R. v. Jacquard

R. v. Jacquard
Collection
Supreme Court Judgments
Date
1997-02-20
Report
[1997] 1 SCR 314
Case number
24660
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; Major, John C.
On appeal from
Nova Scotia
Subjects
Criminal law
Notes
SCC Case Information: 24660
Decision Content
R. v. Jacquard, [1997] 1 S.C.R. 314
Clayton Otis Jacquard Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Jacquard
File No.: 24660.
1996: October 10; 1997: February 20.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory and Major JJ.
on appeal from the court of appeal for nova scotia
Criminal law ‑‑ Trial ‑‑ Charge to jury ‑‑ Mental disorder ‑‑ Murder ‑‑ Trial judge canvassing accused’s mental disorder evidence at length when discussing insanity defence ‑‑ Whether trial judge erred in simply referring to this evidence when addressing “planning and deliberation” element of first degree murder ‑‑ Whether jury properly charged on how accused’s mental disorder evidence applied to issues of “planning and deliberation”and “intent”.
Criminal law ‑‑ Trial ‑‑ Charge to jury ‑‑ Mental disorder ‑‑ Murder ‑‑ Trial judge relating accused’s mental disorder evidence to issue of “intention to commit murder”as part of his instructions regarding other offences and not earlier when issue arose ‑‑ Whether trial judge’s instructions on intent adequate.
Criminal law ‑‑ Trial ‑‑ Charge to jury ‑‑ Consciousness of guilt ‑‑ Accused charged with first degree murder ‑‑ Murder weapon found by police hidden under skateboard ramp with no fingerprints on it ‑‑ Accused admitting actus reus of offence ‑‑ Whether trial judge properly instructed jury on inferences to be drawn from accused’s concealment of murder weapon ‑‑ If not, whether curative proviso applicable ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1) (b)(iii).
Criminal law ‑‑ Trial ‑‑ Charge to jury ‑‑ Approach to be adopted by appellate courts when reviewing charges.
The accused was charged with first degree murder for the killing of his stepfather and with attempted murder for the shooting of his stepfather’s companion. Two days after the incident, the weapon used by the accused was found by the police underneath a skateboard ramp and free of any fingerprints. At trial, the accused admitted that he had fired the gun shots that caused the death of his stepfather, but pleaded not guilty on the grounds that (1) he was not criminally responsible for his act by virtue of his mental disorder under s. 16 of the Criminal Code , and (2) he lacked the requisite intent to kill his stepfather. Defence psychiatrists testified that the accused suffered from a mental disorder at the relevant time, as a result of which he neither understood the nature or quality of his acts nor was capable of forming the intent to carry them out. In his lengthy charge to the jury, the trial judge reviewed extensively the evidence of the accused’s mental disorder as it related to his s. 16 defence. When subsequently discussing the issue of “planning and deliberation”, the trial judge chose not to repeat himself, indicating to the jury that “[i]n considering whether the murder was planned and deliberate you should consider all . . . the circumstances and all the evidence”. The jury convicted the accused. On appeal from his conviction for first degree murder, the accused contended that the trial judge’s instructions did not make it clear to the jury that the burden of proof on the issues of intent and “planning and deliberation” was on the Crown, and that the evidence relating to the accused’s mental disorder ought to be reconsidered in relation to those issues. The accused also submitted that the trial judge misdirected the jury with respect to “consciousness of guilt” when he commented to them that the fact that an accused tries to hide or destroy evidence can be indicative of “consciousness of guilt”. The Court of Appeal dismissed the accused’s appeal.
Held (Sopinka, Cory and Major JJ. dissenting): The appeal should be dismissed.
Per Lamer C.J. and La Forest, L’Heureux‑Dubé and Gonthier JJ.: As long as an appellate court, when looking at a trial judge’s charge to the jury as a whole, concludes that the jury was left with a sufficient understanding of the facts as they relate to the relevant issues, the charge is proper. Here, the trial judge thoroughly canvassed the evidence of the accused’s mental disorder when he discussed the s. 16 defence and he was not required to restate this evidence when addressing the “planned and deliberate” issue. By directing the jury to reconsider all of the circumstances and evidence, he fulfilled his obligation to relate the essential evidence of the accused’s mental disorder to that issue. As well, even though the trial judge did not relate the mental disorder evidence to the issue of intention when the issue arose, but only later as part of his instructions regarding manslaughter and attempted murder, his charge read in its entirety made it clear to the jury, prior to its deliberations, that intention could be negatived by the evidence of the accused’s mental disorder. While this aspect of the charge may not have been perfect, it was proper and fair.
The jury was properly instructed on how the mental disorder evidence applied to each live legal issues. In his charge, the trial judge clearly indicated that the Crown had the burden of proving all the elements of first degree murder, including “planning and deliberation”, beyond a reasonable doubt, and that this was a different burden from that imposed on the accused under the s. 16 defence. The jurors also fully understood that even if they concluded that the accused had not adequately established a s. 16 defence, the other defences were still open. The trial judge did not tell the jury to disregard the evidence of mental disorder if the s. 16 defence was not proven. In fact, he expressly instructed otherwise. Further, a trial judge need not instruct a jury on the finer distinctions of the manner in which an accused’s mental incapacity can undermine his capacity to intend as opposed to his capacity to plan and deliberate. It is sufficient if his instructions, when read as a whole, make the jury aware that the evidence of the accused’s mental disorder needs to be considered on each issue, and do not mislead the jury into thinking that a finding of planning and deliberation necessarily follows from a finding of intention. In this case, the jury was properly instructed on the meaning, scope and effect of “planned and deliberate”.
In reviewing jury charges, appellate courts must adopt a functional approach. The purpose of such review is to ensure that juries are properly ‑‑ not perfectly ‑‑ instructed. When a functional approach is applied in the greater context of the accused’s trial, there is added reason to conclude that the jury was properly instructed. First, the “planned and deliberate” issue was not expressly raised by the accused as a live issue at trial, which helps explain why the trial judge’s directions on that issue may have been shorter and less elaborate than on others. Second, the Crown adduced some evidence on the subject of “planning and deliberation”, casting doubt on the accused’s submission that his capacity to plan and deliberate was not on the jury’s mind. Third, the defence’s failure to comment on the alleged misdirection following the jury charge says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection. Finally, this is not a case about misdirection.
Evidence of an accused’s flight from a crime scene or his concealment of a piece of evidence may give rise to an inference of consciousness of guilt, and a trial judge should instruct the jury accordingly. But where, as here, the accused has admitted the actus reus of the offence, the trial judge must be more circumspect. Since neither the accused’s presence at the scene of the killing nor his physical responsibility for the shooting was at issue at the trial, the evidence that he hid the murder weapon and may have cleaned it of his fingerprints had no probative value in relation to those aspects of the case. The alleged attempt to hide the weapon and to destroy evidence, however, was relevant circumstantial evidence for the jury to consider in evaluating the accused’s s. 16 defence. Evidence of concealment or flight may not speak to a particular level of offence, but it certainly has some bearing on whether the accused was capable of appreciating that what he had done was wrong. Accordingly, the trial judge erred, not by instructing the jury to consider consciousness of guilt, because such an inference was clearly relevant, but by saying that the evidence in question was “one piece of evidence that you can make use of in deciding whether the accused is guilty or not guilty or not criminal[ly] responsible by reason of mental disorder”. This language must be said to have been ambiguous enough to have had at least the potential to suggest that the trial judge was making an improper connection between the accused’s alleged concealment of the murder weapon and a particular offence.
Notwithstanding the trial judge’s erroneous “consciousness of guilt” instructions, no substantial wrong or miscarriage of justice occurred in this case and it is thus appropriate to apply s. 686(1)(b)(iii) of the Code. The trial judge’s error was not in alluding to “consciousness of guilt” but in failing to limit its applicability to the s. 16 issue. This error aside, the charge was fair and balanced and avoided making explicit comment on the propriety of the inferences available to the jury. No reasonable juror would have been motivated to reach a different verdict on the basis of this minor error. The jury would have known that there is nothing inherent in the bare act of hiding a weapon or wiping it of its fingerprints that suggests a particular level of offence. Moreover, this is not a case of compounded mistakes. Consciousness of guilt was a single error, a small aspect of the Crown’s case, and a minor component of the incriminating evidence.
Per Sopinka, Cory and Major JJ. (dissenting): While there is agreement with almost all of the Chief Justice’s reasons and recommendations, his conclusion that the trial judge’s instructions to the jury on first degree murder were adequate cannot be accepted. The trial judge’s instructions on the planning and deliberation element of first degree murder did not refer to the evidence pertaining to mental illness and the possible effect it might have on the accused’s ability to plan and deliberate upon the killing of the victim. A simple reference to consider all the evidence was insufficient. Although it was unnecessary for the trial judge to review the evidence as to mental illness again, a specific reference should have been made to it during his explanation of planning and deliberation. Such instructions were an essential element of this charge.
Per Sopinka and Major JJ. (dissenting): It is the obligation of a trial judge to relate evidence that is crucial to the defence to the issues. The review of the evidence need not be extensive. A reference back to evidence previously reviewed is sufficient provided it is clear that the jury will be under no misapprehension as to the evidence to which the reference back relates. Moreover, if it would not be apparent to lay persons how particular evidence will assist in resolving an issue, some explanation is required. Here, the trial judge fully explained the relevance and application of the psychiatric evidence to the issue of mental disorder under s. 16 of the Criminal Code . He also specifically referred to this evidence in relation to other issues but he did not do so in relation to the charge on planning and deliberation. The jury might well have taken from this that the mental disorder evidence and the psychiatric evidence in particular were only relevant in respect of those issues to which a specific reference was made. Furthermore, a simple reference may not have been adequate in this case since it is uncertain that a jury, without a proper instruction, would know how the psychiatric evidence, couched in terms of s. 16 , would apply to planning and deliberation.
Cases Cited
By Lamer C.J.
Applied: R. v. Wallen, [1990] 1 S.C.R. 827; distinguished: More v. The Queen, [1963] S.C.R. 522; R. v. Allard (1990), 57 C.C.C. (3d) 397; referred to: R. v. McColeman (1991), 11 W.A.C. 128; John v. The Queen, [1971] S.C.R. 781; Cluett v. The Queen, [1985] 2 S.C.R. 216; Azoulay v. The Queen, [1952] 2 S.C.R. 495; McMartin v. The Queen, [1964] S.C.R. 484; R. v. Mitchell, [1964] S.C.R. 471; R. v. Kirkby (1985), 47 C.R. (3d) 97; R. v. Reynolds (1978), 22 O.R. (2d) 353; R. v. Aalders, [1993] 2 S.C.R. 482; R. v. Smith (1986), 71 N.S.R. (2d) 229; R. v. Palmer (1986), 12 O.A.C. 181; R. v. Arcangioli, [1994] 1 S.C.R. 129; Thériault v. The Queen, [1981] 1 S.C.R. 336; R. v. Marinaro, [1996] 1 S.C.R. 462, rev’g (1994), 95 C.C.C. (3d) 74; R. v. Jenkins (1996), 29 O.R. (3d) 30; R. v. Wiltse (1994), 19 O.R. (3d) 379; R. v. Charlette (1992), 83 Man. R. (2d) 187; R. v. Murray (1994), 93 C.C.C. (3d) 70; R. v. Bob (1990), 78 C.R. (3d) 102; R. v. White (1996), 108 C.C.C. (3d) 1; Colpitts v. The Queen, [1965] S.C.R. 739.
By Cory J. (dissenting)
R. v. Mitchell, [1964] S.C.R. 471; R. v. Wallen, [1990] 1 S.C.R. 827; More v. The Queen, [1963] S.C.R. 522; R. v. Kirkby (1985), 47 C.R. (3d) 97; R. v. Markle, [1990] O.J. No. 2606 (QL).
By Sopinka J. (dissenting)
Azoulay v. The Queen, [1952] 2 S.C.R. 495; R. v. Brydon, [1995] 4 S.C.R. 253.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C‑46, ss. 16 [rep. & sub. 1991, c. 43, s. 2], 231(2), 235(1), 239, 655, 686(1)(b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)].
APPEAL from a judgment of the Nova Scotia Court of Appeal (1995), 138 N.S.R. (2d) 352, 394 A.P.R. 352, dismissing the accused’s appeal from his conviction for first degree murder. Appeal dismissed, Sopinka, Cory and Major JJ. dissenting.
Joel E. Pink, Q.C., and Daniel G. Graham, for the appellant.
William D. Delaney, for the respondent.
//The Chief Justice//
The judgment of Lamer C.J. and La Forest, L’Heureux-Dubé and Gonthier JJ. was delivered by
1 The Chief Justice -- This appeal raises questions about the standard to which this Court should hold trial judges in charging juries. It is undoubtedly important that jurors try the right facts according to the appropriate legal principles in each case. However, we must ensure that the yardstick by which we measure the fitness of a trial judge’s directions to the jury does not become overly onerous. We must strive to avoid the proliferation of very lengthy charges in which judges often quote large extracts from appellate decisions simply to safeguard verdicts from appeal. Neither the Crown nor the accused benefits from a confused jury. Indeed justice suffers.
2 These comments are not meant to suggest that we sanction misdirected verdicts. This Court has stated on repeated occasions that accused individuals are entitled to properly instructed juries. There is, however, no requirement for perfectly instructed juries. As I specifically indicated at the hearing of this case, a standard of perfection would render very few judges in Canada, including myself, capable of charging juries to the satisfaction of such a standard.
I. Factual and Procedural Background
3 December 17, 1992 was a fateful day for at least three people in Yarmouth, Nova Scotia. Alexander “Sandy” Hurlburt and his spouse Barbara Wilkinson went out for a special dinner in celebration of Ms. Wilkinson’s 27th birthday. When they returned home, the appellant Clayton Jacquard, Mr. Hurlburt’s stepson from a previous relationship, was there to greet them. This came as no surprise because, although he did not live with them, Mr. Jacquard had spent the previous day and night at the couple’s home, sleeping on the living room sofa during the course of the night.
4 Soon after Ms. Wilkinson retired to her bedroom the night turned tragic. When she went to bed, she left her husband and the appellant playing cards and watching television in the living room. The next thing Ms. Wilkinson recalled was sitting up in bed screaming, having been shot, and seeing the appellant standing at the bedroom door with a gun pointing at her. After Ms. Wilkinson instinctively raised her hand to protect herself from further gunshot, the appellant fired once more and then left the room. Ms. Wilkinson then crawled from her bedroom to the living room where she was able to phone her mother and sister and then await the arrival of the police.
5 When the police arrived they found Ms. Wilkinson lying in the living room with serious shotgun wounds. She would survive, although she sustained permanent disability to her leg, hip, hand and collarbone. By contrast, the police found Mr. Hurlburt dead in a pool of blood in the front hall with fatal shotgun wounds to his back and chest.
6 Later that evening, the police apprehended the appellant who had sought refuge at the house of a friend, Anthony Wallace. The appellant had instructed Mr. Wallace to call the police so that the appellant could turn himself in. Two days later, the Yarmouth and Area Ground Search and Rescue Team found the 12-gauge shotgun used by the appellant in the shooting, free of any fingerprints, underneath a skateboard ramp adjacent to the local gun club. The appellant was charged with first degree murder and attempted murder contrary to ss. 235(1) and 239 of the Criminal Code, R.S.C., 1985, c. C-46 .
7 At trial, the appellant filed an admission pursuant to s. 655 of the Criminal Code in which he indicated that he had fired the two gun shots that caused Mr. Hurlburt to die. He pleaded not guilty to the charges, however, on the grounds that: (1) under s. 16 of the Criminal Code he was not criminally responsible for his act because, at the time of the shooting he was suffering from a mental disorder that rendered him incapable of appreciating the nature or quality of the act or knowing that it was wrong; and (2) he lacked the requisite intent to kill Mr. Hurlburt. Among other things, the appellant adduced the evidence of two psychiatrists who testified that, at the relevant time, the appellant suffered from Post Traumatic Stress Disorder, as a result of which he neither understood the nature or quality of his acts nor was capable of forming the intent to carry them out.
8 At the conclusion of the parties’ respective cases, the trial judge gave his directions to the jury. In the course of his lengthy 62-page 3-hour charge, the trial judge spent nearly 15 pages of text reviewing the evidence of the appellant’s mental disorder as it related to the first prong of his “not criminally responsible” s. 16 defence. When subsequently discussing the issues of “planning and deliberation” (as required to substantiate a first degree murder conviction under s. 231(2) of the Criminal Code ), the trial judge chose not to repeat himself. He said:
In considering whether the murder was planned and deliberate you should consider all the evid . . . all the circumstances and all the evidence.
On the subject of both the ingredient of intention and whether or not Mr. Jacquard was or was not criminally responsible by reason of a mental disorder, I have reviewed the evidence at great length, I can see no reason to repeat what I already said to you.
There were no objections to the jury instructions at that time.
9 The jury convicted the appellant of both offences and he was sentenced to life imprisonment with no chance of parole for 25 years. On appeal of the first degree murder conviction, the appellant found two aspects of the jury charge objectionable. First, he contended that the trial judge’s instructions did not make it clear to the jury that the burden of proof on the issues of intent and “planning and deliberation” was on the Crown, and that the evidence relating to the appellant’s mental disorder ought to be reconsidered in relation to those issues. Second, the appellant submitted that the trial judge misdirected the jury with respect to “consciousness of guilt”. He complained that the trial judge not only alerted the jury to the fact that the shotgun had been hidden and that it was devoid of fingerprints, he then commented to them that the fact that an accused person tries to hide or destroy evidence can be indicative of “consciousness of guilt”.
10 The Nova Scotia Court of Appeal (per Hallett, Matthews and Chipman JJ.A.) dismissed the appeal for the reasons given by Chipman J.A.: (1995), 138 N.S.R. (2d) 352, 394 A.P.R. 352. On the first issue, the Court of Appeal held that although the trial judge could have been more explicit, it was reasonable to conclude from a thorough reading of the charge as a whole, that the jury must have understood that the medical evidence of his mental state was relevant to its determination of the planning and deliberation issue, which the trial judge had properly and sufficiently defined. On the second issue, the Court of Appeal held that the jury was entitled not only to consider that the shotgun had been hidden devoid of any fingerprints, but also to make the inference of consciousness of guilt. Accordingly, neither alleged shortcoming in the jury charge constituted a reversible error.
11 On April 11, 1995, the appellant filed a notice of application for leave to appeal to this Court. The application was heard by a panel of La Forest, Cory and Major JJ. On October 12, 1995 leave to appeal was granted affirming the need to canvass the following two issues raised by the appellant:
1. Did the Nova Scotia Court of Appeal err in holding that the Trial Judge had adequately instructed the jury on the essential elements of the various issues and related material evidence to those issues and in particular on the issue of planning and deliberation?
2. Did the Nova Scotia Court of Appeal err in affirming the instructions of the Trial Judge to the jury that the evidence could support the inference that the Applicant wiped his fingerprints from the shotgun and the further inference that could be drawn from such conduct, namely, that of consciousness of guilt?
For the reasons outlined below, I am of the opinion that we should dismiss the appeal on both issues.
II. Relevant Statutory Provisions
12 Criminal Code, R.S.C., 1985, c. C-46
16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
231. . . .
(2) Murder is first degree murder when it is planned and deliberate.
235. (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.
239. Everyone who attempts by any means to commit murder is guilty of an indictable offence and liable to imprisonment for life.
655. Where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof.
III. Analysis
A. The Mental Disorder Evidence
(1) The need to restate the evidence in relation to each issue
13 It has been suggested that the trial judge should have restated the evidence of the appellant’s mental disorder in its entirety and expressly told the jury how it should reconsider that evidence in relation to the other live legal issues on appeal, particularly the Crown’s burden of proving that the appellant planned and deliberated over Sandy Hurlburt’s murder. I am reluctant, however, to conclude that a 62-page 3-hour jury charge would have been improved had it been any longer. I cannot emphasize enough that the role of a trial judge in charging the jury is to decant and simplify.
14 Courts have recognized that there is no need to state evidence twice where once will do. See R. v. McColeman (1991), 11 W.A.C. 128 (B.C.C.A.). In McColeman, McEachern C.J.B.C. stated at p. 137:
It is not the law, as I understand it, that a judge is required to review relevant evidence more than once even though it may relate to more than one issue, although it is often useful to relate important evidence to the specific issues being considered. . . . While concern about prolixity can never be a consideration if fairness requires it, I am naturally reluctant to require trial judges to say things twice if once will suffice.
In many cases, a trial judge need only review relevant evidence once and has no duty to review the evidence in a case in relation to every essential issue. See John v. The Queen, [1971] S.C.R. 781, Cluett v. The Queen, [1985] 2 S.C.R. 216. As long as an appellate court, when looking at the trial judge’s charge to the jury as a whole, concludes that the jury was left with a sufficient understanding of the facts as they relate to the relevant issues, the charge is proper. See Cluett, supra, at p. 231. In Azoulay v. The Queen, [1952] 2 S.C.R. 495, Taschereau J. stated at pp. 497-98:
The rule which has been laid down, and consistently followed is that in a jury trial, the presiding judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them.
15 In this case, the trial judge thoroughly canvassed the evidence of the appellant’s mental disorder when he discussed the s. 16 defence. Later, when addressing the “planned and deliberate” issue, he decided not to repeat what he had already gone to great lengths to discuss. He said:
In considering whether the murder was planned and deliberate you should consider all the evid . . . all the circumstances and all the evidence.
On the subject of both the ingredient of intention and whether or not Mr. Jacquard was or was not criminally responsible by reason of a mental disorder, I have reviewed the evidence at great length, I can see no reason to repeat what I already said to you.
Later he summarized:
I noted during the trial you paid strict attention to the witnesses. I asked you to consider the facts . . . I asked you, considering the facts, you accepted from the evidence and taking into consideration the legal meaning of planned or deliberate as I have explained them to you, did Mr. Jacquard plan to kill Mr. Hurlburt and, if so, did he do it deliberately. I remind you, murder cannot be first degree murder unless it was both planned and deliberate. Again I repeat. I remind you, murder cannot be first degree murder unless it was both planned and deliberate.
This was not the only instance in which the trial judge simply referred the jury to the mental disorder evidence. He made the same choice when discussing other issues. For example, after spending nearly 15 pages of text relating the evidence of the accused’s mental disorder to the first aspect of the s. 16 defence, he refrained from repeating the evidence all over again in relation to the second aspect of the s. 16 defence. The trial judge said:
While considering whether or not Mr. Jacquard knew at the time of the offence his acts were wrong, I direct your mind to the evidence I have just discussed with you as to whether or not Mr. Jacquard was capable of appreciating the nature and quality of his acts.
Again, when instructing the jury on the attempted murder charge arising out of the shooting of Ms. Wilkinson, he directed:
To find the accused guilty of attempted murder you must be satisfied beyond a reasonable doubt the accused intended to kill Barbara Marie Wilkinson. That intent must be a specific intent to kill her, not to wound her, disfigure her or maim her. If you determine Mr. Jacquard was not suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his acts or of knowing they were wrong I direct you still to consider the evidence of mental disorder along with all the other evidence to determine whether or not the accused had the specific intent to commit the offence of attempted murder.
16 In my opinion, the trial judge was entitled not to restate this evidence of the appellant’s mental disorder each time he addressed an issue in respect of which that evidence was relevant. By directing the jury to reconsider all of the circumstances and evidence, he fulfilled his obligation to relate the essential evidence of the appellant’s mental disorder as it related to the “planned and deliberate” issue. Indeed I resist the conclusion that restating the evidence would have improved the charge. In many cases restating the evidence only confounds the issues, making the charge less perfect and not more so.
(2) The need to refer to the evidence at the appropriate time
17 Although not emphasized in his factum, the appellant’s first argument at the oral hearing was that the trial judge failed to adequately convey to the jury that evidence of the appellant’s mental disorder was relevant to determining whether the appellant intended to cause the death of Mr. Hurlburt.
18 It is true that the trial judge introduced the subject of intention in a general way. He said:
In the end you will have to consider all the surrounding circumstances including what Mr. Jacquard, the accused, said and did, in order to decide whether the Crown has proven that Clayton Jacquard did, in fact, mean to cause the death of Mr. Hurlburt.
However, on at least two occasions later in his charge, the trial judge was clear and unequivocal in his instructions. First, when discussing intention and the included offence of manslaughter, he stated:
Where Mr. Jacquard shot and killed Mr. Hurlburt, which is an unlawful act, but you are not satisfied beyond a reasonable doubt he had the specific intent to commit murder, then you will find the accused not guilty of murder but guilty of manslaughter. I also tell you that after considering whether Mr. Jacquard was not criminally responsible because of a mental disorder, as I asked you to determine first in your deliberations, if you are not satisfied on a balance of probabilities that Mr. Jacquard suffered from a mental disorder to the extent necessary for the special verdict of not criminally responsible on account of a mental disorder, I direct you to still consider the evidence of mental disorder along with the other evidence in determining whether or not Mr. Jacquard had the specific intent to commit the offence of murder. I direct your attention to consider all the evidence including the evidence of Doctor Rosenberg, Doctor Bradford and Doctor Akhtar.
Second, he later summarized in the context of attempted murder:
I direct your attention to consider all the evidence, including the evidence of the three psychiatrists, particularly where they differed in their opinions, as to whether Mr. Jacquard, at the time of the offence, had the specific intent to commit murder or attempted murder.
19 The appellant argues that this was not enough -- it was insufficient, he says, for the trial judge to direct the jury in this ex post facto manner. He submits that the trial judge was required to relate the mental disorder evidence to the issue of intention when the issue arose, and not later, as part of his instructions regarding manslaughter and attempted murder.
20 I find this position too onerous. Even if I were to conclude that the jury might initially have been left with the impression that the mental disorder evidence was not relevant to the topic of intention, the trial judge’s subsequent comments resolved any alleged uncertainty. You must look at a jury charge in its entirety. The trial judge made it absolutely clear to the jury, prior to its deliberations, that intention could be negatived by the evidence of the accused’s mental disorder. I thus fail to see how he was guilty of misdirection. Although this aspect of the charge may not have been perfect, it was certainly proper and fair.
(3) The need to properly charge the jury on how the mental disorder evidence applied to the remaining legal issues
21 These initial conclusions do not end the inquiry. The appellant is not simply arguing that the evidence of his mental disorder ought to have been restated at each point at which it was relevant -- be it in the context of “intention” or “planning and deliberation”. The appellant submits that, even if the jury understood that the evidence was relevant to each issue, it did not understand how it applied. In other words, the jury was not properly instructed on the legal issues themselves.
22 The appellant argues that the jury did not properly understand that, even if it fell short of establishing a s. 16 defence, or even if it failed to negate proof of intention, evidence of the appellant’s mental disorder may still raise a reasonable doubt as to whether or not the accused had the capacity to plan and deliberate and did in fact plan and deliberate. See, e.g., McMartin v. The Queen, [1964] S.C.R. 484; More v. The Queen, [1963] S.C.R. 522; R. v. Mitchell, [1964] S.C.R. 471; R. v. Kirkby (1985), 47 C.R. (3d) 97 (Ont. C.A.); R. v. Reynolds (1978), 22 O.R. (2d) 353 (C.A.). It is alleged that the jury did not understand the meaning of “planned and deliberate” and did not recognize that it is a separate issue with a distinct burden of proof on the Crown. It is also alleged that the trial judge did not adequately convey to the jury that a mental disorder could conceivably negative the elements of planning and deliberation without negativing proof that an accused intended to kill.
23 I am not persuaded by these arguments either. The trial judge made it clear that the Crown had the burden to prove planning and deliberation beyond a reasonable doubt, and that this was a different burden from that imposed on the accused under the s. 16 defence. At the outset of his charge, the trial judge discussed in considerable detail the burden of proof, reminding the jury that “[f]rom start to finish the burden is upon the Crown to prove beyond a reasonable doubt the guilt of the accused on these charges.” Later he said, “if you are satisfied that the Crown has proven each of the elements beyond a reasonable doubt your job is not finished because you must go on to decide whether or not the Crown has proved first degree murder” (i.e., planning and deliberation under s. 231(2) ). Still later he explained: “Therefore you must be satisfied beyond a reasonable doubt that the alleged murder was planned and deliberate before you can return a verdict of guilty on the charge of first degree murder.” These passages should be contrasted with the trial judge’s instructions under the s. 16 defence. After reading s. 16 to the jury he said:
This means that you must presume Mr. Jacquard was not so mentally disordered as to be exempt from criminal responsibility at the time of the offence unless the contrary is proven. Since Mr. Jacquard is alleging that he was mentally disordered at the time of the offence he has the burden or responsibility of proving the mental disorder defence. He must prove mental disorder on a balance of probabilities.
There is a lesser standard of proof than proof . . . than beyond a reasonable doubt which I explained to you earlier. If you are satisfied that it is more likely than not that Mr. Jacquard was mentally disordered to the extent of being incapable of appreciating the nature and quality of his act [sic] or of knowing that they were wrong at the time of the offence, you must return a verdict of not criminally responsible on account of a mental disorder.
24 I agree with Chipman J.A. that “the jury could not possibly have been confused with respect to the burden of proof being on the Crown beyond a reasonable doubt with respect to all of the elements of first degree murder. The trial judge told the jury so in no uncertain terms” (p. 362).
25 There is also ample reason to conclude that the jurors fully understood that even if they concluded that the appellant did not adequately establish a defence under s. 16 , the other defences were still very much open to consider. At the conclusion of his s. 16 instructions, the trial judge warned the jury:
If you find Mr. Jacquard did not suffer from a mental disorder that rendered him incapable of appreciating the nature and quality of his act [sic] or of knowing that they were wrong I direct that you must then proceed to determine the remaining issues in count number one.
The trial judge then discussed the elements of count number one and later outlined what was incumbent upon the Crown to prove:
I tell you as a matter of law, the Crown will not have discharged that burden of proof unless you are satisfied beyond a reasonable doubt that the only reasonable inference to be drawn from the proven facts is that the accused, 1) intended to kill Sandy Hurlburt or to cause him bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not; 2) that the murder of Sandy Hurlburt was planned and deliberate; and 3) the intention of the accused was to kill Barbara Marie Wilkinson.
Unlike a case such as R. v. Allard (1990), 57 C.C.C. (3d) 397 (Que. C.A.), the trial judge did not tell the jurors to disregard the evidence of the accused’s mental disorder once they got passed the s. 16 issue. In fact, he repeatedly told the jury otherwise -- to consider all of the available evidence on the remaining points.
26 The appellant’s submission that the jury was unaware of the meaning of “planned and deliberate” is no more convincing. The trial judge introduced these terms by stating that “planned and deliberate have different meanings” and proceeded to define them in a manner perfectly consistent with this Court’s prior rulings. See R. v. Aalders, [1993] 2 S.C.R. 482, More, supra. See also R. v. Smith (1986), 71 N.S.R. (2d) 229 (C.A.), R. v. Palmer (1986), 12 O.A.C. 181 (C.A.). He defined something that is “planned” as something that is arranged beforehand on the basis of a “design” or “scheme”. He defined something that is “deliberate” as something that is “considered” and “carefully thought out” rather than “hasty”, “rash”, or “impulsive”. He said, “[a] person commits deliberate murder when he or she thinks about the consequences”, i.e., when he or she contemplates the advantages and disadvantages of committing the murder.
27 It is true that some factor, such as a mental disorder, that is insufficient to negative the charge that the accused intended to kill, may nevertheless be sufficient to negative the elements of planning and deliberation. This is because one can intend to kill and yet be impulsive rather than considered in doing so. It requires less mental capacity simply to intend than it does to plan and deliberate.
28 In R. v. Wallen, [1990] 1 S.C.R. 827, the Court addressed, inter alia, whether this distinction had to be explained to the jury in the context of the defence of intoxication. The five-judge panel unanimously agreed that the trial judge was obliged to direct the jury to consider the effects of intoxication separately, in relation to each aspect of the accused’s defence. However, a three-judge majority (from which I dissented) concluded that, while it is the better course to follow, it is not an absolute rule that the jury must be expressly told of the distinction between the degree of intoxication necessary to negative intent to kill and that necessary to negative planning and deliberation. Put differently, the majority held that a trial judge need not instruct the jury on the finer distinctions of the manner in which an accused’s mental incapacity can undermine his or her capacity to intend as opposed to his or her capacity to pla