|
C A N A D A Province de Québec Greffe de Montréal
No: 500‑10‑000418‑853
(760‑01‑000208‑857)
|
Cour d'appel
____________________________
Le 12 février 1991
CORAM : Juges Bernier, Vallerand et Fish
____________________________
Steele
c.
R.
____________________________
|
LA COUR, statuant sur le pourvoi de l'appelant contre un verdict de culpabilité de meurtre au premier degré prononcé le 15 novembre 1985 par un jury de la Cour supérieure, chambre criminelle, district de Beauharnois, préside par l'honorable Jacques Ducros, suite à l'accusation suivante:
"On or about the 16th of January 1985, at Godmanchester, district of Beauharnois, Raymond Steele, illegally caused the death of Linda Quinn, committing thereby a first degree murder according to section 212, 213, 214, 218 of the Criminal Code."
Après étude du dossier, audition et délibéré;
Pour les motifs exposés dans l'opinion écrite de monsieur le juge Morris J. Fish, déposée avec le présent arrêt, auxquels souscrivent messieurs les juges Yves Bernier et Claude Vallerand;
Accueille l'appel, casse le verdict de culpabilité prononcé contre l'appelant et ordonne la tenue d'un nouveau procès. JJ.C.A.
OPINION OF FISH, J.A.
"Reverend" Rarnond Steele was convicted of first degree murder for the bizarre, macabre and truly gratuitous killing of Linda Quinn.
He appeals on various grounds, based mainly on the record before us, and seeks to introduce new evidence. This evidence, Steele says, would prove that the trial judge made comments concerning his guilt to two journalists while the trial was still in progress. It would also show that the judge failed to ensure his security and that of his witnesses.
I have come to the conclusion that appellant is entitled to a new trial on one ground which I shall deal with in detail. That ground relates to his fitness to stand trial. At the hearing before us, Crown Counsel conceded, properly in my view, that this ground is peremptory, in the sense that we would not be entitled, if the ground is made out, to say there was no substantial wrong or miscarriage of justice.
Since I have concluded that appellant must have a fresh trial on this ground alone, it is unnecessary to consider any of the other grounds at length. None could lead to acquittal. For the same reason, the motions to lead fresh evidence must fail: the evidence offered, even if believed, would not affect the result.(1)
(1) R. v. Palmer, (1980) 1 S.C.R. 759.
"Hearsay", "self servinq evidence" and s. 4(5) of the Canada Evidence Act
Before turning to the facts, I wish to comment briefly on some of the other grounds raised.
As I shall later explain, the appellant personally cross-examined the main prosecution witnesses and examined his own witnesses in chief.
The Crown acknowledges that the trial judge erred on several occasions in excluding as "hearsay" or "self-serving" certain evidence which the appellant sought to introduce. The judge erred as well in directing the accused that he could not make evidence favourable to the defence through prosecution witnesses. Nor should he have suggested, in the jury's presence, that the accused might himself testify instead of trying to make this "favourable evidence" through others.
Here are some illustrative extracts from the court record:
BY THE ACCUSED
Well, Your Honour, this self-serving principle that you keep talking about. I'm not quite sure I understand it.
BY THE COURT
Well, you cannot make evidence to favour your case through Crown witnesses.
BY THE ACCUSED
I see.
BY THE COURT
You can call the witnesses you want...
BY THE ACCUSED
I see.
BY THE COURT
...to prove your case, and these witnesses will say what they have said, and they can be cross-examined, but there is no way you can cross-examine this witness on what you thought and...(2)
(2) p. 571. All page references, unless otherwise noted, are to appellant's factum. The emphasis is mine.
BY THE COURT
...you can't make self-serving evidence through other witnesses. That is the rule. Because you cannot be cross-examined. Whatever you might have told other witnesses doesn't make any evidence. It's strictly hearsay.(3)
(3) p. 1555.
BY THE ACCUSED:
Q. Can you tell this Court whether or not I wanted to come over to your house during that time ?
A. Yes.
Q. Do you know why I wanted to come over, George ?
A. Scared.
BY THE CROWN:
Brilliant, but it's...
BY THE COURT:
Please disregard all this. Look, you know...
BY THE ACCUSED:
Well, Sir, I'm just trying to get out the truth, Sir.
BY THE COURT:
It's very easy to get out the truth, Mr. Steele.
BY THE ACCUSED:
I don't find it that way.
BY THE COURT:
You know, a lot of people can testify. All you have to do is get in the box under oath.
BY THE ACCUSED:
Sir, you have more rules, Sir, than...
BY THE COURT:
I have more rules, they're all in there. If you want to testify, you can. And then you can say anything you want.
BY THE ACCUSED:
Sir, I think you're...
BY THE COURT:
But you're not going to make...
BY THE ACCUSED:
I think, Sir, at this point, Sir...
BY THE COURT:
...your evidence through other people.
BY THE ACCUSED:
I think when you're asking me and intimidating me to question... put myself there right now, before I'm through with trying to prove certain things, Sir, it isn't right.
BY THE COURT:
I'm trying to explain to you that cannot make evidence that is self-serving to you through other witnesses.
BY THE ACCUSED:
Sir, I... this man... I was in...
BY THE COURT:
So, that's the end of this little argument. Ask questions.(4)
(4) pp. 1552-4.
A similar comment ("Maybe you should ask yourself these questions, not this witness") appears at p. 725. In the same vein, the judge said:
"I don't think this witness can answer as to your mood...If anybody can, you're the one who can" (at pp. 541-2).
These remarks fall, at best, perilously close to violating s. 4(5) of the Canada Evidence Act, which prohibits a judge from commenting on the failure of an accused to testify. As Ritchie J. said in R. v. McConnell and Beer, (1968) 4 C.C.C. 257 at p. 263 (S.C.C.) s. 4(5) ...was enacted for the protection of accused persons against the danger of having their right not to testify presented to the jury in such fashion as to suggest that their silence is being used as a cloak for their guilt.
I do not believe the judge's comments in the present case can be considered "offhand" or "ambiguous": compare R. v. Potvin (1989), 47 C.C.C. (3d) 289 at pp. 312-3 (S.C.C.), where the approach of Ritchie J. is adopted and reaffirmed.
In any event, quite apart from s. 4(5) of the Canada Evidence it is my view that the judge's rulings were wrong in law.
Quite properly and whenever possible, the defence will seek to adduce exculpatory evidence through the Crown's own witnesses. The Crown has secured many a conviction out of the mouths of witnesses called by the accused. "Self-serving" statements previously made by a party or a witness are, subject to certain exceptions, inadmissible, whether elicited in cross-examination or in chief: R. v. Campbell (1977) C.C.C. (2d) 6 (Ont. C.A.). A statement which cannot be introduced on cross-examination of a prosecution witness, because it is self-serving, remains self-serving and inadmissible if the prosecution witness is called in defence and asked the same questions in chief.
Further, some of the evidence excluded by the trial judge was admissible as an exception to the hearsay rule:
A person's declarations of his contemporaneous state of mind or emotion are admissible as evidence of the existence of such state of mind or emotion.(5)
(5) Cross on Evidence, 6th ed, 1985, p. 590.
I recognize, of course, that presiding over this trial would not have been an easy matter even if counsel, rather than the accused personally, had conducted the examination of witnesses. When an accused represents himself, especially in a jury trial, the judge's task is always more difficult and more delicate. Special care must be taken to ensure that the untrained accused understands the judge's rulings.
Here, in making the comments I have reproduced, the trial judge must simply have intended to convey to the accused that evidence as to his previous consistent statements was inadmissible. Unfortunately, when asked to explain the rule as to self-serving evidence, the judge directed appellant that he could not "make evidence to favour your case through Crown witnesses" and that he could not "make self-serving evidence through other witnesses".
A barrister would have known better, but appellant appears to have taken these repeated rulings literally. And literally the rulings were wrong: subject to certain exceptions (for example, to rebut an allegation of recent concoction), appellant could not prove his own previous consistent statements even by testifying himself.
In the result, the judge's rulings were demonstrably prejudicial and not just technically inaccurate: they caused appellant to call in defence the Crown's main witnesses against him, Richard Bertrand and Suzanne Quinn. Otherwise, he would not be permitted, he might understandably have thought, to lead exculpatory evidence through these witnesses. As well, there is no safe measure of the effect on the jury of the judge's repeated remarks as to the accused taking the stand.
On the hearing before us, the Crown submitted that none of these errors could have changed the result and that we ought therefore to apply the proviso of s. 686(1)(b)(iii). I am far from certain whether this would have been a proper case to apply the proviso, even if there had been no other error. In any event, for the reasons already explained, we need not reach that question: a new trial should be ordered on what I have already said is a peremptory ground.
THE FACTS
Linda Quinn died on or about January 16, 1985, in the basement of Steele's home. Her death was caused by extensive hemorrhaging from multiple cuts and from penetrating wounds inflicted with a sharp instrument. Aggravating factors included extensive traumata to her entire body: marks and lesions caused by pressure on her neck, numerous dog bites, nose fractures, wounds from the binding of her ankles, severed ribs and sternum, and skin erosions.
Richard Bertrand, the Crown's principal witness, was involved in Linda Quinn's ordeal. He was apparently never charged.
Bertrand testified that he heard the appellant say to Miss Quinn: "you don't want my love or you don't love me"(6). Steele then threw the contents of Miss Quinn's purse into a wood stove, struck her with the flat of a knife on the arms and legs and kicked her in the stomach.
She was taken to the basement and forced into a closed trunk, which Bertrand and Steele then carried into a cold storage room and covered with an air conditioner.
The victim was subsequently removed from the trunk, placed on a shelf, bound, and chained to a ceiling beam. Steele questioned her concerning the whereabouts of his companion, Lynn Clark. He struck the victim repeatedly while "trying to get answers from her"(7).
When she fell from the shelf, Bertrand and Steele chained her, feet up, to a pipe. While Steele was upstairs on the phone, Bertrand stood guard as Steele's pit bull attacked and repeatedly bit the victim. He later saw the appellant removing a knife from the victim's chest.
Bertrand and Steele ultimately replaced the victim's body in the trunk. Steele sprayed the body with hot water. Together, Bertrand and Steele then carried the trunk outside to the back of the appellant's workshop.
Suzanne Quinn, the Victim's sister arrived approximately a half-hour later, while Bertrand was scrubbing the basement.
Bertrand was slapped by appellant, hit on the head with a can of Lysol and told "not to say a word"(8). He was scalded on his hand and face with boiling water from a hot kettle, which appellant then placed on his chest. He was "whipped with a barbecue fork"(9). Steele "tricked" him into the bathtub, "stepped on (his) throat" and tried to drown him(10).
Steele, in the presence of Suzanne Quinn, stated that Bertrand had killed her sister. Bertrand testified that he "agree(d) to that"(11).
According to Suzanne Quinn, Steele subsequently stated that he, not Bertrand, had killed Linda, because "she was possessed"(12).
(6) p. 470. All page references, unless otherwise indicated, are to appellant's factum.
(7) p. 478.
(8) p. 487.
(9) p. 488.
(10) Ibid.
(11) p. 749.
(12) p. 776.
There was a dispute at trial whether Bertrand had admitted, during the evening in question, to being a witch himself. He reaffirmed his evidence given on this point at preliminary inquiry,(13) of which the following extract was read back by the trial judge:(14)
Answer from this witness: "When I got out of the shower I heard them talking and he was asking Linda if she was a witch. And then Linda's answer was, answered yes. And then he turned around and looked at me and said: Richard, are you one too, aren't you ? And I said: No. And he looked back at Linda and said: Isn't he a witch ? And she said:
Yes, you know you are. So I just agreed with them from there." That is the full thing. Let's not...
At 4 a.m., Steele drove him home. They had agreed to feign a break-in at Bertrand's place and a beating by the police. Steele was to summon an ambulance, but failed to do so. After losing and then regaining consciousness, Bertrand called for the ambulance on his own.
(13) pp. 627 dd.
(14) p. 634.
Steele was subsequently arrested and charged with the first degree murder of Linda Quinn.
PROCEEDINGS IN SUPERIOR COURT
(a) Notion for postponement
Appellant's trial was set down for November 4, 1985. On October 31, two motions were presented before the trial judge, the first for a change of venue and the second for a postponement. Both were denied.
The change of venue was sought on the ground of widespread prejudicial publicity in the rural and semi-rural district of Beauharnois, where the trial was set to proceed. With respect to the motion for a postponement, defence counsel stated, in part, as follows:
At p. 1776-7:
...this kind o case takes a great deal of preparation and time and effort. I personally was not in the position to do it. You know I agreed on the 10th of September and in view of my travel plans didn't really start to do very much except have a number of conversations with my client before just recently. We have had difficulty in obtaining and arranging meetings between my client and his psychiatrists, or the psychiatrist which I have...the meeting the first time with the two (2) psychiatrists that I have engaged, met my client yesterday and halfway through the examination they were interrupted by the guards, quite rightly so, to bring Mr. Steele here.
And unfortunately, one of the psychiatrists will be absent from tonight until Sunday night.
On Monday morning, I am sure that the internal wheels of justice will see that Mr. Steele is brought back here, probably on Sunday; he won't have a chance to see him and complete his report.
BY THE COURT:
Certainly not on Sunday. On Monday morning. The trial will start at two o'clock (2:00) in the afternoon.
At pp. 1780-1:
...It's been difficult to have access to Mr. Steele here for the psychiatrists. We finally had him transferred to Montreal. I saw we, it was arranged by somebody else. I had understood he was going to Pinel, but he was...it was difficult. And the first time that they have been able to see him was yesterday. I have a preliminary verbal report which I got last night at midnight at my own house, when I was visited by the psychiatrists in question. They've indicated to me that they have to examine him further, they have to spend at least an hour or two (2) or three (3) more with him in order to complete their report and be able to make...and base it properly.
I have also been trying to arrange for both psychiatrists, with the consent and perhaps suggestion of my confrère, that they would meet with the psychiatrist who has, on behalf of the Crown, examined him.
So far, the psychiatrists have not been able to get together.
At p. 1808:
BY THE DEFENSE:
And yesterday he met the other two (2) psychiatrists, My Lord, as I indicated to you already, they have not completed their examination.
BY THE ACCUSED:
...(inaudible)...
BY THE COURT:
Well, in order to enable you to have a full and complete defense, although this is not really one of my prerogatives, I will order that you be returned to Parthenais and brought back here Monday...
From this exchange, we know that counsel had found himself unable to prepare thoroughly for trial. We know the issue of appellant's mental state was in the mind of defence counsel before the trial commenced.
And we know that the psychiatrists retained for the accused had not yet, on the eve of his trial, completed their examination.
(b) Counsel permitted to withdraw, but ordered to act
At the opening of the trial on November 4, Mr. Asselin, now appearing with Mr. Sylvain, whom he had retained as his counsel just that weekend, sought leave to withdraw from the record. Mr. Asselin advised the court that his mandate had been withdrawn, that very morning, by the appellant.
After Mr. Steele had explained his reasons for dismissing Messrs.
Asselin and Sylvain, the trial judge reviewed the history o the proceedings, expressed his concern over the delays, and ruled as follows:(15)
Eleven (11) months have gone by, there has already been one postponement for exactly the same reasons of those alleged this afternoon. To allow such a postponement would be a mockery of justice. The trial had started and the trial will continue and I order Maître Asselin to remain on the record, as an officer of the Court to protect the interests o the accused and...I'm sorry I didn't get your name, I understand...
BY ME RICHARD SYLVAIN:
Maître Sylvain, notre Seigneurie.
BY THE COURT:
...and Maître Sylvain will also be on the record to protect the interests of the accused.
BY ME SYLVAIN:
As Counsel for...
BY THE COURT:
As Counsel. Well, of course if your client doesn't want you to ask questions, Maître Asselin, you won't be able to ask questions but should there be any evidence that you consider illegally inadmissible (sic) and should it... I miss it, well, it will be your duty, as an officer of this Court, to indicate it to me. Maître Sylvain will be there, there will be two (2) counsels in this case and we will now proceed with the choice of the jury. Would you call juror number 1 ?
Permission to withdraw at the outset or in the course of a trial is not lightly granted by the courts. Withdrawal will normally be permitted only where counsel and client are irreconcilable. So fundamental is the disagreement, that counsel is presumed incapable of properly representing the accused. In my view, the conflict does not magically disappear when counsel is released, discharged -- and immediately redrafted. A barrister who is allowed to withdraw should therefore not be forced to act as "legal advisor" to the client he can no longer represent.
(15) At pp. 256-7.
It should be noted the trial judge's direction in the present case was made long before the decision of our Court in R. v. Poulin (C.A.Q. 200-10-000220-884, March 21, 1990, summarized at J.E. 90-773), where we disapproved strongly of an order identical to the one made here.
In Poulin, as in the present matter, there had been a previous postponement and changes of counsel, the accused was detained throughout and there was no application for judicial interim release.
The Court there stated (at p.10):
Avec égards la cour est d'avis que dans les circonstances la solution proposée par le juge était de nature à violer les droits constitutionnels de l'accusé.
La décision du juge a eu pour effet d'imposer à l'appelant un avocat qu'il avait désavoué. Elle a eu pour effet aussi d'obliger l'avocat à agir contre son gré, sachant qu'il avait des motifs raisonnables de se retirer.
La bonne administration de la justice exige que les tribunaux procèdent à l'audition des causes avec diligence raisonnable mais rien n'indique ici que l'appelant et son avocat auraient pu vouloir abuser du système.
Curiously, despite the judge's ruling in this oase, Messrs. Asselin and Sylvain at first participated in the proceedings as if they were in fact conducting the defence. Mr. Asselin handled the selection o jurors and the cross-examination, limited as it was, of the first Crown witnesses.
Ultimately, Mr. Steele undertook to himself cross-examine the Crown's principal witness, Richard Bertrand. Mr. Asselin and Mr. Sylvain remained present. They continued as best they could to carry out their imposed mandate in what must have been onerous, frustrating and acutely stressful circumstances.
(c) Pre-trial delay by appellant
On a careful look at the record, it is far from clear that appellant was alone responsible for the sole previous postponement. Mr. Laliberté, then of defence counsel, stated on May 27, 1985, the date first fixed for trial:(16)
(16) pp. 1703-4.
BY THE DEFENSE
(MTRE. LALIBERTE):
If you permit, Your Lordship. One has to take into account that your decision on the certiorari was rendered on Tuesday, the 21st, and that we are today Monday, the 27th. So any delay that would have permitted us to study the judgement that you have rendered, of which we have no written copy yet, of which we have filed an appeal only on the notes that were taken during the rendering of your judgement, this has prevented us...this has put us in the situation where between the 21st and the 27th, an accused has to decide whether or not he will stand his trial or he will still try to quash the committal for trial.
Now, we are taking the position this morning that any proceedings before the Court of Appeal against the decision you have rendered on the certiorari matter be withdrawn. The accused declares himself ready to stand his trial and declares himself ready to hear the Crown's evidence to be presented against him.
Counsel advised the trial judge that, according to the Clerk of the Court of Appeal, the proceedings (including a motion to suspend the trial) had been struck and were not on the rôle. There ensued the following dialogue:(17)
BY THE COURT:
Okay, So we're still now with an appeal before the Court of appeal to ask to quash the committal and reopen the preliminary inquiry. That motion is still before the Court of Appeal.
BY THE DEFENSE
(MTRE. LALIBERTE):
It's not on the role.
BY THE COURT:
You don't put it on the role...
BY THE DEFENSE
(MTRE. LALIBERTE)
Okay, I do understand now.
BY THE COURT:
...all you have to do is file it with the clerk.
BY THE DEFENSE
(MTRE. LALIBERTE)
Okay.
BY THE COURT:
You don't even have to go and see Mr. Justice Vallerand in chambers.
BY THE DEFENSE
(MTRE. LALIBERTE):
Okay. So, if...
BY THE COURT:
That's filed.
BY THE DEFENSE
(MTRE. LALIBERTE):
...I would respectfully then ask for a suspension of the case so that we get in touch with an attorney in Montreal and that a desistment be produced until now and the sooner we can produce it.
BY THE COURT:
I'm telling you right now that I'm, by courtesy for the Court of Appeal, the case is not ready to proceed; I'm not going to hear it.
Now, your client has manifested the intention to speak to me ?
Only after the judge had already decided the case could not proceed as requested by Mr. Laliberté, did the accused make the request for a postponement that was read into the trial record by the judge on November 13.(18)
(d) Representations as to unfitness
On November 13, the following exchanges took place:(19)
At pp. 1402-09:
BY MTRE. EDMUND T. ASSELIN ATTORNEY FOR THE DEFENCE:
My Lord, before having the Jury enter, I have a motion which I do not think should be heard before the jury at the present time.
BY THE COURT
Well, ladies and gentlemen, may I ask you to withdraw for five minutes.
(JURORS WITHDRAW FROM THE COURTROOM)
BY THE DEFENCE
My Lord, my motion is based on article 543. (1) et suivants of the Criminal Code, which I don't have to read to you, My Lord, but I think I will because you're looking for it.
(17) pp. 1708-12.
(18) pp. 1431-3.
(19) The emphasis is mine throughout.
"A Court judge or magistrate may, at any time before verdict, where it appears that there is sufficient reason to doubt that the accused is, on account of insanity, capable of conducting his defence..." at the present time and thereon. There are two (2) issues involved in this article and suivants. One is whether he is apt to stand trial, and the second one to which I have referenced: is he apt, if you wish, or is he capable of conduting his own defence ?
BY THE COURT:
By reason... on account of insanity.
BY THE DEFENCE:
Insanity. Counsel, is view (sic; Counsel's view ?) of our present situation, and after discussing this matter with eminent psychiatrists who have previously examined the accused and who have incidentally been observing him throughout the last eiqht (8) or ten (10) days in this Court, indicate to counsel, court appointed, of the accused, that there is reason to doubt. However, to determine this they would have to reexamine him. And my motion, My Lord, in these circumstances is to request you to order that examination so that we can hear, and we suggest that Dr. Michaud and Dr. Duguay examine in order to report to you on that subject.
BY THE COURT:
Well, Mr. Asselin, I will be very short. The article which you have so well read is to the effect that: "A Court judge or magistrate may, at anytime before verdict, where it appears to the Court judge or magistrats that there is sufficient reason to doubt that the accused is, on account of insanity, capable of conducting his defence, direct that an issue be tried where the accused is then, on account of insanity, unfit to stand trial." I, like everybody here, have been a witness to everything that has happened during the last ten (10) days, and I have absolutely no doubt whatsoever that the accused is, by reason of insanity, incapable of conducting his defence.
BY THE DEFENCE
My lord, may I...
BY THE COURT:
The accused, you know, if you look at the jurisprudence on fitness to stand trial, it is very very clear, all that is necessary is that the accused know what he's charged with, knows what the consequences of...
possible consequences of a verdict of quilty.(20)
And, you know, I've had cases, numerous cases, of accused who were only apt because they were, what I call and what the jurisprudence calls, chemically apt. They were so drugged by psychiatrists that it made them, you know, less agitated, and then sometimes they would even fall asleep, and then the psychiatrists would immediately cut the dosage, to give it a little less, and all these people were ruled to be apt. I always was of the opinion that chemically apt was not apt.
But I guess I stand alone in that field.
And I will not.. the trial will continue and we will...
BY THE DEFENCE
My Lord, I'm not suggestinq that the trial not continue. I am suggesting, and I think it's... I've read rapidly the jurisprudence in Martin's...
BY THE COURT:
....7I, as a Court, it does not appear to me, as a Court, that there is sufficient reason to doubt that the accused is, on account of insanity, capable of conducting his defence, and will not direct an issue that he be tried, that the issue be tried whether the accused is then, on account of insanity, unfit to stand his trial.
(20) Though the trial judge appears here to base his decision on what may be described as extremely narrow criteria, he did subsequently refer (at p. 1434) to the much broader test proposed by the Law Reform Commission of Canada in its Working Paper 14, on "the criminal process and mental disorder" (1975). This test is set out below.
BY THE DEFENCE
My Lord, I don't want to discuss, of course, your judgment but I have not finished my I had not finished my remarks when you made them.
Perhaps, with the indulgence of the Court, you would permit me to suggest that he be examined immediately, as to whether he is sane or insane, by experts in the field. And by this I am not suggesting that My Lord has not had a great deal of experience in this field, but we are informed that there is a doubt and that he is capable. We have also been informed that he is in fact suffering from a severe mental illness. which I will not qualify although I have been given that information by experts.
On the particular issue is he capable.. is there a doubt that he is capable of directing his own defence, quite apart from his aptitude to stand trial, there is certainly a doubt in our mind, his counsel. And our experts are prepared to examine him and give you a report that could be done summarily, perhaps within an hour or two (2) half and hour (1/2) I don't know how long it would take...
BY THE COURT:
If you have looked at the file. there's several reports to the effect that he's apt.
BY THE DEFENCE
Apt... I'm not talking about aptitude to stand trial, My Lord, but simply his aptitude, and there is a strong doubt in my mind. supported by experts' opinions. And, in view of this, I would implore, My Lord, in the interest of justice, fairplay (sic) and a fair trial, and a fair and wide ranging and as fair a possibility that my... our client benefit from the principles of justice which are well known to My Lord and perhaps probably to everyone in this room.
I think that if this issue is not resolved at this point, all of us may participate in a miscarriage of justice. And I must put this view.
It's an obligation on my part to put this view to My Lord as clearly and as forcefully as I can. I might say that my counsel agrees with me, we've discussed this practically all niqht.
There is a serious doubt in our mind of this capacity to conduct his own defence and to even determine what that defence should be. And I don't wish to divulge against the Code of Ethics matters...of Lawyers, matter which I am not at liberty to divulge. However, I have to say that that is our opinion at the present time. He is not capable of doing it.
The two (2) psychiatrists who are here say there may be a doubt. They would like to determine if there is, in their professional opinion, a doubt. I suggest to you, My Lord, that this procedure, and you have discretion of course to order or not, would, I think, determine whether justice, openness and fairplay is being accorded to the accused in spite of his condition, his attitude, his fashion of conducting his own defence. It should be clear that he nentally is capable of doing it and believe, My Lord, that you should take, along with the rest of us, advice from experts in that field. That's my suggestion, My Lord, and it's the suggestion of my counsel, and we feel very strongly about this.
And that's all I have to say at the present time unless my counsel has something.
BY THE COURT:
Could you show me the record, please.
BY THE DEFENCE
We would... perhaps, My Lord, vou could hear immediately the two (2) psychiatrists that are here.
BY THE COURT:
There's more than two (2) here.
BY THE DEFENCE
Three (3) then, My Lord. I...
BY THE COURT:
Three (3) or five (5) or ten (10) ! You're allowed ten (10), why not ?
BY THE DEFENCE
My Lord, I'm suggesting two (2). If you wish. I'll take one of the two (2) and just have one.
BY THE COURT:
Sure. Of course you're going to suggest two (2).
BY THE DEFENCE
One if you wish.
BY THE COURT:
The Crown might suggest others.
BY THE DEFENCE:
Fine, My Lord.
BY THE COURT:
But as far as I'm concerned, the Code is very clear. It's when I, I...
BY THE DEFENCE
I admitted that, My Lord. Not only did I admit it, you do have discretion...
BY THE COURT:
That's right...
BY THE DEFENCE
...but I...
BY THE COURT:
...and I've exercised it. Now, will you call in the jury, please.
At p. 1424:
BY THE DEFENCE:
(Mtre. Asselin):
"The accused must have the ability to cooperate with counsel in his own defence, a communicative ability. And the ability to understand the proceedings, a cognitive ability. In considering the accused of communicative ability, the Courts ask the following kinds of questions: Is the accused able to assist in the defence ?"
Accordina to our psychiatrists and according to us he is not.
At p. 1426:
BY THE DEFENCE
(Mtre. Asselin)
If you would permit me. "Is the accused able to assist in the defence ? Can he communicate with his attorney ?" No, in my opinion.
"Does he have a workinq relationship with the attorney ?" Obviously not. "Is the so suspicious or timid that he will not cooperate with his own attorney ?" His is that suspicious, My Lord, and not only on my opinion through observing him, but in the opinions of the psychiatrists whom we have had examine him.
BY THE COURT:
Of some psychiatrists.
BY THE DEFENCE
Some...the psychiatrists. I said, who have examined him and that I have spoken to, if you wish.
BY THE COURT:
That's right. So we'll keep it at some.
BY THE DEFENCE:
"Is he capable of taking the stand and giving evidence himself if necessary ? Can he make strategic decisions with respect to the conduct of his defence ?" There again. based on experts, I must say no. In any case, My Lord, if you care to consult...
BY THE COURT:
Thank you very much. No, thanks.
(e) Withdrawal of "legal advisors" in mid-trial
After the judge had indicated that he had "exercised his discretion" by deciding not to order the trial of a special issue, Messrs. Asselin and Sylvain asked him to rescind "the order made by yourself that we remain here to assist (the accused) on legal points"(21). Both counsel represented to the Court that they had lost appellant's confidence, had been misled by him and had "no collaboration of any kind from him"(22). Mr. Asselin said in part:(23)
BY THE DEFENCE
(Mtre. Asselin):
And to conclude, My Lord, we believe, acting as his lawyers and in the circumstances under which we are acting, he will not get a full and adequate and just defence before this Court. He has a right to that.
"la défense pleine et entière", he has a right to it. We believe he is not getting it with ourselves acting as his lawyers.
(21) p. 1416.
(22) p. 1412.
(23) p. 1416.
This episode then ended as follows:(24)
BY THE DEFENCE
(Mtre. Sylvain):
The defence that Mr. Steele...
BY THE COURT:
I have a lot of respect for counsel but, you know, I can tell you that a lot of my clients would have been better off if they had not followed my advice, and then I would have been better off if I had followed my confreres' advice, especially...I'm thinking especially this week, and stayed in practicing law and not, you know, accept an appointment as a judge. So I didn't follow the advice.
BY THE DEFENCE
(Mtre. Sylvain):
The defence which Mr. Steele wants to present, to my point of view, on a legal basis, I do disagree with him.
BY THE COURT
Okay. Now Mr. Steele, I'm telling you right now that I will not adjourn this trial. So do you wish to proceed alone or do you wish counsel to remain and assist you ?
BY THE ACCUSED:
I didn't put them up to this speech, Your Honour. I've been seeking them to help me constantly asking them to do specific things in order...
BY THE COURT:
It's very obvious. Look, every question, you know, every five (5) minutes, you've consulted either or both counsel. I remarked...
BY THE ACCUSED:
Well, I wouldn't go that far, Sir. The answers that they whispered to me, exactly what I wanted to hear, Your Honour, but...
BY THE COURT:
I remarked upon it yesterday, you know, that each question took five (5) minutes because the three (3) of you were having a caucus.
BY THE ACCUSED:
Sir, they've been very demoralizing, Sir. Very demoralizing.
BY THE COURT:
So the...
BY THE ACCUSED:
Telling me that the phone bills, Your Honour, and too high expenses to afford a typist, Your Honour, even to transcribe certain things.
BY THE COURT:
Now, would you answer my question. Do you wish counsel to remain and assist you, and, of course, it would be strictly in a legal manner, I certainly would not impose any obligation on the part of counsel to do anything illegal, that goes without saying, or do you want to proceed alone ? It's a very simple question.
BY THE ACCUSED:
You really feel that's very simple, Your Honour ?
BY THE COURT:
Yes.
BY THE ACCUSED:
I certainly, certainly don't feel that you're going to assist me very much, Your Honour...knowing exactly how much they've been assisting me so far, I would like to have the opportunity, Your Honour, to perhaps... I'm not speaking about any long postponement or anything.
Your Honour, but I would like to consult with them...
BY THE COURT:
Okay.
BY THE ACCUSED:
...at least first to see if we may have any communicative (sic)...
BY TKE COURT:
So I'll give you as long as you want and then I'll decide on the second motion.
COURT IS ADJOURNED
COURT RECONVENES
THE ACCUSED IS PRESENT
BY THE COURT:
Now, Mr. Steele, do you wish to retain the two (2) counsel who are here or do you wish to proceed alone ?
BY THE ACCUSED:
I wish to proceed alone with the Court's assistance, Your Honour.
BY THE COURT:
Very well. I've tried everything possible to furnish you with counsel's assistance. This statement is clear, you will now proceed alone. And any assistance which I may give you to subpoena witnesses, I will give you of course. And I'm not going to go and serve the subpoenas myself. I will ask a member of the police to serve witnesses when you give me the list. Now, make sure you give me the list sufficiently in advance so that this trial will not, again continue to be delayed.
(24) pp. 1446-9.
Appellant, on trial for murder in the first degree, had just been described by his assigned legal advisors as mentally ill and incapable -- even with professional assistance -- of conducting his defence. He now found himself, albeit with his own consent, valid or not, entirely unassisted at perhaps the most critical stage of his trial.
(f) Psychiatrists never heard
There followed some additional discussion between the trial judge, the accused and the psychiatrists referred to by Mr. Asselin. On November 13, they confirmed having told appellant's counsel their "position".(25) Counsel had related this position, as appears above, to the Court. At that point in the proceedings, the psychiatrists had not yet given their opinion to appellant. They were afforded an opportunity to do so during the lunch hour on November 13. Appellant said he would have the psychiatrists testify the next day:(26)
BY THE COURT:
Are there... no questions of law before we bring in the Jury ?
BY THE ACCUSED:
Your Honour, there are a few little items, Sir. I would like to request that you continue the mandate and the subpoenas for the two (2) psychiatrists, Sir, that Maître Asselin subpoenaed.
BY THE COURT:
Mr. Steele, first, you must tell me that you intend to have them heard.
BY THE ACCUSED:
Yes, I do, Sir.
BY THE COURT:
Okay. Tell me when you want to have them heard.
BY THE ACCUSED:
Most probably tomorrow, Sir.
BY THE COURT:
Tomorrow ?
BY THE ACCUSED:
Yes, Sir.
BY THE COURT:
Because I'm not going to hold these two (2) persons as hostages here.
BY THE ACCUSED:
No, I understand that, Sir. I realize their expertise is required in other areas and other places, Sir.
BY THE COURT:
That's right.
BY THE ACCUSED:
I just spoke with them, Sir, and I have a great deal of compassion. I dont't want to hold them here when It's unnecessary, Sir.
BY THE COURT:
So, what time will you have them heard tomorrow ?
BY TKE ACCUSED:
Well, I'm not exactly sure, Your Honour, because there are...
unfortunately, Maître Asselin and Maître Sylvain left without leaving me a great deal of notes that I really need, Sir. There was certain officers, besides the ones that were entered in by Mr. Assad, I wish to subpoena, Sir, and I don't even recall their names, unfortunately.
And they have the notes on this and they were going to put out these subpoenas, Sir, and I'm not quite sure that I have them in this group here.
BY THE CROWN:
If I knew what the...
BY THE COURT:
This is a long speech. All I want is...these two (2) gentlemen have other things to do than to sit in Court as spectators. So the only question I'm asking you is:
1) do you undertake to have them heard ? and 2) if so, when ?
BY THE ACCUSED:
Well, as I just said, Sir, I believe tomorrow... tomorrow, Sir.
BY THE COURT:
At what time ?
BY THE ACCUSED:
Pardon me, Sir ?
BY THE COURT:
At what time ?
BY THE ACCUSED:
Well, it's a little...
BY THE COURT:
You know, It's very easy to have them as first witnesses tomorrow. You could have them today.
BY THE ACCUSED:
Sir, there are a few other things I'd like to go into first, Sir.
BY THE COURT:
Okay. So at what time tomorrow ?
BY THE ACCUSED:
I would say in the afternoon, Sir.
BY THE COURT:
At two o'clock (2:00) tomorrow afternoon.
BY THE ACCUSED:
Well, tomorrow afternoon, Sir.
BY THE COURT:
Two o'clock (2:00) tomorrow afternoon, you may leave...
Instead, when court reconvened the following morning, appellant abruptly closed his defence. The doctors were thus never heard.
(25) p. 1454.
(26) pp. 1518-22.
In this context, I reproduce the words of Justice Douglas, of the United States Supreme Court, spoken nearly forty years ago in Massey v. Moore (1954), 348 U.S. 105 at p. 108:
One might not be insane in the sense of being incapable of standing trial and yet lack the capacity to stand trial without benefit of counsel...We cannot hold an insane man tried without counsel to the requirement of tendering the issue of his insanity at the trial. If he is insane, his need of a lawyer to tender the defense is too plain for argument.(27)
(27) Our own Criminal Code, as mentioned below, requires counsel to be appointed for the trial of a special issue if the accused is unrepresented: see s. 615(4).
REPORTS IN COURT RECORD
The trial judge, it will be recalled, had stated to defence counsel that the file contains "several reports to the effect that (the accused) is apt" (supra). It may therefore be assumed, I believe, that he considered the contents of the reports in deciding to direct the trial of a special issue.
In fact, thero are two psychiatric reports in the court record. We are advised by counsel that these were the reports filed. The first, dated February 1, 1985, is a handwritten opinion based on a summary examination ("examen sommaire") conducted in the Valleyfield detention centre. It reads, in part, as follows:
Il s'agit d'un prévenu que j'examine à la demande du Procureur de la Couronne. Cet homme est accusé du meurtre de sa secrétaire, accusation qu'il nie absolument. Il me raconte avoir eu un "flash psychique" en arrivant à son domicile la journée de son arrestation...Cet homme se présente comme ministre d'une religion marginale. IL affirme avoir été directement ordonné par Dieu le Père, à l'âge de 19 ans. Il avoue des hallucinations auditives à cette époque...Ses propos sont délirants, en rapport avec sa religion, mais son discours est par ailleurs adéquat. Je ne puis décéler d'hallucinations actuelles...Son contact avec la réalité me semble en grande partie conservé, possiblement lorsqu'on aborde le sujet de sa reliaion et de la Commission dont il a été investi.
Recommandations
Je ne puis me prononcer avec certitude sur l'aptitude de ce prévenu à subir son procès. Il semble relativement capable de savoir ce qu'il lui est reproché, d'apprécier la signification d'un procès, de collaborer avec son procureur pour participer à sa défense..
Toutefois. comme il est soit délirant, soit manipulateur dans une partie de son discours (en particulier lorsqu'on aborde les circonstances du présent meurtre) je dois recommander une période d'observation en milieu spécialisé pour une durée approximative de 30 jours...
The second report is dated February 25, 1985 -- that is, somewhat more than eight months before the trial. There is mention in it of the appellant's previous psychiatric hospitalization:
Sur le plan psychiatrique, M. Steele a des antécédents. Il a en effet déjà été hospitalisé à l'hôpital général Juif à l'hôpital Douglas vers 1975-1976, aalors qu'il présentait une symptomatologie psychotique aigue. Une étiologie toxique avait alors été suspectée.
The report concluded that appellant was fit to take his trial.
THE LAW
(a) Rationale of the fitness rule
Under Canadian law, an accused must be mentally fit to be tried. This rule is securely anchored in principles of justice as ancient and fundamental as the rule against trials in absentia and the right of an accused to make full answer and defence.
In R. v. Roberts (1975), 24 C.C.C. (2d) 539 (B.C.C.A.), Carrothers J.A. stated, for the Court (at p. 545):
It is prerequisite to any criminal trial that the accused be capable of conducting his defence. Subject only to disruptive conduct on his part, he must be physically, intellectually, linguistically and communicatively present and able to partake to the best of his natural ability in his full answer and defence to the charge against him: R. v. Gibbons (1946), 86 C.C.C. 20, (1947) 1 D.L.R. 45, 1 C.R. 522 (Ont.
C.A.); R v Woltucky (1952), 103 C.C.C. 43, 15 C.R. 24, 6 W.W.R. (N.S.) 72 (Sask. C.A.); R v. Lee Kun (1915), 11 Cr. App. R. 293; R v. Beynon (1957), 41 Cr. App. R. 123; R v. Podola (1959), 43 Cr. App. R. 220.
In R. v. Lee Kun, (1916) 1 K.B. 337, Lord Reading stated (at p. 341):
The presence of the accused means not merely that he must be physically in attendance, but also that he must be capable of understanding the nature of the proceedings.
Lee Kun was cited with approval in R. v. Woltucky (1952), 103 C.C.C. 43 (Sask. C.A.) where Chief Justice Martin stated (at pp. 46-7):
The fact that the counsel for the defence has not asked for the trial of an issue as to the sanity of the accused will not justify the holding of a trial, or the making of a conviction, if upon the evidence and before verdict a doubt arises as to the fitness of the accused to plead; the accused has if such doubt is revealed, a statutory right to have an issue directed: R. v. Williams, 50 Can.
C.C. 230, (1929) 1 D.L.R. 343, 63 O.L.R. 191, and if the Judge fails to make the direction the conviction will be set aside.
The insanity contemplated by s. 967 (now s. 615) of the Cr. Code is different from that set forth in s. 19 (now s. 16), as sufficient to support the defence of insanity; the test on the issue is whether or not the accused is able to understand the proceedings; to try him if he is not able to understand the proceedings and to instruct his counsel would deprive him in all probability of his right to make his full defence. No one can be rightly tried while insane: R. v. Lee Kun (1915), 85 L.J.K.B. 515, 11 Cr. App. R. 293, per Lord Reading C.J. at p. 517 of the King's Bench Reports.
Woltucky, in turn, has been consistently approved by other appellate courts in Canada: see, for example, R. v. Wolfson, (1965) 3 C.C.C. 304 (Alta. C.A.), at pp. 314-5; R. v. Budic (1977), 35 C.C.C. (2d) 272 (Alta. C.A.), at p. 277; R. v. McIlvride (1986) 29 C.C.C. (3d) 348 (B.C.C.A.), at p. 356.
The Law Reform Commission of Canada has emphasized an additional aspect:(28)
(28) Working Paper 14, The Criminal Process and Mental Disorder, 1975, pp. 33-4. See also the L.R.C.'s Report: Mental Disorder in the Criminal Process, 1976, p. 13; Don Stuart, Canadian Criminal Law, 2d ed., 1987, p. 324; Paul Lindsay, "Fitness to Stand Trial in Canada: An Overview in Light of the Recommendations of the Law Reform Commission of Canada" (1977), 19 Cr. L.O 303 at pp. 305-7.
The rationale of the fitness rule, then, is this: it promotes fairness to the accused by protecting his right to defend himself and by ensuring that he is an appropriate subject for criminal proceedings.
The accused has the right to make full answer and defence to the charges brought against him. Fairness demands that he be aware of what is going on at trial so as to take whatever steps available to avoid the potential conseguences of being found guilty. A trial at which the accused is mentally unable to exercise his rights is really a trial at which these rights do not exist. Exempting him from trial, therefore, protects his rights to make full answer and defence.
As well, our notions of responsibility, punishment and specific deterrence are based on the accused's involvement in his trial. He must know if convicted, for what crime and if punished, for what reason. It would be wrong to convict or sentence a person who does not appreciate what is happening to him. The fitness rule prevents this.
I believe it essential, in applying s. 615 of the Code, to bear in mind these underlying values which the section is meant to foster.
(b) SECTION 615(1): "MAY" or "SHALL"
Section 615(1) of the Criminal Code reads as follows:
A court, judge or provincial court judge may, at any time before verdict, where it appears that there is sufficient reason to doubt that the accused is, on account of insanity, capable of conducting his defence, direct that an issue be tried whether the accused is then, on account of insanity, unfit to stand trial.
It is my view that the word "may" in s. 615(1) is intended to confer authority, rather than to vest in trial judges a "discretion" not to exercise it.
Writing for the majority of the Court in R. v. Welch (1950), 97 C.C.C. 177 (S.C.C.), Fauteux J. (later C.J.) stated (at pp. 189-90):
The expression "may" related to this further authority of the Court is not and cannot, in the context of the section read in the light of paramount principles of our ciminal procedure, be permissive. It is mandatory. In M'Dougal v. Paterson (1851) 6 Exch. 337n at p. 340, 155 E.R. 571, it was held that "when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and havinq the right to make the applicacion. For these reasons, we are of opinion, that the word "may" is not used to give a discretion, but to confer a power upon the Court and judges; and that the exercise of such power depends not upon the discretion of the Court or Judges, but upon the proof of the particular case out of which such power arises".
That a like reasoning and meaning is to obtain with respect to the same word "may" in the last part of this subsection clearly stems from the context "and in either case may make such other order as justice requires". For new and extraordinary would be a rule of construction stating that, being empowered to make an order required by justice, a Court of justice would be free to refrain from making it when the occasion to do so arises. In Req. v. Bishop of Oxford (1879) 4 Q.B.D. 245 at p. 258, it was held that "so long ago as the year 1693, it was decided in the case of The King v. Barlow (1693), 2 Salk. 609, that when a statute authorizes the doing a thing for the sake of justice or the Public good, the word "may" means "shall"; and that rule has been acted upon to the present time".
I believe that the principle set out in this passage applies with special force to s. 615(1). This view is consistent with the purpose of the section and it is supported by the case law as well.
In Roberts, supra, writing for the Court, Carrothers J.A. stated (at p. 547):
According to s. 543(1) (now s. 615(1)) of the Criminal Code no particular person has the responsibility to raise the matter of the necessity of determining the issue of fitness. The "sufficient reason to doubt that the accused is, on account of insanity, capable of conductinq his defence" need only "appear" to make the direction of such a determination mandatory. The issue might be raised at the instance of the prosecution, on behalf of the accused or may simply "appear" to the Court from the history of the proceedings, the evidence adduced, the conduct of the accused or otherwise. Here, where there was a previous finding of unfitness, the matter was quite properly raised by the Crown which was presenting the accused for his trial.
This passage from Roberts was expressly adopted by a unanimous Court in Budic, supra, at. p. 277.
In v. Woltucky, in the passage I have already quoted, Chief Justice Martin stated that, "where a doubt as to fitness arises, the accused has a statutory right to have an issue directed". As I have also already mentioned, this passage was cited with approval by the British Columbia Court of Appea1 in McIlvride, at p. 356. See, as well, the authorities cited by Lindsay, supra, at p. 32, note 91.
It is true that some cases speak of a "discretion" in the trial judge to decline to direct a special issue. In my viev, these judgments merely support the sensible proposition that a court is not bound to try the issue where there is no real basis for the request.
Thus, in R. v. Wolfson (1965) 3 C.C.C 304 (Alta. C.A.), the Court held that "there was no evidence that the accused was not capable of conducting his defence" (at p. 316) "Under these conditions and circumstances", said the Court, "the trial Judge was justified in exercising his discretion as he did.". It should be noted as well that the Court, at p. 314, had cited Woltucky, supra, and R. v. Beynon, (1957) 2 Q.B. 111, at p. 114, where Byrne J. held:
As I have always understood the law and seen it administered, if the court is" aware of the fact that there is a preliminary issue whether the person who is charged before the court on an indictment is insane so that he is unfit to be tried, it is the duty of the court to see that issue is tried, even though no application is made by the prosecution or by the defence. I find that that view is fortified by a judgment of Humphreys J. In Rex v. Dashwood...((1942) 2 All E.R. 586 at p. 587.).
Likewise, in R v. McLeod, Pinnock and Farguharson (1983), 6 C.C.C. (3d) 29 (Ont. C.A.)(29) the Ontario Court of Appeal declined to interfere with the judge's refusal to direct an issue. The trial judge, once the accused's fitness was raised, promptly remanded him for a psychiatric examination. He decided not to try a special issue after receiving the unanimous opinions of a psychiatrist, a psychologist, a psychiatric nurse, a social worker and a correctional officer that the accused did not suffer from any major mental illness and was fit to stand trial. Grange J.A., speaking for the Court (at pp. 35-6), recognized that it was not for the judge to resolve coflicts in the evidence or to determine the issue of fitness. Nor was the evidence of the experts to be taken as conclusive on the issue. However, since he did "not see how the jury could have reasonably found the accused unfit," Justice Grange concluded that the Court should not interfere with the "trial judge's discretion in this respect". Even on those facts, Justice Grange considered that "Perhaps it would have been better to direct an issue" (ibid.).
In holding that a special issue must be tried if it is made to appear that there is reason to doubt the accused's fitness, I am not at all deciding that a trial judge must direct a special issue the moment the issues arises. Section 615(5) (a) expressly permits the judge to postpone the trial of the issue, when it arises before the Crown's case is closed, until "any time up to the opening of the case for the defence." Whether a judge may postpone trial of the issue, otherwise than in accordance with s. 615(5) (a) is a matter we need neither consider nor decide in this case.
(c) THE APPEARANCE OF DOUBT AND THE INQUIRY
In Roberts, the Court held (at p. 546):
As to the nature of the hearing on the fitness issue, it is fundamental to observe that this is strictly an inquiry on behalf of the Queen to determine the status of a subject and not a trial involving adversaries to determine whether an offence has been committed, the nature of that offence and the guilt or innocence of a person respecting same.
This approach was adopted as well in Budic (at p. 278):
In this view, that the trial of the issue is not to be taken on an adversary basis, no burden of proof in the accepted sense rests on any person involved in the issue, but there is a responsibility on all concerned to contribute to the hearing so far as they are able, in order that a proper verdict may be reached having in mind the purpose for which the issue is directed as set out in R. v. Wolfson. The evidence in the issue, and its effect, must be weighed on the balance of that purpose. One aspect is the ability to instruct counsel adequately in relation to the offence with which the accused is charged, and the position taken by defence counsel must be given fair consideration since he in particular will necessarily have to come to some conclusion as to whether the instructions he was able to receive were adequate or inadequate to enable him to conduct the defence intended to be put forward, or, as in this case. has been put forward.
In this connection s. 543(3) (now s. 615(4)) must be noticed:
543(3) Where it appears that there is sufficient reason to doubt that the accused is, on account of insanity, capable of conducting his defence, the court, judge or magistrate shall, if the accused is not represented by counsel, assign counsel to act on behalf of the accused.
I presume that such an assignment would be primarily in respect of the issue of fitness to stand trial, and I think it recognizes the importance of the position of defence counsel on the trial of the issue.
The Roberts approach was also followed by Pinard J. in Demontigny, infra, (at pp. 1-2).
In R. v. Gibbons (1946), 1 C.R. 522 (Ont. C.A.), Chief Justice Robertson (Henderson, Laidlaw and Roach JJ.A., concurring) stated (at pp. 527-8):
It is of vital importance in the administration of justice that the accused, particularly in a capital case, should be fit to stand his trial. If there is ground for doubting his sanity at the time of his trial, that doubt should be resolved one way or the other, by inquiry just as thorough as a defence of insanity would be given.... The possibility that this appellant was placed upon his trial while unfit to undergo trial by reason of mental illness or insanity, and that thereby a fair trial was not had, is the only ground, in my opinion, for interfering with the verdict and judgment. I think, in the circumstances of the case, it is a sufficient ground. An adequate inquiry to determine whether the appellant is fit to be tried should be made, and until it is made there can be no proper determination of his quilt.
Roach J.A., agreeing entirely with the Chief Justice, added (at pp. 529-30):
I have had the benefit of reading the reasons of my Lord the Chief Justice, with which I entirely agree. I only desire to add this, that where, in the course of a trial, as here, the question of the mental fitness of the accused to stand his trial arises, as a matter of practice the Crown should give to the jury trying that issue the benefit of any evidence which it has touching that particular issue.
If this is not done, and the jury should declare on such evidence as it hears that the accused is fit to stand trial, and the trial continues and the Crown then places in the witness-box psychiatrists, as it did here, it is not beyond possibility that as a result of the evidence of those psychiatrists it might appear to the jury, notwithstanding their earlier verdict on the issue, that the accused was even then insane and not capable of conducting his defence. Such a possibility could be prevented, and it would savour much more of fairness, if, notwithstanding, that no rule requires it, as a matter of practice, the Crown would, on such an issue, submit all the evidence at its disposal touching that issue.
In an annotation following Gibbons, (at 1 C.R. 545), A.E. Popple writes (at pp. 548-9):
This issue was: Whether the accused is or is not then on account of insanity unfit to take his trial ? And in determining this issue a "doubt" arose as to the sanity of the accused and this doubt was not properly resolved by the jury and it necessitated a new trial being granted to the accused. This matter has come up before in Rex v. Williams, 63 O.L.R. 191, 50 C.C.C. 230, (1929) 1 D.L.R. 343, 13 Can.
Abr. 1425. In that case it was decided where, upon an appeal, the court was of opinion that upon the evidence at the trial and before verdict a "doubt" existed as to the sanity of the accused a new trial might be granted to the accused notwithstanding the omission of counsel at the trial to insist that an issue be directed as to the accused is sanity since the accused is given a statutory right in that respect where the evidence reveals a doubt as to his mental capacity to conduct his defence.
Finally, because of its special relevance to the present case, I note this passage from the reasons of Chief Justice Robertson (at p. 526):
The conduct of the accused in connection with the shooting of Joseph Fitzmaurice and of his brother, who was also shot on the same occasion, as given in evidence, and his conduct following thereupon, were also of a character that might have been regarded by a jury as some evidence of an insane mind.
(d) TEST OF FITNESS
Section 615(1) is concerned with an inquiry as to both cause and effect: the issue is whether the accused is, on account of insanity "capable of conducting his defence".
Insanity alone is not enough. Nor is incapability of conducting the defence. Both elements must be present and causally related. If they are, the accused is "unfit to stand his trial" within the meaning of s. 615 of the Code.
It is well established that the insanity contemplated by s. 615 is different from the insanity defined in s. 16: McIlvride, at p. 356;
Woltucky, supra, at pp. 46-7; Roberts, at p. 277, Wolfson, supra, at pp. 314-5.
It is also different from the test for civil commitment: Lindsay, at pp. 307-12. As the Ouimet Committee emphasized in its Report(30):
The concept of fitness to stand trial is often confused with that of "certification" to a mental hospital. Unlike the criteria employed to determine fitness to stand trial which relate to the criminal trial process, the question of "certifiability" has to do with whether the combination of a person's mental condition and his actions requires mental hospitalization on a compulsory basis. While mental hospitalization may be, and in most cases is medically indicated for a person who is unfit to stand trial, the two concepts do not always go hand in hand. Consequently, it is possible that an individual found unfit to stand trial is not a proper candidate for mental hospitalization. Conversely, it would be perfectly consistent with the principles involved for some patients in mental hospitals to undergo a criminal trial. Our Committee emphasizes these points.
In R. v. Demontigny (unreported, Que. S.C., 500-01-003023-907, September 26, 1990), Mr. Justice Pierre Pinard, at p. 3 of his reasons, held that "insanity" under s. 615 means "disease of the mind" and refers to "toute maladie, tout trouble ou état anormal qui affecte la raison humaine et son fonctionnement" ("any illness, disorder or abnormal condition which impairs the human mind and its functioning": see R. v. Cooper (1980), 51 C.C.C. (2d) 129 (S.C.C.) at p. 144, per Dickson J., as he then was, for the majority;
Justice Pinard proceeded to direct the jury that this mental condition must render the accused incapable of conducting his defence and unfit to take his trial. He then explained (at pp. 3-5):
Que veut dire l'expression "conduire sa défense" ? Bien, cela veut dire, (le bon sens le suggère), savoir qui on est, où on est dans l'espace et dans le temps. Il faut savoir quelle est la nature et la gravité de l'accusation. Il faut savoir ce qu'est un procès, pas nécessairement avec toute la science ou les connaissances que les spécialistes comme les avocats et les juges peuvent avoir, mais il faut savoir ce qu'est un procès. Il faut savoir qu'est-ce que c'est qu'un juge; qu'est-ce que c'est qu'un jury; que sont les avocats; quel est le rôle de l'avocat de la poursuite; quel est le rôle de l'avocat de la défense. Il faut pouvoir décider de la conséquence de plaider coupable ou non coupable, parce que le procès commence par cela...
Donc, il faut pouvoir à la fois recevoir des conseils de son avocat, lui en demander au besoin, lui donner des instructions et faire des choix en appréciant les conséquences. Il faut bien entendu pouvoir donner un compte rendu fidèle, exact de ce qui s'est passé. Je ne sais pas si ce que l'accusé va dire à son avocat concernant ce qui s'est passé est la vérité ou pas. Mais que ce soit la vérité ou un mensonge, il faut qu'il soit capable de l'exprimer à son avocat pour que l'avocat comprenne. En somme, il faut pouvoir établir un lien de travail efficace entre lui-même et son avocat, un lien dont la confiance, bien sûr, qu'elle soit totale ou limitée, peu importe, ne doit pas être exclue, le bon sens du moins le suggère. En somme, il faut pouvoir fonctionner pour conduire sa défense seul ou avec l'aide d'un avocat.
After considering the evidence in the light of these directions, the jury found Demontigny fit to take his trial (which ended, for unrelated reasons, in a mistrial on OctoDer 19, 1990.)
In McIlvride, supra, at pp. 356-7, the Court stated as follows:
The insanity referred to in s. 543(1) (nov s. 615(1)) differs from the insanity described in s. 16 of the Code. In R. v. Woltucky (1952), 103 C.C.C. 43 at pp. 46-7, 15 C.R. 24, 6 W.W.R. (N.S.) 72, Chief Justice Martin summarized the law in this way:
(the Court here reproduced the extract from Woltucky that I have set out above, and continued)
To that summary we add that the mere fact that an accused may not be capable of acting in his best interests during his trial is not sufficient to warrant a finding that he is unfit to stand trial. This is taken from the cases of R. v. Robertson (1968), 52 Cr. App. R. 690;
R. v. Berry (1977), 66 Cr. App. R. 156, and Reference re Regina v. Gorecki (No. 1) (1976), 32 C.C.C. (2d) 129, 14 O.R. (2d) 212.
In the latter case the Ontario Court of Appeal had been asked to give an opinion to the Minister of Justice on the question whether Dr.
Gorecki was, at the time of his trial, incapable on account of insanity of instructing counsel and conducting his defence. Two psychiatrists were of the opinion Gorecki was unfit and three were of the contrary view. The Court of Appeal found him fit and sunmarized the conclusion at pp. 134-5 C.C.C., p. 218 O.R.:
It is our conclusion more specifically that on his trial, Dr. Gorecki understood the nature of the charge against him. He understood that he had been arrested. At the time of his arrest, he was capable of giving a detailed account of the events. He also gave a detailed account of the events to counsel. He appeared to understand the purpose of the preliminary inquiry and participated in it. Even Dr.
Rowsell admits that Dr. Gorecki was aware of the defences open to him and had the mental capacity to make an appropriate defence. It is our opinion that, because he understood the consequences of a finding of insanity, he refused to allow his counsel to advance his defence.
Throughout the trial, he was able to communicate with counsel, converse with them rationally, and make decisions on their advice. He was well avare of the purpose of the trial and the proceedings throughout and could distinguish between the pleas open to him. He was capable of assisting counsel in the selection of a jury, in the selection of witnesses, and was perfectly aware of the respective roles of the Judge, jury and counsel. In the course of trial he comprehended the details of the evidence including technical evidence, and took a lively interest in the proceedings by passing several notes to his counsel with respect to the evidence, which he would remember once he heard it. He was able to give evidence in a coherent fashion.
In viev of the foregoing remarks, we are of the opinion that at the time of his trial, Zbigniew Gorecki was not on account of insanity incapable of conducting his defence and that he was not unfit to stand trial on account of insanity. In our opinion, therefore, the question submitted to us pursuant to s. 617(c) should be answered in the negative.
Prof. Stuart writes (on. cit., at pp. 325-6):
Judges using different language can only further confuse witnesses and jurors and there is much to commend the recommendation of the Law Reform Commission that uniform criteria be included in the Code:
A person is unfit if, owing to mental disorder:
(1) he does not understand the nature or object of the proceedings against him, or (2) he does not understand the personal import of the proceedings, or,
(3) he is unable to communicate with counsel.
Since this approach is merely a clarification of the common law, there is nothing to stop judges from resorting to such language at once.
Perhaps the third criterion of inability to communicate with counsel is better generalized to an ability to assist in a defence. This formulation includes not only communication but also the ability of the accused to take the stand and also make important decisions that are his and his alone to make, such as the entry of a plea.
Lindsay, despite his criticism of the Law Reform Commission's recommendation, agrees that "Basically, this formulation is a codification of the common law" at p. 320).
I would adopt the test formulated by Pinard J. in Demontigny. His directions to the jury are consistent with precedent and favoured by the authors. As well, they apply the fitness rule according to its true spirit and purpose.
Finally, I recognize that the law is helpless to protect an accused against his on bad judgment. On the other hand, I do not understand McIlvride and Gorecki, supra, to preclude a finding of unfitness where, by reason of serious mental illness, the accused is incapable of acting in her or his own best interests. That issue should be left for another day.
SUMMARY
From the authorities cited, I derive the following principles:
1. An accused in Canada must be mentally fit to be tried.
2. This right, now protected by s. 615 of the Criminal Code, is rooted in the right to be present at one's trial, the right to make full answer and defence and other aspects of the requirement of fairness in criminal procedure.(31)
3. An accused is unfit to be tried if, by reason of insanity, he or she is inacapable of conducting the defence.
4. "Insanity", in this context, is different from insanity under s. 16 of the Criminal Code.(32) It differs as well from the test for civil commitment.(33) Under s. 615, insanity includes any "illness, disorder or abnormal condition which impairs the human mind or its functioning".(34)
5. An accused is incapable of conducting the defence, within the meaning of s. 615 of the Criminal Code, if he or she:
(a) cannot distinguish between available pleas;
(b) does not understand the nature or purpose of the proceedings, including the respective roles of the judge, jury and counsel;
(c) does not understand the personal import of the proceedings;
(d) is unable to communicate with counsel, converse with counsel rationally or make critical decisions on counsel's advice; or
(e) is unable to take the stand, if necessary.(35)
6. Where there is no reason to doubt the fitness of the accused, as measured by the criteria set out in paragraphs 4 and 5, the trial judge may properly refuse to direct the trial of a special issue.(36) 7. Where there is reason to doubt the fitness of the accused, the trial judge has no discretion: he or she must direct the trial of a special issue, even if neither the prosecution nor the defence applies for it.(37)
8. In deciding whether to direct the trial of a special issue, the judge's function is to see if there is doubt as to accused's fitness.
The judge, at this stage, does not determine whether the accused is fit or not. That question is answered by the verdict concluding the trial of the special issue.
9. The issue of unfitness may arise in various ways. It may be "raised at the instance of the prosecution, on behalf of the accused or may simply "appear" to the Court from the history of the proceedings, the evidence adduced, the conduct of the accused or otherwise."(38) The jury is entitled to consider the accused's conduct during and after the alleged offence.(39) Psychiatric reports already in the file are, of course, relevant.(40) An affirmation by counsel as to the fitness of the accused is entitled to very serious consideration.(41)
10. The trial of a special issue is not an adversary proceeding, but rather an inquiry into the status of the accused.(42) There is an affirmative duty on the part of everyone concerned to contribute impartially to that inquiry. The inquiry itself must be "as thorough as a defence of insanity would be given"(43).
(29) Confirmed with brief reasons, delivered orally, by the Supreme Court of Canada: see R. v. Farguharson (1986) 27 C.C.C. (3dd) 383.
(30) Report of the Canadian Committee on Corrections, Ottawa, 1969, pp. 226-7.
(31) Roberts, p. 545; Lee Kun, p. 342; Woltucky, pp. 46-7. See also supra, note 27.
(32) Woltucky, pp. 46-7; McIlvride, pp. 356-7; Roberts, p. 277;
Wolfson, pp. 314-5.
(33) Ouimet Report, supra.
(34) This definition of "disease of the mind" in Cooper, supra, was adopted for the purposes of s. 615 in Demontigny, supra.
(35) These principles are mainly drawn from Gorecki (No. 1), pp. 134-5; McIlvride, pp. 356-7; Woltucky, pp. 46-7; Demontigny, pp. 3-5;
Budic, p. 278; Wolfson, pp. 314-5; L.R.C. Report on Mental Disorder in the Criminal Process, p. 14; Don Stuart, op. cit., p. 326.
(36) Wolfson, p. 316; McLeod, Pinnock and Farquharson, pp. 35-6.
(37) Roberts, p. 547; Budic, p. 277; Woltucky, pp. 46-7; McIlvride, p. 356.
(38) Roberts, supra, p. 547.
(39) Gibbons, supra, p. 526.
(40) Roberts, p. 547.
(41) Budic, p. 278.
(42) Roberts, p. 546; Budic, p. 278.
(43) Gibbons, supra, pp. 527-8.
CONCLUSION
In this case, the trial judge alluded to the psychiatric reports in the file. He appears to have read them, though his description of the conclusions was imperfect.
From the first report, the judge must be taken to have known that a psychiatrist had recommended a remand because he was uncertain of appellant's fitness. This psychiatrist found appellant delirious as regards his religion and "either delirious or manipulative in part of his speech (in particular when it comes to the circumstances of the present murder)".
From the second report, we know, as presumably did the judge, that appellant had a history of psychiatric illness for which he had in fact been hospitalized.
Speaking for himself and for the other counsel who had been directed by the judge to assist appellant, Mr. Asselin told the Court "there is a strong doubt in my mind, supported by the experts opinions" as to appellant's fitness to stand trial. He expressed his concern over a possible miscarriage of justice, as "clearly and forcefully as I can".
He advised the Court that two psychiatrists had told him the accused "is in fact suffering from a severe mental illness".
These psychiatrists had examined appellant and had attended the trial.
Mr. Asselin said there was "a serious doubt in our mind of his capacity to conduct his own defence and to even determine what that defence should be." "According to the psychiatrists and according to us," appellant lacked the communicative and cognitive abilities necessary to assist in the defence. "Based on experts," Mr. Asselin represented to the judge that Steele was incapable of taking the stand, of giving evidence in his own behalf, or making strategic decisions with respect to the conduct of his defence. The experts were present in court, said Mr. Asselin, and could provide a report to the trial judge within a matter of hours.
From the evidence already heard, it was apparent that appellant's conduct, during and after the torture of the victim, was not only gruesome, but bizarre as well. There was even talk of sorcery.
In these circumstances, considering the principles of law I have outlined, tne trial judge was clearly bound to direct that a special issue be tried. There was more than sufficient reason to doubt whether the accused, on account of insanity, was fit to take his trial. The judge, in my respectful view, therefore had no discretion to refuse to direct a special issue. Had I concluded that the judge did have such a discretion, I would have felt compelled also to hold that he did not exercise it judicially.
Apart from all else, the judge ought to have heard the two psychiatrists who were present in Court. They had examined the accused and observed the proceedings at trial. They had expressed their opinions, through defence counsel, that appellant was "in fact suffering from a severe mental illness" and that there was doubt whether he was capable of conducting his defence. The psychiatrists were prepared to re-examine appellant then and there, and to promptly make available the benefit of their findings. The judge was not entitled, in my respectful view, to rely instead on his own instincts, however sure, or on his own knowledge of matters psychiatric, however extensive.
I do not wish to be understood as deciding that the trial judge, had he heard the psychiatrists, would have been entitled not to direct the trial of a special issue. As Justice Grange said in McLeod et al., the evidence of experts is not conclusive as regards fitness. In the present case, with or without the evidence of the defence psychiatrists, there was sufficient doubt whether appellant was fit to take his trial. I am therefore of the view, with respect, that a trial of the special issue was mandatory.
For these reasons alone, the conviction against appellant must be quashed and a new trial directed. I would so order. J.A.
INSTANCE-ANTÉRIEURE
(C.S. Beauharnois 760-01-000208-857)