Her Majesty the Queen v. Grandbois [Indexed as: R. v. Grandbois]
63 O.R. (3d) 161
[2003] O.J. No. 256
Docket No. C36489
Court of Appeal for Ontario
Abella, Goudge and MacPherson JJ.A.
January 31, 2003
Criminal law -- Appeals -- Unreasonable verdict -- Accused did not testify at murder trial but raised defence of not criminally responsible through testimony of three defence experts -- Crown called no psychiatric evidence -- Accused convicted of second degree murder -- Verdict not unreasonable -- Jury may reject unanimous and uncontradicted expert evidence as long as there is rational foundation in evidence for it to do so -- Absence of Crown rebuttal expert not in itself sufficient to conclude that guilty verdict unreasonable -- Evidence of defence experts qualified by fact that it was based on their acceptance of what accused told them -- Evidence of defence experts uncontradicted by other psychiatric testimony but jury could have identified contradictions emanating from other sources -- Appeal from conviction dismissed.
Criminal law -- Mental disorder -- Accused did not testify at murder trial but raised defence of not criminally responsible through testimony of three defence experts -- Crown called no psychiatric evidence -- Accused convicted of second degree murder -- Verdict not unreasonable -- Jury may reject unanimous and uncontradicted expert evidence as long as there is rational foundation in evidence for it to do so -- Absence of Crown rebuttal expert not in itself sufficient to conclude that guilty verdict unreasonable -- Evidence of defence experts was qualified by fact that it was based on their acceptance of what accused told them -- No bizarre behaviour surrounding commission of offence -- Accused telling witness while seeking disability benefits before murder that he knew how to fool psychologists -- Evidence of defence experts uncontradicted by other psychiatric testimony but jury could have identified contradictions emanating from other sources.
The accused was charged with the second degree murder of his wife. He admitted that he shot and killed his wife, but raised the defence of not criminally responsible by reason of mental disorder ("NCR") under s. 16 of the Criminal Code, R.S.C. 1985, c. C-46. He had a long history of mental illness, which may have taken a turn for the worse in the week leading up to the shooting. However, there was also evidence that, in the weeks before the shooting, he was pursuing disability benefits and may have exaggerated his symptoms. He told his sister-in-law that he expected to receive disability benefits as he knew how to fool the psychologists. On the day of the offence, he drove to a friend's home to collect ammunition and sent his daughters for a walk. The victim spoke on the telephone with her sister, who heard the accused say"Get over here" in a very calm voice before the victim started screaming. Immediately after the shooting, the accused called the police and reported that he had just shot his wife. While he later told defence psychiatrists that he was being guided by a voice in his head at the time of the shooting, he did not mention the voice in his initial conversation with the police. The accused did not testify at trial. The defence called three psychiatrists whose testimony supported the NCR defence. The Crown called no psychiatric evidence. The jury returned a verdict of guilty of second degree murder. The accused appealed, arguing that the verdict was [page162] unreasonable and not supported by the evidence because it conflicted with the "unambiguous, unqualified and uncontradicted" opinions of the three psychiatrists who testified.
Held, the appeal should be dismissed.
The jury may reject the opinion of experts, even when the experts called are unanimous and uncontradicted by other experts. However, there has to be a rational foundation in the evidence for the jury to reasonably reject the opinion of the experts. 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.
Two of the three psychiatrists who testified in this case expressed the opinion that the accused appreciated the nature and quality of his act, and the third psychiatrist expressed the opinion that the accused would not appreciate what he was doing if he was acting under a delusion or a command hallucination at the time. It was highly likely that the jury would have concluded that the accused appreciated the nature and quality of his acts. It was impossible to know whether the jury found that the accused had not established that he was suffering from a mental disorder at the time of the shooting or that he was suffering from a mental disorder but nevertheless knew that shooting his wife was wrong, but it was open to the jury to reject the NCR defence on either basis. Specifically, it was open to the jury to reject the opinion evidence offered by the psychiatrists and to rely on other evidence about the events surrounding the shooting in support of the verdict. The psychiatrists' opinions were based on what the accused told them. They were not unqualified. Rather, they were ambiguous and qualified, especially by their acceptance of the accused's statements as the principal foundation for their opinions. While it was true that the psychiatric evidence called by the defence was not contradicted by other psychiatric testimony, that did not mean that the jury could not identify contradictions emanating from other sources.
There was evidence to support an NCR finding in this case. However, there was also strong evidence pointing the other way. The jury was entitled to reject the factual underpinnings of the defence experts' opinions and to look at all the other evidence in the trial and conclude that the accused had not met his burden to establish the NCR defence on a balance of probabilities. The jury's verdict was not unreasonable.
APPEAL from a conviction for second degree murder.
R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 184 D.L.R. (4th) 193, 252 N.R. 204, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1; R. v. Molodowic, 2000 CSC 16, 2000 SCC 16, [2000] 1 S.C.R. 420, 145 Man. R. (2d) 201, 184 D.L.R. (4th) 223, 252 N.R. 250, 218 W.A.C. 201, [2002] 8 W.W.R. 199, 143 C.C.C. (3d) 31, 32 C.R. (5th) 31, apld R. v. Weldon, 1995 1398 (ON CA), [1995] O.J. No. 3462 (Quicklaw), 86 O.A.C. 362 (C.A.), consd Other cases referred to R. v. G. (A.), 2000 SCC 17, [2000] 1 S.C.R. 439, 184 D.L.R. (4th) 238, 252 N.R. 272, 143 C.C.C. (3d) 46, 32 C.R. (5th) 45 (sub nom. R. v. A.G.); R. v. Lapointe, [1994] O.J. No. 1328 (Quicklaw) (C.A.); R. v. Mailloux, 1988 27 (SCC), [1988] 2 S.C.R. 1029, 30 O.A.C. 358, 89 N.R. 222, 45 C.C.C. (3d) 193, 67 C.R. (3d) 75, affg (1985), 12 O.A.C. 339, 25 C.C.C. (3d) 171 (C.A.); R. v. Scardino (1991), 1991 13919 (ON CA), 46 O.A.C. 209, 6 C.R. (4th) 146 (C.A.); Yebes v. R., 1987 17 (SCC), [1987] 2 S.C.R. 168, 17 B.C.L.R. (2d) 1, 43 D.L.R. (4th) 424, 78 N.R. 351, [1987] 6 W.W.R. 97, 36 C.C.C. (3d) 417, 59 C.R. (3d) 108 (sub nom. R. v. Yebes) [page163] Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 16, 686(1)(a)(i)
Joan Barrett, for respondent. G. Greg Brodsky, Q.C., and Daniel J. Brodsky, for appellant.
The judgment of the court was delivered by
MACPHERSON J.A.: --
A. Overview
1The appellant, Denis Grandbois, was convicted of the second degree murder of his wife, Beverly Grandbois. He admitted that he shot and killed his wife. At the trial, the appellant raised the defence of not criminally responsible pursuant to s. 16 of the Criminal Code, R.S.C. 1985, c. C-46. Although the appellant did not testify, the defence called three psychiatrists whose testimony supported the s. 16 defence. The Crown called no psychiatric evidence. The trial proceeded in an uneventful and fair fashion. The trial judge's charge to the jury was in all respects, including his treatment of the s. 16 defence, impeccable. The jury returned a verdict of guilty of second degree murder. The appellant was sentenced to life imprisonment with the standard parole ineligibility period of ten years.
2The only issue on the appeal is whether the jury's verdict was unreasonable. The appellant contends that it was because it conflicted with the "unambiguous, unqualified and uncontradicted" opinions of the three psychiatrists who testified.
B. Facts
3On July 6, 1997, the appellant shot his wife in the family home in the Township of Rugby. The two shots, in the neck and the chest, from close range with a .410 shotgun, killed her.
4The appellant has a long history of mental illness. He has been hospitalized many times. At the trial, he was diagnosed unanimously by three psychiatric experts as suffering from bipolar affective disorder with delusions, characterized by mood swings which ranged between depression and hypomania (a mild form of mania, marked by elation and hyperactivity). He was prescribed anti-psychotic drugs, which he took sporadically, and had received electroshock therapy two or three months before the shooting.
5In the week leading up to July 6, 1997, the appellant's condition may have taken a turn for the worse. His wife was sufficiently [page164] concerned that about a week before the incident she left the couple's 10-year-old twin daughters, Leona and Marie, at her sister's home for two days because she said she wanted to take her husband to the hospital. [See Note 1 at end of document] Moreover, one of the appellant's treating psychiatrists, Dr. John Ledger, who saw the appellant on June 24, testified that on that date his illness was "as severe as I'd seen him".
6However, there was also evidence that, in the weeks leading up to July 6, the appellant was pursuing disability benefits and may have exaggerated his symptoms. He saw Dr. Crosby Watler, his other treating psychiatrist, on June 12. Dr. Watler refused to sign the disability forms because "he was doing very well."
7In addition, about a week later, during a visit to his wife's family in Fort Frances, the appellant went for a drive with his wife's sister, Cindy Nick. Ms. Nick testified that when she remarked that Denis would receive a disability benefit, his response was to lean over and smile and say: "I've already got the disability . . . I know how to fool [the psychologists]. I tell them what they want to hear. I told them that my marriage was falling apart and that I didn't recognize [my] children."
8In the early afternoon of July 6, 1997, the appellant and one of his daughters drove to a friend's home and collected a bag of clothing and ammunition. He returned home around 45 minutes later. At around 2:30-2:45, Beverly was on the telephone with one of her sisters. She spoke initially with Ms. Nick, and then with another sister, Donna Marwick. The appellant told the twins to go for a walk for half an hour so he could speak to their mother. When the twins returned, he told them to take a longer walk. The telephone call involving Beverly continued. Ms. Marwick testified that Beverly told her that she and the children were going to move to Fort Frances "with or without him". Shortly after, she heard Beverly scream, Denis say in a very calm voice "Get over here", and more screams from Beverly, which eventually "started to fade off".
9While the twins were on the second walk, they also heard a scream, followed by a gunshot. They ran home. Their father came out of the house carrying a gun. He was spattered with blood. He put down the gun and told the twins "me and mom got into a fight" and "I slapped your mom" and she was sleeping so they should go for a walk together.
10Immediately following the shooting, the appellant called the police and said "there's been a murder" and "I just shot my [page165] wife". An hour later, when the police had not arrived, he called 911 again and spoke to the police for 22 minutes. He stated again that there had been a murder at his home and gave this description of the incident to Detective Constable Adam Alderson:
Alderson: You're in the house, okay, and what's happening there, Denis?
Grandbois: Well, we had an argument, and, uh, I shot my wife.
Alderson: Well . . . you did what?
Grandbois: I shot my wife.
Alderson: You shot your wife . . . okay . . . okay. Where are you now?
Grandbois: In the house.
Alderson: You're in the house? And where's your wife?
Grandbois: Uh . . . she's in the hallway.
Alderson: . . . Okay, so . . . so what happened today with your . . . with your . . . uh . . . with your wife, there? With Beverly?
Grandbois: Oh, it was just an argument.
Alderson: Okay . . . and . . . is . . . is she still alive?
Grandbois: Nope.
Alderson: No? How long ago did this happen?
Grandbois: Oh, I don't know, half an hour or an hour ago, I don't know.
Alderson: Okay.
Grandbois: I got to get back to my twins.
Alderson: Have you been drinking, Denis?
Grandbois: Nope.
Alderson: Okay, are you . . . are you guys split up? Or . . .
Grandbois: Nope.
Alderson: Okay, but were you splitting up, or . . . what was happening?
Grandbois: Ya.
Alderson: Okay, you and Beverly are still together, is that right?
Grandbois: Not really, no.
Alderson: No? And now, can you explain to me, what do you mean by that, Denis?
Grandbois: Well, we've been arguing for quite a while. [page166]
11At the trial, the Crown called as witnesses several members of Denis' and Beverley's families. The Crown called no psychiatric evidence. The defence called Dr. Ledger and Dr. Watler, the appellant's treating psychiatrists, and Dr. Fred Shane, a third psychiatrist who assessed the appellant in jail about a month after the shooting. The appellant did not testify. The essence of the psychiatrists' testimony was that the appellant suffered from a mental disorder that rendered him incapable of knowing that the shooting of his wife was wrong.
C. Issue
12The sole issue on the appeal is whether the jury verdict of guilty of second degree murder was unreasonable.
D. Analysis
13Section 686(1)(a)(i) of the Criminal Code authorizes an appellate court to set aside a jury verdict if "it is unreasonable or cannot be supported by the evidence". The test for judicial interference with a jury verdict is a strict one; such interference is justified only if the verdict is one that a properly instructed jury, acting judicially, could not reasonably have rendered: see Yebes v. R., 1987 17 (SCC), [1987] 2 S.C.R. 168, 43 D.L.R. (4th) 424 at p. 186 S.C.R.; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 184 D.L.R. (4th) 193 at pp. 405-06 S.C.R.; and R. v. G. (A.), 2000 SCC 17, [2000] 1 S.C.R. 439, 184 D.L.R. (4th) 238 at pp. 444-45 S.C.R.
14The nature of the inquiry in which an appellate court must engage has been well-described by Arbour J.A. in Biniaris, at pp. 405-06 S.C.R.:
[The Yebes] formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyze and, within the limits of appellate disadvantage, weigh the evidence. This latter process is usually understood as referring to a subjective exercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency. The test is therefore mixed, and it is more helpful to articulate what the application of that test entails, than to characterize it as either an objective or a subjective test.
15At the heart of the trial in the present case was the appellant's invocation of s. 16(1) of the Criminal Code, which provides:
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. [page167]
By virtue of ss. 16(2) and (3) of the Code, it fell to the appellant to establish on a balance of probabilities that he came within s. 16(1) when he shot his wife.
16There are three components in s. 16(1); however, at the appellant's trial one of them was not really in play. Both Dr. Watler and Dr. Shane expressed the opinion that the appellant knew that what he was doing was violent and would result in the death of his wife -- in other words, he appreciated the nature and quality of the act he committed. Dr. Ledger, who did not interview the appellant after the shooting, expressed the opinion that the appellant would not appreciate what he was doing if he was acting under a delusion or a command hallucination at the time (i.e. voice ordering him to kill his wife).
17The crux of the trial was the other two components of s. 16(1) -- was the appellant suffering from a mental disorder when he shot his wife and, if he was, did he know that the shooting was wrong?
18The appellant's position is that there was "unambiguous, unqualified and uncontradicted" psychiatric evidence that the appellant was suffering from a mental disorder when he shot his wife and that this mental disorder rendered him incapable of knowing that this was wrong. The appellant relies heavily on R. v. Molodowic, 2000 CSC 16, [2000] 1 S.C.R. 420, 184 D.L.R. (4th) 223 and R. v. Weldon, 1995 1398 (ON CA), [1995] O.J. No. 3462 (Quicklaw), 86 O.A.C. 362 (C.A.), two cases in which appellate courts substituted verdicts of not criminally responsible ("NCR") after juries had rendered guilty verdicts at murder trials.
19In Molodowic, the accused drove eight miles to his grandfather's house in the middle of the night, parked, loaded a semi-automatic carbine and shot his grandfather twice in the chest. He then drove home, went to a friend's house and said he had just shot his grandfather and the police should be called.
20The accused was found guilty of second degree murder by a jury. The conviction was upheld, in a 2-1 decision, by the Manitoba Court of Appeal. The Supreme Court of Canada allowed the appeal, concluding that, on all the evidence, the verdict was not a reasonable one. In my view, this decision is particularly instructive in the present appeal. Arbour J., speaking for a unanimous court, set out the general principles relating to expert testimony in the context of an NCR defence based on the accused's capability to know that what he did was morally wrong, at pp. 425-28 S.C.R.:
[U]nder 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 . . . . [page168]
In R. v. Ratti, 1991 112 (SCC), [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 95 (SCC), [1990] 1 S.C.R. 852, at pp. 896-97, and Ratti, supra, at p. 81.
The jury may therefore reject the opinion of experts, even when the experts called are unanimous and uncontradicted by other experts . . . However, there has to be a rational foundation, in the evidence, for the jury to reasonably reject the opinion of the experts.
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, supra, at p. 186).
21After setting out these general principles, Arbour J. adopted the reasoning of the dissenting judge from the Manitoba Court of Appeal, finding that not only was there uncontradicted psychiatric evidence, but the psychiatrists' opinions were entirely consistent with the facts of the case. The accused's conduct before and after the shooting, and his conduct on the night of the killing revealed a "very disturbed mind" (at p. 430 S.C.R.). The psychiatric evidence was based on formal psychological testing, records from the appellant's hospital stay, interviews with the appellant's family and his statements to the police. He had full blown paranoid schizophrenia, a psychotic delusional disorder of a "persecutory type" (at p. 432 S.C.R.). The Crown's theory was that while the accused was psychotic before and after the killing, and incapable of knowing his actions were wrong, he was experiencing a moment of lucidity at the time of the killing. Arbour J.A. concluded that the evidence could not reasonably support this theory (at p. 436 S.C.R.). [page169]
22In Weldon, this court substituted a finding of NCR for a jury's verdict of first degree murder. The accused was a paranoid schizophrenic experiencing serious psychotic symptoms. He stabbed his common law wife several times in front of her daughter. The daughter testified about his strange behaviour leading up to the incident, and his bizarre conduct during and after it. He did not appear angry or surprised, but rather confused. He stabbed himself without experiencing any visible pain, and lay down, pulling the deceased on top of him.
23At the trial, two psychiatrists testified that the accused was NCR. This court dealt with this evidence, at paras. 24-26:
There was, therefore, before the jury the evidence of two highly qualified psychiatrists that the provisions of s. 16 of the Criminal Code were applicable to this case.
While the Crown counsel challenged the evidence of both psychiatrists in cross-examination and in argument, no testimony was called to contradict or challenge the validity of their opinions. Mr. Weldon was examined by Dr. Hrab at the request of the Crown. He was assessed and treated pursuant to a court order in a public facility in circumstances where the Crown had full access to all of the evidence developed at Penetang. The reason why no contradictory evidence was called by the Crown was that no one who assessed or treated this man could say anything other than that s. 16 applied in this case. This is made clear in an answer given by Dr. McDonald when asked by Crown counsel in cross-examination about the views of others at Penetang. He said:
. . . by the time of the final report, to the best of my recollection, I am not aware of anyone who did not see the case in the fashion that I did at that point.
The history, the circumstances and the expert evidence overwhelmingly proved that s. 16 was applicable in this case. It is our opinion that when the jury declined to so find it acted unreasonably and contrary to the evidence. The appeal must be allowed. The only verdict which the evidence in this case can reasonably support is that the appellant is not criminally responsible.
24The Crown's response to the appellant's reliance on Molodowic and Weldon is that they provide the proper framework for analysis in an appeal where the appellant seeks to overturn a jury's rejection of a s. 16 defence and concomitant guilty verdict on the basis that these were unreasonable. However, the Crown submits, correctly, that Molodowic explicitly recognizes that a jury need not accept psychiatric evidence tendered by the accused, even if it is not contradicted by Crown expert evidence. The Crown also points out that there are many cases in which appellate courts have upheld jury verdicts of guilty in precisely this circumstance: see, for example, R. v. Mailloux (1985), 25 C.C.C. (3d) 171, 12 O.A.C. 339 (C.A.), affd [page170] 1988 27 (SCC), [1988] 2 S.C.R. 1029, 45 C.C.C. (3d) 193; R. v. Scardino (1991), 1991 13919 (ON CA), 6 C.R. (4th) 146, 46 O.A.C. 209 (C.A.); and R. v. Lapointe, [1994] O.J. No. 1328 (Quicklaw) (C.A.).
25In the end, the resolution of this appeal requires an application of the general approach described in Biniaris for assessing whether a jury verdict was unreasonable, combined with a careful consideration of the factors set out in Molodowic relating to cases with s. 16 defences. Against the backdrop of this analytical framework, I have reviewed the entire trial record in this case and have reached the conclusion that the jury verdict in the present case was not unreasonable.
26I begin by noting again that there is no challenge to the trial judge's charge to the jury. Indeed, trial counsel (who is also appeal counsel) paid the trial judge the high compliment of saying that his objections to the trial judge's charge were "the shortest I've been in connection with objections to a charge since, I think, 1965, maybe".
27I also observe that since the jury verdict was simply "guilty", an appellate court cannot know with certainty where the accused's s. 16 defence foundered in the eyes of the jury. For reasons discussed above, it seems highly likely that the jury would have concluded that the accused appreciated the nature and quality of his acts. However, we cannot know whether the jury found that the accused had not established that he was suffering from a mental disorder at the time of the shooting or, alternatively, that he was suffering from a mental disorder but nevertheless knew that shooting his wife was wrong.
28In my view, it was open to the jury to reject the s. 16 defence on either basis. Specifically, it was open to the jury to reject the opinion offered by the psychiatrists called by the defence and to rely on other evidence about the events surrounding the shooting in support of the verdict.
29With respect to the psychiatric evidence, I observe that the appellant did not testify. Accordingly, the only evidence about "the voices" telling him that his wife was planning to kill him came from the psychiatrists respecting what the appellant had told them.
30Dr. Watler admitted that his opinion was premised on the truthfulness of what the appellant told him and his history. He also saw the appellant less than a month before the incident and concluded that "he was doing very well." Dr. Watler admitted that he had not listened to the 911 tapes or reviewed the transcripts of the appellant's conversations with the police or the statements of his daughters. After reviewing both 911 transcripts, Dr. Watler agreed that there was nothing in the content [page171] of what the appellant said in these conversations to suggest that he was psychotic. Dr. Watler further agreed that it was possible for the appellant to exaggerate his symptoms or recount symptoms such as ideations that his wife wanted to kill him if that was to his advantage.
31Dr. Ledger also admitted that his opinion was based primarily on what the appellant told him. Moreover, although he regarded the appellant's condition as "severe as I'd seen him" 13 days before the shooting, he did not "consider him at that time to be suicidal or homicidal". Finally, Dr. Ledger's opinion was only that if the appellant was acting under a command hallucination, he would not know that shooting his wife was wrong.
32Dr. Shane was not a treating psychiatrist. He saw the appellant on only one occasion for about three or four hours. He did no testing of the appellant. He admitted that his opinion about the appellant's mental state was based solely on what the appellant told him and his history. He offered the opinion that the appellant did not know that shooting his wife was wrong. Yet, when asked to explain why the appellant called the police immediately after killing his wife if he did not appreciate that his conduct was wrong, Dr. Shane replied:
A. Well, he recognized there was a death, that he had done something wrong and that's not unusual for people who kill to pick up the phone. I mean I've seen it so many times in my experience. People, they call police. They recognize they've done something bad. This is a matter for the authorities and they call the police, something terrible has happened. It's something they feel is the right thing to do.
33I mention these components of the evidence of the psychiatrists called by the defence not to challenge their integrity or professionalism, but rather as preface to my conclusion that the appellant's description of their evidence as "unambiguous, unqualified and uncontradicted" is not supported by a careful review of their testimony. The above examples establish that the psychiatrists' testimony was both ambiguous and qualified, especially by their acceptance of the appellant's statements as the principal foundation for their opinions.
34It is true that the psychiatric evidence called by the defence was not contradicted by other psychiatric testimony. However, that does not mean that the jury could not identify contradictions emanating from other sources. In that vein, the jury could attach significance to the testimony of Cindy Nick that the appellant told her that he knew how to play the system and fool the psychologists. Moreover, the jury could note that the defence's command hallucination scenario was not reflected at all in what the appellant told the police or his [page172] daughters immediately after the shooting. The appellant's entire description of the event was anchored in a fight between him and his wife.
35Finally, the jury could have attached weight to the events surrounding the shooting. Put simply, there was an absence of the type of bizarre behaviour seen in cases like Weldon. The appellant knew that his wife and daughters were moving to Fort Frances "with or without him", he drove to a neighbour's house to pick up ammunition, he sent his daughters for a walk twice, he was heard to order his wife in a calm voice to "[g]et over here" just before he shot her, and his conversations with police and his daughters shortly after the shooting seemed relatively lucid.
36In the end, I am drawn to a statement by Lacourcière J.A. in Mailloux, supra, at p. 177 C.C.C.:
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.
37My conclusion is similar. There was certainly evidence to support an NCR finding in this case. However, there was also strong evidence pointing the other way. The jury was entitled to reject the factual underpinnings of the defence experts' opinions and to look at all the other evidence in the trial and conclude that the accused had not met his burden to establish the s. 16 defence on a balance of probabilities. Accordingly, I cannot conclude that the jury verdict in this case was unreasonable.
E. Disposition
38I would dismiss the appeal.
Appeal dismissed.
Notes
Note 1: The sister, Donna Marwick, testified that she did not think that Beverly did, in fact, take Denis to the hospital at that time.
