Supreme Court of Canada

Kjeldsen v. The Queen, [1981] 2 S.C.R. 617

Date: 1981-12-17

Christian Francis Plough Kjeldsen Appellant;

and

Her Majesty The Queen Respondent.

1981: March 17; 1981: December 17.

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

ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA

Criminal law—Insanity—Psychopathy—Disease of the mind—Meaning of “appreciating”—Adequacy of charge to jury—Criminal Code, R.S.C. 1970, c. C-34, ss. 16, 618(1)(a).

Appellant, whose only defence was insanity, was convicted of first degree murder at trial. Medical evidence revealed that he was a psychopath and understood the physical nature and consequences of his act, though indifferent to such consequences. The trial judge instructed the jury (1) that psychopathy could be a disease of the mind and (2) on the meaning of the word “appreciate” in s. 16 of the Criminal Code. On appeal, the Court dismissed the appeal but substituted a verdict of second degree murder because the trial judge failed to instruct the jury adequately on the difference between first and second degree murder. The principal issue to be determined was the definition of the word “appreciating” and the adequacy of the trial judge’s charge to the jury in that respect.

Held: The appeal should be dismissed.

A person appreciates the nature and quality of an act within the meaning of s. 16 if he knows what he is doing and is aware of the physical consequences which will result from his acts. The trial judge correctly instructed the jury that psychopathy could be a disease of the mind and on the meaning of “appreciating”; and, in view of the evidence of the medical witnesses, the instruction was adequate.

Cooper v. The Queen, 1979 CanLII 63 (SCC), [1980] 1 S.C.R. 1149; R. v. Barnier, 1980 CanLII 184 (SCC), [1980] 1 S.C.R. 1124; Schwartz v. The Queen, 1976 CanLII 165 (SCC), [1977] 1 S.C.R. 673, applied; R. v. Simpson (1977), 1977 CanLII 1142 (ON CA), 35 C.C.C. (2d) 337, referred to.

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APPEAL from a judgment of the Court of Appeal for Alberta[^1], dismissing an appeal from a judgment of Milvain C.J. but substituting a verdict of second degree murder for a conviction of first degree murder. Appeal dismissed.

J. Brimacombe, for the appellant.

Paul S. Chrumka, Q.C, for the respondent.

The judgment of the Court was delivered by

MCINTYRE J.—This appeal against a conviction for second degree murder involves consideration of the defence of insanity, particularly of the words in s. 16(2) of the Criminal Code, R.S.C. 1970, c. C-34, “incapable of appreciating the nature and quality of an act or omission”. The appellant was charged with first degree murder of a woman taxi-driver whom he had engaged to drive him from Calgary to Banff on February 23, 1977. His only defence was insanity, there being no question that he had killed the woman. He was convicted at trial. The Court of Appeal dismissed his appeal, but a verdict of guilty of second degree murder was substituted because of the failure of the trial judge to instruct the jury adequately on the difference between first and second degree murder. The appellant appeals to this Court under s. 618(1)(a) of the Criminal Code, relying on what is asserted to be a dissent on a point of law in the Court of Appeal, one of the judges being of the opinion that there was non-direction of the jury, amounting to misdirection, on certain medical evidence adduced by the appellant relating to his capacity, at the time of the killing, to appreciate the nature and quality of his act.

Prior to his encounter with his victim the appellant had been a patient at a mental hospital in Alberta. He was detained there at the pleasure of the Lieutenant Governor, having been found not guilty, by reason of insanity, upon charges involv-

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ing rape and attempted murder in 1972. On February 23, 1977 he was given a day pass which permitted him to leave the hospital. He flew to Calgary and at the airport engaged a taxi, driven by his victim, to take him into the City. En route he inquired about the fare for a trip from Calgary to Banff. Later in the day he made arrangements with the taxi dispatcher to have the same driver pick him up in Calgary and drive him to Banff. The résumé of events which occurred on the trip is based upon statements made by the appellant while in custody and confirmed by physical evidence found by the police and obtained through the autopsy.

When the taxi had reached the vicinity of the Village of Exshaw, some forty miles from Calgary, the appellant directed the driver to leave the main highway and to proceed to Exshaw. Shortly thereafter, when she had complied with this direction, he produced a knife and by threats compelled her to stop and to submit to sexual intercourse against her will. He then forced her from the car and brutally killed her by delivering several blows with a large rock to her head, shattering her skull. He trussed up her body with her hands behind her back and her legs drawn upwards and tied to her wrists, forced a wooden gag into her mouth, and left her body in the bushes where it was found some days later on March 1, 1977. Having so disposed of his victim, he drove off in the taxi, abandoned it a few miles away, and hitchhiked to Vancouver. Later, he crossed over to Victoria where he was arrested on March 3, 1977.

Section 16 of the Criminal Code of Canada, covering the defence of insanity, is reproduced hereunder:

16. (1) No person shall be convicted of an offence in respect of an act or omission on his part while he was insane.

(2) For the purposes of this section a person is insane when he is in a state of natural imbecility or has disease of the mind to an extent that renders him incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission is wrong.

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(3) A person who has specific delusions, but is in other respects sane, shall not be acquitted on the ground of insanity unless the delusions caused him to believe in the existence of a state of things that, if it existed, would have justified or excused his act or omission.

(4) Every one shall, until the contrary is proved, be presumed to be and to have been sane.

Argument in this Court centred upon one principal issue. It was not contended that the appellant lacked capacity to know that his acts were wrong, in the sense that they were contrary to law. Little argument was adduced on the question of whether or not the condition of psychopathy, which according to the medical evidence affected the appellant, was a disease of the mind within the meaning of s. 16 of the Code. The principal issue which was argued before the Court concerned the definition of the word ‘appreciating’ in s. 16 and the adequacy of the trial judge’s charge in that respect. It was contended that, by his direction relating to the definition of the word, he had withdrawn, in effect, the defence of insanity from the jury.

The medical witnesses, five psychiatrists, two called for the defence and three for the Crown, were all in agreement that the appellant was a dangerous psychopath with sexually deviant tendencies. Those called for the defence applied a wide definition of ‘appreciating’, which involved not only an ability to foresee the physical consequences of one’s acts but, as well, a capacity to foresee and understand the subjective or emotional reactions of those affected. They were of the opinion that a psychopath, such as the appellant, could not be said to have the capacity to appreciate the nature and quality of his acts. Those called for the Crown, applying a definition which was limited to a capacity to understand and foresee the physical consequences of conduct, were of the view that a psychopath, such as the appellant, would be fully capable of appreciating the nature and quality of his acts though indifferent to such consequences.

Two questions of significance present themselves in this case. Was the appellant at the time of the commission of the act which killed the victim suffering from a disease of the mind within the meaning of that expression in s. 16 of the Criminal

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Code and, if so, did the disease of the mind have the effect of depriving him of the capacity to appreciate the nature and quality of his acts at the time of his attack upon the deceased? Both of these questions have been the subject of recent consideration in this Court in Cooper v. The Queen[^2]. Dickson J., for the majority of the Court, dealt extensively with the concept of disease of the mind. It is unnecessary for me to refer in detail to his discussion of the matter. He reached the conclusion, at pp. 1159-60, that:

In summary, one might say that in a legal sense “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. In order to support a defence of insanity the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong.

and later:

Once the evidence is sufficient to indicate that an accused suffers from a condition which could in law constitute disease of the mind, the judge must leave it open to the jury to find, as a matter of fact, whether the accused had disease of the mind at the time the criminal act was committed. The more troublesome issue, where a defence of insanity has been pleaded, concerns the second criterion to be applied in determining criminal responsibility. As Martin J.A. pointed out in Rabey:

In many, if not most cases involving the defence of insanity, the question whether the accused suffered from a disease of the mind is not the critical issue; the pivotal issue is whether a condition which, admittedly, constitutes a disease of the mind rendered the accused incapable of appreciating the nature and quality of the act or knowing that it was wrong…

The real question in this case, in my view, is not whether the accused was suffering from a disease of the mind, but whether he was capable of appreciating the nature and quality of the act. The second question ought to have been left to the jury in clear terms.

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Dealing with the concept of ‘appreciating’ the nature and quality of actions, he noted that the word ‘appreciate’ in this context must, and does, mean more than ‘know’. At page 1162, he adopted the test which was proposed in the McRuer Report, in these terms:

The test proposed in the McRuer Report, which I would adopt, (save for deletion of the word “fully” in the fourth line) is this:

The true test necessarily is, was the accused person at the very time of the offence—not before or after, but at the moment of the offence—by reason of disease of the mind, unable fully to appreciate not only the nature of the act but the natural consequences that would flow from it? In other words was the accused person, by reason of disease of the mind, deprived of the mental capacity to foresee and measure the consequences of the act? …

This question was also dealt with in this Court in terms consistent with Dickson J.’s disposition in Cooper, supra, in R. v. Barnier[^3]. In that case the difference in meaning between the words ‘appreciating’ and ‘knowing’ was vital to the resolution of the case. Psychiatrists at trial had given evidence to the effect that after considering the judgment of this Court in Schwartz v. The Queen[^4], they found the accused sane whereas they had originally considered him to be insane within the meaning of s. 16 of the Code. This change of view was based on their understanding of the Schwartz case and what they took to be its holding that the two words were synonymous. The trial judge, adopting the same view, had charged the jury to the effect that in s. 16 of the Criminal Code the words ‘appreciating’ and ‘knowing’ meant the same thing. In speaking for this Court in Barnier, Estey J. dealt with this situation in these terms, at p. 1137:

In the ordinary usage of these words in the language, therefore, it would appear that to appreciate embraces the act of knowing but the converse is not necessarily true. This lies behind the comment in Black’s Legal Dictionary, 4th ed., 1951, at p. 130:

Appreciate may be synonymous with “know” or “understand.”

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The verb “know” has a positive connotation requiring a bare awareness, the act of receiving information without more. The act of appreciating, on the other hand, is a second stage in a mental process requiring the analysis of knowledge or experience in one manner or another. It is therefore clear on the plain meaning of the section that Parliament intended that for a person to be insane within the statutory definition, he must be incapable firstly of appreciating in the analytical sense the nature and quality of the act or of knowing in the positive sense that his act was wrong. With these processes, of course, the Schwartz case was in no way concerned. The psychiatrists, in preparing for trial, either misconstrued the judgment and thereby the definition contained in s. 16, or the judgment was misconstrued for them in their preparation for testimony before the tribunal, and it matters not which is the case.

I adopt these words and repeat them here for emphasis. To be capable of ‘appreciating’ the nature and quality of his acts, an accused person must have the capacity to know what he is doing; in the case at bar, for example, to know that he was hitting the woman on the head with the rock, with great force, and in addition he must have the capacity to estimate and to understand the physical consequences which would flow from his act, in this case that he was causing physical injury which could result in death.

In his charge to the jury on the question of disease of the mind, the trial judge had this to say:

I am satisfied that psychopathy, in its very general sense, because from what the psychiatrists have told us is a pretty broad and generalized term in describing a condition known to the doctors of psychiatry, that psychopathy, in at least some of its forms, could be a disease of the mind which would qualify under the section and if it is of the nature that qualifies, it has to have with it those two attributes of the incapacity, or one of the two attributes, either incapacity of appreciating the nature and quality of the act, or of knowing that the act was wrong. It is not required that both those conditions be met, one of them is sufficient. They might have the incapacity to appreciate and yet know that the act was wrong and they would come under the provisions of the statute.

There was overwhelming evidence that the appellant was a psychopath. There was medical evidence that supported the trial judge’s conclusion that psychopathy could be a disease of the mind. It

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was in these circumstances for the trial judge, as a matter of law, to decide whether psychopathy was or could be within the definition of a disease of the mind under s. 16. I take it from the words he used, which are referred to above, that he reached the conclusion that it could so qualify and he, therefore, made no error in leaving it to the jury, whose function it then became to consider the evidence and decide whether, as a matter of fact, the appellant was a psychopath.

On the more important question, whether or not the appellant was capable of appreciating the nature and quality of his acts or knowing that they were wrong, concerning as it does the actual mental condition of the appellant and being determinative of his criminal responsibility, he said:

Now, both of them [the defence psychiatrists] tell us that by and large that if he were stopped step by step that he would know what he was doing, he would realize that he was having sexual intercourse, he would realize that he was pointing a knife, he would realize that he was tying up, he would realize that he was hitting with a rock but that he would not have an appreciation of all of the consequences that flow from that act and that they say because of his psychopathic condition he would be incapable of so appreciating.

Now, there is no doubt that as a matter of law their definition of “appreciate” is not the one to be accepted within the realm of the law because you and I, either fortunately or unfortunately, I do not know which it is, we are bound to take the law as it is and as it has been defined by courts from time to time.

We do not embark on excursions that lead us into a field where we would say well, we think the law ought to be this or it ought to be that, or we would like to see it this way or that way, we take it as it is and the construction that should be placed on those words “appreciate the nature and quality of the act” and particularly using in it that is the case the word “appreciate”.

It has been defined, not in specific terms as you are going to read it in the dictionary but it has been defined and I tell you that nature and quality of the act is confined to an appreciation of the physical character of what he was doing. Now, the physical character of the act would be the physical character or, as I say, the act of intercourse, the act of the knife, the act of the blows with a rock, the act of tying, the act of gagging, the act of leaving in the condition that this woman was left, that is those physical things and you might say rather this

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simply, if he had an appreciative awareness of striking with a stone that it might cause death or injury, that has brought us within the meaning of this section, regardless of what his emotional attributes might be, or regardless of what the emotional effect would be on the victim, one does not say that it changes the physical nature of the act one bit. If it does or does not frighten the victim, if it does or does not please the accused, whether it excites him or horrifies him, it is neither here nor there. It is a knowledge or an awareness and appreciation of the physical nature of the act, or combination of acts that matter.

This of course leaves us in a field where we do not need to go out into a wide field of esoteric heric [sic] speculation and search to find out what somebody felt or what somebody’s emotions were, or what the individual reaction might be, it is a question of whether or not there was an appreciation of the physical nature of what was being done. [Emphasis added]

I draw special attention to the emphasized portion of the trial judge’s remarks in order to show that, though in the earlier part of that paragraph he had said: “…I tell you that nature and quality of the act is confined to an appreciation of the physical character of what he was doing”, he did not limit the application of the word ‘appreciate’ to the mere physical character of actions but included, as well, reference to the consequences which flowed from them.

This direction was attacked because it was asserted that it involved the adoption of an incorrect and too limited definition of the word ‘appreciate’. It will be observed that the trial judge’s direction limited the scope of the term to the physical consequences. In this I consider he was right. In the emphasized portion of the extract from the charge reproduced above the trial judge, in my view, correctly stated the position in a manner consistent with the views expressed by Dickson J., for the majority of this Court, in Cooper, supra, and Estey J. for the Court in Barnier, supra. On this point, I find it helpful to refer to the words of Martin J.A., speaking for the Ontario Court of Appeal, in R. v. Simpson[^5], at p. 355.

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Emotional disturbance caused by disease of the mind may be so severe as to deprive the accused of the use of his understanding at the time of the act, rendering him incapable of appreciating the nature and quality of the act or of knowing that it was wrong, and thus exempting him from liability under s. 16(2) of the Code: see Reference re Regina v. Gorecki (No. 2) (a judgment of this Court released on September 14, 1976, not yet reported (since reported 1976 CanLII 684 (ON CA), 32 C.C.C. (2d) 135, 14 O.R. (2d) 218)). I do not, however, read the psychiatric evidence to be that the accused was by reason of emotional turmoil produced by disease of the mind incapable of understanding or realizing what he was doing, but rather that he lacked normal emotions and was therefore incapable of experiencing normal feelings concerning the acts, assuming he committed them.

While I am of the view that s. 16(2) exempts from liability an accused who by reason of disease of the mind has no real understanding of the nature, character and consequences of the act at the time of its commission, I do not think the exemption provided by the section extends to one who has the necessary understanding of the nature, character and consequences of the act, but merely lacks appropriate feelings for the victim or lacks feelings of remorse or guilt for what he has done, even though such lack of feeling stems from “disease of the mind”. Appreciation of the nature and quality of the act does not import a requirement that the act be accompanied by appropriate feeling about the effect of the act on other people: see Willgoss v. The Queen (1960), 105 C.L.R. 295; R. v. Leech (1972), 1972 CanLII 242 (AB SCTD), 10 C.C.C. (2d) 149, 21 C.R.N.S. 1, [1973] 1 W.W.R. 744; R. v. Craig (1974), 1974 CanLII 283 (AB SCTD), 22 C.C.C. (2d) 212, [1975] 2 W.W.R. 314 (affirmed 1975 CanLII 1242 (AB SCAD), 28 C.C.C. (2d) 311). No doubt the absence of such feelings is a common characteristic of many persons who engage in repeated and serious criminal conduct.

I respectfully adopt the reasoning of Martin J.A. as a statement on this question consistent with the authorities in this Court. I am of the view that the trial judge correctly instructed the jury on the meaning to be applied to the word ‘appreciating’ in this context and that no reversible error was made upon this point.

It was further argued that the trial judge failed in his charge to review and put before the jury

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certain parts of the medical evidence given by defence psychiatrists to the effect that, even accepting what I take to be the correct interpretation of the word ‘appreciating’, the appellant did not have the capacity to appreciate the nature and quality of his acts. This omission, it was said, coupled with the adoption of the limited definition of ‘appreciating’, had the effect of withdrawing for all practical purposes the defence of insanity from the jury. It was this asserted failure which led to the dissent in the Court of Appeal and which was, in the opinion of the dissenting judge, a non-direction amounting to a misdirection. Certain extracts from the evidence of the defence psychiatrists support the proposition that the appellant lacked the capacity to appreciate even the physical consequences of his acts. The trial judge made no specific reference to these comments in his review of the evidence. I am not persuaded, however, that the omission, if omission it was, can be said to have been a non-direction amounting to a misdirection. The trial had been concerned almost entirely with medical evidence adduced by the Crown and the defence. The medical witnesses gave a great deal of evidence and were extensively cross-examined. Much examination and cross-examination concerned this narrow question of the meaning of the word ‘appreciate’, and it is fair to say that the essential dividing line between the medical evidence for the defence and that of the Crown was on this issue. Psychiatrists called by the defence based their opinions principally upon an extended meaning of the word ‘appreciate’, while the Crown witnesses based their views on the more narrow definition referred to in the authorities cited earlier. Counsel in their addresses dealt with this question and the real issue for decision presented itself on this basis. In my opinion, the evidence of the various medical witnesses was before the jury and had been extensively reviewed and covered in cross-examination and argument, and the fact that specific reference was not made by the trial judge to the passages above mentioned cannot have, in my opinion, the character attributed to it in the dissenting judgment in the Court of Appeal. For the foregoing reasons, and for the reasons of the majority in the Court of Appeal with which I am in substantial agreement, I would

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dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Pringle, Brimacombe, Edmonton.

Solicitor for the respondent: P.S. Chrumka, Calgary.

[^1]: (1980), 1980 ABCA 49, 53 C.C.C. (2d) 55, 20 A.R. 267, [1980] 3 W.W.R. 411. [^2]: 1979 CanLII 63 (SCC), [1980] 1 S.C.R. 1149. [^3]: 1980 CanLII 184 (SCC), [1980] 1 S.C.R. 1124. [^4]: 1976 CanLII 165 (SCC), [1977] 1 S.C.R. 673. [^5]: (1977), 1977 CanLII 1142 (ON CA), 35 C.C.C. (2d) 337.