R. v. Charlebois

R. v. Charlebois
Collection
Supreme Court Judgments
Date
2000-11-10
Neutral citation
2000 SCC 53
Report
[2000] 2 SCR 674
Case number
27213
Judges
Gonthier, Charles Doherty; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Quebec
Subjects
Criminal law
Notes
SCC Case Information: 27213
Decision Content
R. v. Charlebois, [2000] 2 S.C.R. 674
Patrick Charlebois Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Charlebois
Neutral citation: 2000 SCC 53.
File No.: 27213.
2000: April 13; 2000: November 10.
Present: Gonthier, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for quebec
Criminal law — Powers of Court of Appeal — No subtantial wrong or miscarriage of justice — Court of Appeal dismissing accused’s appeal from conviction — Whether Court of Appeal erred in applying Criminal Code proviso to cure trial judge’s errors — Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1) (b)(iii).
The accused was charged with first degree murder for the shooting of a man in the back of the head while he was sleeping. At trial, the accused argued that he committed the homicide in self‑defence. His defence was based on an overwhelming fear of the victim that he had developed over the course of their long and difficult relationship. A psychiatrist who was called by the defence testified that, in his opinion, the accused was suffering from acute anxiety at the time of the shooting. The accused was convicted of second degree murder. On appeal, he challenged inter alia the trial judge’s instructions to the jury on self‑defence, on the defence expert’s evidence and on the evidence of the accused’s good character. He also challenged the trial judge’s decision to allow the Crown to ask him in cross‑examination whether he would undergo a blood test and submit to an examination by a Crown psychiatrist. The majority of the Court of Appeal dismissed the accused’s appeal.
Held (Arbour J. dissenting): The appeal should be dismissed.
Per Gonthier, Bastarache, Binnie and LeBel JJ.: When assessing whether s. 686(1) (b)(iii) of the Criminal Code should be applied, the ultimate question is whether there is any reasonable possibility that the verdict would have been different absent the error. In this case, the Court of Appeal did not err in applying the proviso. Viewed individually or even collectively, the trial judge’s errors did not give rise to the possibility that the jury might have acquitted in their absence.
A review of the trial judge’s charge demonstrates that any errors in the charge on the issue of self‑defence caused minimal prejudice. The trial judge’s reference to “a reasonable person . . . in the accused’s situation” was not so incomplete as to create a substantial wrong or miscarriage of justice. Taken as a whole, the charge could not have given the jury the impression that they were to consider the reasonableness of the accused’s perceptions from the perspective of the hypothetically neutral reasonable man, divorced from the accused’s personal circumstances. The trial judge related the history of violence and fear that the accused suffered at the hands of the victim to the reasonable person. He then clearly directed the jury to consider, “in light of all that”, the reasonableness of the accused’s perception and whether an ordinary person, in the same circumstances, would have had the same perception. This is a proper approach to the application of s. 34(2) of the Criminal Code .
The errors in the trial judge’s summary and handling of the expert’s testimony also caused minimal prejudice. A review of the charge as a whole indicates that the trial judge directed the jury to consider the climate of fear described by the expert in their deliberations and repeated on numerous occasions his evidence that the accused was in a state of anxiety at the time of the shooting. By pointing to the expert’s evidence, the trial judge ensured that his testimony would be considered during the discussion of each of the elements of self‑defence. While the trial judge could have expressed himself more clearly in connecting the expert’s evidence to the elements of self‑defence, there is no requirement that the jury be perfectly instructed. Further, the trial judge’s insistence on what the expert did not consider did not cause serious prejudice to the accused. A judge must warn the jury that the more the expert relies on facts not proved in evidence, the less weight the jury may attribute to the opinion. The corollary is also true: the more the expert fails to consider relevant facts, the less weight the jury may attribute to the opinion. Lastly, although it would have been preferable for the trial judge to expand his comments on the details of the expert’s testimony, his failure to do so, in light of the whole charge and the overwhelming evidence, did not result in a substantial wrong or miscarriage of justice. The accused’s contention that where the defence is difficult there is no room for error on the part of the judge is rejected. The curative proviso is applicable if, as here, the standard is met.
The verdict would have been the same if the trial judge had properly directed the jury that the accused’s character evidence was relevant in assessing whether he could have committed murder. He only mentioned this once and thereafter restricted his comments to the relation between the evidence and the credibility of the accused. This error is of minor significance in the context of the charge as a whole and consequently caused little prejudice to the accused. The focus here is on the reasonableness of the accused’s perception that an attack was imminent and on his perception that there was no reasonable alternative when he approached his sleeping victim and shot him in the back of the head at close range. The evidence of good character sheds little light on this question.
With respect to the accused’s refusal to give a blood sample, even if this refusal had some effect on the accused’s credibility, the effect was greatly diminished by the trial judge’s direction that no adverse inference could be drawn from the refusal. In light of the trial judge’s warning, the prejudice suffered by the accused was minimal. When considered in the context of the defence as a whole, this issue was so removed from the heart of the case that it had very little significance.
Finally, since the Crown had the right to counter the expert evidence used to support the accused’s theory that he killed in self‑defence, it was entitled to ask the accused whether he would undergo a psychiatric assessment. While it would have been preferable if the question acknowledged that the Crown had previously received the accused’s refusal, that issue, coupled with the request for a blood test, does not amount to a substantial wrong or miscarriage of justice. The trial judge did not err in law by instructing the jury that the refusal was relevant to the probative value of the defence expert’s evidence. Even if this were not the case, this is a situation where s. 686(1) (b)(iii) could be applied to rectify an error since there would have been little prejudice caused to the accused.
Per Arbour J. (dissenting): At trial, without notice and in the presence of the jury, the Crown asked the accused whether he would agree to submit to a second psychiatric assessment by a particular expert. The accused refused. When an accused relies on a psychiatric assessment in support of any defence, his refusal to be examined for the same purposes by a Crown expert may be the subject of an inference adverse to him and the trial judge must so instruct the jury. This rule is an exception to the fundamental principle of the right to silence. It is therefore essential that this exceptional rule be administered fairly and equitably and in a manner consistent with its underlying principle. From this perspective, it is inappropriate for the Crown to invite the jury to draw a negative conclusion from the accused’s refusal to submit to examination by its experts, when the Crown itself led no evidence challenging the expert opinion offered by the defence. Before taking advantage of the exception, the Crown must first lay the factual foundation of its assertion by challenging the defence’s psychiatric assessment. It may then lead evidence of the accused’s refusal, provided it does so avoiding tactics that are unfair or unduly prejudicial to the accused. Because of how the Crown chose to proceed in this case, it cannot now rely on the exception. The Crown did not retain the services of an expert, and did not contradict the opinion of the defence expert. It confined itself to putting the question here in issue to the accused. The question was asked in the presence of the jury, immediately following a question of the same type which also should never have been asked. The cumulative effect of the accused’s refusal to provide a blood sample and refusal to submit to a second psychiatric assessment, in rapid succession, proved highly prejudicial, for no good reason, to the general credibility of his defence. Moreover, the question itself was not particularly helpful, since it contained an inherent ambiguity regarding the specific subject-matter of the refusal, thus making it difficult for the jury to be invited to draw any conclusion whatsoever from that refusal. In view of the circumstances of this case, the judge’s instructions in his charge to the jury at the end of the trial regarding what use could be made of the accused’s refusal failed to remedy the original error of allowing the question to be asked.
As to the application of s. 686(1) (b)(iii), where an error, or a series of errors, relates to the very essence of the defence and could influence the jury’s assessment of a question of fact that has a very direct bearing on the accused’s guilt, it is difficult to conclude that the rest of the evidence is sufficiently conclusive for the curative provision to be applied. The central issue in this case was whether, at the time the accused shot the victim, he had a reasonable perception that his life was in danger and that he could not otherwise escape from the threat to his safety. The psychiatric evidence of the accused’s pathological fear of the victim was therefore fundamental. As well, the nature of the evidence also required very clear instructions regarding the assessment of the reasonableness of the accused’s beliefs. The errors in the judge’s instructions to the jury concerning these two issues were inevitably fatal, since it is impossible to argue that the verdict would have been the same had it not been for those errors. The cumulative effect of the errors unanimously found by the Court of Appeal to have occurred, combined with the serious and prejudicial error of allowing the Crown to ask the accused whether he would consent to a second psychiatric assessment by its expert, requires that the conviction be set aside and a new trial ordered. The majority of the Court of Appeal did not systematically consider the requirements of that provision and, in particular, the cumulative effect of the errors they identified. All that the majority did was to make several isolated references to the fact that the error committed had not prejudiced the accused. That approach does not meet the rigorous requirement of the curative provision of the Code.
Cases Cited
By Bastarache J.
Distinguished: R. v. Lavallee, [1990] 1 S.C.R. 852; referred to: Mahoney v. The Queen, [1982] 1 S.C.R. 834; R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. S. (P.L.), [1991] 1 S.C.R. 909; R. v. Pétel, [1994] 1 S.C.R. 3; Reilly v. The Queen, [1984] 2 S.C.R. 396; R. v. G. (R.M.), [1996] 3 S.C.R. 362; R. v. Malott, [1998] 1 S.C.R. 123; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Dickhoff (1998), 130 C.C.C. (3d) 494; R. v. H. (C.W.) (1991), 68 C.C.C. (3d) 146; R. v. Borden, [1994] 3 S.C.R. 145; R. v. Kuldip, [1990] 3 S.C.R. 618; R. v. Sweeney (1977), 35 C.C.C. (2d) 245; R. v. Stevenson (1990), 58 C.C.C. (3d) 464; R. v. Worth (1995), 98 C.C.C. (3d) 133, leave to appeal refused, [1996] 3 S.C.R. xiv.
By Arbour J. (dissenting)
Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Symonds (1983), 9 C.C.C. (3d) 225; R. v. Crawford, [1995] 1 S.C.R. 858; R. v. Noble, [1997] 1 S.C.R. 874; R. v. Sweeney (1977), 35 C.C.C. (2d) 245; R. v. Stevenson (1990), 58 C.C.C. (3d) 464; R. v. Worth (1995), 98 C.C.C. (3d) 133; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11; R. v. Bevan, [1993] 2 S.C.R. 599.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C., 1985, c. C‑5, ss. 4(1) , (6) .
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (c).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 16 [rep. & sub. 1991, c. 43, s. 2], 34, 686(1)(b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)], 691(1) [am. c. 34 (3rd Supp.), s. 10].
APPEAL from a judgment of the Quebec Court of Appeal (1999), 135 C.C.C. (3d) 414, [1999] Q.J. No. 568 (QL), dismissing the accused’s appeal from his conviction of second degree murder. Appeal dismissed, Arbour J. dissenting.
Michel Pennou, for the appellant.
Stella Gabbino, for the respondent.
The judgment of Gonthier, Bastarache, Binnie and LeBel JJ. was delivered by
1 Bastarache J. — The appellant Patrick Charlebois was convicted of second degree murder for shooting Éric Jetté in the back of the head while he was sleeping. At trial, Charlebois argued unsuccessfully that he committed the homicide in self-defence. The question raised in this appeal is whether the appellant is entitled to a new trial, based on errors committed by the trial judge. In my view, any errors committed by the trial judge did not cause significant prejudice to the appellant and can be cured by s. 686(1) (b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46 .
I. Facts
2 The appellant’s argument of self-defence was based on an overwhelming fear of Jetté that he had developed over the course of their long and difficult relationship. The record establishes that while Charlebois and the victim were sometimes friendly, Jetté dominated and regularly took advantage of the more dependent Charlebois. The appellant’s unstable and violent childhood explains in part how Jetté was able to make him his [translation] “whipping boy”.
3 The night of the murder, Jetté argued with his girlfriend and came over to Charlebois’ apartment. Shortly thereafter, while the appellant’s neighbour Alain Lalancette was still present, Jetté flicked a knife in front of the accused’s face and said: [translation] “Yea, we’re going to have some fun tonight, you and me.”
4 Charlebois testified that his apprehension grew after Lalancette departed, particularly when Jetté noticed that the appellant actually had in his possession a firearm that he had refused to sell to Jetté on the pretense that he no longer had it. Nevertheless, Jetté said nothing about the rifle. After the accused’s roommate came home, Jetté relaxed on the couch and told the appellant to go to sleep.
5 The appellant testified that once in his bedroom, his panic became overwhelming. He got up, took the rifle, approached Jetté and shot him in the back of the head while he was sleeping. There was no argument, skirmish or threat. Immediately after the shooting, the accused phoned 911 and made up the following story about a physical altercation:
[translation] . . . I’ve just committed a murder . . . I was so afraid, I split. . . . [H]e was completely drunk when he came to my place. . . . So, anyways, so he knew that I had a gun, then he took it, his girlfriend left him, so anyways, he was totally tripping, so I tried to convince him not to do anything stupid, then we started arguing, and the shot went off. . . . I was really stoned eh so bang everything happened at once oh shit. . . .
When he was arrested, the accused said: [translation] “I’ve done something stupid.” The jury found the accused guilty of murder in the second degree.
6 On appeal, the accused challenged inter alia the trial judge’s instructions to the jury on self-defence, the defence expert’s evidence, and the evidence of the appellant’s good character. He also challenged the trial judge’s decision to allow the Crown to ask him in cross-examination whether he would undergo a blood test and submit to an examination by a Crown psychiatrist. The Quebec Court of Appeal dismissed the appeal, Fish J.A. dissenting: (1999), 135 C.C.C. (3d) 414. The accused appeals to this Court as of right.
II. Legislation
7 Section 34 of the Code sets out the elements of self-defence:
34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
While the trial judge left both s. 34(1) and s. 34(2) with the jury, the circumstances of the present appeal fall under subs. (2) since it is evident that the appellant responded with force intending to cause death or grievous bodily harm.
8 The focus of this appeal is the application of the curative provision of the Code. Section 686(1)(b)(iii) of the Code reads:
686. (1) On the hearing of an appeal against a conviction . . . the court of appeal
. . .
(b) may dismiss the appeal where
. . .
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) [on a question of law] the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;
III. Issues
9 The appellant argues that the Court of Appeal erred by applying s. 686(1) (b)(iii) to four errors of the trial judge:
a) erring in his instructions to the jury on self-defence;
b) improperly presenting the defence expert’s evidence to the jury;
c) limiting the relevancy of the evidence of the accused’s good character; and
d) allowing the Crown to ask whether the accused would undergo a blood test.
The appellant also argues that, contrary to the conclusion of the Court of Appeal, the trial judge erred in law by allowing the Crown to ask him whether he would submit to an examination by a Crown psychiatrist. Before I address each of these errors and this latter question, I will review the standard for the application of the proviso.
IV. Analysis
10 Section 686(1)(b)(iii) of the Code authorizes an appeal court to dismiss an appeal, despite the presence of an error at trial, where the court believes there has been no “substantial wrong or miscarriage of justice”. In Mahoney v. The Queen, [1982] 1 S.C.R. 834, at p. 852, McIntyre J. explained how the Court is to determine whether a substantial wrong or miscarriage of justice has occurred:
[T]he proviso may be applied only following a legal determination that errors have been made at trial, but that “no substantial wrong or miscarriage of justice has occurred”, and then only according to a strict legal test. The determination of what will constitute a substantial wrong or miscarriage of justice must involve the construction of those words in the context in which they are used in the Statute, and such statutory construction has long been considered a matter of law. The Court’s decision involves an analysis of the rights accorded by law to an accused and the measurement of the impact of the errors which were made at trial. Once an appellant establishes in the Court of Appeal that errors of law were made at his trial he becomes entitled to have his appeal allowed and a new trial or an acquittal, depending on the circumstances, unless the proviso is applied to annul those rights. The Court of Appeal must consider the errors against the background of the whole trial. While a reconsideration of the evidence is involved, clearly the inquiry goes far beyond the determination of matters of fact. [Emphasis added.]
In Mahoney, the Court applied the proviso to cure the trial judge’s error (instructing the jury that an adverse inference could be drawn from the accused’s delay in revealing his whereabouts) due to the overwhelming weight of the real evidence.
11 The proper application of s. 686(1) (b)(iii) was recently addressed in R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11. Writing for the dissent, Major J. adopted his statement in R. v. Bevan, [1993] 2 S.C.R. 599, which precisely outlines the threshold for applying the proviso. Major J. confirmed at para. 104 that the task of the appellate court is to
determine whether there is any reasonable possibility that the verdict would have been different had the error at issue not been made.
Implicit in my reasons in Brooks is my acceptance of his statement as a proper explanation of the law. As conceded by the Crown, the proviso should only be applied where
the evidence is so overwhelming that a trier of fact would inevitably convict. In such circumstances, depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction.
(R. v. S. (P.L.), [1991] 1 S.C.R. 909, at p. 916)
12 With that in mind, I will examine each of the errors which allegedly entitles the appellant to a new trial to determine first the extent of error, and second, whether the proviso should be applied in the circumstances of this case. This latter question involves determining whether there is any reasonable possibility that the jury would have acquitted if the errors had not been made.
(1) The Extent of the Error in Charging the Jury on Self-defence
13 The trial judge properly identified the three elements of self-defence for the jury: (1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing: see R. v. Pétel, [1994] 1 S.C.R. 3. He directed that the assessment of each of these elements involved considering first, the accused’s perception, and second, the view of [translation] “a reasonable person, an average person, in the accused’s situation”. This is consistent with the simultaneously subjective and objective nature of the test, as described in Reilly v. The Queen, [1984] 2 S.C.R. 396, at p. 404:
Subsection (2) of s. 34 places in issue the accused’s state of mind at the time he caused death. The subsection can only afford protection to the accused if he apprehended death or grievous bodily harm from the assault he was repelling and if he believed he could not preserve himself from death or grievous bodily harm otherwise than by the force he used. Nonetheless, his apprehension must be a reasonable one and his belief must be based upon reasonable and probable grounds. The subsection requires that the jury consider, and be guided by, what they decide on the evidence was the accused’s appreciation of the situation and his belief as to the reaction it required, so long as there exists an objectively verifiable basis for his perception. [Emphasis added; underlining in original deleted.]
The trial judge explained the objective aspect of the test to the jury in the following terms:
[translation] Assuming that your deliberations lead you to answer “yes” to each of these questions [the three elements of s. 34(2) , from a subjective point of view], you must then determine whether the accused’s perception was reasonable. This is the reasonable person test. Would a reasonable person, an average person, in the accused’s situation have had the same perceptions? The reasonable person is not “superman”, but neither is he mentally incompetent. The reasonable person is John or Jane Doe, an average person. So, each element . . . perception of an unlawful assault, apprehension of the risk of death, and the belief that it is not possible to preserve oneself from harm except by killing the victim must first be assessed subjectively. And by subjective I mean from the accused’s point of view, the accused’s perception. And second, objectively, from the point of view of a reasonable person. In the three cases, in the three situations, in other words, in assessing the three elements that are essential if a defence of self‑defence is to be available, you must determine what the accused’s perception of the relevant facts was and whether it was reasonable. It therefore involves an objective assessment, and so an honest but reasonable mistake with respect to whether there was an attack is therefore allowed. [Emphasis added.]
The Court of Appeal held that the trial judge erred by introducing a reference to “a reasonable person, an average person, in the accused’s situation” that was ambiguous and unclear. The appellant suggests that at a minimum the trial judge should have informed the jury that the ordinary person was infused with the appellant’s individual characteristics.
14 After reviewing the charge as a whole, I do not believe the lack of precision in the trial judge’s reference was serious. The trial judge related the history of violence and fear that the appellant suffered at the hands of the victim to the reasonable person. When read in the context of the charge as a whole, this part of the directions would have clearly indicated to the jury that the appellant’s perception was to be weighed by considering whether a reasonable person, infused with Charlebois’ experience, placed in the circumstances of the night in question, would reasonably have had the same perceptions. This was not a case where the jury was misdirected to assess the reasonableness of the appellant’s perceptions from the view of an “outsider”; see R. v. Lavallee, [1990] 1 S.C.R. 852, at p. 883.
15 In Pétel, supra, at p. 14, the Court, unanimous on this point, concluded that the trial judge correctly charged the jury by saying it should “try to determine how the accused assessed the situation and compare that assessment with what a reasonable person placed in the same circumstances would have thought”. This is precisely how the trial judge proceeded here. The trial judge indicated that the jury should assess the reasonableness of Charlebois’ perceptions in light of the previous violence experienced by the accused:
[translation] Would a reasonable person, in the same circumstances, have perceived the events in the same way?
I suggest that you use the same reasoning when you consider the second element: reasonable apprehension of a risk of death or grievous bodily harm. The accused used the word fear quite often in his testimony. Does the evidence demonstrate a history of violence between him and Jetté? There is certainly evidence of violence on two occasions, each one involving a theft. Other than that, is there reason to believe that the accused apprehended a risk of death? You have all sorts of evidence to help you. You have the testimony about Jetté. You have testimony that he was a violent man, an individual who was very fond of fighting. You have his criminal record, which, as the Crown pointed out, shows no violent crimes. You have the period of time for which the accused had known Jetté. And you have evidence of a relationship that was stormy at times and harmonious at others.
So, in light of all that, you will consider whether he had a reasonable apprehension of a risk of danger under the circumstances. And whether a reasonable person, under the same circumstances, would have had the same perception. [Emphasis added.]
Having completed his description of the violence between the appellant and the victim, the trial judge quite clearly directed the jury to consider, “in light of all that”, the reasonableness of the accused’s perception and whether an ordinary person, in the same circumstances would have had the same perception. In my view, this is a proper approach to the application of s. 34(2) .
16 The appellant relies on Lavallee, supra, for support. In my view, that case has no application here. In Lavallee, the Court found that in applying the objective part of s. 34(2) in the context of battered woman syndrome, the reference to the “ordinary man” was inappropriate (at p. 874):
If it strains credulity to imagine what the “ordinary man” would do in the position of a battered spouse, it is probably because men do not typically find themselves in that situation. Some women do, however. The definition of what is reasonable must be adapted to circumstances which are, by and large, foreign to the world inhabited by the hypothetical “reasonable man”.
It was conceded by the appellant that the relationship between the appellant and the victim here is quite distinguishable from that present in Lavallee. To allow the appeal on this ground would be to legitimize an extension of Lavallee that is not justified on the facts or in policy. While we have relaxed the requirement of imminency of the threat in the self-defence analysis particular to battered women, on the basis of expert evidence outlining the unique conditions they face, there is no justification for extending its scope further on the evidence presented in this case.
17 Finally, the appellant also argues that the jury was misdirected on the critical third element, whether the accused had an honest but mistaken belief that he had no other option except to kill. The appellant contends that the trial judge did not clearly set out that, if the accused’s perception was honestly and reasonably held, it would satisfy the requirements of s. 34(2) even if the perception was in error. The following passage from the charge demonstrates that the trial judge perfectly understood his task:
[translation] There is evidence that at the moment when the accused shot the victim, he believed that an attack was imminent. It may be that you will find that the accused’s perception was mistaken. Even if the accused’s perception was mistaken, but you believe that he still acted reasonably, he is entitled to be found not guilty, as long as the force used meets the requirements of 34(2), that is, that he could not otherwise preserve himself from death than by killing the victim. [Emphasis added.]
This direction is consistent with the seminal direction given in Reilly, supra, at p. 404:
Since s. 34(2) places in issue the accused’s perception of the attack upon him and the response required to meet it, the accused may still be found to have acted in self‑defence even if he was mistaken in his perception. Reasonable and probable grounds must still exist for this mistaken perception in the sense that the mistake must have been one which an ordinary man using ordinary care could have made in the same circumstances.
The appellant also argues that the jury should have been directed that there is no formal obligation to retreat from one’s home. In the precise circumstances of this case in view of the general allegation made, I do not think it is necessary to deal with the broader issue. The accused and victim did not live together. The issue here is whether there was a reasonable possibility of retreat at the time of the homicide.
18 A review of the trial judge’s charge demonstrates that any errors in the charge on the issue of self-defence caused minimal prejudice and, consequently, I would follow the lead of the majority of the Court of Appeal and apply s. 686. I accept the respondent’s position that the reference to “a reasonable person . . . in the accused’s situation” was not so incomplete as to create a substantial wrong or miscarriage of justice. Taken as a whole, the charge could not have given the jury the impression that they were to consider the reasonableness of the appellant’s perceptions from the perspective of the hypothetically neutral reasonable man, divorced from the appellant’s personal circumstances.
(2) The Extent of the Error Related to the Expert Testimony
19 Dr. Lafleur is a psychiatrist who was called by the appellant to offer an expert opinion that the appellant was suffering from acute anxiety at the time of the shooting. He was the last witness to testify. The appellant emphasized the failure of the trial judge to properly summarize Dr. Lafleur’s evidence and to relate it to his defence. Both the dissent and the majority of the Court of Appeal were of the view that the charge was somewhat defective in those respects. As the following demonstrates, the majority of the Court of Appeal very properly decided that s. 686(1) (b)(iii) should apply.
(i) The Summary of Dr. Lafleur’s Testimony
20 The judge must squarely put before the jury the essential elements of the evidence that can support the accused’s defence. Here, the appellant contends the trial judge erred in two respects: first, in failing to summarize Dr. Lafleur’s evidence, and second, in unfairly discounting Dr. Lafleur’s testimony by over-emphasizing the fact that his opinion was not based on all the relevant evidence.
21 In my view, these allegations do not reveal a serious miscarriage of justice. On the first complaint, a review of the charge as a whole demonstrates that the trial judge detailed Dr. Lafleur’s evidence on several occasions. In fact, the charge is replete with references to his testimony, which, I repeat, was the last one heard and fresh in the memory of the jury. I also do not accept that the trial judge’s insistence on what Dr. Lafleur did not consider caused serious prejudice to the appellant.
22 The trial judge first referred to Dr. Lafleur’s testimony early in his charge, when directing the jury on the assessment of expert evidence. Immediately prior to an adjournment, the trial judge summarized the basis of Dr. Lafleur’s opinion as follows:
[translation] You must, in my view, weigh the testimony of Dr. Lafleur with great prudence because the conclusions of Dr. Lafleur were contested during Crown arguments. In many cases, Dr. Lafleur alluded to statements obtained from a whole series of persons who testified before you, but, on the other hand, there are certain other things which he did not examine at all. Particularly, the 911 cassette. I would also mention the photographs and the plan of the apartment. Nor did he take any interest in the position of the victim when assessing something which went to the very heart of the argument of self-defence.
I am not stating any opinion on the value of his testimony. That is up to you to decide, but certainly you must look not only at the information he addressed but also at those things he did not consider in reaching his conclusion.
This direction was clearly proper. As directed in Lavallee, supra, at p. 896, “[t]he judge must, of course, warn the jury that the more the expert relies on facts not proved in evidence the less weight the jury may attribute to the opinion.” I would add that the corollary is also true: the more the expert fails to consider relevant facts, the less weight the jury may attribute to the opinion.
23 The appellant argues that the trial judge unnecessarily repeated the shortcomings of the evidentiary foundation of Dr. Lafleur’s report. This contention is based on the comment made by the trial judge upon resuming, after the above noted adjournment:
[translation] Before the adjournment, I was in the process of cautioning you that, particularly with respect to the testimony of Dr. Lafleur, it was important that you take into account not only what he considered, but what he failed to consider. Dr. Lafleur offered an opinion with respect to the state of mind of the accused at the time the incident occurred with the aim of supporting the claim of the accused, that he apprehended an immediate assault.
The fact that Dr. Lafleur did not ask any questions as to whether or not the victim was sleeping, whether the lights were on or off, nor whether or not the victim was even aware of the accused’s entry. That he was not aware that the victim was stretched out on his stomach on the sofa. Nor saw the photos. He was not aware of the “blow with the butt of the gun”. These are all factors which you might want to consider in deciding what weight you wish to attach to the opinion of Dr. Lafleur relating to the perception of the accused.
In my view, the repetition of directions made before the break was unnecessary. I note, however, that in his first sentence, the trial judge properly warned the jury that in assessing Dr. Lafleur’s evidence, they should consider both what he considered and what he did not.
(ii) The Failure to Relate Dr. Lafleur’s Testimony to the Elements of Self-
defence
24 In R. v. G. (R.M.), [1996] 3 S.C.R. 362, at para. 9, our Court recalled the long accepted rule that:
In the course of giving directions to a jury, it is essential that the trial judge outline for them the theory or position of the defence and refer the jury to the essential elements bearing on that defence in such a way that it will ensure the jury’s proper appreciation of the evidence.
The appellant asserts that the trial judge did not specifically relate Dr. Lafleur’s evidence to the relevant elements of self-defence. This was the heart of the dissent in the court below (at p. 433):
. . . as my colleague notes, the judge did not review uncontradicted expert evidence called in support of that defence. Still less did he relate that evidence to the component of self-defence upon which it bore – the reasonableness of appellant’s perception that he was acting in self-defence.
The trial judge connected Dr. Lafleur’s evidence to the elements of self-defence on several occasions, although he did not specifically announce each time that this is what he was doing. Even if the trial judge could have expressed himself more clearly, “a standard of perfection is not the test when an appellate court reviews a jury charge” (R. v. Malott, [1998] 1 S.C.R. 123, at para. 15). In R. v. Jacquard, [1997] 1 S.C.R. 314, our Court recognized at para. 2 that while there is an entitlement to a properly instructed jury, “[t]here is . . . no requirement for perfectly instructed juries” (emphasis deleted). One must accept that it is not incumbent on the trial judge to make an argument for the defence or to fashion the most favourable charge to the defence; see R. v. Dickhoff (1998), 130 C.C.C. (3d) 494 (Sask. C.A.).
25 As reproduced previously, in explaining the significance of Dr. Lafleur’s evidence to the defence, the trial judge correlated his evidence with the first element of self-defence, the apprehension of an immediate attack:
[translation] Dr. Lafleur offered an opinion with respect to the state of mind of the accused at the time the incident occurred with the aim of supporting the claim of the accused, that he apprehended an immediate assault.
By highlighting that Dr. Lafleur’s assessment of the appellant’s state of mind supported the appellant’s fear of an imminent attack, the trial judge described the essence of the expert testimony and the defence purpose behind calling it. Moreover, in discussing the third element of self-defence, whether the appellant had a reasonable belief that he had no other option but to use force, the trial judge again referred to Lafleur’s testimony:
[translation] The belief that one cannot preserve oneself otherwise than by killing the assailant, reasonable belief. Did he believe that the only way to preserve himself was to kill the victim? That is the first question you are going to ask yourselves. And of course, to help you, you have the evidence that Piché was in his room. The La