R. v. Warsing

R. v. Warsing
Collection
Supreme Court Judgments
Date
1998-12-17
Report
[1998] 3 SCR 579
Case number
26303
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 26303
Decision Content
R. v. Warsing, [1998] 3 S.C.R. 579
Her Majesty The Queen Appellant
v.
Kristian Lee Warsing Respondent
Indexed as: R. v. Warsing
File No.: 26303.
1998: June 19; 1998: December 17.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for british columbia
Criminal law ‑‑ Appeals ‑‑ Fresh evidence ‑‑ Accused applying for admission of psychiatric evidence as fresh evidence on appeal ‑‑ Due diligence requirement of test for admission of fresh evidence not met ‑‑ Whether Court of Appeal erred in admitting psychiatric evidence.
Criminal law ‑‑ Appeals ‑‑ Defences ‑‑ Defence of not criminally responsible on account of mental disorder raised for first time on appeal by way of fresh evidence ‑‑ Whether Court of Appeal erred in allowing defence.
Criminal law ‑‑ Appeals ‑‑ Powers of court of appeal ‑‑ Accused convicted of first degree murder and attempted murder following jury trial ‑‑ Defence of not criminally responsible on account of mental disorder raised for first time on appeal by way of fresh evidence ‑‑ Court of Appeal ordering new trial limited to issue of accused’s mental capacity at time of offences ‑‑ Whether Court of Appeal had jurisdiction to order new trial ‑‑ If so, whether Court of Appeal had jurisdiction to make order for limited trial ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 686(1) (a)(iii), (1) (d), (2) (b), (8) .
The accused was convicted by a jury of two counts of first degree murder and one count of attempted murder. He was subsequently committed to a mental health institution and examined by several psychiatrists, one of whom diagnosed him as having a manic depressive disorder and concluded that he was suffering from this illness at the time of the offences and should have been found not criminally responsible on account of mental disorder (“NCRMD”). The accused applied to the Court of Appeal to have the expert evidence of the psychiatrist admitted as fresh evidence and to raise, for the first time, the NCRMD defence. The majority of the Court of Appeal held that the fresh evidence should be admitted and ordered a new trial on the limited issue of the mental capacity of the accused at the time of the offences. The Crown appealed to this Court.
Held (L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting in part and Lamer C.J. and Bastarache J. dissenting): The appeal should be dismissed and a full new trial ordered.
Per Cory, Iacobucci, Major and Binnie JJ.: The Court of Appeal’s decision to admit the fresh evidence, after balancing the relevant factors, was correct and should be upheld. While the fresh evidence failed the due diligence test in Palmer, it is desirable that due diligence remain only one factor and its absence, particularly in criminal cases, should be assessed in light of other circumstances. If the evidence is
compelling and the interests of justice require that it be admitted then the failure to meet the test should yield to permit its admission. Here, the fresh evidence sought to be introduced was relevant, credible and, if believed, could affect the verdict. The accused’s failure to meet the due diligence requirement is serious and in many circumstances would be fatal; however, in the circumstances of this case, that failure was overborne by the interests of justice.
In appropriate circumstances, it is permissible to allow an accused to raise the NCRMD defence for the first time on appeal. Although the raising of a new defence on appeal is an exception to the general rule, the circumstances and evidence of this case run in favour of allowing the accused to raise the defence. It is a principle of fundamental justice that a person who was not criminally responsible at the time of the offence should not be convicted.
The Court of Appeal had jurisdiction to order a new trial. When the NCRMD defence is raised on appeal for the first time, the Court of Appeal has the power pursuant to s. 686(1) (d) of the Criminal Code to set aside the conviction and find the accused NCRMD. However, if the Court of Appeal concludes that it cannot make a determination on the NCRMD issue, it is within its jurisdiction in avoiding a miscarriage of justice to order a new trial pursuant to ss. 686(1)(a)(iii) and 686(2)(b) of the Code. While, in most cases, it is likely that the Court of Appeal would have sufficient evidence to determine the issue of mental capacity, in cases where the facts are complex and the court concludes that further evidence is required a new trial should be ordered.
The Court of Appeal erred, however, in limiting the new trial to the NCRMD issue. The principles enunciated by the majority in Thomas indicate that orders issued pursuant to s. 686(8) of the Code are ancillary in nature and cannot be inconsistent or at direct variance with a court of appeal’s disposition under s. 686(2) . When a new trial is ordered pursuant to s. 686(2) a court of appeal’s ability to make an ancillary order pursuant to s. 686(8) is limited by the condition that justice requires that order. In light of these principles, the Court of Appeal did not have jurisdiction to limit the scope of the new trial. The presumption of innocence is integral to ensuring a fair trial and the fair trial principle is obviously offended by a trial that precludes a verdict of not guilty. A limited trial which restricts the accused’s right to control his defence also offends a fundamental principle of justice. The accused must have the opportunity to put forward whatever defence he has. In this case, if the evidence of mental disorder was not sufficient to convince the trier of fact that the accused was NCRMD, such evidence could be considered on the issue of whether the accused had the requisite mens rea. In this light, it is evident that an accused’s ability to make full answer and defence could be significantly prejudiced by restricting his trial to the NCRMD issue.
Per L’Heureux‑Dubé, Gonthier and McLachlin JJ. (dissenting in part): There is substantial agreement with Major J.’s reasons, except on the issue of the Court of Appeal’s jurisdiction to order a limited new trial.
As a general rule, courts of appeal will not allow an issue to be raised on appeal for the first time. There are, however, a number of exceptions, one of which is the admission of fresh evidence on appeal. The failure to meet the due diligence criterion of the Palmer test is not always fatal and must be weighed against the strength of the other criteria and the interests of justice. The interests of justice must take into account the special treatment our criminal justice system grants the NCRMD defence, as reflected in Swain, s. 16 and s. 686(1)(d) of the Criminal Code . In the unusual circumstances of this case, the rule requiring due diligence, the practice of not permitting new defences to be raised on appeal and the need for finality must all give way to the principle that a person incapable of criminal intent should not be convicted. Therefore, the psychiatric evidence was properly admitted by the Court of Appeal and the accused should be allowed to raise the NCRMD defence of mental disorder for the first time on appeal.
The power to order a new trial where fresh evidence is admitted is found under s. 686(1)(a)(iii) in conjunction with s. 686(2) (b). Nothing in the wording of s. 686(1)(a)(iii) restricts its application to evidence produced at trial. Sections 686(1)(a)(iii) and 686(1)(d) read together provide the Court of Appeal with the possibility of either ordering a new trial or substituting a verdict of NCRMD in cases where the defence of NCRMD is raised for the first time on appeal. The possibility of either ordering a new trial or substituting an NCRMD verdict is consistent with the general rules concerning the admission of fresh evidence.
For the reasons given by the minority in Thomas, the Court of Appeal had jurisdiction to order a limited new trial. Section 686(8) of the Code grants a court of appeal a broad jurisdiction to decide what type of order would be appropriate considering the nature and the extent of the wrong occasioned at trial, including the power to restrict a new trial. Further, such an order will be an exceptional one dictated by what “justice requires”. In the circumstances of this case, a limited new trial on the NCRMD issue was consistent with what “justice requires” since the Court of Appeal’s order is compatible with a “Swain‑type hearing”. A “Swain-type hearing” is conducted after a finding that the accused committed the criminal acts, but before a conviction is entered, to determine whether the accused is NCRMD. The Court of Appeal’s order does not offend the principles of fundamental justice or the presumption of innocence enshrined in ss. 7 and 11 (d) of the Canadian Charter of Rights and Freedoms . First, since the accused’s situation in this new trial will be the same as in a Swain‑type hearing, he will not benefit from the presumption of innocence during the stage where the issue of mental disorder is examined. The Crown has already proved all the elements of the offences and a jury was satisfied beyond a reasonable doubt that the accused had committed the crimes. The fresh evidence only relates to the issue of whether the accused is NCRMD. Second, an order compatible with the procedure established in Swain, which was found to respect the principles of fundamental justice, cannot violate those same principles. Finally, the evidence of mental disorder cannot be considered on the issue of whether the accused had the requisite mens rea. In a Swain‑type hearing, the trier of fact only has to determine whether the result of the finding that the accused committed the essential elements of the offence should be a conviction or an NCRMD finding. The Court of Appeal’s order in this case is to the same effect.
Per Lamer C.J. and Bastarache J. (dissenting): The Court of Appeal properly exercised its discretion in admitting the fresh evidence. Where the issue of mental illness is raised for the first time on appeal by way of fresh evidence, s. 686(1) (d) of the Criminal Code , which refers specifically to the question of mental illness, exclusively governs the Court of Appeal’s jurisdiction. This jurisdiction is limited to either upholding the conviction or substituting a verdict of NCRMD. The court cannot order a new trial on the basis of s. 686(1) (a)(iii) and s. 686(2) (b). The application of s. 686(1) (a)(iii) involves an assessment of the evidence before the trial judge so as to determine whether there was a miscarriage of justice. No miscarriage of justice can be found by the Court of Appeal as a result of fresh evidence that was not before the original trier of fact. The matter should be sent back to the Court of Appeal for disposition according to the terms of s. 686(1) (d).
Cases Cited
By Major J.
Applied: R. v. Thomas, [1998] 3 S.C.R. 535; distinguished: R. v. Pearson, [1998] 3 S.C.R. 620; R. v. Barnes, [1991] 1 S.C.R. 449; Guillemette v. The Queen, [1986] 1 S.C.R. 356; considered: Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Mailloux, [1988] 2 S.C.R. 1029; R. v. Swain, [1991] 1 S.C.R. 933; referred to: R. v. Buxbaum (1989), 70 C.R. (3d) 20; McMartin v. The Queen, [1964] S.C.R. 484; R. v. McAnespie, [1993] 4 S.C.R. 501; R. v. Stolar, [1988] 1 S.C.R. 480; R. v. Abbey, [1982] 2 S.C.R. 24; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. C. (R.) (1989), 47 C.C.C. (3d) 84; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. R. (R.) (1994), 91 C.C.C. (3d) 193; R. v. Vidulich (1989), 37 B.C.L.R. (2d) 391; R. v. Wade (1994), 89 C.C.C. (3d) 39.
By L’Heureux‑Dubé J. (dissenting in part)
R. v. Thomas, [1998] 3 S.C.R. 535; R. v. Pearson, [1998] 3 S.C.R. 620; R. v. Brown, [1993] 2 S.C.R. 918; Perka v. The Queen, [1984] 2 S.C.R. 232; R. v. R. (R.) (1994), 91 C.C.C. (3d) 193; R. v. Trabulsey (1995), 97 C.C.C. (3d) 147; R. v. Vidulich (1989), 37 B.C.L.R. (2d) 391; Palmer v. The Queen, [1980] 1 S.C.R. 759; McMartin v. The Queen, [1964] S.C.R. 484; R. v. McAnespie, [1993] 4 S.C.R. 501; R. v. Price, [1993] 3 S.C.R. 633; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Stolar, [1988] 1 S.C.R. 480; R. v. Thomson (1995), 102 C.C.C. (3d) 350; Mahoney v. The Queen, [1982] 1 S.C.R. 834; R. v. Mailloux, [1988] 2 S.C.R. 1029; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Laverty (1990), 80 C.R. (3d) 231; R. v. Barnes (1990), 54 C.C.C. (3d) 368, aff’d [1991] 1 S.C.R. 449; R. v. Maxwell (1990), 61 C.C.C. (3d) 289; R. v. Scott, [1990] 3 S.C.R. 979; Reference re Regina v. Gorecki (No. 2) (1976), 32 C.C.C. (2d) 135.
By Lamer C.J. and Bastarache J. (dissenting)
Melnychuk v. Heard (1963), 45 W.W.R. 257; Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571; R. v. Chartrand, [1994] 2 S.C.R. 864; Reference re Goods and Services Tax, [1992] 2 S.C.R. 445; R. v. Deruelle, [1992] 2 S.C.R. 663; Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; Waldick v. Malcolm, [1991] 2 S.C.R. 456; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; Canadian Imperial Bank of Commerce v. 64576 Manitoba Ltd., [1990] 5 W.W.R. 419, aff’d [1991] 2 W.W.R. 323; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Rawluk v. Rawluk, [1990] 1 S.C.R. 70; R. v. Thompson, [1990] 2 S.C.R. 1111; Bell Canada v. Canada (Canadian Radio‑Television and Telecommunications Commission), [1989] 1 S.C.R. 1722; R. v. Mailloux, [1988] 2 S.C.R. 1029.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d).
Criminal Code, R.S.C. 1970, c. C‑34, s. 613(1)(d).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 16 [rep. & sub. 1991, c. 43, s. 2], 683(1)(b), (d), 686(1) [am. c. 27 (1st Supp.), s. 145 ; 1991, c. 43, s. 9 (Sch., item 8)], (2), (8), 695(1).
Authors Cited
Driedger on the Construction of Statutes, 3rd ed. By Ruth Sullivan. Toronto: Butterworths, 1994.
Lagarde, Irénée. Droit pénal canadien, vol. II, 2e éd. Montréal: Wilson & Lafleur, 1974.
McKinnon, Gil D. The Criminal Lawyers’ Guide to Appellate Court Practice. Aurora, Ont.: Canada Law Book, 1997.
APPEAL from a judgment of the British Columbia Court of Appeal (1997), 97 B.C.A.C. 137, 157 W.A.C. 137, 119 C.C.C. (3d) 385, 11 C.R. (5th) 383, [1997] B.C.J. No. 2239 (QL), allowing the accused’s appeal from his convictions for first degree murder and attempted murder and ordering a new trial limited to the issue of the mental capacity of the accused at the time of the offences. Appeal dismissed and a full new trial ordered, L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting in part and Lamer C.J. and Bastarache J. dissenting.
William F. Ehrcke, Q.C., and W. J. Scott Bell, for the appellant.
Manuel A. Azevedo and Albert C. Peeling, for the respondent.
The following are the reasons delivered by
//The Chief Justice and Bastarache J.//
1 The Chief Justice and Bastarache J. (dissenting) -- We agree with Major J. that the Court of Appeal properly exercised its discretion in admitting the fresh evidence.
2 Once the evidence is admitted, it must be determined whether the Court of Appeal has jurisdiction to order a new trial to establish whether the accused should be found not criminally responsible by reason of mental disorder, or whether its jurisdiction is limited to either upholding the conviction or substituting a verdict of not criminally responsible by reason of mental disorder.
3 The powers of the Court of Appeal are set out in s. 686 of the Criminal Code, R.S.C., 1985, c. C-46 . The relevant provisions are as follows:
686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it is of the opinion that
. . .
(iii) on any ground there was a miscarriage of justice;
. . .
(d) may set aside a conviction and find the appellant unfit to stand trial or not criminally responsible on account of mental disorder and may exercise any of the powers of the trial court conferred by or referred to in section 672.45 in any manner deemed appropriate to the court of appeal in the circumstances.
(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.
. . .
(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.
4 Section 686(1) (d) refers specifically to the question of mental illness. It creates an obligation on the Court of Appeal to exercise its powers to set aside a conviction and find the accused unfit to stand trial or not criminally responsible on account of mental disorder when such a case arises. This section confers no discretion to order a new trial. The powers given under this section mandate a court of appeal to hold a disposition hearing. In such a hearing, a court of appeal sits as a trier of fact and decides the issue of mental disorder. It does not, nor can it order that issues be returned to the trial court.
5 The appellant’s submission is that where an issue of mental illness is raised for the first time on appeal, the Court of Appeal may act either under s. 686(1) (d) to set aside the conviction and find the accused not criminally responsible on account of mental disorder, or under s. 686(1) (a)(iii) (in conjunction with s. 686(2) (b)) to order a new trial on the basis that there has been a miscarriage of justice. The appellant submits that by enacting s. 686(1) (d) Parliament has not ousted the court’s jurisdiction to act under s. 686(1) (a)(iii).
6 The rules of interpretation applicable in the present circumstances do not support the position of the appellant. From reading the legislation in context, the courts infer the legislature’s reasons for including a particular provision or detail. In drawing these inferences courts pay special attention to the scheme of the legislation. As R. Sullivan puts it in Driedger on the Construction of Statutes (3rd ed. 1994), at pp. 56 and 248:
Inferences about purpose are often drawn from analyzing the structure or scheme embodied in an Act. In carrying out this analysis the court, in effect, retraces the steps of the legislative drafter, examining the relationship among provisions to surmise the overall plan. It attempts to discover why each provision was included and the contribution each makes toward implementing the legislature’s goals. It looks at the way provisions are grouped under headings or divided into parts to discover a common theme or rationale.
. . .
When analyzing the scheme of an Act, the court tries to discover how the provisions or parts of the Act work together to give effect to a plausible and coherent plan. It then considers how the provision to be interpreted can be understood in terms of that plan.
7 The court’s reasoning is described by Greschuk J. in Melnychuk v. Heard (1963), 45 W.W.R. 257 (Alta. S.C.), at p. 263:
The court must not only consider one section but all sections of an Act including the relation of one section to the other sections, the relation of a section to the general object intended to be secured by the Act, the importance of the section, the whole scope of the Act and the real intention of the enacting body.
Reliance on this type of analysis to determine purpose is also illustrated in Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571; R. v. Chartrand, [1994] 2 S.C.R. 864; Reference re Goods and Services Tax, [1992] 2 S.C.R. 445; R. v. Deruelle, [1992] 2 S.C.R. 663; Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; Waldick v. Malcolm, [1991] 2 S.C.R. 456; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, at pp. 130-34; Canadian Imperial Bank of Commerce v. 64576 Manitoba Ltd., [1990] 5 W.W.R. 419 (Man. Q.B.), aff’d [1991] 2 W.W.R. 323 (Man. C.A.); Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Rawluk v. Rawluk, [1990] 1 S.C.R. 70, at pp. 90 and 97-98; R. v. Thompson, [1990] 2 S.C.R. 1111, at pp. 1160 and 1163-64, per La Forest J., dissenting; Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722, at pp. 1740-41, 1752 and 1756.
8 Our position in regard to the proper interpretation of ss. 686(1) (d) and 686(1) (a)(iii) is consistent with the reasons of this Court in R. v. Mailloux, [1988] 2 S.C.R. 1029, at p. 1040:
What was then the purpose of s. 1016(4) [the predecessor section to s. 686(1) (d)]? In seeking an answer one must not overlook the fact that a new trial could be triggered through the general provisions of s. 1014 [the predecessor section to s. 686(1) (a)] only if there had been below an error of law, unreasonable findings, or miscarriage of justice as regards the issue of insanity. This could occur only if insanity was an issue raised at trial. In my view, s. 1016(4) was introduced to enable a court of appeal to give some relief, albeit incomplete, to the accused when the insanity issue was raised for the first time in appeal.
9 The application of s. 686(1) (a)(iii) involves an assessment of the evidence before the trial judge so as to determine whether there was a miscarriage of justice. However, no miscarriage of justice can be found by the Court of Appeal as a result of fresh evidence that was not before the original trier of fact.
10 Thus, where the issue of mental illness is raised for the first time on appeal by way of fresh evidence, the Court of Appeal cannot order a new trial on the basis of s. 686(1) (a). Section 686(1) (d) exclusively governs the Court of Appeal’s jurisdiction in circumstances such as these.
11 Consequently, the admission of new evidence, in this case, calls for the application of para. (d), which creates an obligation on the Court of Appeal to exercise the same powers as the trial court and decide the litigious issue of mental illness. In this case, the Court of Appeal ordered a new trial on the limited issue of insanity. It did so without statutory jurisdiction. We would therefore allow the appeal, quash the decision and send the matter back to the Court of Appeal for disposition according to the terms of s. 686(1) (d).
12 In passing, we would add that if the Court of Appeal had had jurisdiction to send it back for a new trial, we are then in full agreement with Major J. for the majority that the new trial could not have been limited to the issue of not criminally responsible on account of mental disorder.
The reasons of L’Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by
//L’Heureux-Dubé J.//
13 L’Heureux-Dubé J. (dissenting in part) -- This appeal concerns the admission of a psychiatric opinion as fresh evidence by the Court of Appeal, allowing the respondent to raise for the first time the defence of not criminally responsible by reason of a mental disorder (“NCRMD”), and its jurisdiction, on the basis of such evidence, to order a new trial limited to the issue of whether the respondent was NCRMD at the time of the commission of the offences.
14 I have had the benefit of the reasons of Major J. and of the Chief Justice and Bastarache J. I agree substantially with the reasons of Major J. as they relate to the admission of the fresh evidence and the jurisdiction of the Court of Appeal, on the basis of that evidence, to order a new trial. However, for reasons similar to those I expressed in R. v. Thomas, [1998] 3 S.C.R. 535, judgment rendered concurrently, I disagree with Major J.’s conclusion that the Court of Appeal did not have the power to order a new trial limited to the question of the mental capacity of the accused.
15 Before addressing this last question, I wish to add some comments on the question of the admission of fresh evidence on appeal.
I. New Issues Raised on Appeal
16 The general rule is that courts of appeal will not allow an issue to be raised on appeal for the first time. I stressed in my dissenting opinion R. v. Brown, [1993] 2 S.C.R. 918, at p. 923, that the rationale for the severity of that rule is twofold: “first, prejudice to the other side caused by the lack of opportunity to respond and adduce evidence at trial and second, the lack of a sufficient record upon which to make the findings of fact necessary to properly rule on the new issue”. (See also Perka v. The Queen, [1984] 2 S.C.R. 232, R. v. R. (R.) (1994), 91 C.C.C. (3d) 193 (Ont. C.A.), R. v. Trabulsey (1995), 97 C.C.C. (3d) 147 (Ont. C.A.).) I also expressed in Brown, supra, at pp. 923-24, the basis for the general ban against entertaining issues on appeal which were not raised at trial:
[T]he general prohibition against new arguments on appeal supports the overarching societal interest in the finality of litigation in criminal matters. Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases. Moreover, society’s expectation that criminal matters will be disposed of fairly and fully at the first instance and its respect for the administration of justice would be undermined. Juries would rightfully be uncertain if they were fulfilling an important societal function or merely wasting their time. For these reasons, courts have always adhered closely to the rule that such tactics will not be permitted.
See also R. v. Vidulich (1989), 37 B.C.L.R. (2d) 391 (C.A.), at pp. 398-99.
17 In addition, this rule recognizes the important responsibility of defence counsel to make decisions that represent his or her client’s best interests and put forward all appropriate arguments throughout the trial. Counsel too has a responsibility to ensure the finality of the litigation process.
18 However, the general rule prohibiting new issues on appeal is not absolute. There are a number of exceptions, one of which is the admission of fresh evidence on appeal. The statutory power to admit fresh evidence on appeal is granted by s. 683(1) (d) of the Criminal Code, R.S.C., 1985, c. C-46 :
683. (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,
. . .
(d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness;
19 This Court’s decision in Palmer v. The Queen, [1980] 1 S.C.R. 759, provides a framework for the exercise of that discretionary power. McIntyre J., writing for the Court, specified that a court of appeal’s overriding consideration in exercising its discretion to admit fresh evidence must be “the interests of justice” and formulated the following criteria at p. 775:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable
of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
20 As the first criterion set out by McIntyre J. indicates, the due diligence requirement will not be applied as strictly in criminal cases, since the liberty of the subject is usually at stake. As Major J. notes, this Court has recognized that, in criminal cases, the lack of due diligence will not always be fatal and will have to be weighed against the strength of the other criteria and the interests of justice (McMartin v. The Queen, [1964] S.C.R. 484, R. v. McAnespie, [1993] 4 S.C.R. 501, and R. v. Price, [1993] 3 S.C.R. 633).
21 The interests of justice must take into account the special treatment our criminal justice system grants the defence of NCRMD. As noted by Major J., the special treatment of the NCRMD defence emerges from the principle of fundamental justice that a person who was “insane” at the time of the offence should not be convicted of a crime (R. v. Swain, [1991] 1 S.C.R. 933; see also s. 16 of the Criminal Code ). The special character of the NCRMD defence is further reflected in the power granted to appellate courts under s. 686(1) (d) of the Criminal Code to set aside a conviction and impose a finding of NCRMD, which effectively permits the defence to be raised for the first time on appeal. Pursuant to Swain, supra, the common law also allows the defence of NCRMD to be raised after a finding that the accused committed the guilty act but before the conviction is entered. Thus, the mental state of an accused at the time of the offence has always been of primary importance in our criminal justice system.
22 I agree with Major J. that all the criteria of the Palmer test for the admission of fresh evidence were met in this case except for that of due diligence. Therefore, while the due diligence requirement of the Palmer test was not met, I agree with McEachern C.J.B.C., for the majority of the Court of Appeal, that “the rule requiring due diligence, the practice of not permitting new defences to be raised on appeal, and the need for finality in the trial process, must all give way in such unusual circumstances to the principle that a person incapable of criminal intent should not be convicted” ((1997), 97 B.C.A.C. 137, at para. 72). In the particular circumstances of this case the respondent should be allowed to raise the defence of NCRMD for the first time on appeal and, therefore, I agree with the conclusion of Major J. that the psychiatric evidence was properly admitted by the Court of Appeal.
23 This brings us to the proper remedy in cases where fresh evidence is admitted on appeal.
II. The Remedy
24 The power of a court of appeal to admit fresh evidence is granted by s. 683(1) (d) of the Criminal Code . However, s. 683 does not specify the appropriate remedy in such cases. Appellate courts have frequently ordered new trials in criminal matters when admitting fresh evidence without specifically referring to a particular section of the Criminal Code (see McMartin, supra, and R. v. Stolar, [1988] 1 S.C.R. 480). The jurisdiction to order a new trial in the context of fresh evidence, in my view, comes from the general powers conferred on appellate courts by s. 686 and in particular s. 686(1) (a). The relevant provisions read:
686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, 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,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;
. . .
(d) may set aside a conviction and find the appellant unfit to stand trial or not criminally responsible on account of mental disorder and may exercise any of the powers of the trial court conferred by or referred to in section 672.45 in any manner deemed appropriate to the court of appeal in the circumstances.
(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.
. . .
(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.
25 The very broad terms of s. 686(1) (a)(iii) in particular support such an interpretation by spelling out the power to “allow the appeal where it is of the opinion that on any ground there was a miscarriage of justice” (emphasis added). (See G. D. McKinnon, The Criminal Lawyers’ Guide to Appellate Court Practice (1997), at p. 93; I. Lagarde, Droit pénal canadien (2nd ed. 1974), vol. II, at p. 1685, and R. v. Thomson (1995), 102 C.C.C. (3d) 350 (B.C.C.A.), where the Court of Appeal ordered a new trial after it admitted fresh evidence in order to make sure that there was no miscarriage of justice.) This is consistent with the “free and unrestricted discretion” vested to courts of appeal in allowing an appeal under s. 686(1) (a)(iii) (Mahoney v. The Queen, [1982] 1 S.C.R. 834, per McIntyre J. at p. 845). Therefore, I agree with Major J. that the power to order a new trial where fresh evidence is admitted is found under s. 686(1) (a)(iii) in conjunction with s. 686(2) (b).
26 The position of the Chief Justice and Bastarache J. that “no miscarriage of justice can be found by the Court of Appeal as a result of fresh evidence that was not before the original trier of fact” (para. 9) is contrary to the broad interpretation given to s. 686(1) (a)(iii) and its application by appellate courts. Their position greatly restricts the jurisdiction of appellate courts under that section and essentially removes the jurisdiction of appellate courts to order a new trial after admitting fresh evidence in all cases, and not only those relating to the NCRMD defence. No other subsection of s. 686 would apply in such a case. There is nothing in the wording of s. 686(1) (a)(iii) that restricts its application to evidence produced at trial, and I fail to see any reason to do so.
27 On the basis that no miscarriage of justice can be found under s. 686(1) (a)(iii) from evidence that was not before the trier of fact, the Chief Justice and Bastarache J. conclude, for their part, that s. 686(1) (d) “exclusively governs the Court of Appeal’s jurisdiction in circumstances such as these” (para. 10) and, therefore, the matter should be sent back to the Court of Appeal for disposition according to the terms of that section (para. 11). I disagree. As noted by Major J., the plain wording of s. 686(1) (d) and, in particular, the use of the word “may” do not exclude the application of s. 686(1) (a) when dealing with mental disorder issues. Furthermore, I agree with Major J. at para. 66 that the “reference to the issue of NCRMD in the opening passage of s. 686(1) must allow a court of appeal to order a new trial to prevent a miscarriage of justice flowing from a failure to raise the issue of NCRMD at the trial”. This Court’s decision in R. v. Mailloux, [1988] 2 S.C.R. 1029, is not determinative of the jurisdiction issue raised here for the reasons expressed by Major J. Sections 686(1) (a)(iii) and 686(1) (d) read together provide the Court of Appeal with the possibility of either ordering a new trial or substituting a verdict of NCRMD in cases where the defence of NCRMD is raised for the first time on appeal.
28 I would add that this approach is consistent with the general rules concerning the admission of fresh evidence developed in Stolar, supra, at p. 492, where this Court held that, once a court of appeal decides to admit the evidence, it may either dispose of the matter immediately, if the evidence is conclusive, or if not, order a new trial.
29 To adopt the Chief Justice and Bastarache J.’s approach would mean that in a case where the fresh evidence is not conclusive but could potentially affect the verdict, such as the psychiatric evidence in this case, the Court of Appeal could allow the appeal but it could not provide a remedy. As a result, the court would have no option, even if the admitted fresh evidence were not tested in court, other than to allow the appeal and enter a finding of NCRMD or to uphold the conviction. This cannot be what justice requires, particularly since it is not generally the function of a court of appeal to act as a court of first instance and conduct a trial on this issue. In this connection McEachern C.J.B.C. observed at para. 64:
[T]he fact pattern here is complex and a number of witnesses, possibly on both sides, may be required. In my view, it will be better if these matters are decided in a new trial, presumably with a judge and jury.
30 Having concluded that the remedy of a new trial is the proper one and that it is within a court of appeal’s jurisdiction, I will now deal with the order made by the Court of Appeal limiting the new trial to the issue of whether the respondent was NCRMD at the time of the commission of the offences.
III. Power to Order a Limited New Trial
31 I cannot agree with Major J. that the Court of Appeal does not have the authority to order a limited new trial. In Thomas, judgment released concurrently, I expressed the view that s. 686(8) grants a court of appeal a broad jurisdiction to decide what type of order would be “appropriate considering the nature and the extent of the wrong occasioned below”, including the power to restrict the new trial to manslaughter or second degree murder verdicts (para. 74). Further, such an order will be an exceptional one dictated by what “justice requires” (s. 686(8) ) for the reasons I expressed in Thomas to which I refer as if herein recited at length.
32 The Court of Appeal in this case was concerned about the risk of convicting someone who might be suffering from a mental disorder, since the defence of NCRMD had not been raised at trial. On the basis of the procedure set out in Swain, supra, the court ordered a new trial limited to the issue of whether the respondent was NCRMD at the time of the commission of the offences.
33 This Court held in Swain, supra, that the issue of whether the accused is NCRMD may be determined by a hearing conducted after a finding that the accused committed the criminal acts, but before a conviction is entered. The issue of NCRMD may be tried by the jury after it has determined that the accused committed the guilty act in order to decide whether the result of that finding should be a conviction, or a finding of NCRMD. This new common law rule was found to be consistent with an accused’s right to have the Crown prove all the elements of the offence before raising other matters. The order contemplated by the Court of Appeal in this case is of the same nature as a “Swain-type hearing”, since the Crown proved beyond a reasonable doubt that the respondent committed the guilty act before the NCRMD defence was raised. Therefore, since the trial process itself contemplates a two-stage procedure, I find the order to be consistent with the NCRMD defence raised by the respondent on appeal.
34 This Court’s judgment in Swain, supra, shows, in my view, that a limited new trial on the issue of whether the accused is NCRMD is consistent with what “justice requires” in these circumstances. A new trial is being granted because of the fresh evidence relating to the question of whether the accused is NCRMD. This evidence in no way relates to the determination that the accused committed the guilty act. Had the accused put forward this evidence at trial after the jury found he had committed the guilty act, it would have been considered in a Swain-type hearing, where the only issue for determination by the jury would have been whether there should be a conviction or a finding of NCRMD. It is consistent with the requirements of justice that the same proce