any previous notice to the appellant that such examination would take place nor was anyone consulted on behalf of the appellant. Again, the witness, Dr. Common, gave expert opinion evidence as to the mental condition of the appellant.

Dr. Andrew Ian Malcolm examined the appellant on February 10, 1973, in the Don Jail. This examination was also made at the request of the Crown and Dr. Malcolm reported immediately to Crown counsel. Again, there is nothing in the evidence that the appellant had any notice of such examination or that anyone was consulted on behalf of the appellant.

All of these examinations took place a considerable time before the appellant appeared on preliminary hearing and there was no kind of judicial determination whatsoever that such examination should be permitted. Since it would appear that at the time the examinations took place the appellant was not in fact represented by counsel, there was no legal representative with whom the counsel for the Crown could confer.

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It was the submission of counsel for the accused to the Court of Appeal for Ontario and to this Court that under these circumstances the learned trial judge should have refused to permit these three last-named witnesses to give evidence and that a court order should have been obtained on notice prior to such examinations taking place.

Gale C.J.O., in his reasons for judgment, said:

Although this Court has already pointed out that it would be preferable for the Crown to seek a Court order for psychiatrists’ examination of an accused under arrest, and when the accused has retained counsel to advise defence counsel of their proposal to have a psychiatrists’ examination of the accused, the Crown’s failure to do so is not by itself a basis for excluding that evidence.

As I have said, I am in agreement with the reasons of the learned Chief Justice of Ontario including that statement.

The learned Chief Justice was referring to the decision of the Court of Appeal for Ontario in R. v. Lafrance[2], where speaking for the Court, he said:

Complaint was taken that he ought not to have been so examined without notice to his counsel, or without an order of the Court. We agree that it would have been better to have had the concurrence of counsel, or an order of the Court, although in this respect we must point out that Crown counsel did in fact attempt to obtain the permission of defence counsel, but went ahead with the examinations when he could not reach him. However, the evidence was not inadmissible, and we think the learned Judge could not be said to have exercised his discretion incorrectly, if one was available to him, in permitting that evidence to be introduced. In this connection we have in mind the decision of the Supreme Court of Canada in R. v. Wray, [1970] 4 C.C.C. 1, 11 D.L.R. (3d) 673, [1971] S.C.R. 272. For these reasons the appeal will be dismissed.

It is noteworthy that in the Lafrance case the examination by the psychiatrist to which defence counsel took objection was made while the accused had been confined in the mental hospital at Pene-

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tanguishene and there may have been some jurisdiction for a court to make an order under those circumstances. In the circumstances in the present case, the accused was confined in the Toronto Jail. I have been unable to discover any provision in the Criminal Code or elsewhere which would authorize some court to give an order for his examination.

It must be remembered that these examinations took place prior to the preliminary inquiry and it would appear that in the opinion of the Crown counsel it was necessary in the due administration of justice to have these psychiatric examinations at that time. Counsel for the appellant referred to s. 465 (c), s. 543 and s. 608.2 of the Criminal Code, but reference to these actions indicates that they are all concerned with a later period when the accused was at preliminary inquiry, at trial, or before the Court of Appeal, and I am of the opinion that they are quite inapplicable to the circumstances in the present appeal.

The interest of the accused in the issue of whether he should be subject to psychiatric examination and in the form and content of that examination is, of course, evident. It would appear that a provision whereby there could be an application made to a designated judicial officer upon notice to an accused person for an order permitting such examination would be a proper provision in the protection of the rights and interests of an accused person. If notice of such an application were given to an accused person, then the accused person would be in the position where he could immediately seek advice from a solicitor in reference thereto and would result in either the retaining of such a solicitor or seeking the services of legal aid under the various provincial plans. At the present time, it would seem that all a court can do is to express regret that no court order had been obtained without being able to point out how such a court order could be obtained. In the present circumstances, as I have said, I am of the opinion that the appeal could not succeed.

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Arthur Maloney, and Clare E. Lewis, Toronto.

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