Rosalie S. Abella

The appellant appealed a first degree murder conviction arising from the killing of a child, where the central trial issue was his mental state and potential exemption from criminal responsibility.

The Court of Appeal held that statements made by the appellant to a psychiatrist during a court-ordered psychiatric assessment for fitness and criminal responsibility were protected under s. 672.21 of the Criminal Code and were inadmissible to prove actus reus or mens rea.

The court found the appellant's consent was limited to assessment for fitness and criminal responsibility and did not authorize substantive use of the statements to prove planning and deliberation.

Because the psychiatrist's evidence was central to the Crown's case on first degree murder, the curative proviso could not be applied.

The conviction was set aside and a new trial ordered.

The appellant appealed a jury conviction for second degree murder arising from a spousal shooting in a case where intent was the sole issue and the Crown’s case was entirely circumstantial.

The majority held that the trial judge erred by providing the deliberating jury with only the Crown’s closing address after the jury requested it, without also providing the defence closing address.

The court found that closing addresses are persuasive advocacy, and fairness required balanced access where the case turned on competing inferences rather than direct evidence.

The majority concluded the imbalance created serious prejudice and that the curative proviso could not be applied.

A dissent would have dismissed the appeal, finding no miscarriage of justice.