Perras v. R., [1974] SCR 659

Supreme Court of Canada

Perras v. R., [1974] S.C.R. 659

Date: 1973-05-07

Armand Marcelin Perras Appellant;

and

Her Majesty The Queen Respondent.

1973: February 21; 1973: May 7.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Spence and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Criminal law—Non-capital murder—Evidence—Statements—Voir dire—Person in authority—Crown psychiatrist.

The appellant was charged with murder. The defence called only one witness, a psychiatrist, who testified that the appellant was quite unable to give him a history of the events which occurred because the appellant suffered from organic amnesia in reference to that time, and that this was due to a heavy degree of intoxication. The Crown, in rebuttal, proposed to call a psychiatrist, D, who had had two interviews with the appellant at the request of the police. The trial judge ruled that if the psychiatrist was to be a witness of fact, then the voluntary nature of the statements made by the appellant to him would have to be established and that a voir dire would have to be conducted. Crown counsel agreed that the psychiatrist was a person in authority but declined to hold a voir dire. He said that he did not intend to lead the psychiatrist to report any statements made by the accused and that there was no subject-matter for a voir dire. The jury found the appellant not guilty of murder but guilty of manslaughter. The Court of Appeal set aside the verdict of manslaughter and directed a new trial on the charge of non-capital murder. The accused appealed to this Court.

Held (Ritchie, Spence and Laskin JJ. dissenting): The appeal should be dismissed.

Per Fauteux C.J. and Abbott, Martland and Judson JJ.: The question whether the psychiatrist was a person in authority should not have been an issue at trial. The only issue in this case is whether the Crown has a right to call rebuttal evidence by a psychiatrist on the question of the mental state of the accused in circumstances where it might be dangerous for the defence to cross-examine the psychiatrist because of the possibility of eliciting a confession. There was error in the ruling of the trial judge that a voir dire was necessary because Crown counsel did not intend

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to lead any evidence of a statement and, therefore, there was nothing on which to hold a voir dire. The witness was simply being called as an expert entitled to give evidence on a psychiatric question, and he was not a witness as to facts.

Per Ritchie, dissenting: In the circumstances of this case, the statements which the appellant made were made when he was under the authority and control of the police and there was therefore a situation affording grounds for a suspicion which could only be properly dispelled by the holding of a voir dire to show that the statements were in all respects voluntary.

Per Spence and Laskin JJ., dissenting: The position taken by the trial judge in requiring a voir dire prior to the psychiatrist being permitted to testify was a proper position justified even if his testimony had been limited both in examination and cross-examination to a statement only that the accused had exibited a memory of the events which had occurred on the night in question. It would have been quite impossible to so limit the testimony of the psychiatrist without a determination that the witness had the factual basis upon which he could make his assessment. The expert evidence must be based on facts and those facts must be available in cross-examination of the expert witness. Furthermore, the question as to whether the psychiatrist was a person in authority ought to have been determined upon a voir dire. Under the circumstances of this case, there is no reason to doubt that the psychiatrist was a person in authority.

APPEAL from a judgment of the Court of Appeal for Saskatchewan[1], setting aside a verdict of manslaughter and directing a new trial on a charge of non-capital murder. Appeal dismissed, Ritchie, Spence and Laskin JJ., dissenting.

P.W. Klassen, for the appellant.

S. Kujawa, Q.C., for the respondent.

The judgment of Fauteux C.J. and of Abbott, Martland and Judson JJ. was delivered by

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JUDSON J.—The appellant, Armand Marcelin Perras, was charged with murder. The jury found him not guilty of murder but guilty of manslaughter. The Saskatchewan Court of Appeal allowed the Crown’s appeal and ordered a new trial on the charge of murder.

There is no dispute that Perras killed one Kenneth Henry Knoll shortly before midnight on April 24, 1970, and that Perras had done a lot of drinking. The defence called only one witness, Dr. F.E. Coburn, Professor of Psychiatry at the University of Saskatchewan. His evidence was that under sodium pentothal, Perras was unable to remember the killing and that this indicated to him that he was suffering from organic amnesia. This meant that at the time Perras committed the crime, his acts did not register on his conscience and were uncontrolled by his judgment, presumably because of drunkenness. On cross-examination, Dr. Coburn said that if Perras had been able to remember the crime at some point after it was committed, his conclusion would be that he was suffering not from organic amnesia but rather from feigned or hysterical amnesia. If he was suffering from hysterical amnesia, it meant that he knew what he was doing when he committed the crime, but afterwards repressed his memories of it because of their upsetting nature. This was the whole of the evidence adduced by the defence.

The Crown, in rebuttal, proposed to call Dr. Demay, who was the Director of the Psychiatric Services Branch of the Department of Public Health, Province of Saskatchewan. He had had two interviews with Perras, the first on Sunday, April 25, 1971, at 5:50 p.m., approximately 18 hours after the killing, and again, on Monday afternoon, April 26, 1971. He had conducted these interviews at the request of the Royal Canadian Mounted Police. The trial judge ruled that if Dr. Demay was to be a witness of fact, then the voluntary nature of the statements made by Perras to him would have to be established and that a voir dire would have to be conducted. Crown counsel agreed that Dr.

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Demay was a person in authority but declined to hold a voir dire. He said that he did not intend to lead Dr. Demay to report any statements made by the accused and that there was no subject-matter for a voir dire. After receiving an adverse ruling from the trial judge, he stated his position in full in the following terms:

I think I must accede to that proposition but I should, My Lord, if I may, indicate that the ambit of the evidence I would have attempted to lead from Dr. Demay in rebuttal would have been restricted to the following points: The nature and extent of the examinations of the prisoner at bar conducted by the witness on the 25th and 26th days of April, 1971. Secondly, the question of whether such examinations were in keeping with established and recognized psychiatric investigatory procedures. Thirdly, the opinion of the witness as to the mental condition of the prisoner at bar on the dates and at the times of the examinations. Fourthly, the opinion of the witness as to the ability of the prisoner at bar to remember events which occurred immediately prior to the 25th and 26th days of April, 1971. Fifthly and finally, the opinion of the witness as to whether the prisoner at bar was suffering from organic amnesia or any other form of amnesia or any other form of mental disorder at any time on the 24th and 25th days of April, 1971. I assure you, My Lord, that it was never my intention to attempt to lead from the witness any statement of any kind which may or may not have been made by the accused person during the course of the examination. Thank you, My Lord.

In view of these submissions, it is my opinion that the question whether Dr. Demay was a person in authority should not have been an issue at the trial. The only issue in this case is whether the Crown has the right to call rebuttal evidence by a psychiatrist on the question of the mental state of the accused in circumstances where it might be dangerous for the defence to cross-examine the psychiatrist because of the possibility of eliciting a confession.

The Court of Appeal held that there was error in the ruling of the trial judge that a voir dire was necessary because Crown counsel did not intend to lead any evidence of a statement and, therefore, there was nothing on which to hold a voir dire. I agree with the Court of Appeal. The

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Crown’s submission throughout has been that Dr. Demay was simply being called as an expert entitled to give evidence on a psychiatric question, and that he was not a witness as to facts.

The nature and extent of Dr. Demay’s examinations within the limits stated by Crown counsel had to be elicited to enable the jury to assess the foundation for any opinion that he might give. The fact that the doctor had examined Perras a short time after the event would, in itself, be a part of the foundation.

I have dealt with this appeal on the basis of the admission of Crown counsel that Dr. Demay was a person in authority. In my opinion, Wilband v. The Queen[2] is strong authority against any such proposition.

I would dismiss the appeal.

RITCHIE J. (dissenting)—I agree with my brother Spence that this appeal should be allowed and the verdict and sentence recorded at trial should be restored, but as I reach this conclusion for somewhat different reasons, I think it desirable to express my views briefly.

I do not think that the fact that Dr. Demay was a psychiatrist constituted him a person in authority, nor do I think that the fact of his having been retained to examine the accused on behalf of the Crown is of itself sufficient to convert him into being such a person. I am, however, of opinion that in the circumstances of this case, having regard to the fact that the accused was under arrest and in custody at the time of his interview with the doctor, which took place at police headquarters, the statements which he then made were made when he was under the authority and control of the police and there was therefore, in my view, a situation affording grounds for a suspicion which could only be properly dispelled by the

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holding of a voir dire to show that the statements were in all respects voluntary.

I am aware of the fact that counsel for the Crown was careful to preface his examination of the doctor by indicating that no statements made by the accused would be elicited in that examination, but it appears to me that the opinion sought from the doctor was based on the statements made to him by the accused and that the effect of those statements, whatever they may have been, was therefore incriminating because the opinion so based constituted a direct denial of the only defence open to the accused.

It appears to me that the difficulties raised in this appeal would not have arisen if a voir dire had been held but the Crown did not follow this course. I need hardly say that I cast no reflection on Crown counsel for this decision which was no doubt made in the exercise of his best judgment.

It is for these reasons that I would dispose of the appeal in the manner proposed by my brother Spence.

The judgment of Spence and Laskin JJ. was delivered by

SPENCE J. (dissenting)—This is an appeal from the judgment of the Court of Appeal for Saskatchewan[3] pronounced on May 26, 1972. By that judgment, the said Court of Appeal allowed an appeal by the Crown from the verdict of the jury acquitting the appellant on the charge of murder and convicting him on the charge of manslaughter. The judgment of the Court of Appeal set aside the verdict of manslaughter and directed a new trial on the charge of non-capital murder. Although that verdict was unanimous, the appellant had an appeal as of right under s. 618 (2) of the Criminal Code, R.S.C. 1970, c. C-34.

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Although in a commendable attempt to reduce the cost of the appeal counsel had agreed on the production of a very scanty record, counsel for the appellant in his statement of facts, being Part I of his factum, has set out relevant matters in considerable detail and counsel for the respondent commenced his factum with the statement, “The respondent accepts the statement of facts as set out in the factum of the appellant herein”. In addition, it would appear from some of the evidence which has been produced in the appeal case and from the reasons for judgment that the appellant was charged with murder under the provisions of s. 206(2) of the Criminal Code which reads:

206. (2) A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being.

It was the whole defence of the accused that he was in such a state of intoxication at the time he committed the act which constituted the offence that he could not form the intent necessary for a conviction upon the charge.

The appellant was apprehended by the police at a roadblock on a highway in Saskatchewan at 2:45 a.m. on April 25, 1971. The charge was that the killing took place on or about that same April 25, 1971. He was taken by the police to the office of Staff Sergeant Simpson of the R.C.M.P. at the Regina Detachment of that force and there detained until about 5:25 a.m. During the interval, other procedures were carried out and at approximately 3:10 a.m. the officers demanded, under the provisions of what now is s. 235(1) of the Criminal Code, that the appellant submit himself to a breathalizer test. It is to be noted that that section applies only when the peace officer has reasonable and probable grounds for believing that a person has committed, within two hours prior thereto an offence under the provisions of s. 234, to wit, driving a motor vechicle when his ability was impaired by alcohol or a drug. The appellant, after demurring, did consent to such a test being taken. No place in the record before this Court is the result of such test revealed.

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At 5:10 a.m., the appellant was warned by the police officer, Staff Sergeant Simpson, and was asked certain questions which he answered. The appellant was taken to the cells at 5:25 a.m. Again, there is nothing in the record to indicate what questions were put or what answers were given or whether those questions and answers were ever submitted to the jury in evidence. The appellant remained in the cells from 5:25 a.m. until 5:50 p.m. on the same day and then at the same offices of the R.C.M.P. the appellant was interviewed by a Dr. Demay.

Dr. Demay at that time was a full-time employee of the Province of Saskatchewan as Director of the Psychiatric Services Branch of the Department of Public Health and he conducted the interview at the request of the R.C.M.P. The Province of Saskatchewan, of course, was in charge of the administration of justice and, therefore, the prosecution of the appellant. At the trial, only one witness was called for the defence and that witness was Dr. Frank Emerson Coburn, a psychiatrist and a professor of psychiatry at the University of Saskatchewan, who had examined the appellant for the first time only on September 10, 1971.

Dr. Coburn examined the appellant at the request of his counsel. It was Dr. Coburn’s theory, based upon his examination of the appellant, that the appellant was quite unable to give him a history of the events which occurred because the appellant suffered from organic amnesia in reference to that time. The organic amnesia prevented events registering on the mind of the appellant and therefore the appellant was unable to recall them, that is, there was nothing in his mind to recall. Dr. Coburn had attempted to assist his examination by the administration of certain drugs which had the effect of breaking down an amnesia which was only the failure to remember but finding no memory of these events even after the administration of such drugs, he concluded that the appellant had an organic amnesia as to such

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events. Since the appellant displayed no other signs of brain illness and since there was evidence that the appellant had, in fact, consumed alcohol at or about the time of the events in question, Dr. Coburn concluded that this organic amnesia was due to a heavy degree of intoxication. Dr. Coburn was cross-examined in great detail by Crown counsel and it is relevant to quote some of that cross-examination:

MR. PICK: All right. Let me just revert to something you said during the course of your recent statement. You said these events were performed at a time while he was confused and this confusion led to an onset of organic amnesia in respect of those events, is that correct?

A. Yes. At a later date when he tried to recall the events they hadn’t registered.

Q. Yes. Could he have recalled them the next day?

A. No, I don’t think so.

Q. And if he had would you change your position on organic amnesia?

A. If he had recalled the events?

Q. The shooting, the killing, the running away, would you change your position?

A. Well, if he had the memory of the events which I wasn’t able to get back under sodium pentothal, if he had them the next day then he could not have been in a position, in a condition, where he couldn’t register.

Q. That’s right.

THE COURT: That is, there could not have been a failure of registration?

A. There could not have been a failure of registration. His brain must have been capable of registering. And if it were then I couldn’t say that he had an organic amnesia.

MR. PICK: Your position would be changed I take it?

A. Yes.

Q. Right. And if I were to suggest to you that the next following day, namely April 27th, he could remember the critical period in fair detail, in other words I’m giving you two consecutive days, I take it for granted that you would alter

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your position and say that he couldn’t have had organic amnesia?

A. Yes, it makes no difference whether it’s one day or two days, if it registered, you know, to the point where he could reproduce it accurately the next day.

Q. Assuming, Doctor, such to be the case hypothetically, what could he have had when you examined him on November 26th this year if he didn’t have organic amnesia?

A. Well, you know, I said earlier on that this was not absolute.

Q. Yes.

A. And that’s all I can say, and I never said absolutely that he didn’t have a feigned or an hysterical amnesia.

It is, therefore, quite plain that Crown counsel had obtained from the sole defence witness and the expert the admission that if the appellant had on the day of and several days after the events in question been able to recall those events then the appellant would not have been suffering from an organic amnesia at the time he committed the acts which constituted the offence.

Upon the evidence of Dr. Coburn having been concluded, counsel for the appellant closed his defence and Crown counsel called Dr. Maurice E. Demay in rebuttal. So soon as Crown counsel had caused this witness to identify himself, list his qualifications and state that he had examined the appellant, the learned trial judge excluded the jury for the balance of that day and through part of the next day. The learned trial judge heard argument from counsel for both the Crown and the appellant as to whether it was necessary to conduct a voir dire and determine that the evidence which Dr. Demay would be giving was voluntary in view of it being admissions to a person in authority. The learned trial judge concluded that the evidence of Dr. Demay could not be submitted to the jury without such a voir dire. Counsel for the Crown refused to put forward his witness in a voir dire and it would appear that the rebuttal then concluded. The jury returned a verdict of manslaughter only.

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Although Crown counsel stressed in his submissions to the learned trial judge and again in the Court of Appeal for Saskatchewan, and in this Court, that it was not his intention of adducing from Dr. Demay “one jot or tittle of what the accused told” Dr. Demay, there were other submissions made by said counsel which would indicate that even in the evidence which the Crown would adduce such statements by the accused to Dr. Demay would have to have been recounted. Counsel for the Crown on one occasion said:

All right. I say this witness, with respect, in rebuttal to what we have heard from Dr. Coburn has the right to lay a professional groundwork for his opinion which he will no doubt express if he’s asked to do so, and to do that he has to disclose to the Jury the nature and extent of the examinations he conducted. I’m not suggesting for a minute that he should say “one jot or tittle of what the accused told” him.

It is difficult to understand how the witness could disclose to the jury the nature and extent of the examinations he conducted, being a psychiatric examination, without saying “one jot or tittle” of what the accused told him. Again, counsel for the Crown said:

But let’s again speak hypothetically, My Lord. Is it fair for this witness to tell the Jury that he, this witness, reviewed the recent memories of the accused with him and that his memory was relatively clear and cogent at that time of all the events of April 24th-25th? That’s what I have to rebut.

I view the witness recounting that he reviewed the recent memories of the accused with him and that his memory was relatively clear and cogent at that time [i.e., the 25th to 27th of April] of all the events of April 24 and 25 as being a plain statement that the witness would have to make a statement as to what the accused had said in reference to that period. Under these circumstances, and considering the evidence which was proposed to be adduced from Dr. Demay as factual evidence, it becomes crucial to determine whether or not Dr. Demay

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was on those 25th and 27th days of April a person in authority. Indeed, counsel for the Crown at the trial stated not once but on many occasions that he could not deny that Dr. Demay was a person in authority. Had counsel for the Crown taken any other position, then it would have been perfectly proper to have held a voir dire on not only whether the statements were voluntary in the meaning given to them in a series of Canadian cases terminating in The Queen v. Fitton[4], but whether Dr. Demay was, in the particular circumstances of the particular case, a person in authority: Loiselle v. The Queen[5]; R. v. Pettipiece[6].

Indeed, after the admission made by Dr. Coburn in his cross-examination by Crown counsel, the only important evidence which the Crown required to answer Dr. Coburn’s diagnosis was by Dr. Coburn’s own admission proof of the fact that the appellant had a memory on the 25th and 27th days of April of the events which had occurred on the 24th-25th days of that month. I am, therefore, of the opinion that the position taken by the learned trial judge in requiring a voir dire prior to Dr. Demay being permitted to testify was a proper position justified even if his testimony had been limited both in examination and cross-examination to a statement only that the accused had exhibited on the 25th and 27th days of April a memory of the events which had occurred on the night preceding Dr. Demay’s first examination.

It would, of course, have been quite impossible to so limit Dr. Demay’s testimony. If Dr. Demay gives evidence as to facts then he may be cross-examined on his evidence as to such facts and it would be improper to permit such evidence to be given without permitting such cross-examination. According to Dr. Coburn, the symptoms of the organic amnesia were, amongst others, a spotty memory, and if Dr.

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Demay had been permitted to testify that the appellant had a clear memory of events of that night then it was incumbent upon defence counsel in cross-examination to attempt to show that the memory was, in fact, a spotty one, and that cross-examination would lead inevitably into a detailed examination of what the appellant had told Dr. Demay so that the clarity or spottiness of the memory exhibited in such statements by the appellant to Dr. Demay could be examined and determined by the jury. Moreover, if, as counsel for the Crown contended, in his final statement to the learned trial judge, all he desired from Dr. Demay was the opinion of the witness as to the mentality of the prisoner, the opinion of the witness as to the ability of the prisoner to remember events, and the opinion of the witness as to whether the prisoner was suffering from organic amnesia or any other form of amnesia, in short, the professional expert judgment of the witness, then that expert judgment could not be given without a determination that the witness had the factual basis upon which he could make his assessment. That factual basis is often obtained by putting to the witness hypothetical questions but it may be obtained by having the witness himself hear the evidence upon which it is based, or himself carry out the examinations upon which he bases his testimony. But the expert evidence must be based on facts and those facts must be available in cross‑examination of the expert witness: Bleta v. The Queen[7].

In the particular case, the foundation for any professional opinion which Dr. Demay might advance was his examination of the appellant including the all important test of his memory of the very preceding night and therefore this factual evidence would have to be given either as straight factual evidence or as the factual basis for a professional opinion.

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Turning now to whether Dr. Demay was a person in authority, a question which, as I have said, ought to have been determined upon a voir dire, I do not think it can be said as a rule applicable to all cases that a medical doctor examining a person is not a person in authority. As was pointed out by Branca J. in Regina v. Pettipiece, supra, whether or not a person is to be considered a person in authority must be determined by a subjective test to determine what was the effect on the mind of the accused in the particular case. Branca J. was considering statements made to a police officer who had disguised himself as a fellow inmate of the jail and he came to the conclusion that when a person does not know that the one holding out the inducement is a person in authority then the authority of that person can have no effect on the mind of the accused making a statement. Two illustrations occur, firstly, the one from Regina v. Pettipiece of a police officer disguising himself as an inmate of the jail where the accused could not be considered to have made a statement to a person in authority, and, on the other hand, a person having no authority whatsoever clothing himself in the guise of a police officer and vehemently asserting authority. In the latter case, in my view, unless the statement were voluntary in the legal sense, it was not admissible despite the true utter lack of authority of the person who received it. Woods J.A., in giving reasons for the Court of Appeal for Saskatchewan, cited Wilband v. The Queen[8], in which in turn was cited Regina v. McKenzie[9]. In both of those cases, the doctors who were giving evidence were doctors who had been required to examine a prisoner in order to give the psychiatric evidence required by what is now s. 689 of the Criminal Code.

In those cases, there was no question of guilt or innocence. The accused person had already been convicted and what was left to determine was whether he should be adjudged to have the

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status of a dangerous sexual offender. Therefore, the problem of admissions against interest by the accused simply did not come up for decision and, in my view, the statement of the present Chief Justice of this Court in Wilband v. The Queen at pp. 20-21 is applicable only to the situation dealt with in that case. In the present case, the circumstances are very different indeed.

The accused was being held, either charged with or suspected of murder, in the offices of the R.C.M.P. in Regina and had, in fact, been confined to a cell for about twelve hours. At the request of the police, he was examined by Dr. Demay and the purpose of the examination could only have been to meet a plea of lack of intent due to intoxication. It was quite evident in the cross-examination of Dr. Coburn that when this defence was advanced by counsel for the accused, it was the intention of the Crown to adduce the evidence of Dr. Demay to meet that defence. In short, the examination by Dr. Demay and the attempt to produce his evidence was part of the prosecution of the accused person and Dr. Demay might well be described as part of the prosecution team just as much as the said Staff Sergeant, the officer who arrested the appellant, or any of the others. Under such circumstances, and applying the subjective test that we should apply, I have no reason to doubt that Dr. Demay was a person in authority.

Finally, it is said, perhaps in an attempt to have applied the provisions of what is now s. 613(1)(b)(iii), that whatever factual evidence would have been given by Dr. Demay as to statements made to him by the appellant could not have been accepted as evidence of the truth or falsity of their contents but only as the material upon which Dr. Demay could base his opinion and that had such evidence gone in before the jury it would have been the duty of the learned trial judge to so instruct the jury in his charge. That kind of submission is most attractive as a legal theory. After many years of

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experience as a trial court judge, I am of the opinion that its practice is well-nigh impossible. If a jury heard detailed before them statements made by the accused at length on the 25th and 27th of April of events which had occurred on the night of the 24th and 25th of April, they would be quite incapable of refusing to accept that evidence as applicable to the truth of such facts rather than limiting the effect of the evidence to merely establishing the basis for Dr. Demay’s opinion. That difficulty was recognized by the learned trial judge and was admitted by the Crown counsel in the following exchange:

THE COURT: Because he happens to be a psychiatrist sent there by the Crown to examine the accused does this make that admissble? Can I say to the Jury you recognize this evidence for what it is, that is, psychiatric evidence to rebut Dr. Coburn but not to determine the guilt or innocence of the accused as to whether or not he did the shooting?

MR. PICK: No, I don’t think you can. THE COURT: I can’t.

I could not justify the use of s. 613(1)(b)(iii) under these circumstances.

For these reasons, I would allow the appeal and restore the verdict of the jury and the sentence of the learned trial judge.

Appeal dismissed, RITCHIE, SPENCE and LASKIN JJ. dissenting.

Solicitors for the appellant: Hill, Klassen, McLellan & Ball, Estevan.

Solicitor for the respondent: The Attorney General of Saskatchewan, Regina.