COURT OF APPEAL FOR ONTARIO

DATE: 20001120

DOCKET: C28143

FINLAYSON, WEILER and ABELLA JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN ) R.W. Hubbard, for the respondent

(Respondent) )

–and– )

JOSEPH GUERTIN ) Michael Lomer, for the appellant

(Appellant) )

) Heard: November 8, 2000

On appeal from the conviction imposed by Justice John G.J. O’Driscoll, sitting with a jury, dated February 12, 1997 and from the sentence imposed by Justice O’Driscoll dated February 28, 1997.

FINLAYSON J.A.:

[1] The appellant was tried before Mr. Justice O’Driscoll and a jury in Toronto on one count in an indictment alleging that he:

[D]uring the period from and including the 7th day of December in the year 1994 to and including the 8th day of December in the year 1994, at the Municipality of Metropolitan Toronto, in the Toronto Region, did kill Roy Barrington, and did thereby commit second degree murder, contrary to the Criminal Code of Canada.

[2] Following a two week trial, the appellant was convicted on February 12, 1997 of second degree murder. He was sentenced on February 28, 1997 to life imprisonment, without eligibility of parole for 13 years. The appellant appeals against conviction.

Facts

[3] At 1:45 a.m. on the morning of December 8, 1994, Constables James McHugh and Debbie Sova received a radio call to attend at the residence of Cathy Reddon at 223 Osler Street in the City of Toronto. The officers went to this address and were greeted by Ms. Reddon and the appellant. Ms. Reddon informed the officers that the appellant had told her he had killed his friend, Roy Barrington. Subsequently, the appellant confessed to both officers that he had killed Mr. Barrington by strangling him and by stabbing him in the heart twice. When asked why he had killed his friend, the appellant answered that voices in his head had told him to do it.

[4] The appellant was arrested for murder and voluntarily lead police to Mr. Barrington’s room in a rooming house at 255 Wellesley Street East, the site of the stabbing. Upon entering the room, officers found Mr. Barrington lying on his bed. He was dead. He was fully clothed, had red grazing marks on his cheeks and under his chin, and two stab wounds to the left side of his chest. An autopsy confirmed that the cause of death was loss of blood from stab wounds and that manual neck compression played a secondary role.

[5] The appellant and the deceased were very close friends who saw each other almost every day. When the appellant was in hospital the deceased would visit him and bring him presents such as coffee, cigarettes and crossword puzzles. The deceased was continually buying things for the appellant and he would sometimes complain vehemently about always having to pay. There was bickering between them but they were still very close friends.

[6] On December 7, 1994, during the course of the evening, two of the deceased’s neighbours in the rooming house where he lived heard and saw the deceased and the appellant laughing and talking and watching television. No arguments or raised voices were heard. The deceased left the door to his room open because he was claustrophobic.

[7] In the course of the trial, defence counsel admitted that the appellant had caused the death of Mr. Barrington. However, defence counsel contended that the appellant was not criminally responsible for the killing because he suffered from a mental disorder which made him incapable of appreciating the nature and consequences of his actions at the time of the killing, or of understanding that the killing was wrong. An alternative defence position was that the appellant was guilty of manslaughter because, due to his mental illness, he did not possess the requisite mens rea for murder. The appellant has a well-documented past history of psychiatric illness. It was reflected in the number of clinical and psychiatric records introduced into evidence.

[8] The psychiatric history of the appellant was established through the admission of records detailing the appellant’s stays at the Queen Street Mental Health Centre and Northwestern General Hospital. Those records disclosed that the appellant had been admitted to those hospitals on both a voluntary and non-voluntary basis on more than two dozen occasions between 1989 and 1994. Suicidal symptoms included a desire to slash his wrists and voices in his head that told him to kill either himself or others. He made requests to be restrained out of a fear that he would hurt himself or others. The diagnosis during these stays was usually borderline personality disorder and at times schizo-affective disorder.

[9] At trial, Dr. Ben-Aron testified for the defence that it was his opinion that the appellant was suffering form a severe borderline personality disorder. He testified that individuals suffering from such a disorder can experience brief psychotic episodes in which hallucinations are present, and reality testing and judgment is impaired. Dr. Ben-Aron could not state definitively that the appellant was experiencing such a psychotic episode at the time of the killing because he did not have necessary information about how the appellant was feeling at the time of the killing. However, he testified that someone such as the appellant may have been deprived of the intent to carry out certain acts because of the borderline personality disorder.

[10] At trial, defence counsel pointed to a number of features which indicated that the appellant was cognitively impaired at the time of the killing. These features included the fact that shortly after the killing, the appellant reported hearing voices telling him to kill the deceased, that the appellant told Cathy Reddon he had not taken his medication for more than a week prior to the killing and that Cathy Reddon testified that the appellant became suicidal and aggressive when he did not take his medication and that the appellant had scratch marks on his wrists at the time of his arrest which were consistent with self-inflicted wounds.

[11] The Crown contended that the evidence established the appellant fully understood what he was doing on the night of the killing. This evidence included the fact that the appellant closed and locked the door to the deceased’s apartment before leaving, that the appellant reported to Cathy Reddon that he had choked and then stabbed the deceased and wiped his finger prints off the knife he used to kill the deceased.

[12] The above summary is taken from the appellant’s factum. It is fair and puts the appellant’s position in the most favourable light. I would add only that Dr. Jacques, a forensic psychiatrist called by the Crown testified and concluded that:

(i) the appellant’s main problem was a personality disorder with predominately borderline features;

(ii) he grossly exaggerates psychopathological symptoms;

(iii) he may not have true psychotic experiences such as hearing voices but the psychiatrist could not rule them out;

(iv) he was trying to portray himself as having a major mental illness that he does not have.

[13] The appellant did not testify at trial.

[14] In light of the appellant’s concession at trial that he had caused the death of Roy Barrington, the trial judge identified the two main issues for the jury as whether:

(i) the defence had proven, on a balance of probabilities, that the appellant was not criminally responsible because he was incapable of appreciating the nature and quality of the act of the killing or knowing that the killing was wrong; or,

(ii) alternatively, if the defence had not satisfied them that the appellant was not criminally responsible, whether the Crown had proven beyond a reasonable doubt that the appellant had killed Roy Barrington in circumstances amounting to manslaughter or second degree murder.

[15] In summary, the trial judge charged the jury “You are here to decide whether the accused person is not criminally responsible because of mental disorder, or is he guilty of manslaughter or second degree murder”.

[16] In the portions of his charge dealing with whether the appellant was criminally responsible within the meaning of s.16 of the Code, the trial charge extensively reviewed with the jury:

(i) the relevant portions of s.16 of the Criminal Code; and

(ii) the definitions of ‘mental disorder’ and ‘diseases of the mind’, ‘schizophrenia’, ‘personality disorder’, and ‘appreciates’.

[17] The trial judge told the jury that both schizophrenia and personality disorders, the main diagnoses in respect of the appellant, could constitute mental disorders or diseases of the mind within the meaning of s.16 of the Code. He also emphasized that a man who kills someone while suffering from a serious delusion may not know that what he has done is morally or legally wrong.

[18] The trial judge told the jury that before finding the appellant guilty of either manslaughter or second degree murder, the Crown had to establish all of the necessary elements beyond a reasonable doubt.

Issues

[19] The appellant’s objections all related to the jury charge. I will deal with only two of them.

1. The trial judge erred by not adequately reviewing the evidence relating to the defence theory that the appellant did not possess the mens rea required for murder.

2. The trial judge failed to instruct the jury as to the burden of proof in accordance with R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.) as interpreted by R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40.

Analysis

Issue 1

[20] The appellant does not take serious issue with the trial judge’s instruction to the jury on the issue of not criminally responsible. Nor does he complain about the presentation by the trial judge of the opinion evidence of Dr. Ben-Aron as it relates to that issue. His complaint is restricted to the fact that the trial judge did not repeat the evidence of Dr. Ben-Aron in his charge to the jury on the alternative theory of the defence that if the jury were not persuaded that the appellant was not criminally responsible for the offence of murder, the Crown had not established beyond a reasonable doubt that the appellant did not have the requisite mens rea to commit murder or manslaughter.

[21] The trial judge instructed the jury in accordance with the decision of this court in R. v. Hilton (1977), 1977 2059 (ON CA), 34 C.C.C. (2d) 206 (Ont. C.A.). He told the jury that even if it found the appellant was criminally responsible, it should take into account the evidence of mental disorder together with all of the other evidence in dealing with the charges of both murder and the included offence of manslaughter, in determining whether the appellant had either one of the required intents set out in s.229(a)(i) or (ii) of the Code.

[22] The appellant concedes that this instruction is “technically correct” but contends that it is insufficient because it does not set out in detail those parts of Dr. Ben-Aron that relate to intent as opposed to the not criminally responsible defence.

[23] In the first place, after conceding that the appellant killed Mr. Barrington, counsel for the appellant advanced the defence that the appellant was not criminally responsible for his actions. Once that defence failed, there was little justification for a verdict of manslaughter and virtually none for an acquittal. That said, the Hilton instruction was appropriate and in my view it was more than adequate in this case. Dr. Ben-Aron was testifying about the mental capacity of the appellant to understand the nature and quality of his actions. It was in this context that he mentioned “intent”. At no point in his evidence did he attempt to categorise his testimony so that portions of it could be excised and repeated in the context of the intent to commit murder or manslaughter. In these circumstances it would have been inappropriate and perhaps presumptuous on the part of the trial judge to attempt an editing function that the witness had not seen fit to perform.

Issue 2

[24] The charge given by the trial judge predated Lifchus by a few months. Subsequent to Lifchus, this court has considered pre-Lifchus jury charges that did not meet the exactitude specified in Lifchus and has determined that the jury would not have been under a misapprehension as to the correct standard of proof to apply. It is significant that a Lifchus objection was not raised by the appellant in his notice of appeal or factum. Leave to file a supplementary factum was given by this court following the decision of the Supreme Court of Canada in Starr.

[25] The main problem identified in Starr was the failure of the trial judge to distinguish between the applicable onus of proof beyond a reasonable doubt and the civil onus of a balance of probabilities. In addition, the trial judge in Starr had equated the criminal onus with “words used in everyday, ordinary sense and not as legal terms having some special connotation”.

[26] None of these problems are present in the case in appeal. Since the main defence was s.16 of the Code, the trial judge gave extensive instructions on the burden on the appellant to meet the civil onus of a balance of probabilities to establish that he was not criminally responsible. After instructing the jury that it would only embark on this analysis if the appellant failed to discharge his not criminally responsible defence, he instructed the jury to return to the “realm of murder and manslaughter”. He then instructed them in precise terms that the onus of proving intent was now on the Crown and it amounted to proof beyond a reasonable doubt. The trial judge defined precisely the meaning of “balance of probabilities” and “reasonable doubt”. The juxtaposition of the two standards of proof with the explanation of which party bore the onus in each case was clear and the jury could not have been confused as to the difference between the two standards and that the higher burden was on the Crown.

[27] Since this case was argued, the Supreme Court of Canada has delivered three more judgments that clarify Starr: R. v. Beauchamp, 2000 SCC 54, R. v. Russell, 2000 SCC 55, and R. v. Avetysan, 2000 SCC 56. The three decisions reiterate that the basic question remains: Does the charge, read as a whole, give rise to a reasonable likelihood that the jury misapprehended the correct standard of proof? Applying that standard to this case, I have no difficulty in answering it in the negative.

[28] Accordingly, I would dismiss the appeal.

Released: NOV 20 2000 Signed: “G.D. Finlayson J.A.”

GDF “I agree K.M. Weiler J.A.”

“I agree R.S. Abella J.A.”