R v. Mailloux

In February 1983 the appellant, while riding in the rear seat of a car, killed 18‑year‑old Cindy Thompson and 4‑year‑old Stewart Hawley, who were passengers in the front seat, by shooting them in the head. He also wounded two other people. He was indicted on two counts of second degree murder, and at the trial raised the defences of insanity and, alternatively, intoxication.

The evidence led at trial revealed that the appellant was a member of a motorcycle club, a drug pusher, and highly suspicious of members of rival clubs. During the week of the shooting he had taken a great deal of cocaine and slept little. Defence psychiatrists testified that Mailloux's paranoid personality became aggravated by the cocaine and the result was a very rare condition, toxic psychosis. The psychiatrists said that this was a major mental illness which caused a break with reality and led to the appellant believing that he was acting in self‑defence. However, on the crucial issue of whether the appellant was capable of appreciating the nature and quality of his acts and of knowing that they were wrong, the psychiatric evidence was conflicting. On examination in chief both psychiatrists said that he was not capable; under cross‑examination they said that he was. The jury found the appellant guilty of second degree murder on both counts.

Mailloux's appeal was argued on a number of grounds relating to the trial judge's direction to the jury on "disease of the mind", on whether the accused met the requirements of s. 16(2) of the Criminal Code , and on intoxication. All of these grounds were rejected by the Court of Appeal and are not at issue before this Court, as the appellant was granted leave to appeal only on the correct interpretation to be placed on s. 613(1)(d) of the Code.

The Legislation

For a greater understanding of the issues in this appeal, I set out the relevant provisions of the Criminal Code, R.S.C. 1970, c. C‑34:

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

...

The Ontario Court of Appeal

Before the Court of Appeal the appellant argued that given the psychiatric evidence, the drug abuse, and the bizarre nature of the accused's conduct, the Court of Appeal should substitute a verdict of not guilty by reason of insanity pursuant to s. 613(1)(d) of the Code. In response to this argument Lacourcière J.A. held (at pp. 343‑44):

The Points at Issue a) Whether the Court of Appeal for Ontario erred in law in the interpretation and application of s. 613(1) (d) of the Criminal Code .

As I am of the view that the Court of Appeal did not err, the second issue to dispose of this appeal is b) Whether the Court of Appeal erred in finding that the verdict of the jury was not unreasonable and could be supported by the evidence.

The Appellant's Arguments

I should mention that I find great assistance in this case in the factums of both the appellant and the respondent who have covered and analyzed thoroughly the history of s. 613(1)(d) and the case law in this country and in the U.K., even though my reading of the history is somewhat different.

Appellant argues that the Court of Appeal was wrong in applying the test set out at s. 613(1)(a)(i), that is, whether the verdict is unreasonable or cannot be supported by the evidence. Though acknowledging that provincial courts of appeal have consistently refused to interfere with a jury's verdict in insanity cases when there is evidence to support it, the appellant says that they have been in error in so refusing. The plain meaning of the words used in s. 613(1) (d) of the Criminal Code impose upon a court of appeal a positive duty to review the evidence and to arrive at its own conclusion on the issue of insanity regardless of the applicability of the other provisions of s. 613. In that regard, the appellant relies upon the primary rule of statutory construction, namely, that the terms of a statutory enactment are to be given their plain and rational meaning in order to promote the objects of the statute.

Furthermore, the object of s. 613(1)(d) is to ensure compliance with s. 16(1) of the Code and to ensure an appropriate balance to the statutory presumption of sanity under s. 16(4) of the Code.

The section should be interpreted in the manner contended for because:

The Arguments of Respondent Crown

The Crown invites us not to give a literal interpretation to s. 613(1)(d) but a purposive one, taking into account the context within which the section is to be found, its legislative history, and, finally, the proper role of courts of appeal in relation to the review of findings of facts.

The Crown's position is stated as follows:

...

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

iii) on any ground there was a miscarriage of justice,

that is, by applying s. 613(1)(a).

Analysis

The first question which must be addressed is whether s. 613 is worded in such a way that it is clear and without any ambiguities that only s. 613(1)(d) governs a court of appeal's jurisdiction as regards an insanity issue. If so, and absent any absurdity resulting from such an interpretation, that would end the matter in favour of the appellant's position.

Because of the way the section is structured, I think that it is unclear whether s. 613(1)(a) applies to an insanity issue or not. At first blush, s. 613(1)(d) appears all‑encompassing. However, the reference to verdicts on insanity issues at the beginning of the whole section makes it debatable whether that reference is introductory to s. 613(1)(d) only or whether it is also introductory to s. 613(1)(a).

As a plain reading of the whole section can be supportive of either view, we should seek out the purpose of the section as regards insanity issues before a court of appeal, having regard to the proper respective functions of trial and appeal courts. The legislative history of the section is most useful in that regard.

Prior to 1923, insanity issues were dealt with in appeal under the general appeal provisions which were at the time ancestor sections of s. 613(1)(a). There was no provision such as s. 613(1)(d), which was introduced in its actual form in 1961, and in a somewhat different form in 1923.

The courts of appeal were then generally enabled, when allowing an appeal, to order a new trial or enter an acquittal, as is the case today. Of course, on an insanity issue, as there was no section enabling them to substitute the verdict of not guilty by reason of insanity that the trial court should in their view have entered, and as they did not want to acquit simpliciter, one finds, upon reviewing the cases over that period, that pleas of insanity successful in appeal resulted in the ordering of a new trial (see for example, R. v. Blythe (1909), 15 C.C.C. 224 (Ont. C.A.))

In 1923, by virtue of s. 9 of An Act to amend the Criminal Code, S.C. 1923, c. 41, new ss. 1014 and 1016 were added to Part XIX of the existing Criminal Code, R.S.C. 1906, c. 146:

But nothing changed in 1923, with the introduction of s. 1016(4). Issues of insanity continued to be dealt with through those general provisions of s. 1014 which are similar to s. 613(1)(a). A review of the cases shows that, whenever successful, such appeals resulted in new trials under s. 1014 (see R. v. Gibbons (1946), 86 C.C.C. 20 (Ont. C.A.)) The courts did not resort to the power available under s. 1016(4) (see Hébert v. The Queen, [1955] S.C.R. 120). It is to be noted that s. 1016(4) did not enable the courts to quash the conviction but enabled them only to modify the sentence. The courts obviously felt it unfair, a sentiment that was also later expressed by the McRuer Commission, to let an improper conviction stand when the proper remedy, that is a verdict of not guilty by reason of insanity, was available in lower courts albeit only after undergoing a new trial.

What was then the purpose of s. 1016(4)? In seeking an answer one must not overlook the fact that a new trial could be triggered through the general provisions of s. 1014 only if there had been below an error of law, unreasonable findings, or miscarriage of justice as regards the issue of insanity. This could occur only if insanity was an issue raised at trial. In my view, s. 1016(4) was introduced to enable a court of appeal to give some relief, albeit incomplete, to the accused when the insanity issue was raised for the first time in appeal.

As I have said, I have found no instances in which s. 1016(4) and its successor section (until it was modified in 1961) was resorted to. This is probably because of the fact that, when insanity issues were not raised at trial by the defence, they could and were in this country successfully raised when appropriate by the Crown. In 1961, what was s. 1016(4), and has since become s. 613(1)(d) at the time of this case, was amended. The only change that was made enabled the court, when applying the section, to enter an acquittal by reason of insanity.

The question therefore becomes:

Was Parliament, in fact, making a fundamental change to the dynamics of the appeal process and to the traditional role of appeal courts and giving them full unfettered first instance jurisdiction by allowing all insanity issues to be determined under s. 613(1)(d), including the cases where the issue was raised at trial and determined by the trier of fact?

or

By giving appeal courts the power to enter the verdict that the trial court should have entered, was Parliament addressing the two mischiefs I have identified in the historical review; first, the anomaly of having to order a new trial after reviewing the finding below, and second, the injustice of leaving untouched the verdict of guilty because the issue of insanity, though successful in the court of appeal, had been raised in that court for the first time?

With respect for the contrary view, I think the latter to be the sounder, as being more consistent with the history of the section and the proper role of appeal courts.

Indeed, a few years earlier, the Royal Commission on the Law of Insanity as a Defence in Criminal Cases was in the process of investigating this entire area. The Report of the Royal Commission on the Law of Insanity as a Defence in Criminal Cases (1956), also known as the McRuer Report on Insanity, ultimately recommended to Parliament that the power under the predecessor of s. 613(1)(d) only to substitute a sentence and not to change the verdict was inconsistent with a verdict rendered under s. 523 (now s. 542), under which the accused person is declared to be "acquitted on account of insanity". As the Commission noted (at p. 37):

Nowhere in the report did the Commission discuss or suggest ‑‑ let alone justify ‑‑ that the traditional role of courts of appeal should be so fundamentally different when dealing with issues of insanity. The Commission's only concern was that alluded to in the passage cited above.

That recommendation was adopted by Parliament without more discussion in 1961, as is indicated by the statement of the Minister of Justice at the time, the Honourable Davie Fulton (Debates of the House of Commons, 1960‑61, vol. VI, at p. 6570):

I am therefore of the view that s. 613(1)(a) governs the determination in appeal of issues of insanity and that s. 613(1)(d) operates in two ways: first, to enable a court of appeal to determine the issue as would have a trial court when the issue has not been raised below; and second, to enable the court, whether acting under s. 613(1)(a) or s. 613(1)(d), to enter, in the appropriate case, a verdict of "not guilty on account of insanity". I am supported in this view by the manner in which courts of appeal throughout Canada have exercised their jurisdiction under s. 613(1)(a) and (d) as regards issues of insanity in the context of appeals against conviction, which was usefully summarized by respondent's counsel in its factum, substantially as follows:

1. When raised for the first time in appeal the court will examine the issue and if it is satisfied that the appellant was insane at the time of the wrongful act, it will exercise its power under s. 613(1)(d) to quash the conviction and to substitute the special verdict of not guilty by reason of insanity.

2. If insanity has been raised at trial and there has been an error of law in the form of a misdirection on the issue and,

‑‑ R. v. Kane (1975), 6 A.P.R. 13 (N.S.S.C. App. Div.);

‑‑ R. v. Barnier, [1978] 1 W.W.R. 137 (B.C.C.A.), aff'd [1980] 1 S.C.R. 1124;

‑‑ R. v. Zilke (1978), 44 C.C.C. (2d) 521 (Sask. C.A.);

‑‑ R. v. Winters (1985), 51 Nfld. & P.E.I.R. 271 (Nfld. C.A.);

‑‑ R. v. O'Brien, [1966] 3 C.C.C. 288 (N.B.S.C. App. Div.);

‑‑ R. v. Baltzer (1974), 27 C.C.C. (2d) 118 (N.S.S.C. App. Div.)

3. If there has been no misdirection, but the verdict is either unreasonable or cannot be supported by the evidence, the court will set aside the conviction and substitute the special verdict provided for under s. 613(1)(d).

4. If there has been no error of law and the verdict cannot be said to be unreasonable or unsupported by the evidence, the court will decline to interfere with the verdict.

Now, I turn to the second issue. Stated in technical terms, the finding by the jury was that the accused had not rebutted by a preponderance of evidence the presumption of sanity. After reviewing the evidence, I am in agreement with the Court of Appeal's finding that there was evidence supportive of the jury's conclusion and that the verdict, in that regard, was not unreasonable.

I would therefore dismiss this appeal.