R. v. Chaulk

R. v. Chaulk
Collection
Supreme Court Judgments
Date
1990-12-20
Report
[1990] 3 SCR 1303
Case number
21012, 21035
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Manitoba
Subjects
Constitutional law
Criminal law
Evidence
Notes
SCC Case Information: 21012, 21035
Decision Content
R. v. Chaulk, [1990] 3 S.C.R. 1303
Robert Matthew Chaulk and
Francis Darren Morrissette Appellants
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General for New Brunswick
and the Attorney General for Alberta Interveners
indexed as: r. v. chaulk
File Nos.: 21012 and 21035.
1990: May 29, 30; 1990: December 20.
Present: Dickson C.J.* and Lamer C.J.** and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, 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 -- Meaning of word "wrong" in s. 16(2) of Code.
Criminal law -- Defences -- Insanity -- Delusions -- Whether s. 16(3) of Criminal Code constitutes independent insanity defence -- Whether trial judge's instructions to jury adequate.
Evidence -- Rebuttal evidence -- Crown adducing evidence of accused's sanity in rebuttal -- Whether evidence of accused's sanity should have been adduced by Crown as part of its case-in-chief.
The accused were convicted of first degree murder. The only defence raised at trial was insanity, but this defence was rejected by the jury. The Court of Appeal upheld the conviction. This appeal is to determine (1) whether s. 16(4) of the Criminal Code , which provides that "Every one shall, until the contrary is proved, be presumed to be and to have been sane", infringes the presumption of innocence guaranteed in s. 11 (d) of the Canadian Charter of Rights and Freedoms ; and, if so, whether s. 16(4) is justifiable under s. 1 of the Charter ; (2) whether the meaning of the word "wrong" in s. 16(2) of the Code should be restricted to "legally wrong"; (3) whether s. 16(3) of the Code provides an alternative defence if the conditions of s. 16(2) were not met; and (4) whether the trial judge erred in permitting the Crown to split its case by presenting its evidence with respect to the sanity of the accused in rebuttal.
Held (L'Heureux-Dubé, Sopinka and McLachlin JJ. dissenting): The appeal should be allowed and a new trial ordered.
(1) Presumption of Sanity/Presumption of Innocence
Per Dickson C.J. and Lamer C.J. and La Forest, Sopinka and Cory JJ.: The insanity defence under s. 16 of the Code should be characterized as an exemption from criminal liability which is based on an incapacity for criminal intent. This claim for an exemption will usually be manifested under s. 16 either as a denial of mens rea in the particular case or as an excuse for what would otherwise be a criminal offence.
Section 16(4) of the Code infringes the presumption of innocence guaranteed in s. 11 (d) of the Charter . The real concern under s. 11 (d) is not whether the accused must disprove an element or prove an excuse, but whether an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. Accordingly, it is the final effect of the impugned provision on the verdict that is decisive. Whether the claim of insanity is characterized as a denial of mens rea, an excusing defence or, more generally, an exemption based on criminal incapacity, s. 16(4) allows a factor which is essential for guilt to be presumed, rather than proved by the Crown beyond a reasonable doubt. Moreover, the section requires an accused to disprove sanity (or prove insanity) on a balance of probabilities. Section 16(4) therefore violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused. Finally, while the verdict under s. 16 is "not guilty by reason of insanity", the accused raising the s. 16 defence is seeking a "true acquittal" vis‑à‑vis the attachment of criminal culpability and is entitled to the presumption of innocence.
Section 16(4) of the Code constitutes a reasonable limit on the presumption of innocence. The objective of s. 16(4), which is a purely evidentiary section, is to avoid placing on the Crown the impossibly onerous burden of disproving insanity and to thereby secure the conviction of the guilty. This objective is of sufficient importance to warrant limiting a constitutionally protected right. The means chosen by the government are proportional to the objective. First, the presumption of sanity and the reverse onus embodied in s. 16(4) are rationally connected to the objective. Second, s. 16(4) impairs s. 11 (d) as little as possible. To reduce the burden on the accused to a mere evidentiary burden would not achieve the objective as effectively. While s. 16 is seldom raised, given the substantial constraint on liberty which follows a successful insanity plea, if insanity were easier for an accused to establish, the defence would be successfully invoked more often. Parliament may not have chosen the absolutely least intrusive means of meeting the objective, but it has chosen from a range of means which impair s. 11 (d) as little as is reasonably possible. It is not the role of this Court to second‑guess the wisdom of policy choices made by Parliament. Third, there is proportionality between the effects of the measure and the objective. The burden on the accused is not the full criminal burden; rather, the accused is required to prove his insanity on a balance of probabilities. Section 16(4) represents a compromise of three important societal interests: avoiding a virtually impossible burden on the Crown; convicting the guilty; and acquitting those who truly lack the capacity for criminal intent. The alternatives to this compromise raise their own Charter problems and give no guarantee as to whether they will achieve the objective.
Per L'Heureux-Dubé, Gonthier and McLachlin JJ.: The insanity provisions of the Code relate to the basic preconditions for criminal responsibility rather than to essential elements or defences to criminal offences. The latter approach ignores the historical and philosophical origins of the fundamental precept of the criminal law system that the attribution of criminal responsibility and punishment is justifiable only for those who have the capacity to reason and choose between right and wrong. The accused must be sane before any consideration of the essential elements of the offence or exculpatory defences becomes relevant. This approach also violates the language of s. 16 of the Code, which refers to capacity for criminal responsibility rather than actual states of mind. It is at odds with the fact that insanity in s. 16 can be raised by the Crown in circumstances where neither the elements of the offence nor a defence are at issue. Further, it confuses true acquittal, the result of the absence of an essential element of an offence or the presence of a defence to it, with formal acquittal coupled with alternative coercive measures because mental impairment renders the imposition of true penal responsibility inappropriate.
The presumption of sanity in s. 16(4) of the Code, viewed as the fundamental precondition of criminal responsibility, does not offend the presumption of innocence embodied in s. 11 (d) of the Charter , nor does it offend the fundamental notion of procedural fairness which underlies the procedural guarantees of the Charter . The presumption of sanity merely relieves the Crown from establishing that the accused has the capacity for choice which makes attribution of criminal responsibility and punishment justifiable. The Crown must still prove the accused's guilt -- i.e., the actus reus, the mens rea, and the absence of exculpatory defences raised on the evidence -- beyond a reasonable doubt. The presumption of innocence reflects the fundamental precepts upon which our legal system and our Charter are based. There is no suggestion that the present system results in injustice. Accused persons appear to have no difficulty establishing insanity on a balance of probabilities where it exists.
Per Wilson J.: Section 16(4) of the Code infringes s. 11 (d) of the Charter . The presumption of sanity requires the accused to establish his insanity on a balance of probabilities. However one conceives the plea of insanity, whether as an exemption, a defence, a justification or an excuse, the persuasive burden imposed on the accused by s. 16(4) permits him to be convicted of a crime notwithstanding a reasonable doubt as to his guilt. Under s. 11(d), it is the net effect of a reverse onus provision on the final guilt or innocence of the accused rather than the precise nature of the provision that must be examined.
Section 16(4) of the Code does not constitute a reasonable and demonstrably justified limit on the presumption of innocence under s. 1 of the Charter . The objective of s. 16(4) is to prevent perfectly sane persons who have committed crimes to escape criminal liability on tenuous insanity pleas. But nothing indicates that successfully fabricated insanity pleas have given rise to an existing pressing and substantial concern. While the legislature may not necessarily wait until such a concern has arisen, the Crown has not succeeded in establishing even a likelihood of its arising. The American experience does not support the contention that a lower standard of proof would result in more people being acquitted by reason of insanity. Further, several reports from Canada and other countries propose that the burden of proving insanity should be made an evidential one. This burden on the accused is seen as a sufficiently high threshold to prevent insanity pleas in cases where there is only tenuous support for such a plea.
In any event, s. 16(4) does not meet the proportionality test. It is rationally connected to the legislative objective but does not impair the accused's right to be presumed innocent as little as is reasonably possible. It is inappropriate in this case to apply the deferential standard of review on the "minimal impairment" issue. The government does not mediate between different groups but acts as the singular antagonist of a very basic legal right of the accused. The government's objective in this case could be met by imposing a purely evidentiary burden on the accused. The possibility of a successful feigned insanity plea diminishes as scientific knowledge about mental illness increases. The burden on the prosecution, while it would not be an easy one, would nevertheless not be an "impossible onerous burden". In the absence of s. 16(4) the onus would still be on the accused to adduce evidence that makes insanity a live issue fit and proper to be left to the jury. The burden on the Crown would then be to remove any doubt in the jury's mind as to the presence of any of the elements of insanity as set out in ss. 16(2) and 16(3) . There is no hard evidence that putting a lower burden on the accused would result in more guilty people escaping criminal liability on tenuous insanity pleas. Section 16(4) is accordingly not saved by s. 1 of the Charter . It follows that the common law principle which is reflected in s. 16(4) also infringes s. 11 (d) and is not saved by s. 1 .
(2) Meaning of "Wrong"
Per Dickson C.J. and Lamer C.J. and Wilson, La Forest, Gonthier and Cory JJ.: The word "wrong" in s. 16(2) should be interpreted to mean "morally wrong" and not "legally wrong". This Court's judgment in Schwartz v. The Queen, [1977] 1 S.C.R. 673, is overruled. Under s. 16(2), the courts must determine whether the accused, because of a disease of the mind, was rendered incapable of knowing that the act committed was something that he ought not to have done. To do so, the inquiry cannot terminate with the discovery that the accused knew that the act was contrary to the formal law. A person may well be aware that an act is contrary to law but, by reason of disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society. The trial judge, therefore, erred in directing the jury that the insanity defence was not available under s. 16(2) of the Code if the accused knew, at the time of committing the offence, that the act was contrary to the laws of Canada. In view of the trial judge's error, a new trial should be ordered.
Per L'Heureux-Dubé, Sopinka and McLachlin JJ. (dissenting): The question under s. 16(2) of the Code is not whether the accused thought an act was morally or legally wrong but whether he was incapable of knowing that he ought not to do it. If the accused is capable of knowing that the act was in some sense "wrong", then it is neither unfair nor unjust to submit the accused to criminal responsibility and penal sanction. The word "wrong" in s. 16(2) should therefore be construed to mean simply that which one "ought not to do", for whatever reasons, legal or moral. The wording of s. 16(2), the history and the purpose of the insanity provisions, as well as the difficulty of determining in every situation what is morally wrong, support that conclusion.
(3) Specific Delusions
Per Dickson C.J. and Lamer C.J. and La Forest, Gonthier and Cory JJ.: As a result of this Court's reconsideration of the meaning of the word "wrong" in s. 16(2), any successful attempt to invoke the insanity defence under s. 16(3) of the Code would also succeed under s. 16(2). Furthermore, if an accused fails to satisfy the conditions set out in s. 16(2), he will not be able to benefit from s. 16(3). It would not, therefore, assist an accused in any way if s. 16(3) was held to constitute a separate and independent defence.
Per L'Heureux-Dubé, Sopinka and McLachlin JJ.: Assuming that s. 16(3) of the Code relating to specific delusions can arise where the conditions of s. 16(2) are not met, the trial judge left open this possibility to the jury and his instructions were adequate.
Per Wilson J.: While most cases of specific delusions under s. 16(3) of the Code will now be caught under the second branch of s. 16(2), there may still be "specific delusions" which are not necessarily attributable to a "disease of the mind". Since legislative provisions should not readily be held to be redundant, particularly ones which are favourable to the accused, it is preferable to leave s. 16(3) open to an accused who might not qualify for the insanity defence under the second branch of s. 16(2).
(4) Splitting the Case
Per Dickson C.J. and Lamer C.J. and Wilson, La Forest, Gonthier and Cory JJ.: The trial judge correctly permitted the Crown to adduce evidence with respect to sanity in rebuttal. While the Crown must tender, as part of its case, evidence that will establish the existence of all elements of the offence with which the accused is charged, the Crown need not adduce evidence in chief to challenge a defence that an accused might possibly raise. This principle is not altered by the fact that the accused may warn the Crown that it intends to raise a particular defence. Further, a requirement that the Crown adduce evidence in chief to establish the sanity of the accused would defeat the presumption contained in s. 16(4). Finally, since the accused were given the opportunity for surrebuttal in this case, they did not suffer prejudice as a result of the fact that the Crown's evidence was adduced in rebuttal rather than in chief.
Per L'Heureux-Dubé, Sopinka and McLachlin JJ.: The Crown was entitled to rely on the presumption of sanity and was under no obligation to present evidence on this issue as part of its case against the accused. The evidence on insanity did not relate to an essential element of the offence.
Cases Cited
By Lamer C.J.
Overruled: Schwartz v. The Queen, [1977] 1 S.C.R. 673; applied: R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Oakes, [1986] 1 S.C.R. 103; distinguished: R. v. Schwartz, [1988] 2 S.C.R. 443; referred to: R. v. Godfrey (1984), 11 C.C.C. (3d) 233; Smythe v. The King, [1941] S.C.R. 17; R. v. Simpson (1977), 35 C.C.C. (2d) 337; Rabey v. The Queen, [1980] 2 S.C.R. 513; R. v. Abbey [1982] 2 S.C.R. 24; R. v. Holmes, [1988] 1 S.C.R. 914; Woolmington v. Director of Public Prosecutions, [1935] A.C. 462; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; M'Naghten's Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718; R. v. Codere (1916), 12 Cr. App. R. 21; R. v. Windle, [1952] 2 Q.B. 826; Stapleton v. The Queen (1952), 86 C.L.R. 358; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Budic (No. 3) (1978), 43 C.C.C. (2d) 419; R. v. Bruno (1975), 27 C.C.C. (2d) 318.
By Wilson J.
Applied: R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Whyte, [1988] 2 S.C.R. 3; distinguished: R. v. Schwartz, [1988] 2 S.C.R. 443; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; referred to: Clark v. The King (1921), 61 S.C.R. 608; M'Naghten's Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718; Woolmington v. Director of Public Prosecutions, [1935] A.C. 462; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Holmes, [1988] 1 S.C.R. 914; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Davis v. United States, 160 U.S. 469 (1895); Ortwein v. Commonwealth, 76 Pa. 414 (1874); In Re Winship, 397 U.S. 358 (1970); Mullaney v. Wilbur, 421 U.S. 684 (1975); Jackson v. Virginia, 443 U.S. 307 (1979); Leland v. Oregon, 343 U.S. 790 (1952): Rivera v. Delaware, 429 U.S. 877 (1976), aff'g 351 A.2d 561 (1976); United States v. Pasarell, 727 F.2d 13 (1984), certiorari denied, 105 S. Ct. 107 (1984); United States v. Voice, 627 F.2d 138 (1980); United States v. Samuels, 801 F.2d 1052 (1986); People v. Stockwell, 242 N.W.2d 559 (1976); United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. Gill (1963), 47 Cr. App. R. 166; R. v. Abbey, [1982] 2 S.C.R. 24; People v. Krugman, 141 N.W.2d 33 (1966).
By McLachlin J. (dissenting)
Rabey v. The Queen, [1980] 2 S.C.R. 513; R. v. Simpson (1977), 35 C.C.C. (2d) 337; R. v. Saxell (1980), 59 C.C.C. (2d) 176; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Whyte, [1988] 2 S.C.R. 3; Schwartz v. The Queen, [1977] 1 S.C.R. 673; M'Naghten's Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718; R. v. Codere (1916), 12 Cr. App. R. 21; R. v. Windle, [1952] 2 Q.B. 826; Stapleton v. The Queen (1952), 86 C.L.R. 358.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 11 (d).
Criminal Code, 1892, S.C. 1892, c. 29, s. 11.
Criminal Code, R.S.C., 1985, c. C-46, ss. 13 , 16 , 17 , 614(2) .
Young Offenders Act, R.S.C., 1985, c. Y-1 .
Authors Cited
American Bar Association. Standing Committee on Association Standards for Criminal Justice. First Tentative Draft: Criminal Justice Mental Health Standards. Washington: American Bar Association, 1983.
Boisvert, Anne-Marie. "Psychanalyse d'une défense: réflexions sur l'aliénation mentale" (1990), 69 Can. Bar Rev. 46.
Canada. Law Reform Commission. Report 31. Recodifying Criminal Law. Ottawa: The Commission, 1987.
Canada. Law Reform Commission. The Presumption of Innocence in the Draft Code of Substantive Criminal Law. Unpublished paper prepared by Patrick Healy, 1986.
Canada. Law Reform Commission. Working Paper 29. Criminal Law: The General Part -- Liability and Defences. Ottawa: Minister of Supply and Services Canada, 1982.
Canada. Royal Commission on the Law of Insanity as a Defence in Criminal Cases. Report of the Royal Commission on the Law of Insanity as a Defence in Criminal Cases. Hull: Queen's Printer, 1956.
Charles, William H., Thomas A. Cromwell and Keith B. Jobson. Evidence and the Charter of Rights and Freedoms. Toronto: Butterworths, 1989.
Colvin, Eric. "Exculpatory Defences in Criminal Law" (1990), 10 Oxford J. Legal Stud. 381.
Colvin, Eric. Principles of Criminal Law. Toronto: Carswells, 1986.
Ferguson, G. "A Critique of Proposals to Reform the Insanity Defence" (1989), 14 Queen's L. J. 135.
Fortin, Jacques et Louise Viau. Traité de droit pénal général. Montréal: Thémis, 1982.
Great Britain. Criminal Law Revision Committee, Eleventh Report. Evidence (General), Cmnd. 4991. London: H.M.S.O., 1972.
Hodgins, Sheilagh et al. Annual Report, Year 1 Canadian Data Base: Patients Held on Lieutenant Governors' Warrants, 1989.
Keilitz, Ingo and Junius P. Fulton. The Insanity Defense and its Alternatives: A Guide for Policy makers. National Center for States Courts, 1984.
Kenny's Outlines of Criminal Law, 19th ed. By J. W. Cecil Turner. Cambridge: Cambridge University Press, 1966.
Klinck, Dennis R. ""Specific Delusions" in the Insanity Defence" (1983), 25 Crim. L.Q. 458.
Mahoney, Richard. "The Presumption of Innocence: A New Era" (1988), 67 Can. Bar Rev. 1.
Matthews Jr., Arthur R. Mental Disability and the Criminal Law: A Field Study. Chicago: American Bar Foundation, 1970.
McWilliams, Peter K. Canadian Criminal Evidence, 3rd ed. Aurora, Ont.: Canada Law Book Ltd., 1990.
Mewett, Alan W. "Insanity, Criminal Law and the Charter " (1989), 31 Crim. L.Q. 241.
Mewett, Alan W. "Section 16 and `Wrong'" (1976), 18 Crim. L.Q. 413.
Mewett, Alan W. and Morris Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.
Perkins, Rollin M. and Ronald N. Boyce. Criminal Law, 3rd. ed. Mineola, N.Y.: Foundation Press, Inc., 1982.
Quen, Jacques M. "Anglo-American Concepts of Criminal Responsibility: A Brief History". In Stephen J. Hucker, Christopher D. Webster and Mark H. Ben-Aron, eds., Mental Disorder and Criminal Responsibility. Toronto: Butterworths, 1981.
Rogers, Richard and R. E. Turner, "Understanding of Insanity: A National Survey of Forensic Psychiatrists and Psychologists" (1987), 7 Health L. Can. 71.
Schiffer, Marc. Mental Disorder and the Criminal Trial Process. Toronto: Butterworths, 1978.
Simon Rita J. and David E. Aaronson. The Insanity Defense: A Critical Assessment of Law and Policy in the Post-Hinckley Era. New York: Praeger, 1988.
Stuart, Don. Canadian Criminal Law, 2nd ed. Toronto: Carswells, 1987.
Taschereau, Henri Elzéar. The Criminal Code . Toronto: Carswells, 1893.
Weihofen, Henry. Mental Disorder as a Criminal Defense. Buffalo: Dennis & Co., 1954.
Ziskin, Jay and David Faust. Coping with Psychiatric and Psychological Testimony, vol. I, 4th ed. Marina del Rey, Calif.: Law and Psychology Press, 1988.
APPEAL from a judgment of the Manitoba Court of Appeal (1988), 4 W.C.B. (2d) 218, [1988] Man. D. 5400-03, dismissing the appellants' appeal from their conviction on a charge of first degree murder. Appeal allowed and new trial ordered, L'Heureux-Dubé, Sopinka and McLachlin JJ. dissenting.
John Scurfield, Q.C., for the appellant Chaulk.
G. G. Brodsky, Q.C., for the appellant Morrissette.
George Dangerfield, Q.C., for the respondent.
S. R. Fainstein, Q.C., for the intervener the Attorney General of Canada.
R. Libman, for the intervener the Attorney General for Ontario.
Jacques Gauvin, for the intervener the Attorney General of Quebec.
Bruce Judah, for the intervener the Attorney General for New Brunswick.
Michael Watson, for the intervener the Attorney General for Alberta.
The judgment of Dickson C.J. and 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 . This Court has also been asked to revisit its interpretation of the meaning of the word "wrong" found in s. 16(2) . There are other issues specific to the appeal which are set out further on in these reasons.
Facts
On September 3, 1985, the appellants Chaulk and Morrissette entered a home in Winnipeg, plundered it for valuables and then stabbed and bludgeoned its sole occupant to death. A week later they turned themselves in, making full confessions.
After a transfer proceeding in the Youth Court (Chaulk and Morrissette were 15 and 16 years of age, respectively), the appellants were tried and convicted of first degree murder by a jury in the Manitoba Court of Queen's Bench. The only defence raised was insanity within the meaning of s. 16 of the Code. Expert evidence was given at trial that the appellants suffered from a paranoid psychosis which made them believe that they had the power to rule the world and that the killing was a necessary means to that end. They knew the laws of Canada existed, but believed that they were above the ordinary law; they thought the law was irrelevant to them. They thought they had a right to kill the victim because he was "a loser".
An appeal to the Manitoba Court of Appeal was unanimously dismissed on May 13, 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.
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
Manitoba Court of Queen's Bench
The appellants were tried before Ferg J., sitting with a jury, in the Court of Queen's Bench. They were convicted of first degree murder. The only defence raised at trial was insanity and this defence was rejected by the jury. Chaulk and Morrissette were sentenced to life imprisonment without eligibility for parole for a period of twenty‑five years.
Manitoba Court of Appeal (O'Sullivan J.A. for the Court)
The appellants appealed their conviction to the Manitoba Court of Appeal on the grounds that s. 16(4) violated the Charter ; that the trial judge had erred in his charge to the jury on s. 16(3) and on the effect of mental impairment on the ability to plan and deliberate; that the trial judge had erred in refusing to answer specific questions of the jury regarding ss. 16(2) and 16(3) ; that the trial judge erred in not ordering separate trials for the two accused and in admitting certain statements by the accused Chaulk to a counsellor without a voir dire; and that the trial judge erred in refusing a defence motion for particulars.
The Court of Appeal was of the view that Ferg J.'s charge to the jury and his answers to their queries "fairly set out the issues for the jury's consideration". The court held that any reasonable jury would, if properly instructed, reject the defence of insanity in this case. O'Sullivan J.A. stated:
In my opinion, the evidence shows that the accused were suffering from megalomania, but it is clear that they knew and fully appreciated the nature and consequences of their acts and they knew that what they were doing was legally wrong (see R. v. Abbey (1982), 29 C.R. (3d) 193). There was no evidence of any specific delusions.
. . .
In my opinion, medically insane people can be made responsible for their acts if the insanity does not fall within the provisions of s. 16 of the Criminal Code .
The court rejected the argument that the onus provisions of s. 16(4) of the Code contravened s. 11 (d) of the Charter . Relying on its judgment in R. v. Godfrey (1984), 11 C.C.C. (3d) 233, the court held that s. 16(4) was not inconsistent with the Charter . O'Sullivan J.A. was of the opinion that the argument against the presumption of sanity was potentially threatening to liberty, given that insanity may be raised by the Crown or by the judge. He stated that if there were no presumption of sanity, "it would be open to a jury to condemn a prisoner to incarceration as an insane person if they had a reasonable doubt as to his sanity".
As regards the admission of Chaulk's statement in the absence of a voir dire, the Court of Appeal held that the statement had not been made to a person in authority and found no reversible error in Ferg J.'s decision to admit the statement without a voir dire.
Issues
The following constitutional questions were stated by Dickson C.J. on July 13, 1989:
1.Is s. 16(4) of the Criminal Code of Canada 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 appellants raise three further issues in this Court:
3.What is the interpretation of the word "wrong" which is found in s. 16(2) of the Criminal Code of Canada? Is its meaning restricted to "legally wrong" or may it also be interpreted more broadly to include "legally or morally wrong"?
4.What interpretation should be given to s. 16(3) of the Criminal Code of Canada? Should the section have been left to the jury in the case at bar, and if so, what are the necessary jury instructions?
5.[Did] the learned trial judge err in permitting the Crown to split its case and call the bulk of its case in purported rebuttal?
Analysis
Is s. 16(4) of the Code inconsistent with s. 11 (d) of the Charter ?
Section 16(4) of the Code sets out a presumption of sanity. This presumption can be rebutted if "the contrary is proved". In Smythe v. The King, [1941] S.C.R. 17, this Court held that when insanity is raised by the defence, the accused must prove that he or she was insane, at the time of the offence, on a balance of probabilities. In R. v. Simpson (1977), 35 C.C.C. (2d) 337 (Ont. C.A.), Martin J.A., citing Smythe at p. 363, stated:
It is, of course, well established that where the accused alleges that he was insane at the time of the commission of the act the onus on the accused to prove insanity is discharged by proof of insanity on the balance of probabilities: ...
The appellant Morrissette argues that the words "until the contrary is proved" in s. 16(4) should be interpreted, based on common law, so as to require an accused to merely raise a reasonable doubt as to his insanity. He assumes that if the words were given this interpretation, s. 16(4) would not violate the presumption of innocence and it would not be necessary to address the Charter arguments in this case.
In my view, the words "until the contrary is proved" cannot be interpreted as requiring an accused merely to discharge an evidentiary burden (i.e., raise a reasonable doubt as to insanity); the words in s. 16(4) clearly impose a persuasive burden on the accused. In R. v. Oakes, [1986] 1 S.C.R. 103, Dickson C.J. discussed the different types of presumptions which exist in criminal law in the context of deciding whether s. 8 of the Narcotic Control Act placed an evidentiary or a persuasive burden on the accused. The provision in question required an accused to "establish" that he was not in possession of a narcotic for the purpose of trafficking. Dickson C.J. stated that the phrase "to establish" is equivalent to the phrase "to prove", and that the use of the word "establish" implied that the accused had to prove, on a balance of probabilities, that he or she was not in possession of a narcotic for the purpose of trafficking (pp. 114‑18). It is clear from the reasoning in Oakes that a provision which presumes the existence of some fact (in this case, sanity) "until the contrary is proved", places a burden on an accused wishing to rebut this fact to prove the contrary (insanity) on a balance of probabilities.
Accordingly, it is necessary, in this case, to measure s. 16(4) against s. 11 (d) of the Charter .
The appellants argue that the requirement that an accused person prove his or her insanity on a balance of probabilities is contrary to the presumption of innocence, guaranteed by s. 11 (d) of the Charter . In order to resolve this question one must consider the nature of the insanity provisions in our criminal law.
The Nature of the Insanity Provisions
There is controversy in academic circles as to whether insanity operates to negate a "condition precedent" to legal responsibility or whether it operates as a defence in the sense that it negates mens rea. Let me begin by saying that I will use the term "defence" to describe a claim of insanity under s. 16 , but only in the broad, general sense of the term which means "any answer which defeats a criminal charge" (Law Reform Commission of Canada, Working Paper 29, Criminal Law: The General Part -- Liability and Defences (1982), at p. 35), or "any claim which, if accepted, would necessitate an acquittal" (Colvin, Principles of Criminal Law (1986), at p. 163).
It is true that the exact nature of the insanity defence is very difficult to ascertain. The wording of s. 16 itself is not particularly helpful in this regard. It tells us that a claim of insanity, if proved, will preclude a conviction, but it does not tell us whether a claim of insanity negates mens rea, provides an excuse or justification, or whether it simply exempts an accused from a criminal conviction on policy grounds. Other Code provisions are more explicit; for example, s. 17 tells us that a person who commits an offence under compulsion of certain threats will be excused for committing the offence in certain circumstances.
It is helpful to note, however, that s. 16(1) is worded in a very similar fashion to s. 13 , which provides:
13. No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years.
This is a variation on the common law, which provided that a child under the age of seven was presumed irrebuttably to be incapable of possessing criminal intent and that a child between the ages of seven and fourteen was likewise presumed incapable unless there was clear proof of "precocity" so as to establish a real appreciation of the wrong done (see Perkins and Boyce, Criminal Law (3rd ed. 1982), c. 8). Once an accused reached the age of fourteen, the common law presumption of criminal incapacity disappeared and was replaced by a rebuttable presumption of capacity for criminal intent. This accords with the presumption of sanity which existed at common law (enunciated via the M'Naghten Rules), was adopted into Canadian criminal law in the first criminal code (see The Criminal Code , 1892, S.C. 1892, c. 29, s. 11, and accompanying commentary by Taschereau J. (The Criminal Code (1893, at pp. 8-9)), and continues in the current s. 16(4) .
In other words, the nature of the insanity defence is revealed if one views the changing presumptions regarding criminal capacity as a continuum. At common law, this continuum began with an irrebuttable presumption that a child under the age of seven could not have the capacity for criminal intent. Our current Code s. 13 provides for an irrebuttable presumption that a child under the age of twelve has no criminal capacity. At common law, the continuum provided for a rebuttable presumption of incapacity for children between the ages of seven and fourteen. Perkins and Boyce state "[t]his presumption is extremely strong at the age of seven and diminishes gradually until it disappears entirely at the age of fourteen" (p. 936). The current Criminal Code cuts off the presumption at age twelve; after a person reaches the age of twelve the presumption of sanity in s. 16(4) comes into play. Thus, at this end of the continuum, individuals are presumed to have criminal capacity until such presumption is rebutted on a balance of probabilities (of course, the Young Offenders Act, R.S.C., 1985, c. Y-1 , which incorporates a concept of diminished responsibility, applies to young people between the ages of twelve and eighteen).
While the state of insanity and the state of childhood cannot be equated, the connection between these two situations for the purpose of criminal law is apparent. What these two situations have in common is that they both indicate that the individual in question does not accord with some basic assumptions of our criminal law model: that the accused is a rational autonomous being who is capable of appreciating the nature and quality of an act and of knowing right from wrong. With respect to the state of childhood, these basic assumptions are brought into question because of the immaturity of the individual -‑ he or she has not yet developed the basic capacity which justice and fairness require be present in a person who is being measured against the standards of criminal law. With the state of insanity, these basic assumptions are brought into question because the accused is suffering from some disease of the mind or from some delusions which cause him or her to have a frame of reference which is significantly different than that which most people share. This mental condition means that the accused is largely incapable of criminal intent and should not, therefore, generally be subject to criminal liability in the same way that sane people are. (I note here that s. 16 does not exempt all people with a disease of the mind from criminal liability. The insanity defence is defined in a particular way and only if an accused meets those criteria will his or her mental condition preclude a finding of guilt.)
The foregoing discussion indicates, in my view, that the insanity provisions operate, at the most fundamental level, as an exemption from criminal liability which is predicated on an incapacity for criminal intent. However, in particular cases, this basic incapacity may manifest itself in a number of different ways depending on the claims put forward by the accused. A claim of insanity, with its underlying claim of criminal incapacity, could give rise to a denial of the actus reus or of the mens rea in a particular case. For example, an accused could claim that his or her mental condition is such that when the alleged crime took place, he or she was not acting consciously. This is akin to a claim of insane automatism which denies the essential element of voluntary actus reus on the basis of an internal cause -‑ the accused's disease of the mind (Rabey v. The Queen, [1980] 2 S.C.R. 513). An accused could also raise the argument that his or her mental condition was such that while he or she was acting consciously and voluntarily, he or she did not have the requisite mens rea. For example, a person charged with murder could claim that while he consciously and voluntarily did the act of chopping, he thought that he was chopping a loaf of bread in half, when, i