COURT OF APPEAL FOR ONTARIO

DATE: 20001211

DOCKET: C20927

ABELLA, O'CONNOR and MacPHERSON JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

• and -

JOEL GENEREUX
Appellant

Brian H. Greenspan and Sharon E. Lavine
for the appellant

Jamie Klukach
for the respondent

Heard: April 27, 2000

On appeal from conviction by Justice Lawrence Whalen with a jury, on January 18, 1995.

ABELLA J.A.:

[1] The appellant Joel Genereux was convicted on January 18, 1995 of the first degree murder of Melissa Mallett.

[2] The central issue at trial was the appellant's mental state at the time he killed Melissa Mallett. The primary issue in this appeal is whether a psychiatrist's evidence about statements made to him by the appellant in the course of a sixty-day assessment should have been excluded.

BACKGROUND

[3] As a result of complications at his birth, the appellant suffered brain damage. In his childhood, he was diagnosed with a developmental disorder and minimal brain disfunction. He also had a learning disability and severe speech deficit. Throughout his school years, he was ostracized, teased, and called derogatory names by other children. Although interested in girls, he was consistently rejected by them and frustrated by his inability to get a positive response. In order to alleviate his loneliness, he developed a set of "superhero" imaginary friends.

[4] The appellant's family lived across the street from Melissa Mallett in Rochon Trailer Park in Cochrane, Ontario. At the time of her tragic death in some woods near their home on June 22, 1991, Melissa Mallett was 8 years old. Joel Genereux was 19. The appellant stabbed Melissa Mallett several dozen times with a jackknife, causing predominantly shallow cuts that penetrated the skin but were not individually life threatening.

[5] When it was discovered that Melissa was missing, the appellant initially lied about his whereabouts and took part in the search for her. Within an hour of her death, however, the appellant told his mother that he knew where Melissa was. He stated "I stabbed her. I couldn't take it any more."

[6] Constable Greg Delguidice was in his cruiser at the scene of the search for the girl when he noticed the appellant and his mother standing at the driver's window. Both were crying. The appellant's mother told the police officer that her son had just confessed to killing Melissa Mallett. The appellant then stated "I know where she is. I stabbed her and brought her to the bush." The appellant also told police that after he killed her, he "threw the jackknife away", then returned home where he cleaned himself up. After participating in the search for Melissa, he went to his bedroom and cried.

[7] After he confessed, the appellant assisted the police in locating Melissa's body in the woods and helped to look for the knife, which was never found.

[8] The defence position at trial was that the appellant was motivated by and acted within the context of a psychotic fantasy, and was, because of his mental limitations, incapable of planning murder. The Crown's theory, as supported by Dr. McDonald, was that the appellant suffered from a personality disorder and, although he had a vivid imagination, he was in control of his fantasies and was neither psychotic nor delusional.

[9] The appellant was assessed by three psychiatrists who were called by the defence at trial: Drs. L. Doyle, B. C. L. Orchard and G. D. Glancy.

[10] As a result of these three psychiatric assessments, defence counsel informed the Crown of his intention to put forward a s. 16 defence at trial. The Crown responded by letter, requesting that a psychiatrist of its own choice be permitted to examine the appellant so that the Crown could better determine what position to take at trial. It is useful to set out the Crown's letter in full:

January 8, 1993

Re: R. vs Joel GENEREUX

S. 235 C.C.C.

Further to our pre-trial conference call this date with Mr. Justice Bernstein, I am simply writing you to confirm the position of the Crown in this difficult and complex case.

Thank you for sending along your psychiatric reports from Drs. Glancy, Doyle and Orchard, which reports appear consistent with, and supportive of the position, that your client was not criminally responsible for his actions at the operative time on account of a longstanding mental disorder.

As you are aware, there have been "similar" cases, wherein the prosecution has elected not to oppose the S. 16 defence being advanced by the accused. In these cases however, the Crown has invariably had the opportunity of seeing the accused examined by independent experts of its choosing, in order to confirm the suspected diagnosis and opinion. This requirement would be all the more critical in a high profile case involving the killing of a young child. I would therefore require your co-operation in having Mr. Genereux assessed by some specialists of my choosing. Please advise me accordingly.

[11] Defence counsel responded in a letter dated April 29, 1993:

This is to confirm that on behalf of Joel Genereux I have consented to have him sent to METFORS for a sixty (60) day period for an examination as to his fitness to stand trial and for an opinion as to his competency under section 16.

[12] Pursuant to the agreement of the parties, an order was made by Lajoie J. on April 29, 1993. The order sets out the purpose of the assessment as follows:

ORDER

UPON THE APPLICATION of the Crown, and with the consent of the accused, AND UPON THE UNDERSTANDING that evidence of the mental condition of Joel Alain Genereux may be necessary to determine whether the accused is unfit to stand trial, or whether he suffered from a mental disorder so as to exempt him from criminal responsibility by virtue of ss. 16(1) of the Criminal Code at the time of the act charged against the accused,

1. THIS COURT ORDERS that the accused be assessed at the Queen Street Mental Health Centre, Metropolitan Toronto Forensic Service, for a period not exceeding 60 days, including travel time, commencing May 3, 1993.

2. THIS COURT FURTHER ORDERS that the accused be detained in custody at all times during the course of the assessment, and that he be returned forthwith to the Haileybury District Jail upon the completion of the said assessment, or the expiration of 60 days commencing May 3, 1993.

[13] The appellant was then remanded to the Metropolitan Toronto Forensic Service ("METFORS") at the Clarke Institute of Psychiatry, to undergo psychiatric assessment by Dr. Angus McDonald and his team. During the assessment, the appellant made a number of statements to Dr. McDonald that the Crown eventually sought to have admitted at trial as evidence of both the appellant's intention to commit murder and the element of planning and deliberation necessary for first degree murder. The statements sought to be admitted were taken from the May 4 and May 11 sessions with Dr. McDonald in the course of the sixty-day assessment.

Psychiatric Evidence at Trial

[14] Dr. Doyle examined the appellant in October, 1991 at the North Bay Psychiatric Hospital as to his fitness to stand trial and potential exemption from criminal responsibility pursuant to s. 16 of the Criminal Code. Dr. Doyle was the Chief of Forensic Psychiatry at North Bay Psychiatric Hospital. He diagnosed the appellant as having a pervasive developmental disorder in the form of autism accompanied by psychotic episodes. It was Dr. Doyle's evidence that at the time of Melissa Mallett's death, the appellant had a psychotic episode during which he became one of the "superheroes" of his delusions, and did not have the capacity to understand or appreciate that his actions were morally wrong.

[15] Dr. Glancy, who examined the appellant in August, 1991, testified that the appellant suffered from atypical psychosis, causing him to slip in and out of delusional states. According to Dr. Glancy, the appellant knew he was stabbing Melissa, but his mental disorder severely affected his ability to understand that his acts were wrong. Dr. Glancy described the appellant as a "very rare case". He felt that while it was possible that the killing of Melissa Mallett was a form of revenge against girls for having turned him down all his life, the theory was undermined by the fact that the appellant did not choose a victim who was representative of the age or type of girl who had rejected him.

[16] In May of 1992, at the request of defence counsel, the appellant was assessed by Dr. Orchard, a psychiatrist for more than 30 years and a member of the staff at Forensic Services at the Clarke Institute for 19 years. Dr. Orchard's diagnosis was that the appellant suffered from a pervasive developmental disorder with atypical psychosis. Dr. Orchard was of the view that the appellant was in a psychotic episode and suffering from delusions at the time of the killing. Consequently, he was unable to appreciate that his act was morally wrong. In Dr. Orchard's opinion, the appellant was in a psychotic state when he saw and followed Melissa Mallett into the woods and, while in that state, went to his bedroom to collect a knife, scissors, handcuffs and handkerchief. He testified in chief that the number of stab wounds was indicative of a "psychotic rage".

[17] The Crown called Dr. McDonald to give evidence at two stages. First, the Crown called Dr. McDonald to give evidence not on criminal responsibility, but to prove the elements of intention and planning and deliberation. Dr. McDonald was not qualified as an expert at this stage of the trial.

[18] The court held a voir dire to determine the voluntariness of these statements. The defence objected to the admissibility of the evidence on the grounds that the defence had agreed to the appellant submitting to a psychiatric assessment for s. 16 purposes only. There was no agreement that the assessment could be used to adduce evidence of the appellant's mens rea or actus reus, and the statements were therefore protected.

[19] After hearing from several witnesses on the voir dire, the trial judge held that the statements were voluntary. He found that the appellant knew where he was and why he was there since, as part of the admitting routine, patients receive written information from the admitting nurse about the lack of confidentiality and their right not to answer questions. In addition, Dr. Lynett, a psychologist at METFORS, testified during the voir dire that the appellant was informed at the May 11meeting that any utterances were not confidential and was cautioned that he did not have to answer any questions. According to the trial judge, there was no "subterfuge, trickery, deceit or other eliciting methods" to taint the admissibility of the statements.

[20] Dr. McDonald was the final witness in the Crown's case. He acknowledged that he had received a court order to assess the appellant with respect to his fitness to stand trial and criminal responsibility. On direct examination he described the statements made by the appellant with reference to his state of mind and his activities on the day of the killing as follows:

A. Then I asked him about Saturday, which is of course the date in question, and he described getting up in the morning approximately 9:30 or 10:00 o'clock. He remarked that he usually gets up later, around noon, and that he often stays up late at night until 2:00 or 3:00 in the morning. He remarked that it was a nice day, that he had breakfast, and I've got "et cetera," meaning he, presumably, gave some account of his usual morning routine of getting up, having breakfast and whatever else he did that was not particularly important, so I didn't write down all of that.

Q. Yes.

A. I asked him how he felt, and he said he was really depressed, and I asked him for how long, and he said, "for over a year," but he added that he felt less depressed that day.

Q. I understand then that you spoke with him about what steps he took prior to encountering Melissa?

A. Yes.

Q. Something about going back to a room? Is that what your notes would suggest?

A. Yes, he … He made a remark about what he was thinking and then described going back to his room and getting some things.

Q. Okay, and what did he describe getting?

A. He indicated that he went back to his room and got a big pair of scissors, handcuffs, a hankie, and a jackknife.

Q. I understand he then related some conversation to you about what he said to Melissa with respect to the handcuffs?

A. Yes, he indicated that he had asked her, "Do you want to try these on?" meaning these handcuffs, and that she refused.

A. Yes, he remarked that - and this is not in direct quotes, but it's pretty close to his exact words - "She tried to go past me to go back home." He put his handcuffs in the back - sorry, in his pocket and took out the hankie. "She yelled, so I covered her mouth, picked her up and carried her into the woods," and then he put her on the ground.

Q. Yes.

A. Put her head face down on the ground and hit her three times with a closed fist. Should I continue on?

Q. Yes.

A. At that point I asked him why he was doing this and he said he just wanted to keep her quiet, and he added something to the effect that it worked. I asked him how he felt, and he indicated that he felt a combination of scared, depressed and angry. I asked him about anger about what and he said, "at the girls who turned me down." The girl then, apparently, by his report, said, "I'll do anything you tell me to do," and asked, "What are you going to do with me?"

Q. Is that in quotes?

A. Yes. And then I have, "and I said," and this is what he said about that: "I might kill you," and wrote down further, "and she said, 'no.' I then asked him …

Q. All right.

A. Should I pause at that point?

Q. Did you then ask him what he did next with respect to the events?

A. He indicated that he started to stab her.

Q. Yes.

A. And that he first stabbed her in the stomach. He remarked that he cut his own hand two times and proceeded to describe the stabbing.

Q. All right, what did he say?

A. He said, "I stabbed her legs, arms, neck, head and back, stomach, chest - everywhere, I guess." I asked him again, "How you were feeling? And he said, "mostly anger" and then added, "I'm not feeling?" and he said, "mostly anger" and then added, "I'm not sure." He then remarked, "I just kept stabbing her." I asked him when or why he stopped, and he said, "It was enough, lots of blood," and then I put in quotation marks, "and then I called her a human scum." I asked him how he felt at that point, and his response was something that amounted to, he felt relief. Then he left her and said he heard her stopped crying again. I wasn't sure whether he meant heard her start crying again or stopped crying again, although I believe his words were "stopped crying again," and then he remarked that he got rid of the knife.

Q. All right, after getting rid of the knife?

A. He indicated that he sneaked out of the woods in order not to be seen. I asked her - sorry, I asked him if her mother had appeared what he might have done, and his answer was he might have stabbed her, too. He indicated he went to his home to his backyard and hid behind a wood pile. I asked him something about the body and whether or not he tried to hide it or anything, and he said he never considered burying or hiding the body, and I asked him if he wanted someone to find it, and his response was, "Yes, I think so."

Q. All right, I then note that you asked him a question with respect to why then?

A. Yeah, I was asking him because, apparently, he'd had some fantasies of this sort for a while, why he did it then, and his answer was "opportunity."

Q. And you questioned him about motive?

A. Yes, I asked him about his motive, and I've got in quotation marks: "in essence, revenge," and further he, in direct quotes: "for mistreatments."

[21] The Crown called Dr. McDonald to the stand a second time as a reply witness after the defence had concluded its case that the appellant was not criminally responsible. At this stage, the Crown qualified Dr. McDonald as an expert in the fields of both forensic psychiatry and psychology. The crux of his reply testimony was his diagnosis of the appellant, whom he diagnosed as having a "schizo-typal personality disorder". He described this disorder as "an eccentric or atypical personal style that is not of psychotic proportions but is definitely odd".

[22] Dr. McDonald not only offered an opinion as to the appellant's mental condition, but also said that the appellant formed the necessary intent and was guilty of the crime. In his view, the appellant appreciated that his actions were morally wrong.

[23] In Dr. McDonald's opinion, although the appellant had a rich fantasy life, he had no problem distinguishing between fantasy and reality and he did not have any psychotic episodes. In response to questions from the Crown in reply, he said:

Q. Well, you have notes. With respect to the day in question, on June 22nd, 1991, and with respect to these superhero figures. What did he say?

A. He really didn't say anything about those, except when they were specifically asked for, that is, if you would ask him, you know, his concerns about superheroes being around him and that sort of thing, he would respond, and he had a fantasy life involving these (people keep calling them superheroes) fantasy figures that provided him with some way of occupying his lonely mind because he didn't have much in the way of a social life, and he didn't have really anything in the way of friends. And he occupied much of his time in fantasy. He never had any difficulty when asked if he knew that this was fantasy and that it wasn't real and that these ideas provided him with some kind of positive feeling, but he never suggested that he was, like, under some kind of control or that he was forced by whatever reason to obey directions from an extraneous source, whether it be the superheroes or any other source. He didn't seem to have any trouble with that. And in the account he gave of what did happen, he described in a fairly matter-of-fact way what he'd been thinking of doing, how he thought he would do it, how he prepared to do it, and what he did; and, further, that after the fact, he went through some fairly reasonable and perhaps not the best thought out ways of trying to eliminate the kinds of evidence that could be used to get him into trouble with the law.

[24] Dr. McDonald also gave his opinion as to the appellant's motivation.

Q In your review of the materials and the interviews that you've had with him, were you able to discern an apparent motivation for this killing?

A. Yes, it was abundantly obvious.

Q And what's your opinion in that regard?

A. He had an extremely intense anger toward females for rejecting him when he would express an interest in them. This caused him intense anger that became greater and greater and greater until he began to feel that he had to seek revenge, and he did.

ANALYSIS

[25] The relevant statutory provision is s. 672.21 of the Criminal Code, R.S.C. 1985,

c.C-46, enacted on February 4, 1992:

672.21 (1) In this section, "protected statement" means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person's direction.

(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.

(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of

(a) determining whether the accused is unfit to stand trial;

(b) making a disposition or placement decision respecting the accused;

(c) finding whether the accused is a dangerous mentally disordered accused under section 672.65;

(d) determining whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child;

(e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict;

(f) challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously; or

(g) establishing the perjury of an accused that is charged with perjury in respect of a statement made in any proceeding.

[26] In fairness to the trial judge, neither party raised the applicability of s. 672.21 at the trial, where the argument over admissibility centred on the scope of the appellant's consent. On appeal, however, the Crown agreed that the provision applied, but argued that the appellant's statements to Dr. McDonald were not "protected" within the meaning of s. 672.21 since the appellant participated in the assessment not under the compulsion of a court order, but on consent. The Crown also noted that the trial judge found that the appellant did not specifically limit his consent so as to preclude substantive use by the Crown of statements made during the assessment. This consent was therefore not limited solely to an assessment for fitness and competency under s. 16.

[27] The Crown unabashedly asserted that its intention was to use the appellant's statements to Dr. McDonald as proof of both the actus reus and mens rea. The Crown argues that the only reason a court order was obtained on April 29, 1993 from Lajoie J. was to facilitate the intention of the parties to have the assessment undertaken at METFORS.

[28] The following portion of the trial judge's ruling on the voir dire is relied upon by the Crown in support of this submission:

The facts and surrounding circumstances suggest that the accused had every benefit of advice, that he went into the assessment voluntarily, aware of the purpose and the risks, and that he was in fact cautioned by Dr. McDonald, Dr. Lynett, and probably others. There is nothing from the circumstances that would suggest the accused had any basis for thinking his utterances were not statements that could not be used to put him in jeopardy, whether with respect to his proposed section 16 defence or the elements of the offence itself. Certainly the Crown could presume that the accused understood his rights because of the process which lead the accused to METFORS.

[29] The leading case dealing with the protected statements under s. 672.21 is R. v. G. (B) (1999), 1999 690 (SCC), 135 C.C.C. (3d) 303, a decision of the Supreme Court of Canada. Bastarache J. explained the purpose of s. 672.21 of the Criminal Code at pp. 320-22 as follows:

The object of this provision is to provide a guarantee of confidentiality to accused persons in order to facilitate the assessment of their mental capacity. …

In a speech in the House of Commons on October 4, 1991 (during second reading of the bill), the then Minister of Justice, the Honourable Kim Campbell, identified the interests the legislation was seeking to reconcile. She said:

At present there is a risk that incriminating statements made to a doctor during a court-ordered psychiatric assessment may be used as evidence against the accused. As a result, many defence counsels advise their clients to refuse to answer questions during such assessment. This deprives the doctor of a very important source of information about the accused and undermines the effectiveness of the court order.

At the same time, concern has been expressed by prosecutors that completely prohibiting the use of this evidence would deprive the court of important information needed to learn the truth about the accused and the offence. (House of Commons Debates, vol. III, 3rd sess., 34th Parl., at p. 3296.)

Parliament thus sought a balance between the need to learn the truth and the protection of accused persons ordered to undergo an assessment of their mental capacity.

This balance would be difficult to achieve if the rules of evidence which provide for the exclusion of otherwise inadmissible evidence were set aside. If the exception does in fact allow previously excluded evidence to be reintroduced indirectly, accused persons will refuse to answer some of their psychiatrist's questions for fear this evidence may be reintroduced at trial. …

[30] Both parties accepted that the purpose of the assessment was to determine the appellant's fitness to stand trial and to assess his possible exemption from criminal responsibility under s. 16. This means that the protected statements were admissible in court for the sole purpose of assessing fitness and/or criminal responsibility unless they fell under an exception listed in s. 672.21(3) or unless the appellant consented.

[31] I agree with the submission of counsel for the appellant that the appellant's consent was limited to the determination of his fitness to stand trial and criminal responsibility. He did not consent to, nor was he sent to METFORS for the purpose of obtaining evidence to be used against him. Even Dr. McDonald acknowledged on the voir dire that he was unaware he would be called to relate the appellant's statements for the purpose of establishing culpability. The purpose of the assessment was a psychiatric evaluation, not the garnering of evidence. None of the exceptions set out in s. 672.21(3) contemplates the admission of such statements for the proof of either the actus reus or mens rea.

[32] The letter from the Crown dated January 8, 1993, the responding letter from counsel for the appellant dated April 29, 1993, and the order of Lajoie J. reflect, when read together, an understanding between the parties that the assessment was solely for the purpose of an evaluation of the appellant's fitness to stand trial and criminal responsibility under s. 16 of the Criminal Code. The purpose of the order and the assessment was clear - and clearly understood at the time. Implicit in the order of Lajoie J. was an understanding that any statements made in the course of the assessment would not be disclosed without the consent of the appellant. The statements made by the appellant to Dr. McDonald during the assessment were, therefore, inadmissible.

[33] In my view, the Crown's use of Dr. McDonald's evidence violates the demonstrable intention of the legislature to protect the integrity of the process of assessing the mental capacity of accused persons. This process is designed to maximize the possibility of an accurate assessment of an accused's state of mind at the relevant time. This, as the legislature recognized through the promulgation of s. 672.21, requires full and frank disclosure from the accused, a requirement best achieved through confidentiality.

[34] In the case before us, the statements were gathered without the appellant's consent that they be used as evidence against him. They fall under no exception that would authorize their use to prove the elements of the offence. The Crown therefore used the statements without the consent of the appellant to prove planning and deliberation, a use expressly prohibited by the Code. Accordingly, their use rendered the trial unfair and unduly prejudiced the appellant.

[35] The Crown submitted that if the statements were wrongly admitted, the curative proviso in s. 686(l)(b)(iii) should be applied. According to the Crown, no substantial wrong or miscarriage of justice occurred since there was other evidence of planning and deliberation and the charge to the jury was sufficiently advantageous to the defence.

[36] There was no question in this case about whether the appellant killed Melissa Mallett. The only issue at trial was whether he was able to form the necessary intention and whether he knew that his actions were morally wrong. In my view, Dr. McDonald's evidence was central to the Crown's case in proving first degree murder. The profoundly prejudicial impact of its improper admission renders the use of the proviso inappropriate. It cannot be said that, had Dr. McDonald's evidence been excluded, the verdict would necessarily have been the same. The Crown itself in the closing address to the jury, characterized Dr. McDonald's evidence in chief as being "probably the most significant piece of evidence that you'll hear in this trial. It's evidence of planning and deliberation. It's evidence of ability to form the intent to kill, and it’s evidence which clearly points to first degree murder."

[37] In view of this conclusion, it is not necessary to deal with the appellant's argument that the Crown inappropriately split its case when it called Dr. McDonald in reply. This argument was not pursued in oral argument, and counsel for the appellant acknowledged that he was facing the formidable jurisprudential hurdle posed by the Supreme Court of Canada's decision in R. v. Chaulk (1990), 1990 34 (SCC), 62 C.C.C. (3d) 193.

[38] The appeal is allowed, the conviction set aside, and a new trial ordered.

RELEASED: DECEMBER 11, 2000 "R.S. ABELLA J.A.

"I AGREE D. O'CONNOR J.A."

"I AGREE J.C. MacPHERSON J.A."