MacDonald v. The Queen, [1977] 2 SCR 665

Supreme Court of Canada

MacDonald v. The Queen, [1977] 2 S.C.R. 665

Date: 1976-05-31

Christopher Macdonald Appellant;

and

Her Majesty The Queen Respondent.

1976: March 24; 1976: May 31.

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

ON APPEAL FROM THE COURT MARTIAL APPEAL COURT

Criminal law—Trial—Proof of criminal intent—Defences—Lack of intent—Psychiatric evidence as to lack of ability to form intent—Conviction without reasons—Failure of trial judge to give reasons—Criminal Code, ss. 295 and 303—National Defence Act, R.S.C. 1970, c. N‑4, ss. 55 and 120 (as amended).

Appellant, the sixteen year old son of a member of the armed forces, held up and attempted to obtain money from a guardhouse on an armed forces base in W. Germany. On being told that the keys to the cash boxes were not available he offered to return the revolver taken from one of the three persons there but eventually left without taking any money. Five minutes later he returned, indicating that he had come to surrender. Later that morning appellant gave a statement indicating that he was in a depressed mood and wanted to die and subsequently gave a handwritten statement to the investigator setting out in detail what had occurred. He had written a suicide note prior to the guardhouse incident and there had been tension between him and his father for some eighteen months previously as a result of his falling academic standing and truancy and his leaving school. He was charged with robbery and joy-ride under the Code of Service Discipline of the National Defence Act, s. 120 of which makes the Criminal Code applicable in determining whether acts or omissions outside of Canada are offences in terms of the Code of Service Discipline. Psychiatric evidence was given at trial indicating that the appellant had marked “adjustment reaction of adolescence … manifested by low self esteem and marked dependency needs” which resulted in pseudo-independent behaviour and rebelliousness, a tendency toward serious suicide and low frustration tolerance with a tendency to act anti-socially. He understood the nature of the proceedings against him but in the opinion of the psychiatrist suffered at the time of the offence from sufficient mental confusion as to impair his ability to form or entertain the specific intent to commit

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the offence. The trial judge at the Special General Court Martial convicted appellant but gave no reasons for the conviction. The majority in the Court Martial Appeal Court took the view that the issue of intent was so obvious that the trial judge could not have failed to consider it and the appeal was dismissed.

Held (Spence J. dissenting): The appeal should be dismissed.

Per Laskin C.J. and Martland, Judson, Ritchie, Pigeon, Dickson, Beetz and de Grandpré JJ.: The mere failure of a trial judge to give reasons, in the absence of any statutory or common law obligation to give them, does not raise a question of law. There is no such statutory obligation under either the National Defence Act or under the Criminal Code and there is no common law rule applicable to all criminal trials. It is desirable that a trial judge give reasons but the volume of criminal work makes the indiscriminate requirement of reasons impractical and the discretion of trial judges should not be fettered. However, the failure of a trial judge to give reasons, though not challengeable per se, will be challengeable if the record discloses a rational basis for concluding that the judge erred in appreciation of a relevant issue or of evidence that would affect the propriety of his verdict. In the present case there was only one issue, the question of intent, and on the record there could be no doubt of the trial judge’s appreciation of the issue of intent and the evidence touching that issue. There was therefore no question of law to justify interference by the Supreme Court.

Per Spence J., dissenting: While the mere failure of a trial judge to give reasons in the absence of a statutory or common law obligation to give them does not raise a question of law and while such an obligation would be most fettering, in the present case it was more than regrettable that the presiding judge at the Special General Court Martial did not give reasons. Although there is the presumption, in the absence of anything in the record indicating the contrary, that the trial judge did apply the proper and relevant principles, the record in this case discloses in the statement of the prosecutor that it was for the defence to establish lack of specific intend. This was a clear error which, with the failure to give reasons for judgment, raised considerable doubt as to

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whether the judge had not misdirected himself and so rendered inapplicable the said presumption.

[Ungaro v. The King, [1950] S.C.R. 430 distinguished; R. v. George, [1960] S.C.R. 871; R. v. Bush, [1939] 1 W.W.R 42; Horsburgh v. The Queen, [1967] S.C.R. 746; Kolnberger v. The Queen, [1969] S.C.R. 213; R. v. Ambler, [1938] 2 W.W.R. 225, referred to.]

APPEAL from a judgment of the Court Martial Appeal Court[1] dismissing an appeal from a conviction for robbery and taking a vehicle without the owner’s consent, contrary to ss. 303 and 295 of the Criminal Code, under the Code of Service Discipline and ss. 55 and 120 of the National Defence Act. Appeal dismissed, Spence J. dissenting.

Donald B. Bayne, for the appellant.

M.A. Bisal, and P.D. Chénier, for the respondent.

The judgment of Laskin C.J. and Martland, Judson, Ritchie, Pigeon, Dickson, Beetz and de Grandpré JJ. was delivered by

THE CHIEF JUSTICE—This is an appeal from a judgment of the Court Martial Appeal Court of Canada affirming, Heald J. dissenting, a judgment of Deniset J. sitting as a Special General Court Martial designated by the Minister of National Defence pursuant to s. 155 of the National Defence Act, R.S.C. 1970, c. N-4. The Special General Court Martial convicted the appellant, then 16 years of age, of robbery and of joy-riding, under the Code of Service Discipline of the National Defence Act, and especially ss. 55 and 120 of the Act. By s. 55, the appellant, as a dependant outside of Canada of a member of the armed forces serving beyond Canada, was subject to the Code of Service Discipline; and s. 120 makes the Criminal Code applicable in determining whether acts or omissions outside of Canada are offences for the purposes of the Code of Service Discipline. It is accepted that the two offences of which the

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appellant was convicted properly come within s. 120.

Although, formally, the appeal to the Court Martial Appeal Court of Canada and to this Court was in respect of both convictions, only the propriety of the conviction of robbery was argued both there and here. In the Court Martial Appeal Court, it was open to the appellant to impugn the conviction of robbery on any ground of law alone or on any ground of mixed law and fact, as provided by ss. 195 and 197 of the National Defence Act. The provision in the Act, s. 208(1), for a further appeal to the Supreme Court of Canada gives an appeal as of right only on a question of law on which a Judge of the Court Martial Appeal Court dissents, and permits an appeal by leave on any other question of law. In the present case only an appeal as of right is asserted, based on the dissent of Heald J. The ground of that dissent is not stated in the formal judgment of the Court Martial Appeal Court, and we are left to discern it from the reasons of the dissenting Judge. There does not appear to be a requirement, either expressly or referentially, in the National Defence Act such as is found in s. 606 of the Criminal Code which directs that where a Judge of a Court of Appeal dissents the formal judgment shall specify any grounds in law upon which the dissent, in whole or in part, is based.

The charge of robbery laid against the accused was under the specification of an assault with intent to steal, as defined in s. 302 (c) of the Criminal Code. The incident occurred in Lahr, West Germany, on February 9, 1974 shortly after midnight and after the accused and two friends (one his girl friend) had spent part of the early evening of February 8 at a tavern and two discothèques where they had some beer. When they were at the second discothèque the accused asked his male friend to dance with the girl, and when they returned from the dance floor he was gone. Shortly after midnight he entered a guardhouse on the Canadian Forces Base at Lahr and asked to use the washroom. Within 30 seconds he emerged from the washroom with a cocked revolver in his right hand and asked the three other persons who

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were there to raise their hands and empty their holsters. Only one of them, one Gebhart, had a gun, a service revolver. The accused asked for money but was told the keys to the cash boxes were not available, and thereupon the accused offered Gebhart’s revolver back to him but Gebhart did not take it. After directing the three men to the floor, the accused fired three shots, not at them but at the radio and telephone in the room and left without taking any money. The entire incident took five minutes. After five more minutes he returned, shouting that he had come to surrender. He was without the revolver that he had previously. Gebhart and another subdued the accused who offered no resistance.

Later that morning the accused gave a verbal statement to an investigator, indicating to him that he was in a depressed mood and wanted to die. The next day the accused gave a handwritten statement to the investigator setting out in detail what had occurred. The accused had written a suicide note prior to the incident at he guardhouse, and it was turned over to the police by his father. There had been tension between him and his father (an adoptive father) for some eighteen months as a result of the accused’s falling academic standing and ensuing truancy. He had quit school at the end of January, 1974, and had been faced with a parental ultimatum to get a job by the end of February 1974, failing which he would be sent back to Canada alone.

Psychiatric evidence was given at the accused’s trial in his defence, designed to show that he was incapable of forming or having the intent required to support the charge of robbery. A report of an examining psychiatrist and oral evidence by that psychiatrist were received by the Special General Court Martial. This witness was accepted by the Court as a qualified expert in psychiatry. The accused’s statement was put in after a voir dire, but he himself did not testify. Deniset J. at the conclusion of the trial, which lasted five days, found the accused guilty of robbery (and of joyriding) but gave no reasons for his finding. The failure to give any reasons at all is at the base of the appeal to this Court as it was at the base of the appeal to the Court Martial Appeal Court.

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Insanity was not offered as a defence nor was drunkenness raised as an issue going to intent but what defence counsel strenuously argued before the Special General Court Martial was that there was no proper proof of criminal intent as a required ingredient of robbery, and reliance was placed upon the judgment of this Court in R. v. George,[2]. This submission was based on the sequence of events that led to the charge of robbery and particularly on the evidence of the psychiatrist. That evidence showed that he had seen the accused three times on March 7, 14 and 29 respectively spending one hour, two hours and again one hour with the accused in the three interviews. In addition, the psychiatrist examined the previous medical records of the accused, including previous psychiatric records. His diagnosis in his report was that the accused had marked “adjustment reaction of adolescence … manifested by low self esteem and marked dependency needs which are defended against by pseudo‑independent behaviour and rebelliousness and a tendency toward serious suicide, low frustration tolerance with a tendency to act out antisocially …” In his oral evidence, the witness said (and I quote from notes that he made and that he was allowed to use at the trial):

… the accused at the time of the alleged offense was so far free from mental disease, defect or derangement as to be able concerning the particular act charged to adhere to the right … the accused does possess sufficient mental capacity to understand the nature of the proceedings against him and to intelligently conduct or cooperate in his defence. And, … the accused at the time of the alleged offense was not so far free from mental defect, disease, derangement or any other mental impairment as to be able, concerning the particular acts charged to form or entertain the specific intent or other mental state required. Regarding specific intent to commit armed robbery it is the opinion of this examiner that at the time of the commission of the alleged offense a state of sufficient mental confusion existed in the accused as to impair his ability to form or entertain the specific intent or other mental state required to commit the alleged offense.

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With the consent of the prosecution, a statutory declaration dated April 5, 1974 by another psychiatrist, who interviewed the accused on two occasions on February 11, 1974, was admitted in evidence. His evaluation was that the accused had a “pathological type of personality development”, and had he been an adult he would most likely be diagnosed as “a sociopathic personality”. However, at his age where “adolescent turmoil can produce protean reactions” a more complete psychiatric evaluation should be obtained with a view to suitable treatment. He did say that the accused was not committable.

It was the view of the majority of the Court Martial Appeal Court that the issue of intent was so obvious that the Special General Court Martial could not have failed to consider it. He was entitled to weigh the psychiatric evidence along with the other evidence offered, and to decide on the whole of the evidence whether guilt was established. In short, the majority view was that the Special General Court Martial could not be said, merely because no reasons were given, to have misdirected himself as to the issues he had to decide or to have failed to appreciate and weigh all the evidence adduced before him.

In his dissent Heald J. was of the opinion that the psychiatric evidence, if accepted, offered a complete answer to the charge, and the trial judge’s failure to give any reasons made it impossible to decide whether he instructed himself as to the effect of that evidence if accepted. Since no reasons were given for not accepting it, Heald J. concluded that he had considerable “reason to doubt” that the trial judge had properly instructed himself. (The quoted words came from the reasons of Estey J. in Ungaro v. R.[3], at p. 438, and I shall return to that case later). The learned dissenting Judge concluded that there should be a new trial on the robbery charge because he was not satisfied that the trial judge had properly instructed

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himself.

The appeal to this Court was on the footing that Heald J.’s dissent raised a question of law by reason of the failure of the trial judge, absent any reasons for finding the accused guilty, to show that he had directed himself correctly in rejecting the uncontradicted psychiatric evidence which raised a reasonable doubt of the accused’s capacity to form and have the intent necessary to support the charge of robbery. As I have already indicated, the Court Martial Appeal Court was empowered to set aside the conviction on any question of mixed law and fact as well as on any question of law alone, but this latitude is not open to this Court. Mere failure of a trial judge to give reasons, in the absence of any statutory or common law obligation to give them, does not raise a question of law. There is no such statutory obligation under the National Defence Act nor under the Criminal Code, nor can I find, or be justified in fashioning, a common law rule applicable to all criminal trials. The desirability of giving reasons is unquestionable. As was said in a Note in (1970), 48 Can. Bar Rev. 584 by Professor Hooper,

The arguments in favour of reasoned judgments are obvious. The process of publicly formulating his reasons may lead the judge to a conclusion other than that reached upon the basis of “intuition”. The parties to the case, both the Crown and the defence, will want to assure themselves that the judge properly understood the issues before him and will want to know whether he reached any conclusions of law or fact that could be challenged at the appellate level. The general public, or at least the victim if there was one, may have an interest in knowing why a certain verdict was reached.

These considerations and others that could be mustered go to show what is the preferable practice, but the volume of criminal work makes an indiscriminate requirement of reasons impractical, especially in provincial criminal courts, and the risk of ending up with a ritual formula makes it undesirable to fetter the discretion of trial judges.

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There are instances in statute law in this country where reasons are obligatory, as, for example, under the Immigration Appeal Board Act, R.S.C. 1970, c. I-3, s. 7(3) if demanded by the parties, and under the Ontario Energy Board Act, R.S.O. 1970, c. 312, s. 17.

It does not follow, however, that failure of a trial judge to give reasons, not challengeable per se as an error of law, will be equally unchallengeable if, having regard to the record, there is a rational basis for concluding that the trial judge erred in appreciation of a relevant issue or in appreciation of evidence that would affect the propriety of his verdict. Where some reasons are given and there is an omission to deal with a relevant issue or to indicate an awareness of evidence that could affect the verdict, it may be easier for an appellate Court or for this Court to conclude that reversible error was committed: see R. v. Bush[4], at p. 44; Ungaro v. R.[5]; Horsburgh v. R.[6]; Kolnberger v. R.[7]

The more intractable situation is where, as here, no reasons at all are given. Ungaro v. R., supra, Rinfret C.J. said this (at p. 432):

I do not mean that a trial judge is obliged in his judgment to give all the reasons which lead him to the conclusion that an accused is guilty. Undoubtedly if he finds one valid reason why he should reach that conclusion it is not necessary that he should also give other reasons. It is imperative, however, that he should give a decision upon all the points raised by the defence which might be of a nature to bring about the acquittal of the accused.

It cannot be taken from this passage that the Chief Justice was saying that reasons must be given but only that, if they are given, they should reflect consideration of telling points in the case. To the same effect is what Estey J. said (at p. 438) as follows:

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In his reasons, with great respect, the learned trial judge discloses that he had misdirected himself with respect to the relevancy of the denial and given to it an importance in relation to the main issue not justified upon the authorities. Moreover, a reading of the reasons as a whole suggests that he did not direct himself as to the explanation of the source of the goods in relation to the evidence as required in Richler v. The King … There is at least “reason to doubt that he properly charged himself when forming his conclusions upon the evidence” as stated by Chief Justice Moss in Rex v. Frank ((1910) 16 C.C.C. 237), which, with respect would appear to be an accurate statement of the limitation in respect to the presumption upon which Rex v. Bush … was decided.

Reasons were given by the trial judge in the Ungaro case, but it is not evident that any were given by the trial judge in R. v. Bush[8], The British Columbia Court of Appeal in the Bush case (which dealt with a conviction on the uncorroborated evidence of an accomplice) said that “there is no obligation upon a trial judge to exemplify his legal qualifications respecting the rules of evidence in trying a case, because his requisite knowledge of the law pertaining to the proper discharge of the duties of his office must be assumed …”. This statement was contrary to that expressed by the Alberta Appellate Division in R. v. Ambler[9], where it was held that a trial judge who would convict on the uncorroborated evidence of an accomplice must provide an accompanying statement showing that he appreciates the danger of so convicting. To the extent to which Ungaro and other cases in this Court, such as Kolnberger v. The Queen, supra, have dealt with the issue raised by the Bush and Ambler cases, they have done so in situations where some reasons were given, and thus the Court had some basis upon which to decide if there was a reversible error committed by the trial judge.

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I would observe also that Bush and Ambler, and like cases where accomplice evidence is involved, are cases where a particular direction must be given to the jury on the danger of convicting on such evidence if uncorroborated, and hence the concern about self-misdirection when a trial judge is sitting alone. The present case is not in that category. The most that can be taken from previous decisions of this Court, in their application to a situation where no reasons are given by the trial judge, is that there is no preclusion from looking at the case as a whole, the issues, the defences, the record of the proceedings, as a basis for coming to a conclusion whether there is, as I have already said, a rational basis for concluding that the trial judge erred in a matter that could reasonably have affected his verdict.

In the present case, there was only one debatable issue on the charge of robbery and that was the question of intent to which counsel for the prosecution and for the defence directed their summations, as appears from the record. Neither insanity nor drunkenness was germane in this case to the question of guilt, and it is impossible to conclude that the trial judge was unaware of the centrality of intent to which the evidence of the psychiatrist was addressed. What he had to decide was whether that evidence and the evidence of other witnesses, both as to the actus reus and as to the behaviour of the accused, should lead him to acquit. That he did not do so cannot in this case, and on the record in the case, lead to any doubt about the trial judge’s appreciation of the legal issue before him and of the evidence touching that issue. Heald J.’s dissent in the Court Martial Appeal Court is at bottom a disagreement with the trial judge on the weight of the evidence. The fact that he or I would have come to a different conclusion is, so far as the jurisdiction of this Court is concerned, immaterial.

Being satisfied as I am that there could be no doubt about the trial Judge’s apprehension of the legal issue before him (despite the absence of any

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reasons), I do not find any question of law that would justify interference by this Court because of the way in which the evidence was assessed. The psychiatrist, on the record, had been accepted as a qualified expert so it was only the weight, the cogency of his evidence and not his credibility as a witness that was under consideration by the trial judge.

I would dismiss the appeal.

SPENCE J. (dissenting)—I have had the opportunity of perusing and considering the reasons for judgment written by the Chief Justice. With respect, I must differ with the conclusion expressed therein.

It is apparent that the whole difficulty in the consideration of the appeal arises from the failure of the Special General Court Martial to give any reasons whatsoever for his decision. I am in agreement with the statement of the Chief Justice that the mere failure of a trial judge to give reasons in the absence of any statutory or common law obligation to give them does not raise a question of law and that such a statutory obligation would be most fettering especially when one considers the enormous number of trials which must be handled by provincial court judges in the ordinary carriage of their official duties.

I think it is relevant, however, to point out that in this particular case Deniset J. was not acting as a provincial court judge nor even as a judge sitting in assize but was a Special General Court Martial appointed by the Minister of National Defence for the purpose of carrying out the trial of this accused youth. The trial lasted five days and it is more than regrettable that Deniset J., presiding as such Special General Court Martial did not devote the few minutes necessary to dictate reasons for judgment.

The Chief Justice has outlined in considerable detail the circumstances and I need elaborate on them very little.

The only question is whether the Crown had produced evidence which proved beyond a reasonable doubt that the appellant had the intent necessary for the commission of the offence. The

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charge, under the provisions of the National Defence Act, R.S.C. 1970, c. N-4, was the commission of the offence of robbery outlined in s. 302(c) of the Criminal Code. That section provides:

302. Everyone commits robbery who,

. . .

(c) assaults any person with intent to steal from him;

It was, therefore, the Crown’s duty to prove the specific intent to steal from Master Corporal Gebhart. This specific intent and the ability of the accused to possess such specific intent was practically the only matter at issue during the trial. The evidence given by the witnesses for the prosecution, so far as it dealt with the factual situation, was uncontradicted and unquestioned. The defence called only the evidence of another young man, a friend of the appellant, and a sixteen-year-old girl who described herself as the “girl friend” of the appellant, and then called Lieutenant-Colonel Isom, a commissioned officer of the United States Army, a medical doctor, and a skilled practising psychiatrist. All of the defence evidence was evidence concerned solely with the mental condition and capacity of the appellant and particularly with his ability to form the specific intent required before there could be conviction on the charge which the court martial was considering. No reply evidence was called by the prosecution. I quote only one sentence from Lieutenant-Colonel Isom’s evidence:

Regarding specific intent to commit armed robbery it is the opinion of this examiner that at the time of the commission of the alleged offence a state of sufficient mental confusion existed in the accused as to impair his ability to form or entertain the specific intent or other mental state required to commit the alleged offence.

After the evidence as outlined by the Chief Justice in his reasons and after this evidence by Lieutenant-Colonel Isom, counsel addressed the court. The counsel for the prosecution ended his address in the following fashion:

The defence, to succeed, should either show to this court that the accused was insane, which is not the case, or that the accused did not have the specific intent to steal from Master Corporal Gebhart.

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That’s all, Your Honour.

It is, in my view, significant that although the prosecution counsel did say that the next step for the prosecution to prove was the specific intent and it was his contention that the evidence had proved that specific intent. He had just previously said that the defence to succeed should either show that the accused was innocent or that the accused did not have the specific intent to steal from Master Corporal Gebhart. This initial statement was, in my opinion, plainly incorrect. It was not the duty of the appellant or of his counsel to prove anything. It was the duty of the prosecution to prove each essential element of its case including specific intent beyond reasonable doubt. Indeed, all the defence had to do to be entitled to an acquittal was to raise such reasonable doubt.

Speaking personally, I cannot see how the evidence both factual and that of Lieutenant-Colonel Isom, the psychiatrist, could fail to raise such reasonable doubt.

In the light of this statement by the counsel for the prosecution and the presiding judge’s failure to give any reasons whatsoever, I have a considerable doubt as to whether the presiding judge was not misled by the statement of the prosecution counsel into believing that once the defence of insanity had been disposed of there remained a duty on the defence to prove the lack of specific intent. I can see no other explanation for the learned presiding judge’s failure to carefully dispose of that exact issue.

In Ungaro v. R.[10], this Court was considering a case where a County Court Judge sitting without a jury had convicted the accused on a charge of receiving stolen goods. The County Court Judge did give reasons but did not refer to the explanation of possession offered by the accused. Therefore, although the situation differs from that in the present appeal in which no reasons whatsoever were given by the judge presiding at the Special General Court Martial, there are statements of some interest. Estey J. said at p. 438:

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There is at least “reason to doubt that he properly charged himself when forming his conclusions upon the evidence” as stated by Chief Justice Moss in Rex v. Frank (1910), 16 C.C.C. 237, which, with respect would appear to be an accurate statement of the limitation in respect to the presumption upon which Rex v. Bush was decided.

The presumption in R. v. Bush[11], was, that in the absence of anything appearing on the record to indicate otherwise, the learned trial judge did apply the proper and relevant principles. In my view, for the reasons which I have outlined, there is in the present record an indication otherwise and, therefore, as I said, I have a doubt as to whether the judge presiding at the Special General Court Martial did not misdirect himself.

For these reasons, I would allow the appeal.

The trial took place in April 1974. The appellant was sentenced to a term of eighteen months in prison. The record does not indicate whether the appellant has been at liberty between that date and the present time pending the consideration of his appeal to the Court Martial Appeal Court of Canada and then to this Court. If not, of course, the service of his sentence would have been completed long before this and I would have quashed the conviction and directed that the appellant be released. If, however, the appellant has been at liberty, I am of the opinion that the appeal should be allowed, the conviction quashed and a new trial directed.

Appeal dismissed, SPENCE J. dissenting.

Solicitors for the appellant: McCann & Bayne, Ottawa.

Solicitor for the respondent: Judge Advocate General, Ottawa.