R. v. Landry, [1991] 1 SCR 99

R. v. Landry, [1991] 1 S.C.R. 99

 

Her Majesty The Queen    Appellant

 

v.

 

Pierre Landry                      Respondent

 

Indexed as:  R. v. Landry

 

File No.:  21217.

 

1990:  May 29; 1991:  January 25.

 

Present:  Lamer C.J.* and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Cory and McLachlin JJ.

 

on appeal from the court of appeal for quebec

 

    Criminal law ‑‑ Defences ‑‑ Insanity ‑‑ Court of Appeal setting aside accused's conviction for murder and substituting verdict of not guilty by reasons of insanity ‑‑ Whether Court of Appeal erred in applying the word "wrong" in the sense of "morally wrong" to the notion of the "quality of the act" in s. 16(2)  of the Criminal Code  ‑‑ Whether Court of Appeal erred in applying s. 686(1)(d) of the Code.

 

    Constitutional law ‑‑ Charter of Rights  ‑‑ Fundamental justice ‑‑ Accused charged with murder raising insanity defence ‑‑ Court of Appeal relying on s. 7  of Charter  to expand insanity defence to include situations where "disease of the mind" affects motive or moral justification of accused in committing criminal act ‑‑ Whether Court of Appeal erred ‑‑ Canadian Charter of Rights and Freedoms, s. 7  ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 16(2) .

 

    The accused was charged with first degree murder.  At trial, he conceded killing the victim but raised the defence of insanity pursuant to s. 16  of the Criminal Code .  Uncontradicted evidence was given indicating that the accused suffered from a severe psychosis.  He believed at the time of the murder that he was acting on God's orders to kill Satan.  The accused knew that murder was a crime but believed, nevertheless, that the act was necessary in order to fulfill his Divine mission.  The trial judge instructed the jury to consider the insanity defence, stating that the accused should not be convicted if he lacked the capacity, because of disease of the mind, to appreciate the nature or quality of his act or to know that the act was legally wrong.  The jury rejected the insanity defence and convicted the accused.  The Court of Appeal set aside the accused's conviction and substituted a verdict of not guilty by reason of insanity.  The Court held that the "appreciation of the quality of an act" for the purposes of the first branch of s. 16(2) involves an appreciation of the moral wrongfulness of the act.  The Court further held that, in view of s. 7  of the Canadian Charter of Rights and Freedoms , s. 16 must be interpreted in a sufficient broad manner in order to offer a defence to the accused in this case.

 

    Held:  The appeal should be dismissed.

 

    Per Lamer C.J. and Wilson, La Forest, Sopinka and Cory JJ.:  In taking into account the accused's inability to know the moral wrongfulness of the act under the first branch of the test under s. 16(2) of the Code, that is, as part of appreciating the "nature or quality" of the act, the Court of Appeal interpreted s. 16(2) in a manner that clearly contradicted prior judgments of this Court.  The first branch of the s. 16(2) test only protects an accused who, because of a disease of the mind, was incapable of appreciating the physical consequences of his act.  The Court of Appeal erred also in using s. 7  of the Charter  to modify the established interpretation of this statutory provision.  However, the accused's acquittal is justified under the second branch of s. 16(2).  It was established at trial and accepted by the Court of Appeal that the accused suffered from a disease of the mind to the extent that he was rendered incapable of knowing that the act was morally wrong in these circumstances.  Given that the majority judgment of this Court in Chaulk redefined the word "wrong" in s. 16(2) to mean "morally wrong" rather than "legally wrong", the accused should have been acquitted by reason of insanity.

 

    Although basing its decision on incorrect reasons, the Court of Appeal properly exercised its discretion under s. 686(1)(d) of the Code.  If the jury had been properly directed in accordance with Chaulk, this Court is satisfied that a verdict of not guilty by reason of insanity would have resulted.

 

    Per L'Heureux‑Dubé and McLachlin JJ.:  The Court of Appeal erred in its interpretation of the first branch of s. 16(2).  The first branch refers only to an incapacity to appreciate the physical character of and the physical consequences which flow from an act or omission.  Further, while the Code provisions must be interpreted in accordance with Charter  values, the Court of Appeal erred in using s. 7  of the Charter  to effectively re‑interpret the first branch of s. 16(2) in order to achieve a result which is inconsistent with previous decisions of this Court.

 

    The accused's claim of incapacity in this case is only relevant to the second branch of s. 16(2) ‑‑ incapacity to know that an act or omission is wrong.  For the reasons given by McLachlin J. in Chaulk, the inquiry for the second branch is whether the accused is incapable of knowing that an act or omission is wrong, in the sense of an act or omission that he or she ought not to do.  Following the trial judge's instructions, the jury rejected the claim of insanity under both branches of s. 16(2).  The jury determined that the accused had the capacity to know that his act was one which he ought not to do in law.  The jury's verdict, therefore, should not be disturbed. It follows that this appeal would have been allowed but, given the majority judgment of this Court in Chaulk, which is binding, it must be dismissed.

 

Cases Cited

 

By Lamer C.J.

 

    Applied:  R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. Mailloux, [1988] 2 S.C.R. 1029; Cooper v. The Queen, [1980] 1 S.C.R. 1149; Kjeldsen v. The Queen, [1981] 2 S.C.R. 617; R. v. Abbey, [1982] 2 S.C.R. 24;  referred to:  Schwartz v. The Queen, [1977] 1 S.C.R. 673.

 

By Sopinka J.

 

    Applied: R. v. Chaulk, [1990] 3 S.C.R. 1303.

 

By McLachlin J.

 

    Applied: R. v. Chaulk, [1990] 3 S.C.R. 1303; Cooper v. The Queen, [1980] 1 S.C.R. 1149; Kjeldsen v. The Queen, [1981] 2 S.C.R. 617; R. v. Abbey, [1982] 2 S.C.R. 24.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , s. 7 .

 

Criminal Code , R.S.C., 1985, c. C‑46 , ss. 16 , 686(1) (d) [formerly s. 613(1)(d)].

 

Authors Cited

 

Martin, G. A.  "Mental Disorder and Criminal Responsibility in Canadian Law".  In Stephen J. Hucker, Christopher D. Webster and Mark H. Ben‑Aron, eds., Mental Disorder and Criminal Responsibility.  Toronto:  Butterworths, 1981, 15.

 

    APPEAL from a judgment of the Quebec Court of Appeal (1988), 26 Q.A.C. 194, 48 C.C.C. (3d) 552, allowing the accused's appeal from his conviction on a charge of first degree murder and substituting a verdict of not guilty by reason of insanity. Appeal dismissed.

 

    Denis Dionne and Paul Roy, for the appellant.

 

    Martin Tremblay, for the respondent.

 

//Lamer C.J.//

 

    The judgment of Lamer C.J. and Wilson, La Forest and Cory JJ. was delivered by

 

    Lamer C.J. -- The present appeal is concerned with the interpretation of s. 16(2) of the insanity provisions contained in the Criminal Code , R.S.C., 1985, c. C-46 .  More specifically, this Court has been asked to consider whether it is necessary for an accused, in order to be capable of "appreciating the nature or quality of an act or omission" for the purposes of s. 16(2), to have the capacity to understand the moral wrongfulness of the act.  This appeal also raises the issue of whether the Court of Appeal erred in overturning the conviction at trial and finding the respondent not guilty by reason of insanity pursuant to s. 686(1)(d) (formerly s. 613(1)(d)).

 

Facts

 

    On April 21, 1984, Michel Fortin was found dead in his home, the victim of two gun‑shot wounds in the head.  The respondent was arrested the following day and questioned by police with respect to the incident.  He had been charged and convicted, approximately three years earlier, of assaulting the victim.  The respondent refused to speak to any police officers and was released several days later.

 

    Almost four months later, in response to renewed questioning by the police, the respondent confessed to having caused the death of Mr. Fortin.  He admitted that he had planned the event:  he had acquired a firearm for this purpose some time earlier and had entered the home of the victim on the day in question with the weapon concealed on his person. After firing two shots at the victim's head, he left the premises, threw the firearm in a river and returned to his own home.

 

    The respondent was convicted of first degree murder by a jury in the Superior Court of Quebec.  The respondent conceded that he had committed the physical act of killing Mr. Fortin, but argued that he should be found not guilty by reason of insanity pursuant to s. 16  of the Criminal Code .  Uncontradicted evidence was given at trial that the respondent suffered from a severe psychosis that made him believe that he was God and had a mission to destroy all forces of evil on Earth.  He suffered from the further delusion that Mr. Fortin was "Satan" and that he had to kill him in order to rid the Earth effectively of all evil forces.  The respondent knew that murder was a crime and that he would in all likelihood be arrested for this act, but he believed nevertheless that the act was necessary in order to fulfill his Divine mission.  The trial judge instructed the jury to consider the insanity defence, stating that the respondent should not be convicted if he lacked the capacity, because of disease of the mind, to appreciate the nature or quality of his act or to know that the act was legally wrong.

 

    The Court of Appeal of Quebec unanimously set aside the respondent's conviction and substituted a verdict of not guilty by reason of insanity: (1988), 48 C.C.C. (3d) 552, 26 Q.A.C. 194 (hereinafter cited to C.C.C.).

 

Relevant Statutory Provisions

 

Criminal Code 

 

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

 

    (2)  For the purposes of this section, a person is insane when the person is in a state of natural imbecility or has disease of the mind to an extent that renders the person 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 that person to believe in the existence of a state of things that, if it existed, would have justified or excused the act or omission of that person.

 

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

 

    686. (1)  On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand trial, or against a special verdict of not guilty on account of insanity, the court of appeal

 

                                                                        . . .

 

(d) may set aside a conviction and find the appellant not guilty on account of insanity and order the appellant to be kept in safe custody to await the pleasure of the lieutenant governor where it is of the opinion that, although the appellant committed the act or made the omission charged against him, he was insane at the time the act was committed or the omission was made, so that he was not criminally responsible for his conduct.

 

Canadian Charter of Rights and Freedoms 

 

    7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

Lower Court Judgments

 

Quebec Superior Court

 

    The respondent was tried before Ducros J., sitting with a jury, in the Superior Court.  He was convicted of first degree murder.  The only defence raised at trial was insanity and this defence was rejected by the jury.

 

Quebec Court of Appeal (per Beauregard, Nichols and Tourigny JJ.A.)

 

    The respondent appealed his conviction to the Quebec Court of Appeal on the grounds that the trial judge erred in law in refusing to admit into evidence a psychiatric report, that "inflammatory" statements by Crown counsel caused irreparable prejudice to the respondent and to his right to make a full defence, that the trial judge failed to direct the jury adequately on s. 16 as well as on certain ancillary matters, and that the verdict rendered by the jury was unreasonable in light of the evidence.

 

    The Court agreed that the respondent suffered from a disease of the mind at the time he committed the offence.  The principal question, therefore, was whether the mental disorder rendered him incapable of appreciating the nature or quality of his act or of knowing that the act was wrong.

 

    Beauregard J.A. did not dispute the fact that the respondent was aware that he was committing murder and that murder was illegal. These facts, however, did not in his view preclude the respondent from invoking s. 16 since he believed at the time that he was acting on God's orders to kill Satan.  The trial judge's direction to the jury did not explain adequately that the respondent should be acquitted if it was believed that he suffered from such a delusion.  Citing an excerpt from a lecture given by Martin J.A. of the Court of Appeal of Ontario, Beauregard J.A. believed that, given the delusion from which he suffered, the respondent could not have appreciated the nature and quality of the act.  In his lecture, Martin J.A made the following comments with respect to the consequences that would flow from defining "wrong" in s. 16(2) to mean "legally wrong" rather than "morally wrong":

 

    In the following example given by Stephen it might perhaps make a difference [History of the Criminal Law of England (1883), Vol. II, p. 149]:

 

    A kills B, knowing that he is killing B, and knowing that it is illegal to kill B, but under an insane delusion that the salvation of the human race will be obtained by his execution for the murder of B, and that God has commanded him (A) to produce that result by these means.  A's act is a crime if the word "wrong" means illegal.  It is not a crime if the word "wrong" means morally wrong.

 

It would appear likely, however, that a jury, if it was satisfied that the accused was acting under a delusion such as that described, would probably conclude that he was incapable of "appreciating" the nature and quality of the act as that word has been interpreted by the Canadian courts.

 

(G. A. Martin, "Mental Disorder and Criminal Law Responsibility in Canadian Law", in S. J. Hucker, C. D. Webster and M. H. Ben‑Aron, eds., Member Disorder and Criminal Responsibility (1981), 15, at p. 21.)

 

Beauregard J.A. reasoned from the concluding remarks of this statement that s. 16(2) must not be interpreted in such a restrictive manner as to convict an accused such as the person described by Martin J.A. and, therefore, the respondent.  Moreover, such an interpretation would contravene s. 7  of the Canadian Charter of Rights and Freedoms  (at p. 563):

 

    [TRANSLATION] If s. 7 of the Canadian Charter of Rights and Freedoms  prevents Parliament from permitting a person to be stigmatized by a conviction for murder other than under a legal provision which is in conformity with the principles of fundamental justice, and if one must necessarily interpret laws in conformity with our Constitution, I am of the opinion that s. 16 must be interpreted in a sufficiently broad manner in order to offer a defence to the appellant in the present case.

 

    Landry who knew that he was killing Fortin and who knew that it was unlawful, is guilty of murder despite his mental disorder.  But, even if Landry knew the nature and the consequences of his act and even if he knew that it was unlawful, he was incapable of appreciating the nature and quality of his act if, at that moment, he thought that he was God and that Fortin was Satan.  This is an error in judgment arising from the confusion between Landry and God, and Fortin and Satan.

 

    Nichols J.A. concurred in the conclusions reached by Beauregard J.A.  He noted that there is no doubt, as a result of the judgments of this Court in Schwartz v. The Queen, [1977] 1 S.C.R. 673, and Cooper v. The Queen, [1980] 1 S.C.R. 1149, that the word "wrong" as used in the second branch of s. 16(2) means "legally wrong".  He held, however, that the appreciation of the quality of an act for the purposes of the first branch of s. 16(2) involves an appreciation of the moral wrongfulness of the act (at pp. 564-65):

 

    [TRANSLATION]  When one says that an act is wrong, one indubitably refers to the quality of the act.

 

                                                                        . . .

 

    When one says that the word "wrong" must be interpreted as meaning legally wrong, one must then ask whether the law makes the quality of the act, the determinative criterium.

 

    To ask the question is to answer it.  It suffices to read s. 16(2) in its entirety without attempting to compartmentalize each of the words of the section as if they should necessarily have different meanings.  The word "wrong" must be read having regard to the quality of the act.

 

    In the first part of s. 16(2), the disease of the mind, in order to justify a defence of insanity, must be one which, on a balance of probabilities, renders the accused incapable of appreciating -- among others -- the quality of his act.  In a second part of the section, the disease of the mind may also justify a defence of insanity if it renders the accused incapable of knowing that his act is wrong. [Emphasis in original.]

 

    In light of the evidence at trial, the Court of Appeal overturned the conviction and entered a verdict of not guilty by reason of insanity under former s. 613(1) (d) of the Criminal Code .

 

    The appellant now appeals the decision of the Court of Appeal to this Court.

 

Issues

 

    The appellant frames the issues as follows:

 

[TRANSLATION]

1.Did the Court of Appeal of Quebec err in law in applying the word "wrong" in the sense of "morally wrong" to the notion of the "quality of the act" in s. 16(2)  of the Criminal Code ?

 

2.Did the Court of Appeal of Quebec err in law in relying on s. 7  of the Canadian Charter of Rights and Freedoms  to expand the insanity defence to include situations where the "disease of the mind" affects the motive or moral justification of an accused in committing a criminal act?

 

3.Did the Court of Appeal of Quebec err in law in applying former s. 613(1)(d) [now s. 686(1)(d)] of the Criminal Code  in this instance?

 

Analysis

 

    In my view, the first two issues raised in this appeal are effectively resolved by the judgment of this Court in R. v. Chaulk, [1990] 3 S.C.R. 1303.

 

    In Chaulk, this Court reconsidered its interpretation of the word "wrong" in s. 16(2).  In Schwartz, supra, the majority of this Court held that "wrong" for the purposes of s. 16(2) means "legally wrong".  The trial judge and the Court of Appeal in the case at bar relied on our decision in Schwartz in interpreting the second arm of s. 16(2) and thus applied that test in a restrictive manner that excluded any consideration of the respondent's capacity to know the moral wrongfulness of his act.  As a result,

 Nichols J.A. felt compelled to take into account the respondent's inability to know the moral wrongfulness of the act under the first branch of the test, that is, as part of appreciating the "nature or quality" of the act.  Furthermore Beauregard J.A. invoked s. 7  of the Charter  in order to extend the scope at s. 16(2) to protect an accused who is incapable of appreciating the moral wrongfulness of an act.

 

    I am unable to support the reasoning that led to the Court of Appeal's conclusion.  The Court of Appeal interpreted s. 16(2) in a manner that clearly contradicted prior judgments of this Court.  In accordance with our decisions in Cooper v. The Queen, supra, Kjeldsen v. The Queen, [1981] 2 S.C.R. 617, and R. v. Abbey, [1982] 2 S.C.R. 24, the first branch of the s. 16(2) test protects an accused who, because of a disease of the mind, was incapable of appreciating the physical consequences of his act.  The Court of Appeal erred in using s. 7  of the Charter  to modify the established interpretation of this statutory provision.

 

    Despite my disagreement with the reasons of the Court of Appeal, I believe that it reached the correct result.  It is my opinion that if the Court of Appeal had had the benefit of this Court's judgment in Chaulk, it would have reached the identical conclusion for different reasons.  It was established at trial and accepted by the Court of Appeal that the respondent in this case suffered from a disease of the mind to the extent that he was rendered incapable of knowing that the act was morally wrong in the circumstances.  He suffered from the delusion that he was God and that he had a Divine mission to kill the victim, Mr. Fortin.  As a result, for the reasons given by this Court in Chaulk, I agree with the Court of Appeal that the respondent should have been acquitted by reason of insanity.  This acquittal, however, is justified under the second branch of s. 16(2) and not, as the Court of Appeal decided, under the first branch.

 

    The appellant submits that the Court of Appeal erred in law by substituting a verdict of not guilty by reason of insanity under former s. 613(1)(d) of the Code in this instance.  In R. v. Mailloux, [1988] 2 S.C.R. 1029, I described the jurisdiction conferred on a court of appeal by s. 613 (at pp. 1042‑44):

 

    I am therefore of the view that s. 613(1)(a) governs the determination in appeal of issues of insanity and that s. 613(1)(d) operates in two ways:  first, to enable a court of appeal to determine the issue as would have a trial court when the issue has not been raised below; and second, to enable the court, whether acting under s. 613(1)(a) or s. 613(1)(d), to enter, in the appropriate case, a verdict of "not guilty on account of insanity".  I am supported in this view by the manner in which courts of appeal throughout Canada have exercised their jurisdiction under s. 613(1)(a) and (d) as regards issues of insanity in the context of appeals against conviction, which was usefully summarized by respondent's counsel in its factum, substantially as follows:

 

1.When raised for the first time in appeal the court will examine the issue and if it is satisfied that the appellant was insane at the time of the wrongful act, it will exercise its power under s. 613(1)(d) to quash the conviction and to substitute the special verdict of not guilty by reason of insanity.

 

2.If insanity has been raised at trial and there has been an error of law in the form of a misdirection on the issue and,

 

a)if the court is satisfied that a proper direction would have resulted in a verdict of not guilty by reason of insanity, it will substitute that verdict;

 

b)if the court is not satisfied that, absent the misdirection, the inevitable verdict would have been not guilty be reason of insanity, it will decline to act under s. 613(1)(d) but will order a new trial.

 

3.If there has been no misdirection, but the verdict is either unreasonable or cannot be supported by the evidence, the court will set aside the conviction and substitute the special verdict provided for under s. 613(1)(d).

 

4.If there has been no error of law and the verdict cannot be said to be unreasonable or unsupported by the evidence, the court will decline to interfere with the verdict.  [Citations omitted.]

 

    In my respectful view, the Court of Appeal, although basing its decision on incorrect reasons, correctly exercised its discretion under former s. 613(1)(d) of the Code.  The facts of this case bring into play the second principle that I summarized in Mailloux.  The defence of insanity was raised at trial and, as discussed above, there was an error of law in the form of a misdirection on the issue:  the jury was directed that the respondent could not succeed under the second branch of s. 16(2) if it was found that he had the capacity to know that his act was a legal wrong.  I am satisfied that if the jury had been properly directed in accordance with this Court's judgment in Chaulk, a verdict of not guilty by reason of insanity would have been the result.  Since there was in fact a misdirection, the third principle summarized in Mailloux does not apply and it is not necessary to ask specifically whether the verdict was unreasonable or cannot be supported by the evidence.  In my view, the Court of Appeal acted within the guidelines set out in Mailloux.  I would, on this basis, affirm the decision of the Court of Appeal.

 

    For these reasons, I would dismiss the appeal and confirm the verdict of not guilty by reason of insanity entered by the Court of Appeal pursuant to former s. 613(1) (d) of the Criminal Code .

 

//McLachlin J.//

 

    The reasons of L'Heureux-Dubé and McLachlin JJ. were delivered by

 

    McLachlin J. -- This is one of a series of appeals concerned with the insanity provisions in s. 16  of the Criminal Code , R.S.C., 1985, c. C-46 .  I explained in my reasons in R. v. Chaulk, [1990] 3 S.C.R. 1303, how my views on s. 16 differ from those of my colleagues Lamer C.J. and Wilson J.  In view of the peculiar circumstances of this case, including the fact that it was heard on the same day as Chaulk and that the result for the accused is not affected, I am issuing these reasons notwithstanding the prior issue of judgment in Chaulk, which is binding.  Consistent with the position I adopted in Chaulk, therefore, I will make a brief comment on the issues raised by this case.

 

    Lamer C.J. sets out the issues in this case as follows:

 

    [TRANSLATION]

 

1.Did the Court of Appeal of Quebec err in law in applying the word "wrong" in the sense of "morally wrong" to the notion of the "quality of the act" in s. 16(2)  of the Criminal Code ?

 

2.Did the Court of Appeal of Quebec err in law in relying on s. 7 of the Canadian Charter of Rights of Freedoms to expand the insanity defence to include situations where the "disease of the mind" affects the motive or moral justification of an accused in committing a criminal act?

 

3.Did the Court of Appeal of Quebec err in law in applying former s. 613(1)(d) [now s. 686(1)(a)] of the Criminal Code  in this instance?

 

    On the first issue, I agree with Lamer C.J. that the Court of Appeal erred in its interpretation of the first branch of s. 16(2), i.e., incapacity to appreciate the nature and quality of an act or omission.  This Court has made it clear on a number of occasions that the first branch of s. 16(2) refers to an incapacity to appreciate the physical character of and the physical consequences which flow from an act or omission:  Cooper v. The Queen, [1980] 1 S.C.R. 1149; Kjeldsen v. The Queen, [1981] 2 S.C.R. 617; R. v. Abbey, [1982] 2 S.C.R. 24.  Collateral factors, such as an accused's emotional attributes (Kjeldsen) or his or her capacity to appreciate the penal consequences associated with an act or omission (Abbey), are not relevant under the first branch of s. 16(2).

 

    Turning to the second issue referred to by Lamer C.J., the Court of Appeal's reference to s. 7  of the Canadian Charter of Rights and Freedoms  cannot serve to alter the position outlined above.  The sole issue in this case is whether the accused is insane within the terms of s. 16(2) of the Code, and, as stated above, this Court has established the appropriate test for the first branch of s. 16(2) in Cooper, Kjeldsen, and Abbey.  I do not dispute that Criminal Code  provisions must be interpreted in accordance with Charter  values, but I do disagree with Beauregard J.A.'s use of s. 7 to effectively re-interpret the first branch of s. 16(2) in order to achieve a result which is inconsistent with previous decisions of this Court.

 

    I agree with Lamer C.J. that the respondent's claim of incapacity is only relevant to the second branch of s. 16(2), i.e., incapacity to know that an act or omission is wrong.  For the reasons I gave in Chaulk, I take the view that the proper inquiry for the second branch of s. 16(2) is whether the accused is incapable of knowing that an act or omission is wrong, in the sense of an act or omission that he or she ought not to do.  I do not, therefore, share Lamer C.J.'s view that "wrong" in s. 16(2) means only "morally wrong".

 

    At trial the respondent was convicted of first degree murder by a jury in the Superior Court of Quebec.  The trial judge instructed the jury that an accused is insane within the terms of s. 16(2)  of the Criminal Code  if, due to disease of the mind, he or she lacks the capacity to appreciate the nature and quality of an act or omission or to know that the act or omission is legally wrong.  In convicting the respondent, the jury thus rejected the claim of insanity under both branches of s. 16(2).  With respect to the second branch of s. 16(2), the jury determined that the respondent had the capacity to know that his act was one which he ought not to do in law.  That capacity is sufficient to remove the respondent from the terms of the second branch of s. 16(2); the respondent is not someone who is incapable of knowing that his act was wrong.

 

    Accordingly, I am of the view that the jury's verdict cannot be disturbed.  I consider it unnecessary to address the issue with respect to s. 686(1) (d) of the Criminal Code  (formerly s. 613(1)(d)).

 

    I would allow the appeal and restore the verdict at trial, were I not bound by Chaulk.

 

//Sopinka J.//

 

    The following are the reasons delivered by

 

    Sopinka J. -- The issues in this appeal were settled by the judgment of the majority in R. v. Chaulk, [1990] 3 S.C.R. 1303.  I therefore concur with Chief Justice Lamer.

 

    Appeal dismissed.

 

    Solicitor for the appellant:  Denis Dionne, Alma.

 

    Solicitor for the respondent:  Martin Tremblay, Chicoutimi.