R. v. Ratti, [1991] 1 SCR 68

R. v. Ratti, [1991] 1 S.C.R. 68

 

Kamal Ratti                                Appellant

 

v.

 

Her Majesty The Queen    Respondent

 

and

 

The Attorney General of Canada,

the Attorney General of Quebec,

the Attorney General for New Brunswick,

the Attorney General of Manitoba

and the Attorney General for Alberta                                                                             Interveners

 

Indexed as:  R. v. Ratti

 

File No.:  21146.

 

1990:  May 30; 1991:  January 25.

 

on appeal from the court of appeal for ontario

 

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

 

    Constitutional law ‑‑ Charter of Rights  ‑‑ Presumption of innocence ‑‑ Accused presumed sane until contrary is proved ‑‑ Insanity to be proved by accused on balance of probabilities ‑‑ Whether s. 16(4) of Criminal Code  infringes s. 11(d)  of Canadian Charter of Rights and Freedoms  ‑‑ If so, whether s. 16(4) justifiable under s. 1  of Charter .

 

    Criminal law ‑‑ Defences ‑‑ Insanity ‑‑ Person insane under s. 16(2)  of Criminal Code  if suffering from disease of the mind  rendering him incapable of knowing act is wrong ‑‑ Trial judge instructing jury that the word "wrong" means "legally wrong" ‑‑ Accused's murder conviction upheld by Court of Appeal ‑‑ Whether trial judge misdirected jury ‑‑ If so, whether Court of Appeal should have substituted a verdict of not guilty by reason of insanity or ordered a new trial ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 16(2) , 686(1) (a), (2) (b).

 

    Criminal law ‑‑ Evidence ‑‑ Expert evidence ‑‑ Expert psychiatric testimony on issue of accused's insanity ‑‑ Whether trial judge erred in instructing jury that it was unsafe to arrive at verdict based on expert evidence alone.

 

    Criminal law ‑‑ Evidence ‑‑ Fresh evidence ‑‑ Whether Court of Appeal erred in refusing to consider certain medical reports as fresh evidence ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 683(1) (d).

 

    The accused killed his wife and was charged with first degree murder.  At trial, the accused raised the defence of insanity.  The defence psychiatrists testified that the accused suffered from paranoid schizophrenia at the time the act was committed.  This mental disorder caused delusions.  He heard voices telling him that he and his family were cursed and that they had to return to India.  Although the accused was aware at the time that he was killing his wife, he believed that she would be corrupted if she did not return to India with him and that it was therefore necessary to kill her.  Evidence was presented by the Crown at trial that challenged appellant's credibility with respect to both his mental health at the time of the incident and his awareness that what he was doing was wrong.  During their deliberations, the jurors asked the trial judge whether the capacity to know that an act is wrong for the purposes of s. 16(2)  of the Criminal Code  means the  capacity to know that it is morally wrong, legally wrong, or both.  The trial judge responded that "knowing an act is wrong" meant legally wrong.  The jury rejected the defence and convicted the accused.  The Court of Appeal affirmed the conviction.

 

    Held:  The appeal should be allowed and a new trial ordered.

 

(1) Presumption of Sanity/Presumption of Innocence

 

    Per Lamer C.J. and Wilson, La Forest, Sopinka and Cory JJ.:  In view of the majority judgment of this Court in Chaulk, s. 16(4) of the Criminal Code  infringes s. 11( d )  of the Charter  but constitutes a reasonable limit under s. 1  of the Charter .

 

    Per L'Heureux‑Dubé and McLachlin JJ.:  For the reasons given by McLachlin J. in Chaulk, the presumption of sanity in s. 16(4) of the Code, reflecting as it does the fundamental pre‑condition of criminal responsibility and punishment, does not violate s. 11( d )  of the Charter .

 

(2) Meaning of "Wrong"

 

    Per Lamer C.J. and Wilson, La Forest, Sopinka and Cory JJ.:  Given that the majority judgment of this Court in Chaulk redefined the word "wrong" in s. 16(2) of the Code to mean "morally wrong" rather than "legally wrong", the jury was misdirected on the issue of insanity.  A new trial should be ordered under s. 686(2)(b) of the Code because this Court is not satisfied that, in the absence of the misdirection, the inevitable verdict would have been not guilty by reason of insanity.  In accordance with Chaulk, the trier of fact must be directed to consider whether the accused was rendered incapable, by reason of disease of the mind or natural imbecility, to know that his act was morally wrong in the circumstances.  It is not sufficient to decide that the accused's act was a result of his delusion.  Even if the act was motivated by the delusion, the accused will be convicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society.

 

    Per L'Heureux‑Dubé  and McLachlin JJ.:  For the reasons given by McLachlin J. in Chaulk, the jury, having been instructed by the trial judge that "wrong" in s. 16(2) of the Code means "legally wrong", would properly have considered whether the act was one which the accused was capable of knowing that he ought not to do.  There was therefore no error of law which would justify interference by this Court with the jury's guilty verdict.  The jury's verdict was neither unreasonable nor unsupported by the evidence within the terms of s. 686(1)(a)(i) of the Code. It follows that this appeal would have been dismissed but, given the majority judgment of this Court in Chaulk, which is binding, it must be allowed and a new trial ordered.

 

(3) Expert Evidence

 

    The trial judge did not err in instructing the jury that it was unsafe for a jury to arrive at a verdict based on expert evidence alone.  In the context of discussing the weight that should be attached to expert evidence in general and the role of the jury as the sole trier of fact, the trial judge was correct in advising the jury that they were not bound by the expert psychiatric testimony and that its probative value was to be assessed in the same manner as any other testimony.

 

(4) Fresh Evidence

 

    Per Lamer C.J. and Wilson, La Forest, Sopinka and Cory JJ.:  In view of this Court's decision to order a new trial, it is unnecessary to determine whether or not the Court of Appeal erred in failing to consider certain medical reports as fresh evidence pursuant to s. 683(1)(d) of the Code.

 

    Per L'Heureux‑Dubé and McLachlin JJ.:  The Court of Appeal did not err in refusing to consider certain reports as fresh evidence.  The court correctly applied the principles set out by this Court in Palmer.

 

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; referred to:  Schwartz v. The Queen, [1977] 1 S.C.R. 673.

 

By Wilson J.

 

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

 

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;  Palmer v. The Queen, [1980] 1 S.C.R. 759.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , ss. 1 , 11( d ) .

 

Constitution Act, 1982 .

 

Criminal Code , R.S.C., 1985, c. C‑46 , ss. 16 , 683(1) (d) [formerly s. 610(1)(d)], 686(1)(a)(i), (d) and (2)(b) [formerly s. 613(1)(a)(i), (d) and (2)(b)].

 

    APPEAL from a judgment of the Ontario Court of Appeal rendered November 2, 1988, dismissing the accused's appeal from his conviction on a charge of first degree murder.  Appeal allowed and new trial ordered.

 

    Irwin Koziebrocki, for the appellant.

 

    R. Libman, for the respondent.

 

    S. R. Fainstein, Q.C., for the intervener the Attorney General of Canada.

 

    Jacques Gauvin, for the intervener the Attorney General of Quebec.

 

    Bruce Judah, for the intervener the Attorney General for New Brunswick.

 

    George Dangerfield, Q.C., for the intervener the Attorney General of Manitoba

 

    Michael Watson, for the intervener the Attorney General for Alberta.

 

//Lamer C.J.//

 

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

 

    Lamer C.J. -- This case involves a constitutional challenge, under s. 11( d )  of the Canadian Charter of Rights and Freedoms , to the reverse onus clause contained in s. 16(4) of the insanity provisions contained in the Criminal Code , R.S.C., 1985, c. C-46 .  There are other issues specific to the appeal that are set out further in these reasons.

 

Facts

    On the night of May 2, 1986, or early in the morning of May 3, 1986, the appellant caused the death of his wife by striking her several times on the side of the head with an axe.  The appellant was subsequently convicted of first degree murder by a jury in the High Court of Justice of Ontario.

 

    Much of the evidence at trial came from an agreed statement of facts.  It was admitted by the appellant that he had made arrangements, several days before the incident, to return to his native country, India, along with his two children.  To this end, he purchased three airline tickets and collected them on May 2, 1986.  He also purchased a number of other items during this period, including an axe and a suitcase.  The appellant admitted that he and his wife argued over a number of matters several days before the incident, to the extent that his wife left their home in order to stay with relatives for a short time, returning only on the afternoon of May 2, 1986.  The argument that caused her to leave was precipitated in part by the appellant's decision to quit his job.  The spouses had also disagreed on numerous occasions as to whether the family should return to India.

 

    Immediately after killing his wife, the appellant tried but failed to enlist the help of friends in order to remove her body from the home. He finally severed the body into smaller parts with an axe and disposed of them in a nearby river.  He cleaned the premises and later made attempts to enter the United States.

 

    The sole defence raised by the appellant at trial was the insanity defence under s. 16  of the Criminal Code .  Expert psychiatric evidence was given at trial that the appellant suffered from paranoid schizophrenia at the time that the act was committed.  The mental disorder caused the appellant to become deluded that he was a prophet who had been called upon by God to lead the world in forming an international government; the disorder also caused him to hear voices telling him that he and his family were cursed and that they must return to India.  Although the appellant was aware at the time that he was killing his wife and likely knew that the act was a crime, he believed that his wife would be corrupted if she did not return to India with him and that it was therefore necessary to kill her.  The evidence also suggested that the appellant believed that his wife would be "reborn" in India as a living person.

 

    An appeal to the Ontario Court of Appeal was unanimously dismissed on November 2, 1988.

 

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) [formerly s. 613(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

 

(a) may allow the appeal where it is of the opinion that

 

(i) the verdict should be set aside on the ground that it is  unreasonable or cannot be supported by the evidence,

 

                                                                        . . .

 

(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;

 

    (2)  Where a court of appeal allows an appeal under paragraph    (1)(a), it shall quash the conviction and

 

(a) direct a judgment or verdict of acquittal to be entered; or

 

(b) order a new trial.

 

Canadian Charter of Rights and Freedoms 

 

    1.  The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

11.  Any person charged with an offence has the right

 

                                                                         ...

 

(d)  to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

 

Lower Court Judgments

 

Ontario High Court of Justice

 

    The appellant was tried before Callaghan A.C.J., sitting with a jury, in the High Court of Justice, and was convicted of first degree murder.  The only defence raised at trial, the insanity defence, was rejected by the jury.  The appellant was sentenced to life imprisonment with no eligibility for parole for 25 years.

 

Ontario Court of Appeal (Dubin A.C.J.O., for the Court)

 

    The appellant appealed his conviction to the Ontario Court of Appeal on the grounds that the trial judge erred in law by refusing to enter certain medical reports as exhibits in the trial, that the trial judge erred in law by refusing to permit the jury to have certain medical reports before them during their deliberations, that the trial judge erred in law in his instruction to the jury as to the relationship between s. 16 and the definition of first degree murder, and that the verdict was unreasonable and unsupported by the evidence.

 

    The Court of Appeal found no error in the trial judge's charge to the jury and concluded that the verdict rendered was reasonable:

 

    The defence relied on two psychiatrists, well qualified in their field and well known to the justice system, and there is no doubt on the evidence, apart from the psychiatric evidence itself, that the appellant suffers from some disease of the mind. However, the issue of insanity in this case was whether the disease of the mind fell within the definition of s. 16  of the Criminal Code .

 

    A verdict of not guilty by reason of insanity would have been open to this jury, but unlike many cases of this nature, there was a factual and an evidentiary basis upon which the jury could reject the psychiatric evidence and find that the disease of the mind was not one which would warrant a finding of not guilty by reason of insanity.

 

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

 

Issues

 

    The following constitutional questions were stated by Dickson C.J. on July 13, 1989:

 

1.Is s. 16(4) of the Criminal Code  inconsistent with s. 11( d )  of the Canadian Charter of Rights and Freedoms ?

 

2.If the answer to question 1 is yes, is s. 16(4) justified by s. 1  of the Canadian Charter of Rights and Freedoms  and therefore not inconsistent with the Constitution Act, 1982 ?

 

    The appellant raises four further issues in this Court:

 

3.Did the Ontario Court of Appeal err in law in refusing to hold that the Court had the power, pursuant to section 613(1)(d) (now section 686(1)(d)) of the Criminal Code of Canada , to review the evidence apart from the jury finding and substitute a finding of not guilty by reason of insanity?

 

4.Did the Ontario Court of Appeal err in law in failing to hold that the verdict of guilty of the offence of first degree murder was unreasonable and cannot be supported by the evidence pursuant to section 613(1)(a)(i) (now 686(1)(a)(i)) of the Criminal Code  of Canada and that a finding of not guilty by reason of insanity should be substituted?

 

5.Did the Ontario Court of Appeal err in law in failing to hold that the learned trial Judge erred in instructing the jury that it was unsafe for a jury to arrive at a verdict based on the testimony of experts alone?

 

6.Did the Ontario Court of Appeal err in law in failing to consider upon appeal further medical reports dealing with the issue of the sanity of the Appellant?

 

Analysis

 

Constitutional Questions

 

    The constitutional questions have been fully canvassed in this Court's judgment in R. v. Chaulk, [1990] 3 S.C.R. 1303.  In Chaulk, I held that, although s. 16(4)  of the Criminal Code  infringes s. 11( d )  of the Charter , it constitutes a reasonable limit under s. 1  of the Charter  and, therefore, is not inconsistent with the Constitution Act, 1982 .  Accordingly, the first two grounds of appeal fail.  I now turn to a consideration of the other issues raised by the appellant.

 

Issues Nos. 3 and 4

 

    The appellant submits that the Court of Appeal erred in law by failing to substitute a verdict of not guilty by reason of insanity under former s. 613(1)(d) or former s. 613(1) (a)(i) of the Criminal Code .  The jurisdiction conferred on a court of appeal under s. 613(1) was described by this Court in R. v.  Mailloux, [1988] 2 S.C.R. 1029.  I stated 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 by 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 view, in light of the judgment of this Court in Chaulk, the facts of this case invoke the application of the second principle that I summarized in Mailloux.  In Chaulk, this Court reconsidered the meaning of "wrong" in s. 16(2).  The earlier decision of this Court in Schwartz v. The Queen, [1977] 1 S.C.R. 673, was overruled and "wrong" for the purposes of the second arm of s. 16(2) was defined to mean "morally wrong" and not "legally wrong". It is apparent that the trial judge relied on our decision in Schwartz in directing the jury with respect to the application of s. 16. He stated in his charge:

 

    Now there is an alternative in [s. 16]. Even if he did appreciate the nature and quality of what he was doing, by that definition it is also insanity if he was labouring under a disease of the mind that rendered him incapable of knowing his act was wrong and by "wrong", I mean that it was a criminal act or legally wrong.

 

There is no doubt that this definition was relevant to the jury. In the course of their deliberations, they asked the trial judge specifically whether the capacity to know that an act is wrong for the purposes of s. 16(2) means the  capacity to know that it is morally wrong, legally wrong, or both.  The trial judge responded:

 

    Now, you asked the question, does knowing an act is wrong mean morally wrong, legally wrong or both and the answer is no. When I talk about knowing an act is wrong, we mean that it was a criminal act, was legally wrong. Morality has nothing to do with it. Did he know what he was doing was a crime? That's the answer to that one.

 

    Given the reconsideration of the word "wrong" by this Court in Chaulk, it is my respectful opinion that the jury was misdirected on the issue of insanity.  The proper direction to the jury would have indicated that the appellant should be found not guilty by reason of insanity if, because of a disease of the mind, he lacked the capacity to know that his act was morally wrong in the circumstances.  The trial judge, of course, cannot be faulted since he relied on the decision of this Court in Schwartz, supra.  However, for the reasons given in Chaulk, our decision in Schwartz was not correct.

 

    I am not satisfied that, in the absence of a misdirection on the issue, the inevitable verdict would have been not guilty by reason of insanity.  On the one hand, the evidence adduced at trial suggests that the appellant did not know that the act of killing his wife was morally wrong in the circumstances.  The trial judge, in the course of his charge to the jury, summarized the testimony of an expert witness as to whether the appellant knew at the time that his act was legally wrong; the expert witness had testified to the effect that:

 

    At the time of the killing, however, he wouldn't realize it was legally wrong as he was in a state of delusional belief and was being instructed by voices from his guru.  He was under an hallucination at the time he was being told something had to be done and he was doing God's will.

 

The trial judge also summarized this aspect of the defence's case as follows:

 

    He was operating within a context such as to believe what he was doing was right even though he knew what he was doing was wrong in terms of what society would say.

 

    On the other hand, however, evidence was presented by the Crown at trial that challenged the credibility of the appellant with respect to both his mental health at the time of the incident and his awareness that what he was doing was wrong.

 

    Since I am not satisfied that, in the absence of a misdirection, the inevitable verdict would have been not guilty by reason of insanity, I would not substitute a verdict of not guilty by reason of insanity for the conviction, but would instead order a new trial.  In accordance with our decision in Chaulk, the trier of fact must be directed to consider whether the appellant was rendered incapable, by reason of disease of the mind or "natural imbecility", to know that his act was morally wrong in the circumstances.  It is not sufficient to decide that the appellant's act was a result of his delusion.  Even if the act was motivated by the delusion, the appellant will be convicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society.

 

    In view of the fact that this appeal is subject to the second principle discussed in Mailloux, it is not necessary to consider specifically the application of the third principle, namely, whether the verdict was unreasonable or was unable to be supported by the evidence even if there had not been a misdirection.

 

    For these reasons, I would allow the appeal pursuant to former s. 613(1)(a) and order a new trial pursuant to former s. 613(2) (b) of the Criminal Code .

 

Issue No. 5

 

    The appellant submits that the Court of Appeal erred in law by failing to hold that the trial judge misdirected the jury by instructing that it was unsafe to arrive at a verdict based on expert evidence alone. Specifically, the appellant's submission is directed at the following statement by the trial judge:

 

    The evidence of Drs. Malcolm and Rowsell is of particular importance in this case, as you can well imagine.  Psychiatry, like any other branch of medicine, is not an exact science.  An individual judgement is always a factor in psychiatric assessments. Like other witnesses you will simply have to compare the capacities of the two psychiatrists for observation and the abilities of each to draw their conclusions.

 

    It has been said in a criminal trial it is not safe for a jury to arrive at a verdict on expert evidence alone.  Please recall my earlier direction, you are the sole judges of the facts and in determining the facts you may believe all or none or only part of the evidence of the expert witnesses.  There is no distinction when applying that general principle which you apply to the evidence of ordinary witnesses, in applying it to the evidence of experts.

 

    In my view, the trial judge made no error in instructing the jury in this regard.  The statement cited above was made in the context of discussing the weight that should be attached to expert evidence in general and the role of the jury as the sole trier of fact.  The trial judge was entirely correct in advising the jury that they were not bound by the expert psychiatric testimony and that its probative value was to be assessed in the same manner as any other testimony. In this case, factual evidence with respect to the appellant's insanity was placed before the jury.  As a result, the jury was in a position to assess the weight that should be given to the testimony by considering whether it was supported by the facts.  The trial judge correctly advised the jury to consider the expert testimony in relation to the facts and that the testimony could be rejected if it was based upon factual assumptions with which they disagreed.

 

Issue No. 6

 

    The appellant submits that the Court of Appeal erred in law in failing to consider certain medical reports as "fresh evidence" pursuant to former s. 610(1)(d) (now s. 683(1)(d)) of the Criminal Code .  The medical reports sought to be adduced before the Court of Appeal were, first, a report prepared by the Penetang Mental Health Centre shortly after the appellant's arrest and, secondly, a report prepared by a penetentiary service medical unit following the appellant's conviction.

 

    In view of my decision to order a new trial, as a result of the holding of this Court in Chaulk, it is not necessary to address this issue.  The appellant will be entitled, subject, of course, to the discretion of the trial judge, to evaluate the relevance of evidence, to adduce this evidence at his second trial.  The exercise of the Court of Appeal's discretion under former s. 610(1)(d) of the Code is no longer an issue.

 

Disposition

 

    Accordingly, for the reasons discussed above, I would allow the appeal pursuant to former s. 613(1)(a) and order a new trial pursuant to former s. 613(2) (b) of the Criminal Code .

 

//Wilson J.//

 

    The following are the reasons delivered by

 

    Wilson J. -- I have had the benefit of reading Chief Justice Lamer's reasons in this appeal.  The first two issues concern the constitutionality of s. 16(4)  of the Criminal Code , R.S.C., 1985, c. C-46 .  Dickson C.J. stated the constitutional questions as follows:

 

1.Is s. 16(4) of the Criminal Code  inconsistent with s. 11( d )  of the Canadian Charter of Rights and Freedoms ?

 

2.If the answer to question 1 is yes, is s. 16(4) justified by s. 1  of the Canadian Charter of Rights and Freedoms  and therefore not inconsistent with the Constitution Act, 1982 ?

 

    In the appeal R. v. Chaulk, [1990] 3 S.C.R. 1303, the majority of this Court held that while s. 16(4)  of the Criminal Code  infringed an accused's right to be presumed innocent in s. 11( d )  of the Canadian Charter of Rights and Freedoms , it constituted a reasonable and justifiable limit on such right within the meaning of s. 1  of the Charter .  I dissented on that issue holding that the infringement was not a reasonable and justifiable limit on the s. 11(d) right.  I now consider myself bound by the majority decision in Chaulk.  Accordingly, since I agree with Lamer C.J.'s reasons on the other issues raised by the appellant, I concur in his proposed disposition of this appeal.

 

//McLachlin J.//

 

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

 

    McLachlin J. -- This is one of a series of appeals raising questions about the presumption of sanity in s. 16  of the Criminal Code , R.S.C., 1985, c. C-46 .  In R. v. Chaulk, [1990] 3 S.C.R. 1303, I indicated that I respectfully disagree with Lamer C.J. and Wilson J. as to the proper resolution of the following two questions:  (1) does the presumption of sanity offend the presumption of innocence embodied in s. 11( d )  of the Canadian Charter of Rights and Freedoms ? and (2) when the Code speaks of "knowing that an act or omission is wrong", does it mean legally "wrong" or morally "wrong"?   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.  My conclusions in Chaulk, therefore, make it necessary to comment briefly on the issues raised by this case.

 

    The first two issues set out in the judgment of Lamer C.J. concern the question of whether the presumption of sanity in s. 16(4) of the Code is inconsistent with s. 11( d )  of the Charter .  For the reasons I gave in Chaulk, I am of the view that the presumption of sanity, reflecting as it does the fundamental pre-condition to attribution of criminal responsibility and punishment, does not violate the presumption of innocence found in s. 11( d )  of the Charter .  In view of this conclusion, I need not consider the residual question of the application of s. 1  of the Charter .

 

    The next two questions set out by Lamer C.J. concern the jurisdiction of the Court of Appeal under s. 686(1)  of the Criminal Code  (formerly s. 613(1)).  In light of Lamer C.J.'s conclusion as to the meaning of "wrong" in s. 16(2), he directs that a new trial be held in order for the trier of fact to determine whether the appellant was rendered incapable, by reason of disease of the mind or "natural imbecility", of knowing that his act was morally wrong in the circumstances.  As I explained in Chaulk, I do not agree with Lamer C.J.'s interpretation of "wrong" in s. 16(2) and I am satisfied that the jury, having been instructed by the trial judge that "wrong" in s. 16(2) means "legally wrong", would properly have considered whether the act was one which the appellant was capable of knowing that he ought not to do.  I am of the opinion, therefore, that there is no error of law which would justify interference by this Court with the jury's guilty verdict.  I further conclude that the jury's verdict is neither unreasonable nor unsupported by the evidence within the terms of s. 686(1)(a)(i).

 

    I am in agreement with Lamer C.J.'s treatment of the fifth issue set out in his reasons that the trial judge's instruction to the jury on the matter of a verdict based on expert evidence did not amount to error.

 

    Turning to the sixth issue raised by the appellant, Lamer C.J. considered it unnecessary to consider this question in view of his holding under s. 686(1).  I am of the view that the Court of Appeal did not err in refusing to consider the further medical reports.  The Court of Appeal appears to have correctly applied the principles set out in Palmer v. The Queen, [1980] 1 S.C.R. 759, and, accordingly, this ground of appeal must also fail.

 

    I would dismiss the appeal, 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 allowed and new trial ordered.

 

    Solicitor for the appellant:  Irwin Koziebrocki, Toronto.

 

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

 

    Solicitor for the intervener the Attorney General of Canada:  John C. Tait, Ottawa.

 

    Solicitors for the intervener the Attorney General of Quebec:  Jean‑François Dionne and Jacques Gauvin, Ste‑Foy.

 

    Solicitor for the intervener the Attorney General for New Brunswick:  The Deputy Attorney General for New Brunswick, Fredericton.

 

    Solicitor for the intervener the Attorney General of Manitoba:  The Attorney General of Manitoba, Winnipeg.

 

    Solicitor for the intervener the Attorney General for Alberta:  M. J. Watson, Edmonton.