Supreme Court of Canada

Nagotcha v. R., [1980] 1 S.C.R. 714

Date: 1980-03-03

Joseph Nagotcha (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1980: February 7; 1980: March 3.

Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Murder—Evidence—Admissibility of statements—Inculpatory statements made by paranoid schizophrenic—Accused fit to stand trial after treatment—Defence of insanity not raised.

Appellant was convicted of non-capital murder. The conviction was affirmed by the Ontario Court of Appeal without reasons. On appeal to the Supreme Court of Canada the sole issue was whether the trial judge had erred in law in admitting in evidence, after a voir dire, certain inculpatory statements made by the accused on the day of his arrest, and a few months later when he was being taken on remand to a mental health centre. Appellant did not give evidence on the voir dire or before the jury. On the voir dire the sole defence evidence was from a psychiatrist who diagnosed the appellant as a paranoid schizophrenic. The accused was later regarded as fit to stand trial.

Held: The appeal should be dismissed.

It is not an invariable rule that inculpatory statements by an insane man are ipso facto inadmissible. There was here evidence upon which the trial judge could act in holding the statements in question admissible. Guidance as to the proper test of voluntariness to be applied in such cases by the trial judge is to be found in both Ward v. The Queen, 1979 14 (SCC), [1979] 2 S.C.R. 30, and R. v. Santinon (1973), 1973 1532 (BC CA), 11 C.C.C. (2d) 121, the underlying and controlling question being “is the statement freely and voluntarily made”. A trial judge is not bound by a fixed formula when he considers whether to admit inculpatory statements of an accused who is allegedly insane, so long as he addresses himself to the proper considerations, as was done in this case.

Sinclair v. The King (1946), 73 C.L.R. 316; R. v. Basto (1954), 91 C.L.R. 628; R. v. Santinon (1973), 11

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C.C.C. (2d) 121; Ward v. The Queen, 1979 14 (SCC), [1979] 2 S.C.R. 30; Boudreau v. The King, 1949 26 (SCC), [1949] S.C.R. 262, applied.

APPEAL from a judgment of the Court of Appeal for Ontario dismissing without recorded reasons an appeal from a conviction of non-capital murder. Appeal dismissed.

John Hornak, for the appellant.

S. Casey Hill, for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The accused was convicted of non-capital murder after trial before O’Driscoll J. and a jury. The conviction was affirmed by the Ontario Court of Appeal which found it unnecessary to deliver any reasons. On appeal to this Court, by its leave, the sole issue was whether the trial Judge had erred in law in admitting in evidence, after a voir dire, certain inculpatory statements made by the accused on the day of his arrest and a few months later when he was being taken to the mental health centre at Penetanguishene after being remanded there on the order of a Provincial Court Judge.

The accused did not give evidence on the voir dire or before the jury. The sole defence evidence on the voir dire was given by Dr. R.L. Fleming, a psychiatrist at the mental health centre, who diagnosed the accused as a paranoid schizophrenic. Although he testified that the accused was not fit to stand trial when he saw him at Penetanguishene on December 16, 1975, the accused’s condition improved with treatment, and no issue was raised as to his fitness for trial when it began on April 27, 1976. Insanity was not raised as a defence.

It was the contention of counsel for the accused that the trial Judge had applied the wrong test in law in holding that the inculpatory statements were admissible in evidence. This was his principal ground of appeal although he also urged that the evidence on the voir dire was too “meagre” to

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warrant a ruling of admissibility. He also suggested as well that this Court should hold that no inculpatory statement by an insane person should be admitted in evidence, even if there was no promise of benefit or inducement or threat by a person in authority, but later abandoned this position.

It is clear that there was evidence upon which the trial Judge could act in holding that the inculpatory statements were admissible, and it would be going too far to hold, as an invariable rule, that inculpatory statements by an insane man were ipso facto inadmissible: see Sinclair v. The King[^1], R. v. Basto[^2]. The main contention that the trial Judge had applied the wrong test of voluntariness, in respect of statements by a paranoid schizophrenic was based on an alleged distinction between the test expressed in R. v. Santinon[^3], a judgment of the British Columbia Court of Appeal and the test expressed by this Court in the judgment delivered by Spence J. in Ward v. The Queen[^4]. O’Driscoll J. was said to have adopted the Santinon test, and it was submitted that the Ward case, which had not yet been decided at the time that the accused was tried, prescribed a different test, one more favourable to the accused. This is not the way that I read the two cases. In Santinon, Bull J.A., as he then was, said at p. 124 of 11 C.C.C. (2d):

The first proposition of the appellant on the first ground of appeal is that he was insane, and shown so to be on the voire dire, within the meaning of the definition in Criminal Code, section 16(2), in that he was incapable of appreciating the nature and quality of his acts, and while in that condition, any statement made by him could not be a free and voluntary one. The appellant’s counsel bluntly put his primary proposition on the basis that any statement made by an insane man, whether to persons in authority or not, can never be admissible as being free and voluntary because of the lack of capacity. He was unable to refer us to any Canadian, English or Commonwealth authorities for such a proposition, and I am aware of none. In my view, the question of admissi-

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bility of a statement of an accused depends on it being established that it was free and voluntary in the limited sense above, of not having been induced or obtained either by fear of prejudice or hope of advantage exercised or held out by a person in authority. That rule must, I think, be qualified to the extent that, having regard to the infinite degrees of insanity, if such incapacity is shown that the accused, for example, is so devoid of rationality and understanding, or so replete with psychotic delusions, that his uttered words could not fairly be said to be his statement at all, then it should not be held admissible. There may well be other similar situations. But I do not think it necessary to consider them because in this case it is clear that, whatever his mental condition, the appellant was well aware of what he was doing and saying to the police officers at the time of his interviews. The reliability of an admissible statement of an insane or mentally ill person is another matter which involves weight that is to be given to it by a jury, which is not concerned with the question of admissibility. I recognize that in many cases there would be no probative value whatsoever to the confession of an insane person. In result, I see no validity in the broad and all encompassing proposition that an insane man cannot make an admissible statement or confession, or put in converse form, that a confession of an insane man must not be admitted into evidence simply because of his insanity, even if it be voluntary within the proper meaning of that term as I have described. An insane person is not normally incapacitated because of insanity per se from giving sworn evidence as a witness and I can see no reason why his voluntary statements should be rendered inadmissible because of the same condition. Whether they should be believed is another matter entirely.

In the Ward case, Spence J. referred to the reasons of Rand J. in Boudreau v. The King[^5] at pp. 269-270 and underlined the last sentence in the passage, which was as follows: “The underlying and controlling question then remains, is the statement freely and voluntarily made”. Spence J. then continued as follows (at p. 40 of [1979] 2 S.C.R.):

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I have underlined the last sentence in Rand J.’s statement to indicate that in my view the examination of whether there was any hope of advancement or fear of prejudice moving the accused to make the statements is simply an investigation of whether the statements were “freely and voluntarily made”. In my view, there is a further investigation of whether the statements were freely and voluntarily made even if no hope of advantage or fear of prejudice could be found in consideraion of the mental condition of the accused at the time he made the statements to determine whether or not the statements represented the operating mind of the accused. In my view, Manning J. engaged in a consideration of both the mental and physical condition of the accused, firstly, to determine whether a person in his condition would be subject to hope of advancement or fear of prejudice in making the statements, when perhaps a normal person would not, and, secondly, to determine whether, due to the mental and physical condition, the words could really be found to be the utterances of an operating mind. Manning J. had a reasonable doubt of both issues and, therefore, found the statements to be inadmissible. It is not denied that a reasonable doubt on the part of the trial judge upon the issue is sufficient to justify his refusal to admit the statements in evidence.

O’Driscoll J. in considering whether the inculpatory statements of the accused were admissible quoted the passage reproduced above from the judgment of Bull J.A. in Santinon and concluded as follows:

Although the accused, in this case, according to the evidence of Doctor Fleming, was in an acute state when he saw him on December 16th 1975, I do not find on this evidence that he was so devoid of rationality and understanding, or so replete with psychotic delusions that his uttered words could not fairly be said to be his statements at all. Having come to that conclusion, it is my finding that the statements attributed to the accused on the airplane trip on December the 11th, and in the police cruiser on the way to Penetanguishene should be admitted into evidence before the jury, and let the jury decide what reliability should be placed upon them, if any.

Merely because O’Driscoll J. did not use the words “operating mind”, found in the reasons of Spence J. in the Ward case is no ground for saying that he used a wrong test. A trial Judge is not bound by a fixed formula when he considers whether to admit inculpatory statements so long as he addresses

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himself to the proper considerations. This the trial Judge did in this case.

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Petrone, Hatherly & Associates, Thunder Bay.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.

[^1]: (1946), 73 C.L.R. 316.

[^2]: (1954), 91 C.L.R. 628.

[^3]: (1973), 1973 1532 (BC CA), 11 C.C.C. (2d) 121.

[^4]: 1979 14 (SCC), [1979] 2 S.C.R. 30.

[^5]: 1949 26 (SCC), [1949] S.C.R. 262.