Court of Appeal for Ontario

Date: December 6, 2019 Docket: C63594

Justices: Benotto, Brown and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Rene Goudreau Appellant

Counsel:

• Samantha Robinson, for the appellant
• Leslie Paine, for the respondent

Heard: October 28, 2019

On appeal from the conviction entered on January 28, 2016 by Justice Patrick Smith of the Superior Court of Justice, sitting with a jury.

Brown J.A.:

I. OVERVIEW

[1] On November 27, 2012, Lucie Goudreau died in a fire in the Ottawa apartment that she shared with her son, the appellant, Rene Goudreau. Ms. Goudreau suffered from multiple sclerosis, was confined to a wheelchair, and could not move between her bed to the wheelchair without assistance. The fire started in her bedroom. She was found charred in her bed.

[2] The appellant was charged with the first degree murder of his mother. The thrust of his defence at trial was that the fire had started by accident. Following a trial by judge and jury, on October 28, 2015 the jury returned a verdict that the appellant was guilty of first degree murder. The parties refer to this as the verdict rendered after the "first stage" of the trial.

[3] The "second stage" of the trial involved the jury's consideration of whether the appellant was not criminally responsible on account of a mental disorder ("NCR"). The trial adjourned for almost three months while the defence sought and obtained an order for a psychiatric assessment pursuant to Criminal Code s. 672.11: 2015 ONSC 6758. In the result, the same jury rejected the appellant's NCR defence. On January 28, 2016, the jury repeated its earlier verdict that the appellant was guilty of first degree murder.

[4] The appellant does not appeal any aspect of the first stage of the trial, including the jury's October 28, 2015 verdict. The appellant seeks to set aside the jury's rejection of his NCR defence at the second stage of the trial. The appellant contends the jury's verdict is tainted by a legally erroneous answer that the trial judge gave to a question posed by the jury. He asks this court to direct a new second stage trial to consider whether he is not criminally responsible by reason of a mental disorder for the killing of his mother.

[5] For the reasons set out below, I would allow the appeal, set aside the jury's verdict of January 28, 2016, and direct a new second stage trial on the issue of whether the appellant was not criminally responsible by reason of a mental disorder for causing the death of his mother.

II. THE EVENTS SURROUNDING THE FIRE

[6] Ms. Goudreau had lived in the ground-floor apartment for many years. Prior to his death in 2010, Ms. Goudreau's husband had cared for his wife as her illness progressed. Following her husband's death, Ms. Goudreau's son, the appellant, moved into the apartment. Ms. Goudreau depended upon him for her care, including being moved in and out of her bed.

[7] The appellant had a lengthy history of mental illness dating back to 2001. In 2008, he was found NCR in respect of an assault on his father and remained under the jurisdiction of the Ontario Review Board until his absolute discharge in June 2010. In March 2010, the appellant had moved in with his mother.

[8] At around 2:30 a.m. on November 27, 2012, the neighbour who lived in the apartment immediately above Ms. Goudreau's heard crackling and a woman's voice coming from outside his window. He looked out, saw the screen pop out of the Goudreau apartment's window, and an orange flash. (The screen turned out to be from the window of Ms. Goudreau's bedroom and was located above her bed.) The neighbour called 911.

[9] When the fire crews arrived at the scene, they found the door to Ms. Goudreau's apartment locked. They pried it open, but then had to force the door open because a lounge chair was blocking the door. They found Ms. Goudreau lying in her bed, dead, and badly charred.

[10] It was determined that the fire had started in Ms. Goudreau's bedroom. At the time, there was no battery in the apartment's smoke detector, although it had been tested and found operative earlier in the year. A search of the apartment found little in the way of contents and nearly empty kitchen cupboards.

[11] At the time of the fire, the appellant was observed in the vestibule outside the building's main lobby. He was standing near the windows, from which point he had a clear line of sight to the apartment and the activity of the first responders. Two boys who had come down in response to the fire alarm heard the appellant, mumbling to himself, saying "I need this money," "She doesn't understand me," and "I did it because I had to." The security camera in the lobby recorded the appellant drawing symbols, including a dollar sign, on the condensation of the lobby windows.

[12] The appellant was arrested later that morning. The police did not observe any injuries or burns on the appellant nor did he smell of smoke.

[13] After the appellant was charged with first degree murder, he was assessed and found unfit to stand trial. After a period of treatment, he was re-assessed and found fit to stand trial: 2015 ONSC 6758, at para. 9.

III. THE TRIAL

A. The First Stage: The Appellant's Liability for First Degree Murder

[14] At the first stage of the trial, the Crown led evidence about: Ms. Goudreau's medical condition; her living circumstances; her need for assistance; observations made by first responders and others about the fire; and evidence from the Fire Marshall and an expert about possible causes of the fire.

[15] The Crown also led evidence that between January 2011 and August 2012 the appellant took out four policies of insurance on his mother's life. The benefits payable in the event of Ms. Goudreau's accidental death amounted to $562,750. The appellant was named as the sole beneficiary of each policy.

[16] The defence elected not to call any evidence.

[17] On October 28, 2015, the jury returned a verdict of guilty of first degree murder.

B. The Second Stage: The Appellant's NCR Defence

[18] Before the jury was discharged, the appellant brought an application for an assessment of his mental condition pursuant to Criminal Code ss. 672.11(b) and 672.12(1): 2015 ONSC 6758, at para. 6. The defence asked the court to order an assessment, retain jurisdiction over the matter, excuse the jury until the assessment had been completed, and then hear evidence and charge the jury on the s. 16(1) defence: at para. 11. The trial judge granted the order; he was satisfied that there were reasonable grounds to believe that an assessment was necessary to determine whether the accused was, at the time of the commission of the offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of s. 16(1) of the Criminal Code: at para. 32.

[19] The appellant was assessed by Dr. Bradley Booth, a forensic psychiatrist.

[20] The trial resumed for its second stage on January 19, 2016. Dr. Booth was the only witness called by the defence. Dr. Booth opined that at the time of the offence the appellant was suffering from a mental disorder – bipolar disorder type 1 – and exhibited manic and psychotic symptoms. Dr. Booth was "quite confident" the appellant was not faking illness to avoid prosecution. However, Dr. Booth was unable "to answer definitely whether or not [the appellant] knew the nature and quality of his actions in killing his mother, or regarding the wrongfulness." Instead, he provided the jury with lists of "on the one hand" and "on the other hand" factors that they should consider when determining whether the appellant was NCR.

[21] The Crown called witnesses to illustrate the appellant's capacity for organized thinking and planning in the period before the fire: the appellant had passed a road test for his driver's licence in April 2012; he renewed his health card in October 2012; and he had unremarkable interactions with his mother's dentist when he took her in for appointments in July, September and October 2012.

[22] During the course of pre-charge discussions, the parties agreed that the jury could refer to all the exhibits marked in the first stage of the trial.

C. The Jury Questions and the Trial Judge's Answers

[23] About two hours after the completion of the charge, the jury asked two questions:

(i) "What is the difference between 'unfit for trial' versus 'not criminally responsible'? i.e. does unfit imply not responsible?" and

(ii) "If found NCR, is the accused eligible for insurance payout?"

[24] Counsel and the trial judge agreed that the answer to the first question should have two parts. The trial judge provided the jury with the following answer:

What is the difference between "unfit for trial" and "not criminally responsible"? They are not the same; they are two separate things.

The second part of the question: does unfit imply not responsible? And you may want to write this down: Unfitness does not necessarily imply not criminally responsible. I will say that again: Unfitness does not necessarily imply not criminally responsible.

[25] The parties took quite different positions about the appropriate answer to the second question.

[26] Defence counsel maintained that the jury should be told that if the appellant was found not criminally responsible, he was "absolutely not" eligible for an insurance payout: "[H]e's been convicted of the act. There is no basis for redemption." Defence counsel expressed the concern that the jury was "sitting back there, you know, not going to NCR him because they think he's going to get the money." He noted that the polices were in evidence, so the jury could look at them as they "probably state that any illegal acts would void the policies, just like impaired driving."

[27] Crown counsel initially took the position that the jury should be told that it was not a matter which concerned them. On further reflection, Crown counsel thought the jury's question might be relevant to intention: "[T]hey could be wondering: Did he know, when he got these policies out, that if he was found NCR, would he get the money anyway?"

[28] At that point in the discussion, the trial judge suggested that he could tell the jury that: the question was beyond the scope of what they should be deliberating on; the insurance policies contained all the contractual provisions; and the policies were in evidence.

[29] However, defence counsel maintained his initial position: "My answer is no, that the terms of the policy void coverage. [...] That's all." Crown counsel suggested that the question might not be beyond the scope of the NCR decision in terms of the appellant's planning: "[W]hen he was planning this, did he understand that he would get the payout if he was NCR, then it is relevant to their determination on NCR."

[30] The trial judge expressed the view that "[t]he question of eligibility is beyond the scope of their deliberations. They shouldn't even be considering that."

[31] Crown counsel demurred, taking the position that this was a matter contained in the policies of insurance. Defence counsel maintained his initial position. The trial judge concluded the discussions by stating:

Well, I think that [the Crown's position is] a safer bet, otherwise I'm making assumptions that may not be true or read anything into it that may not be true or giving them more. They'll go back to the insurance polices if they want to, and clearly the policies are going to say what they say. We all know that we can't kill somebody and collect the proceeds of insurance, but I'm not going to say that.

[32] The trial judge provided the jury with the following answer to its second question:

The policies of insurance that were taken out by [the appellant] were filed as exhibits in the trial. You have those with you. The policies of insurance contain the contractual terms for payout between [the appellant] and the insurance companies, and that is the only way that I can fairly answer that question.

IV. THE ISSUE FRAMED

[33] The appellant submits that the trial judge's answer to the jury's second question was legally flawed as it permitted the jury to take into account an irrelevant consideration in its decision concerning his NCR defence – namely, whether he would be enriched financially if found NCR in respect of the killing of his mother. The appellant argues that any insurance payout was a collateral consequence of an NCR verdict that had no bearing on the jury's deliberations and, as a result, should have garnered the strongest possible caution from the trial judge regarding the misuse of such information. By pointing the jury towards the insurance policies, the trial judge potentially encouraged them to focus on this irrelevant consideration.

[34] The Crown disagrees. Although it concedes that the jury's question might suggest that it was improperly considering the financial consequences of an NCR verdict, "the far more likely reason" for the question was its consideration of "whether the appellant was malingering or feigning being NCR at the time he murdered his mother." The question posed was relevant to that issue, as well as to the appellant's state of mind at the time of the offence because it concerned whether he was acting on a plan that had been months in the making.

[35] The Crown further submits that by directing the jury to the contractual terms of the insurance policies, the trial judge's answer was simple, correct, and responsive. It provided the jury with the information necessary to conclude that the appellant would not receive any payout under the policies because his mother did not die by accidental means. By pointing the jury to the insurance policies and the information contained in them, the trial judge's answer foreclosed any danger that the jury would reject the NCR defence in order to prevent the appellant from profiting from the murder of his mother.

V. GOVERNING PRINCIPLES

[36] A summary of the general principles regarding answers to jury questions can be found in R. v. Grandine, 2017 ONCA 718, 355 C.C.C. (3d) 120, at para. 62:

Jury questions indicate some jurors need help. They are having a problem with an issue in the case. A question usually concerns an important point in the jury's reasoning, identifying an issue on which the jury requires direction: R. v. W.D.S., [1994] 3 S.C.R. 521, at paras. 14-18; R. v. M.T., 2012 ONCA 511, 289 C.C.C. (3d) 115, at para. 114. Answers to jury questions are extremely important, carrying an influence far exceeding instructions given in the main charge. The practical reality is that such answers will be given special emphasis by jurors: R. v. Naglik, [1993] 3 S.C.R. 122, at p. 139; W.D.S., at para. 16. Consequently, a trial judge must fully and properly answer a question asked by the jury: R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 95. [Emphasis added.]

[37] A trial judge must answer a jury's question in a complete and reasonably detailed manner: R. v. Desveaux, 26 C.C.C. (3d) 88 (Ont. C.A.), at p. 93. In an appropriate case, an answer might need to include a limiting instruction about the use the jury can make of the answer: see e.g., R. v. Poirier, 146 C.C.C. (3d) 436 (Ont. C.A.), at para. 23.

[38] However, where the question seeks information that is irrelevant to the issues for determination, the jury should be told so and the trial judge should decline to provide a substantive answer to the question: R. v. Alkhouri, 135 O.A.C. 113 (C.A.), at para. 8; R. v. Miljevic, 2010 ABCA 115, 482 A.R. 115, at paras. 4-5, aff'd 2011 SCC 8, [2011] 1 S.C.R. 203.

VI. THE PRINCIPLES APPLIED

A. Did the Jury's Second Question Seek Irrelevant Information?

[39] On its face, the jury's second question sought information that was not relevant to the issue it was tasked to decide: Did the appellant's mental condition at the time he committed the offence fall within the criteria of Criminal Code s. 16(1)? The question clearly indicated that the jury was mulling over the financial consequences to the appellant of an NCR verdict: "If found NCR, is the accused eligible for insurance payout?" (emphasis added). Yet, the financial consequences of an NCR verdict were not relevant to the jury's consideration of the issue before them. In his charge, the trial judge had expressly instructed the jury not to consider the consequences of its verdict.

[40] The Crown agrees that it would be improper for the jury to take into account the consequences of an NCR verdict as part of its deliberations. However, the Crown contends that the question could be interpreted as relating to the issue of the appellant's criminal responsibility in two ways.

[41] First, the Crown submits that the question sought information relevant to the appellant's mental state at the time of the fire as it concerned whether he was acting on a plan that had been many months in the making. Certainly, Dr. Booth had testified that the existence of a rational motive for the appellant's behaviour, such as a plan to obtain a financial benefit, was a factor that the trier of fact should take into account in determining whether or not the appellant was NCR at the time of the fire. On the issue of planning, Dr. Booth wrote in his report that:

The evidence supporting that [the appellant] appreciated the nature and quality of his actions and that he knew the wrongfulness of his actions includes:

a) [The appellant] appears to have planned to do harm to his mother in advance, based on buying multiple insurance policies and clarifying specifics of the policy around accidental death when he was well.

c) [The appellant] spoke immediately after the offence of getting a monetary benefit from his mother's death.

[42] As well, in his closing Crown counsel had submitted that the appellant's acquisition of the insurance policies was part of a plan to kill his mother, which he knew was wrong.

[43] However, I am not persuaded by the Crown's submission on this point. While the appellant's purchase of four insurance policies in the 22 months before his mother's death could be relevant to his mental condition at the time of the fire as evidence of his execution of a thought-out plan, that was not the question the jury asked. The jury did not ask whether there was any evidence that, at the time of the offence, the appellant believed he would obtain a payout under the policies even if he was found NCR. Instead, the jury's question plainly focused on the consequences of an NCR verdict: would the appellant receive a financial payout if the jury rendered an NCR verdict? That consequence was irrelevant to the issue of the appellant's mental condition at the time of the offence and therefore inappropriate for the jury to consider.

[44] The second way in which the Crown contends the question could relate to the issue of the appellant's criminal responsibility concerns the issue of whether the appellant was malingering or feigning the NCR defence.

[45] I am not persuaded that this is a plausible interpretation of the question. Whether the appellant was faking a mental disorder was an issue on which the jury heard evidence. Dr. Booth opined that it appeared unlikely that the appellant purchased the insurance with evil intent and was now faking illness to avoid prosecution. However, in closing submissions the Crown did not attempt to make a link between the purchase of the insurance policies and the issue of whether the appellant was feigning an NCR defence.

[46] The jury's question was clear and unambiguous. It sought information about the consequences of an NCR verdict. Such information was irrelevant to its task, and the trial judge had charged the jurors earlier in the day not to consider the consequences of their verdict. The answer to the question should have repeated that earlier instruction. By failing to do so, the trial judge fell into legal error.

[47] Although not strictly necessary given that conclusion, for the sake of completeness I shall comment briefly on an alternative submission advanced by the Crown regarding the jury's question. The Crown contends that even if the question signalled the jury was considering an improper collateral consequence, the answer provided the jury with correct information: namely, that once the jury read the policies, it would discover that since Ms. Goudreau did not die by accidental means, there would be no payout to the appellant under the policies. According to the Crown, by directing the jury to that information, the answer foreclosed any danger that it would reject the NCR defence in order to prevent the appellant from profiting from the killing of his mother.

[48] As I have found, the trial judge erred by failing to instruct the jury that it could not consider the financial consequences of its verdict. However, were an answer to the question relevant in other circumstances, the answer given was substantively misleading, incomplete, and incorrect. A proper answer would have been far more extensive. It would have to: (i) instruct the jury on the legal principles concerning the interpretation of both the coverage and exclusion clauses of life insurance policies, including the principles concerning accidental benefit clauses set out in Co-operators Life Insurance Co. v. Gibbens, 2009 SCC 59, [2009] 3 S.C.R. 605, at paras. 17 and 51; (ii) deal with the effect of the applicable contractual and statutory limitations periods; (iii) inform the jury that although, as recognized in Oldfield v. Transamerica Life Insurance Co. of Canada, 2002 SCC 22, [2002] 1 S.C.R. 742, at para. 11, Canadian insurance law contains a rule of public policy that a criminal should not be permitted to profit from crime, this court held in Dhingra v. Dhingra that public policy does not prevent a person found NCR from taking under an insurance policy as such a person is not morally responsible for his act: 2012 ONCA 261, 109 O.R. (3d) 641, at paras. 22 and 24; and yet, (iv) it remains open to the Attorney General to bring an application under the Civil Remedies Act, 2001, S.O. 2001, c. 28, for forfeiture of the insurance benefits as proceeds of unlawful activity: Dhingra, at para. 35; Atty.-Gen. (Ont.) v. $51,000 CDN. (In Rem), 2013 ONSC 1321, at para. 33.

B. Conclusion

[49] The plain wording of the jury's question created a significant risk that the jury might use the answer in an irrelevant, improper, and therefore highly prejudicial way, by looking at the financial consequences of an NCR verdict as part of its consideration of the appellant's mental condition at the time of the fire. The answer given to the second question failed to guard against that significant risk and, potentially, exacerbated that risk. Consequently, in answering the jury's second question, the trial judge committed legal error.

VII. THE AVAILABILITY OF THE CURATIVE PROVISO

[50] The Crown submits that in the event this court concludes that the answer to the jury's question is tainted by legal error, the curative proviso in Criminal Code s. 686(1)(b)(iii) should be applied. It submits that any error was a harmless one and that the verdict would necessarily have been the same had such an error not occurred: R. v. Bevan, [1993] 2 S.C.R. 599, at p. 616.

A. Was the Error a Harmless One?

[51] The Crown contends that the error was a harmless one because in the charge the jury had been instructed not to consider collateral consequences, not to speculate, and to base its conclusions only on evidence before them. These instructions would have prevented the jury from going down an inappropriate and speculative path.

[52] I am not persuaded by this submission.

[53] The law recognizes that a question from the jury often suggests that the jurors have forgotten the original instructions or remain confused on an issue. As a practical reality, they will look to the answer given to the question in their subsequent discussions. That "is why the recharge must be correct and why a faultless original charge cannot as a rule rectify a significant mistake made on the recharge": R. v. S. (W.D.), [1994] 3 S.C.R. 521, at p. 531; see also R. v. Williams, 2019 ONCA 846, at para. 39.

[54] It is true that, in the charge, the trial judge instructed the jury that "[i]n deciding whether [the appellant] is not criminally responsible on account of mental disorder, you must not consider the consequences of your verdict." However, that part of the charge made no mention of the issue of the appellant's eligibility for insurance proceeds. Moreover, the answer actually given to the question implied, incorrectly, that the jury could take the financial consequences of its verdict into account. Accordingly, the general instructions were not an adequate substitute for clear instructions that the jury could not take into account in its deliberations the financial consequences to the appellant of an NCR verdict.

B. The Effect of the Error on the Verdict

[55] Nor am I persuaded that the verdict would necessarily have been the same had the error not occurred.

[56] Although the Crown submits that the jury's finding of planning and deliberation in its first-stage verdict was based on powerful evidence, it acknowledges that additional evidence about the appellant's mental condition at the time of the fire was led during the second stage of the trial.

[57] As Dr. Booth noted in his report, "this is not a black-and-white case." At trial, the Crown did not dispute his evidence that at the time of the offence it was "highly likely that [the appellant] was suffering from a mental disorder, namely, bipolar disorder type 1, severe, manic with psychotic symptoms." Dr. Booth gave evidence that the appellant was unlikely to be faking illness to avoid prosecution. Dr. Booth also testified that there was "very significant evidence that [the appellant] was extremely unwell at the time of the index offences." Although there was evidence that the appellant planned and thought about his actions prior to the fire, Dr. Booth testified that the appellant "never actually appeared to act on them until he was in a manic and psychotic state."

[58] Significantly, Dr. Booth was unable "to answer definitively whether or not [the appellant] knew the nature and quality of his actions in killing his mother, or regarding the wrongfulness." That is to say, Dr. Booth was unable to offer an opinion as to whether or not the appellant's mental condition met the criteria of Criminal Code s. 16(1). Instead, Dr. Booth outlined "the evidence on both sides which hopefully will be of assistance to the court," leaving "the weighing of these factors to the fact-finder." Amongst the evidence supporting a conclusion that [the appellant] did not appreciate the nature and quality of his actions and that he did not know the wrongfulness of his actions, Dr. Booth included the following:

a) [The appellant's] mental state was very disrupted by mental illness at the time of the offences, making planned and deliberate behaviour difficult.

b) [The appellant's] severely ill mental state at the time of the offences would make "rational" decision-making extremely difficult.

i) The presence of delusions would have distorted rational perception and thus interfered with rational decision making.

ii) The presence of auditory hallucinations would have also distorted rational perception and interfered with rational decision making.

iii) [The appellant] was very disorganized in his thinking and behaviour surrounding the time of the offences.

[59] It is true that the Crown led an extensive body of evidence in support of its submission that the appellant was criminally responsible for his killing of his mother: his purchase of the life insurance policies and his phone calls to insurers about the meaning of "accidental death"; his treatment of his mother; statements he made before and at the time of the fire; the locked apartment; the missing smoke detector battery; obtaining his driver's licence, renewing his health card, and dealing normally with his mother's dentist in the months before the fire. However, Dr. Booth noted that in the police station videos taken shortly after the fire, the appellant showed signs of mental illness, including disorganized behaviour, talking to himself, drawing symbols, and displaying an agitated state.

[60] Where the only expert psychiatric opinion in the record was not prepared to venture a view one way or the other on the central issue of whether the appellant's mental condition at the time of the offence satisfied the criteria of Criminal Code s. 16(1), I do not regard the case as an "overwhelming" one within the meaning of the proviso jurisprudence. By telling the jury to look for the answer to its question in the language of the insurance policies, the answer clearly suggested, incorrectly, that the jury could consider the financial consequences of its verdict to the appellant. That incorrect suggestion could well have tipped the scale in favour of the jury finding that the appellant had not established a defence under Criminal Code s. 16(1) on the balance of probabilities. There is a reasonable possibility that the verdict would have been different without the error: R. v. Charlebois, 2000 SCC 3, [2000] 2 S.C.R. 674, at paras. 10-11. Consequently, in the circumstances of this case, the proviso is not available to cure the legal error in the answer to the jury's second question.

VIII. DISPOSITION

[61] For the reasons set out above, I would allow the appeal and set aside the jury's verdict of January 28, 2016. When this court orders a new trial pursuant to s. 686(2) of the Criminal Code, it has the power under s. 686(8) to limit the new trial to a choice between a verdict of NCR and a verdict of guilty: R. v. Hartman, 2015 ONCA 498, 326 C.C.C. (3d) 263, at paras. 53-56. Pursuant to that power, I would direct a new second stage trial on the issue of whether the appellant was not criminally responsible by reason of a mental disorder for killing his mother.

Released: December 6, 2019

"David Brown J.A."

"I agree. M.L. Benotto J.A."

"I agree. David M. Paciocco J.A."