R. v. Molodowic, [2000] 1 S.C.R. 420
Aaron Joseph Molodowic Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Criminal Lawyers’ Association (Ontario),
the Innocence Project, the Association in Defence
of the Wrongly Convicted and
the Criminal Trial Lawyers Association of Alberta Interveners
Indexed as: R. v. Molodowic
Neutral citation: 2000 SCC 16.
File No.: 26645.
1999: October 5, 6; 2000: April 13.
Present: Lamer C.J.* and L’Heureux‑Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour JJ.
on appeal from the court of appeal for manitoba
Criminal law -- Appeals -- Supreme Court -- Question of law -- Whether reasonableness of verdict involves question of law within meaning of ss. 691(1) and 693(1) of Criminal Code -- Criminal Code, R.S.C., 1985, c. C-46, ss. 691(1), 693(1).
Criminal law -- Reasonableness of verdict -- Standard of review -- Standard of review applicable by reviewing court in examining reasonableness of verdict -- Whether Yebes should be reaffirmed -- Whether verdict was unreasonable -- Criminal Code, R.S.C., 1985, c. C-46, s. 686(1)(a)(i).
The accused suffers from a severe mental disorder, which was diagnosed as paranoid schizophrenia. After shooting and killing his grandfather, the accused drove to a friend’s house and told her father that he had just shot his grandfather and that the police should be called. The accused was arrested and, after being properly informed of his rights, he gave a statement to the police. He was tried before a judge and jury on a charge of second degree murder. The accused relied primarily on the defence of mental disorder. Prior to trial, he had undergone two psychiatric assessments and both doctors testified that the accused’s act of shooting his grandfather was consistent with his mental disorder having caused him to believe that only in so doing could he save himself from further torment. Further, the doctors agreed that the accused did not have the capacity to appreciate that his actions were morally wrong at the relevant time. The Crown did not call a rebuttal expert to contradict their testimony but on cross-examination challenged the expert evidence and was successful in eliciting a number of admissions and concessions. The accused was convicted of second degree murder. The majority of the Court of Appeal dismissed his appeal. The only issue in this appeal was whether the verdict was unreasonable with respect to the effects of the accused’s illness on his criminal responsibility.
Held: The appeal should be allowed.
The applicable legal principles and the proper test to apply in assessing the reasonableness of a verdict were set out in R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15.
Judicial experience with the effects of mental disorder on criminal responsibility, with the type of evidence that is available to demonstrate it, and with the unjustified skepticism that may be directed at an accused relying on the defence of mental disorder, should have given the Court of Appeal cause for concern that the verdict reached by the jury in the present case was unreasonable and not supported by the evidence. Careful and thorough scrutiny of the record confirms that concern was warranted. Apart from the psychiatric evidence, the statements made by the accused to the police, and, prior to that, to the father of his friend, whom he informed of the killing and whom he asked to inform the police, are not inconsistent with the conclusions reached by the experts, nor is the accused’s conduct surrounding the commission of the offence. It is not necessarily easy for a jury to accept that, in lay person’s terms, an accused who knows what he is doing and knows that it is a crime could still genuinely believe that he would not be morally condemned by reasonable members of society for his conduct. The defence proved this to be the case and, on the evidence tendered at this trial, it was unreasonable to conclude otherwise.
Cases Cited
Followed: R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15; R. v. Yebes, [1987] 2 S.C.R. 168; referred to: R. v. A.G., [2000] 1 S.C.R. 439, 2000 SCC 17; R. v. Ratti, [1991] 1 S.C.R. 68; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Mailloux (1985), 25 C.C.C. (3d) 171, aff’d [1988] 2 S.C.R. 1029; R. v. Kelly (1971), 6 C.C.C. (2d) 186; Addington v. Texas, 441 U.S. 418 (1979); Re Robinson and Hislop (1980), 114 D.L.R. (3d) 620; Re Hoskins and Hislop (1981), 121 D.L.R. (3d) 337; R. v. Carleton (1981), 32 A.R. 181.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C-46, ss. 16 [rep. & sub. 1991, c. 43, s. 2], 672.45 [ad. idem, s. 4], 686(1)(a) [am. 1991, c. 43, s. 9 (Sch., item 8)], 691 [am. c. 34 (3rd Supp.), s. 10; am. 1997, c. 18, s. 99], 693 [am. c. 27 (1st Supp.), s. 146; c. 34 (3rd Supp.), s. 12].
APPEAL from a judgment of the Manitoba Court of Appeal (1998), 126 Man. R. (2d) 241, 167 W.A.C. 241, [1998] M.J. No. 247 (QL), dismissing the accused’s appeal from his conviction for second degree murder. Appeal allowed.
G. Greg Brodsky, Q.C., for the appellant.
Sheilla Leinburd, for the respondent.
Robert J. Frater and Morris Pistyner, for the intervener the Attorney General of Canada.
Robert Kelly, for the intervener the Attorney General for Ontario.
Carole Lebeuf and Maurice Galarneau, for the intervener the Attorney General of Quebec.
Frank R. Addario, for the intervener the Criminal Lawyers’ Association (Ontario).
Marlys A. Edwardh, for the intervener the Innocence Project.
Melvyn Green, for the intervener the Association in Defence of the Wrongly Convicted.
Written submissions only by Marvin R. Bloos, for the intervener the Criminal Trial Lawyers Association of Alberta.
The judgment of the Court was delivered by
Arbour J. --
I. Introduction
1 This appeal was heard together with R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15, and R. v. A.G., [2000] 1 S.C.R. 439, 2000 SCC 17. In this trilogy, the Court was asked to reconsider its decision in R. v. Yebes, [1987] 2 S.C.R. 168, and, in particular, to decide two issues of general application. First, whether the reasonableness of a verdict involves a question of law, within the meaning of ss. 691 and 693 of the Criminal Code, R.S.C., 1985, c. C-46, so as to permit a further appeal to this Court from a decision by a provincial appellate court, and, second, what standard of review must be applied by the reviewing court in examining the reasonableness of a verdict. I concluded in Biniaris that Yebes should be reaffirmed. A dissent on the issue of whether the verdict was reasonable is a dissent on a question of law, whether the dissent is based on the articulation of the applicable test or on its actual application to the particular circumstances of the case. The proper test is “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered” (Yebes, supra, at p. 185). In embarking on the exercise mandated by s. 686(1)(a)(i) of the Criminal Code, the reviewing court must engage in a thorough re-examination of the evidence and bring to bear the weight of its judicial experience to decide whether, on all the evidence, the verdict was a reasonable one. Inevitably the verdict will be one that was open to the jury, in the sense that it was not an error of law for the trial judge to leave it to the jury for consideration. Moreover, it is not sufficient for the reviewing judge to simply take a different view of the evidence than the jury did. The appeal court, if it is to overturn the verdict, must articulate the basis upon which it concludes that the verdict is inconsistent with the requirements of a judicial appreciation of the evidence. This is what must now be done in this case.
II. Factual Background
2 The facts are not in dispute. On August 29, 1995, the appellant Molodowic killed his grandfather. In the middle of the night, he drove from his home in MacGregor, Manitoba, to his grandfather’s farm eight miles away. On the way, he parked and loaded his semi-automatic 7.62 caliber carbine. When he arrived, he aimed directly at his grandfather and fired two bullets into his chest. He then drove back to MacGregor, went to a friend’s house and told her father that he had just shot his grandfather and that the police should be called. Within an hour of the killing, the appellant was arrested and, after being properly informed of his rights, he gave a statement to the police.
3 The appellant suffers from a serious mental disorder. On the night of the killing, he had been drinking. The appellant was tried on a charge of second degree murder before Menzies J. and a jury. He argued, relying on the expert evidence of two psychiatrists, that he was not criminally responsible by reason of mental disorder. In the alternative, he relied on the defence of drunkenness.
4 In his charge, Menzies J. instructed the jurors that they were entitled to accept or reject all or part of the expert evidence. The appellant was convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 10 years. The Court of Appeal, Huband J.A. dissenting, dismissed the appeal. The only issue considered by the Court of Appeal, and the only issue before this Court, was whether the verdict was unreasonable with respect to the effects of the appellant’s illness on his criminal responsibility.
III. Relevant Statutory Provisions
5 Criminal Code, R.S.C., 1985, c. C-46
16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.
. . .
686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it is of the opinion that
(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;
IV. General Principles
6 At trial, it was conceded that the appellant appreciated both the nature and quality of his acts, in the sense that he understood that he was causing the death of his grandfather, and that he knew that it was against the law to do so. However, under the terms of s. 16 of the Criminal Code, the appellant was entitled to be found not criminally responsible for the killing if he could prove, on a balance of probabilities, that, by reason of his mental disorder, he was incapable of knowing that his act was morally wrong. Defence counsel relied on the testimony of two psychiatrists, Drs. Harold Shane and Stanley Yaren, for the purpose of establishing that when he killed his grandfather, the appellant did not know that his act was morally wrong. This was the narrow issue confronting the jury.
7 In R. v. Ratti, [1991] 1 S.C.R. 68, at p. 80, this Court held that an act or omission is “wrong”, within the meaning of s. 16, where that act or omission “in the particular circumstances would have been morally condemned by reasonable members of society” (emphasis in original). In deciding whether or not an accused appreciated that his actions were morally wrong, a jury is not “bound by the expert psychiatric testimony and . . . its probative value [is] to be assessed in the same manner as any other testimony” (Ratti, supra, at p. 81). Further, in weighing expert evidence a jury is entitled to examine the factual foundations of the opinion and is entitled to accord less weight to that opinion where it is not based on facts proved at trial and/or where it is based upon factual assumptions with which they disagree. See R. v. Lavallee, [1990] 1 S.C.R. 852, at pp. 896-97, and Ratti, supra, at p. 81.
8 The jury may therefore reject the opinion of experts, even when the experts called are unanimous and uncontradicted by other experts. For example, in R. v. Mailloux (1985), 25 C.C.C. (3d) 171, the Ontario Court of Appeal was faced with a verdict rejecting purportedly uncontradicted expert evidence. Lacourcière J.A., speaking for the court, stated at p. 177:
This Court is not at liberty to come to its own conclusion on the issue of insanity and thereby disregard the verdict pronounced by a jury. Having regard to the statutory presumption of sanity, this Court ought not to interfere with the verdict of a jury unless on consideration of all the evidence, we are satisfied that it was one which no jury acting judicially and properly instructed could have reached. . . .
However, there has to be a rational foundation, in the evidence, for the jury to reasonably reject the opinion of the experts. In Mailloux, two eminent forensic psychiatrists had expressed the opinion that the appellant suffered from a paranoid personality disorder dating back to a period well before the shooting. Lacourcière J.A. summarized more precisely the purport of their evidence at p. 173:
Both psychiatrists testified that the [accused] at the material time, by reason of psychotic delusions, was incapable of appreciating the nature and quality of his acts and of knowing that his acts were wrong. They also agreed that the [accused] was incapable of forming the specific intent necessary to commit murder. However, the opinions expressed in their evidence-in-chief were substantially qualified and diluted by the evidence which they gave during cross-examination, which was obviously accepted by the jury, to the effect that the [accused] knew that pulling the trigger would cause the gun to fire and that he was able to appreciate the nature and quality of the act and to understand the immediate physical consequence which would flow from it, i.e., that someone would be killed. In particular, Dr. Orchard admitted in cross-examination that first the [accused] was capable of knowing that the act was wrong and was also capable of forming the specific intent to kill.
9 The appellant had submitted that the verdict of murder was unreasonable
in light of the uncontradicted psychiatric opinions coupled with the evidence of drug abuse, the absence of motive and the bizarre nature of the accused’s conduct before and after the shooting. The Court of Appeal did not accept that argument and concluded at p. 177:
Dealing first with our power to substitute a verdict under s. 613(1)(d), there certainly was ample evidence upon which the jury could properly return a verdict of not guilty by reason of insanity. However, we are satisfied that the evidence was also capable of reasonably supporting the jury’s conclusion, according to the view which they took of it, that the defence of insanity had not been proved by the accused on the balance of probabilities.
Mailloux, supra, was affirmed by this Court (see R. v. Mailloux, [1988] 2 S.C.R. 1029). Lamer J. (as he then was) stated at p. 1044:
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.
10 A proper understanding and weighing of expert opinion often plays a central role in the determination of whether or not an accused should be found not guilty by reason of mental disorder. The absence of a Crown rebuttal expert to contradict an accused’s psychiatric evidence is not in itself sufficient to conclude that a verdict of guilty was unreasonable if that conclusion remained reasonably open to the jury on the totality of the evidence. However, it may be unreasonable for a jury to disregard the expert evidence put before it, particularly where all the experts called were in agreement with each other, when their evidence was “uncontradicted and not seriously challenged” (R. v. Kelly (1971), 6 C.C.C. (2d) 186 (Ont. C.A.), at p. 186), and when there was nothing in the “conduct of the commission of the crime which would raise any serious question as to the validity of the psychiatrists’ conclusion” (Kelly, at p. 186). Furthermore, appellate review of the reasonableness of the jury’s findings must be undertaken in light of the standard articulated in Biniaris, supra.
V. Analysis and Application to this Appeal
11 As indicated earlier, it is common ground that the issue presents itself on a very narrow footing. The appellant clearly suffers from a severe mental disorder, which was diagnosed as paranoid schizophrenia. When he killed his grandfather, by his own admission, and consistent with the opinion of the experts, he did appreciate that what he was doing was legally wrong and that he would be punished for it. The only live issue for the jury, and the one on which the Court of Appeal was divided, was whether the jury could reasonably conclude, on all the evidence, that the appellant also understood that what he did was morally wrong, so as to fully engage his criminal responsibility. This falls to be determined in large part, but not exclusively, on the basis of the expert evidence of the two psychiatrists who testified at trial.
12 The trial judge correctly instructed the jury that they were not required to accept that evidence, but that they had to assess it in light of the totality of the evidence tendered, and that they were entitled to reach their own conclusion even if it conflicted with that of the experts. A majority of the Court of Appeal concluded that it was not unreasonable for the jury to convict in that “it was within the right of the jury to reach the verdict it did” ((1998), 126 Man. R. (2d) 241, at p. 244), whether one agreed with that verdict or not. Huband J.A., dissenting, reviewed all the evidence bearing on the central question of whether the appellant knew that killing his grandfather was morally wrong. He approved of the trial judge’s instructions to the jury that they were not bound to accept the unchallenged opinion of the experts but said (at p. 252):
The trial judge[’s] . . . instruction needs to be considered in the context of the case presented to the jury. The expert opinions of Dr. Yaren and Dr. Shane need not be accepted if there is some reason to reject them, because of some discernible flaw in their reasoning or because the opinion was formulated on too fragile a factual basis or because the opinion conflicts with inferences one might logically draw from other evidence.
One might have legitimate reservations about the opinion of Dr. Shane, standing alone. But I do not see any rational basis for rejecting the opinion of Dr. Yaren. Dr. Yaren starts with the credibility of a truly independent witness. He has substantial experience in this field. He has the benefit of a staff of skilled associates to assist him in reaching his diagnosis and formulating his opinion as to the culpability of the accused. His opinion is entirely consistent with the evidence as to the accused’s conduct in the months and weeks leading up to the shooting. It also accords with the conduct of the accused on the night of the killing, as described by others and through the accused’s own statement to the police.
To reject all of this evidence was, in my view, unreasonable and invites appellate intervention. I would set aside the verdict on the ground that it is unreasonable and cannot be supported by the evidence, and I would substitute a verdict that the accused is not criminally responsible by reason of mental disorder.
I agree with the foregoing conclusions and need expand only briefly on the reasons of Huband J.A.
13 This, in my view, is a case in which the weight of judicial experience must be brought to bear on the assessment of the reasonableness, as a matter of law, of the conclusion reached by the jury. There is a real danger, which manifested itself here, that a jury will be unduly skeptical of a “defence” that is often perceived as easy to fabricate and difficult to rebut. This is particularly so when the actions of the accused present a large component of rationality, as they do in a case such as this where it is conceded that the appellant knew what he was doing and realized that his actions were prohibited by law. More dangerous still, the statements of the appellant made shortly after the killing, and in particular his answers to the questions of the police, presented him in a most unfavourable light. The endless flow of obscenities that they contain makes it difficult to overcome an impression of the accused as a cold-hearted, callous and remorseless killer. Further, they confirm that the appellant understood that the killing of his grandfather was legally wrong. They can also be viewed as indicating that he felt a deep hatred for his grandfather, and as providing a sane and rational explanation as to why he would want to kill this man that he describes as his tormentor. However, the statements also reveal a very disturbed mind. Huband J.A. puts it this way (at pp. 245-46):
It is only a slight exaggeration to say that every second word in the accused’s statement is the “f” word or some other expletive. . . . But if one can see beyond the torrent of obscenities, the statement reveals a deeply disturbed person. At the outset, he was belligerent - interrupting the police officer with obscenities while the officer was attempting to extend to him Charter rights. But when told of his right to counsel, he dissolves into tears and asks that his sister be contacted. The police assure him that they are endeavoring to do so.
The question is put to the accused:
“Q. Can you tell us what happened this morning?
A. I went fucking ended my fucking torment so I went and shot him.
Q. Shot who?
A. No one can tell me anything anyway, so I went and shot my grandfather. Made fucking life a torment anyway, the fucking son of a bitch. He’d have to be fucking alive to tell you. He’s not alive, so you’re not going to hear nothing, so that’s it. I mean, what the fuck are you going to tell?”
14 After describing how he shot and killed his grandfather, the appellant explained that the rifle he used had been given by his grandfather to his brother, who had committed suicide about a year before. This could also have been viewed as providing a rational motive for the killing, but again, as pointed out by Huband J.A., apart from the statements of the appellant accusing his grandfather of tormenting him, nothing in the evidence suggests that this tormenting was anything but a fictional product of the appellant’s imagination. When asked directly by the police why he detested his grandfather so much, the accused gave a rather incoherent answer: “[H]e doesn’t really aggravate me. He fucking says stuff, you know what I mean. Like it’s just fucking, I don’t know”.
15 The appreciation of the import of expert psychiatric evidence must be a realistic and reasonable one. Expert evidence, be it in the field of psychiatry or some other field, does not always provide a dispositive answer to questions of fact raised in an adjudicative legal context. In Addington v. Texas, 441 U.S. 418 (1979), in rejecting the “beyond a reasonable doubt” standard as inappropriate in civil commitment proceedings, the United States Supreme Court said (at p. 430):
The subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations. The reasonable-doubt standard of criminal law functions in its realm because there the standard is addressed to specific, knowable facts. Psychiatric diagnosis, in contrast, is to a large extent based on medical “impressions” drawn from subjective analysis and filtered through the experience of the diagnostician. This process often makes it very difficult for the expert physician to offer definite conclusions about any particular patient.
See Re Robinson and Hislop (1980), 114 D.L.R. (3d) 620 (B.C.S.C.), at p. 629; Re Hoskins and Hislop (1981), 121 D.L.R. (3d) 337 (B.C.S.C.), at p. 342; R. v. Carleton (1981), 32 A.R. 181 (C.A.), at p. 199. The nature and limits of psychiatric expertise must be kept in mind in assessing whether the appellant discharged his burden to establish the defence of mental disorder on a balance of probabilities essentially through expert evidence.
16 The appellant underwent two psychiatric assessments. Eleven days after the killing, Dr. Shane, a private psychiatrist hired by defence counsel, interviewed the appellant for three to five hours. Approximately nine months later, the appellant was admitted to the care of Dr. Yaren, the Director of Forensic Services Unit at the Winnipeg Health Sciences Centre, on an indefinite basis for the purposes of a court ordered assessment. It was Dr. Shane’s opinion, based primarily on his interview with the appellant, background information provided by the appellant’s family documenting his behavior in the months before the shooting and the appellant’s statement to the police, that the appellant had been suffering from psychotic delusional disorder, referred to as the “persecutory type”, for at least two months prior to the killing. In his view, it was possible, but highly unlikely, that the appellant possessed the capacity to appreciate the moral quality of his actions when he killed his grandfather.
17 Similarly, Dr. Yaren was of the opinion that it was “highly probable” that the appellant did not have the capacity to appreciate that his actions were wrong. Relying on his interviews with the appellant, the results of formal psychological testing conducted at the Health Sciences Centre, records from the appellant’s three-day stay at the Brandon Mental Health Centre in August 1995, interviews with the appellant’s family and the appellant’s statement to the police, he diagnosed the appellant as having developed full-blown paranoid schizophrenia, a severe mental disorder, roughly two months prior to the shooting. While Drs. Shane and Yaren differed in their precise diagnoses, both agreed that they were quite consistent. The diagnosed mental illnesses shared key symptoms, including visual and auditory hallucinations and persecutory delusions which together severely impair the sufferer’s contact with or grasp of reality. Further, both doctors were of the opinion that the appellant’s act of shooting his grandfather was consistent with his mental disorder having caused him to believe that only in so doing could he save himself from further torment.
18 The Crown did not call a rebuttal expert to contradict the testimony of Drs. Shane and Yaren. However, on cross-examination the Crown challenged the expert evidence and was successful in eliciting a number of admissions and concessions. The majority of the Court of Appeal relied heavily on those as a foundation for the reasonableness of the jury’s verdict. In my view, this emphasis was misplaced. Before assessing the weight, including the credibility, of expert evidence, it is important to characterize the gist of that evidence correctly.
19 Dr. Shane’s evidence was particularly problematic and, in isolation, might not have persuaded a reasonable jury, properly instructed, on a balance of probabilities, that the appellant did not know at the relevant time that killing his grandfather was wrong. Dr. Shane acknowledged that since the appellant had little or no recollection of the incident, it was very difficult to assess his state of mind at that time. He also spoke of the relationship between the appellant’s psychotic disorder and the fact that he was intoxicated around the time he shot his grandfather in somewhat confusing terms, suggesting that the consumption of alcohol may have “disinhibited him . . . accentuat[ing] certain parts of [his] psychosis” and that it may have “precipitated” his paranoid perception of his grandfather “and the release of disturbing and destructive homicidal impulses”. More importantly, in the eyes of the majority of the Court of Appeal (at p. 243),
Dr. Shane testified that the accused knew that the killing was morally wrong during the interview on September 9, 1995. He described this as “an island of lucidity” and acknowledged that islands of lucidity “could also have existed on August 29th, August 30th, 31st and so on as they did . . . on September 9th”.
Dr. Shane also admitted that a traumatic event could trigger a psychotic deterioration. However, all these concessions and admissions are consistent with the fact, also obviously acknowledged by the experts in this case, that they could not state with 100 percent certainty what the mental state of the appellant actually was at the time of the offence. More importantly, the various possibilities, highlighted by both the Crown and the majority of the Court of Appeal, did not cause the doctors to depart from their overall, professional conclusion that the appellant lacked the moral appreciation, at the relevant time, necessary to trigger his criminal responsibility. This is particularly true in the case of Dr. Yaren who candidly acknowledged that his opinion had evolved over time but unequivocally asserted a professional opinion supportive of the absence of moral judgment.
20 In my view, the Court of Appeal misapprehended the significance of the evidence dealing with the possibility that the appellant might have killed his grandfather while experiencing a moment or period of lucidity by interpreting “islands of lucidity”, the concept used by Dr. Shane, as referring to moments or periods of psychiatric normalcy experienced by otherwise psychotic individuals. Dr. Yaren, on cross-examination, explained why this interpretation is not correct:
A . . . I know I’ve referred to it as “fluctuating states of psychosis.” Dr. Shane uses another term, “islands of lucidity” or periods of lucid thinking. It’s quite typical for me to interview someone who is floridly psychotic, who is telling me about, I don’t know, demons inhabiting their abdomen and creatures coming out of the walls, who then will turn to the social worker who may also be in the room and say, By the way, could you go to my apartment at such and such an address and pick up my welfare cheque which is due on Monday? You know, in the same sentence, and so that’s not uncommon.
. . .
Q . . . I’m going to suggest to you that on August the 29th of 1995 it’s quite possible that Aaron was, if he was suffering from a mental disorder, experiencing periods of lucidity.
A Yeah, I guess I’m not as taken by the term “periods of lucidity” because it suggests that there are periods of completely normal thinking. I think a better way to think about it is that there are aspects of one’s thinking that can be normal or near normal while one is floridly psychotic, so as an example I gave, at the same time that one is thinking that there are sort of delusions going on one can also think clearly about a matter of fact issue in one’s life. So it’s not to suggest that one’s thinking turns completely to normal. Although that’s possible, too, it’s less likely.
Q . . . And so I’m suggesting to you that in that context he could very well have understood during a period of lucidity on August 29th, 1995, that it was wrong to kill his grandfather, prior to actually doing so or even at the time, but that he was carrying out some other longstanding hatred towards his grandfather.
A For me that’s quite a stretch and I will certainly agree that from moment to moment he could be in touch with the reality of the fact that that was a morally wrong thing to do, before, after and during, but it isn’t consistent with him actually carrying out the behaviour, in my mind. I don’t think anyone can ever tell with certainty exactly what his state of mind was at the very moment that he pulled the trigger, which is really what you’re getting at. I really don’t think that can be known.
. . .
Q . . . I think you’re asking me to believe then that four hours later when he gave his statement he really might not have, he might have had the understanding at that point but he might not have at the time he shot his grandfather.
A Exactly right.
Q Isn’t that asking me to take a big jump and a leap of logic?
A To enter into the realm of the thinking of a psychotic person is to take a big leap in logic.
Q All right. It involves a lot of guesswork and assumptions.
A It involves some guesswork and assumption; it also involves considerable experience in working with psychotic individuals and coming to an understanding of how their thought processes work, but yes, sometimes there is an element of guessing. [Emphasis added.]
21 I agree with Huband J.A. that the evidence, particularly the testimony of Dr. Yaren, does not reasonably support the conclusion that the appellant was lucid to the point of knowing that his acts were morally wrong at the time of the shooting. In my view, the totality of the psychiatric evidence did not give rise to the reasonable possibility that the appellant, who laboured under the effects of a severe mental disorder at the time he committed a homicide, and whose moral judgment was impaired as a result, would have had a momentary reprieve from the effects of his disorder, at the critical time, sufficient to provide him with the moral insight necessary to engage his criminal responsibility.
22 Apart from the psychiatric evidence, the statements made by the appellant to the police, and, prior to that, to the father of his friend, whom he informed of the killing and whom he asked to inform the police, are not inconsistent with the conclusions reached by the experts, nor is the appellant’s conduct surrounding the commission of the offence.
VI. Conclusion and Disposition
23 In my respectful view, judicial experience with the effects of mental disorder on criminal responsibility, with the type of evidence that is available to demonstrate it, and with the unjustified skepticism that may be directed at an accused relying on the defence of mental disorder, should have given the Court of Appeal cause for concern that the verdict reached by the jury in the present case was unreasonable and not supported by the evidence. Careful and thorough scrutiny of the record confirms that concern was warranted. It is not necessarily easy for a jury to accept that, in lay person’s terms, an accused who knows what he is doing and knows that it is a crime, could still genuinely believe that he would not be morally condemned by reasonable members of society for his conduct. In my view, the defence proved this to be the case and, on the evidence tendered at this trial, it was unreasonable to conclude otherwise.
24 For these reasons, I would allow the appeal, set aside the judgment of the Court of Appeal and enter a verdict of not criminally responsible by reason of mental disorder in substitution for the verdict entered at trial. I would remit the matter to the trial court for a disposition hearing pursuant to s. 672.45 of the Criminal Code.
Appeal allowed.
Solicitors for the appellant: Walsh, Micay & Co., Winnipeg.
Solicitor for the respondent: Manitoba Justice, Winnipeg.
Solicitor for the intervener the Attorney General of Canada: The Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.
Solicitor for the intervener the Attorney General of Quebec: The Attorney General’s Prosecutor, Montréal.
Solicitors for the intervener the Criminal Lawyers’ Association (Ontario): Gold & Fuerst, Toronto.
Solicitors for the intervener the Innocence Project: Ruby & Edwardh, Toronto.
Solicitors for the intervener the Association in Defence of the Wrongly Convicted: Sack Goldblatt Mitchell, Toronto.
Solicitors for the intervener the Criminal Trial Lawyers Association of Alberta: Beresh DePoe Cunningham, Edmonton.