R. v. Mailloux, 1988 SCC 27

r. v. mailloux, [1988] 2 S.C.R. 1029

Noël Mailloux Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. mailloux

File No.: 19788.

1988: May 6; 1988: December 15.

Present: Beetz, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Appeal ‑‑ Powers of the Court of Appeal ‑‑ Defence of insanity raised at trial ‑‑ Jury's verdict of guilty ‑‑ Court of Appeal refusing to interfere with jury's verdict because there was evidence to support it ‑‑ Whether Court of Appeal had a duty under s. 613(1)(d) of the Criminal Code to review the evidence and to arrive at its own conclusion on the issue of insanity ‑‑ Whether verdict unreasonable ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 613(1)(a), (d).

At the accused's trial on two counts of second degree murder the principal defence was insanity. Defence psychiatrists testified that the accused was suffering at the time of the killing from toxic psychosis, a major mental illness, which caused a break with reality and led to the accused's believing that he was acting in self‑defence. The psychiatric evidence, however, was conflicting on the crucial issue of whether the accused was capable of appreciating the nature and quality of his acts and of knowing that they were wrong. The jury found the accused guilty on both counts. The accused asked the Court of Appeal to set aside the conviction and to substitute a verdict of not guilty by reason of insanity pursuant to s. 613(1)(d) of the Criminal Code. The Court found that, although there was ample evidence upon which the jury could properly return a verdict of not guilty by reason of insanity, it was satisfied that the evidence was also capable of reasonably supporting the jury's conclusion, according to the view which they took of it, that the defence of insanity had not been proved by the accused on the balance of probabilities. The Court concluded that it was not at liberty to come to its own conclusion on the issue of insanity and thereby disregard the verdict pronounced by a jury. In light of the statutory presumption of sanity, a court of appeal ought not to interfere with the verdict of a jury unless on consideration of all the evidence, it is satisfied that it was one which no jury acting judicially and properly instructed could have reached. This appeal is to determine whether the Court of Appeal erred (1) in its interpretation and application of s. 613(1)(d) of the Criminal Code, and (2), in finding that the verdict of the jury was not unreasonable and could be supported by the evidence.

Held: The appeal should be dismissed.

The Court of Appeal correctly interpreted and applied s. 613(1)(d) of the Criminal Code. Section 613(1)(a) governs the determination on appeal of issues of insanity and s. 613(1)(d) operates in two ways: first, to enable a court of appeal to determine the issue as would have a trial court when the issue has not been raised below; and second, to enable the court, whether acting under s. 613(1)(a) or s. 613(1)(d), to enter, in the appropriate case, a verdict of "not guilty on account of insanity". This conclusion is consistent with the history of the section and the proper role of appeal courts. It is also supported by the manner in which courts of appeal throughout Canada have exercised their jurisdiction under s. 613(1)(a) and (d) as regards issues of insanity in the context of appeals against conviction:

(1) When raised for the first time in appeal, the court will examine the issue and, if it is satisfied that the accused was insane at the time of the wrongful act, it will exercise its power under s. 613(1)(d) to quash the conviction and substitute the special verdict of not guilty by reason of insanity.

(2) If insanity has been raised at trial and there has been an error of law in the form of a misdirection on the issue and if the court is satisfied that a proper direction would have resulted in a verdict of not guilty by reason of insanity, it will substitute that verdict; if the court is not satisfied that, absent the misdirection, the inevitable verdict would have been not guilty by reason of insanity, it will decline to act under s. 613(1)(d) but will order a new trial.

(3) If there has been no misdirection, but the verdict is either unreasonable or cannot be supported by the evidence, the court will set aside the conviction and substitute the special verdict provided for under s. 613(1)(d).

(4) If there has been no error of law and the verdict cannot be said to be unreasonable or unsupported by the evidence, the court will decline to interfere with the verdict.

This Court, after reviewing the evidence, is in agreement with the Court of Appeal's finding that there was evidence to support the jury's conclusion and that the verdict was not unreasonable.

Cases Cited

Referred to: R. v. Irwin (1977), 1977 CanLII 2071 (ON CA), 36 C.C.C. (2d) 1; R. v. Trecroce (1980), 1980 CanLII 2854 (ON CA), 55 C.C.C. (2d) 202; R. v. Hendry (1985), 1985 CanLII 3929 (MB CA), 37 Man. R. (2d) 66; R. v. Kane (1975), 6 A.P.R. 13; R. v. Barnier, 1977 CanLII 2091 (BC CA), [1978] 1 W.W.R. 137 (B.C.C.A.), aff'd 1980 CanLII 184 (SCC), [1980] 1 S.C.R. 1124; R. v. Zilke (1978), 1978 CanLII 2383 (SK CA), 44 C.C.C. (2d) 521; R. v. Winters (1985), 1985 CanLII 1847 (NL CA), 51 Nfld. & P.E.I.R. 271; R. v. O'Brien, 1965 CanLII 590 (NB CA), [1966] 3 C.C.C. 288; R. v. Baltzer (1974), 1974 CanLII 1668 (NS CA), 27 C.C.C. (2d) 118; Periard v. The Queen (1963), 1963 CanLII 1120 (QC CA), 40 C.R. 85; R. v. Kelly (1971), 6 C.C.C. (2d) 186; R. v. Futo (1980), 4 W.C.B. 437; R. v. Scono (1986), 13 O.A.C. 23; R. v. Cassidy and Letendre, 1963 CanLII 689 (AB SCAD), [1963] 2 C.C.C. 219; R. v. Wolfson, 1965 CanLII 557 (AB SCAD), [1965] 3 C.C.C. 304; R. v. Prince (1971), 1971 CanLII 1285 (ON CA), 6 C.C.C. (2d) 183; R. v. Fisher (1973), 1973 CanLII 1392 (AB SCAD), 12 C.C.C. (2d) 513; R. v. Thériault (1978), 1978 CanLII 2507 (QC CA), 45 C.C.C. (2d) 46; R. v. Leboeuf (1979), 1979 CanLII 2961 (QC CA), 57 C.C.C. (2d) 257; R. v. Gibbons (1946), 1946 CanLII 113 (ON CA), 86 C.C.C. 20; Hébert v. The Queen, 1954 CanLII 48 (SCC), [1955] S.C.R. 120; R. v. Blythe (1909), 1909 CanLII 189 (ON CA), 15 C.C.C. 224.

Statutes and Regulations Cited

Act to amend the Criminal Code, S.C. 1923, c. 41, s. 9.

Criminal Code, R.S.C. 1906, c. 146 [am. S.C. 1923, c. 41], ss. 1014, 1016.

Criminal Code, R.S.C. 1970, c. C‑34, ss. 16(1), (2), (4), 613(1)(a), (d).

Authors Cited

Canada. Royal Commission on the Law of Insanity as a Defence in Criminal Cases. Report of the Royal Commission on the Law of Insanity as a Defence in Criminal Cases. Hull: Queen's Printer, 1956.

Debates of the House of Commons, 4th Sess., 24th Parl., 9‑10 Eliz. II, 1960‑61, vol. VI, p. 6570.

APPEAL from a judgment of the Ontario Court of Appeal (1986), 12 O.A.C. 339, dismissing the accused's appeal from his conviction on a charge of second degree murder. Appeal dismissed.

John Rosen, for the appellant.

Edward Then, Q.C., and Graeme Cameron, for the respondent.

The judgment of the Court was delivered by

Lamer J.‑‑ This is an appeal from a judgment of the Ontario Court of Appeal (1986), 12 O.A.C. 339, upholding Noël Mailloux's conviction on two counts of second degree murder.

The Facts

1. In February 1983 the appellant, while riding in the rear seat of a car, killed 18‑year‑old Cindy Thompson and 4‑year‑old Stewart Hawley, who were passengers in the front seat, by shooting them in the head. He also wounded two other people. He was indicted on two counts of second degree murder, and at the trial raised the defences of insanity and, alternatively, intoxication.

2. The evidence led at trial revealed that the appellant was a member of a motorcycle club, a drug pusher, and highly suspicious of members of rival clubs. During the week of the shooting he had taken a great deal of cocaine and slept little. Defence psychiatrists testified that Mailloux's paranoid personality became aggravated by the cocaine and the result was a very rare condition, toxic psychosis. The psychiatrists said that this was a major mental illness which caused a break with reality and led to the appellant believing that he was acting in self‑defence. However, on the crucial issue of whether the appellant was capable of appreciating the nature and quality of his acts and of knowing that they were wrong, the psychiatric evidence was conflicting. On examination in chief both psychiatrists said that he was not capable; under cross‑examination they said that he was. The jury found the appellant guilty of second degree murder on both counts.

3. Mailloux's appeal was argued on a number of grounds relating to the trial judge's direction to the jury on "disease of the mind", on whether the accused met the requirements of s. 16(2) of the Criminal Code, and on intoxication. All of these grounds were rejected by the Court of Appeal and are not at issue before this Court, as the appellant was granted leave to appeal only on the correct interpretation to be placed on s. 613(1)(d) of the Code.

The Legislation

4. For a greater understanding of the issues in this appeal, I set out the relevant provisions of the Criminal Code, R.S.C. 1970, c. C‑34:

5. (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.

(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.

613. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand his trial, or against a special verdict of not guilty on account of insanity, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

(d) may set aside a conviction and find the appellant not guilty on account of insanity and order the appellant to be kept in safe custody to await the pleasure of the lieutenant governor where it is of the opinion that, although the appellant committed the act or made the omission charged against him, he was insane at the time the act was committed or the omission was made, so that he was not criminally responsible for his conduct; [Emphasis added.]

The Ontario Court of Appeal

5. Before the Court of Appeal the appellant argued that given the psychiatric evidence, the drug abuse, and the bizarre nature of the accused's conduct, the Court of Appeal should substitute a verdict of not guilty by reason of insanity pursuant to s. 613(1)(d) of the Code. In response to this argument Lacourcière J.A. held (at pp. 343‑44):

Dealing first with our power to substitute a verdict under s. 613(1)(d), there certainly was ample evidence upon which the jury could properly return a verdict of not guilty by reason of insanity. However, we are satisfied that the evidence was also capable of reasonably supporting the jury's conclusion, according to the view which they took of it, that the defence of insanity had not been proved by the accused on the balance of probabilities.

This court is not at liberty to come to its own conclusion on the issue of insanity and thereby disregard the verdict pronounced by a jury. Having regard to the statutory presumption of sanity, this court ought not to interfere with the verdict of a jury unless on consideration of all the evidence, we are satisfied that it was one which no jury acting judicially and properly instructed could have reached. See R. v. Prince (1971), 1971 CanLII 1285 (ON CA), 6 C.C.C. (2d) 183 at p. 185. [Emphasis added.]

The Points at Issue

a) Whether the Court of Appeal for Ontario erred in law in the interpretation and application of s. 613(1)(d) of the Criminal Code.

As I am of the view that the Court of Appeal did not err, the second issue to dispose of this appeal is

b) Whether the Court of Appeal erred in finding that the verdict of the jury was not unreasonable and could be supported by the evidence.

The Appellant's Arguments

6. I should mention that I find great assistance in this case in the factums of both the appellant and the respondent who have covered and analyzed thoroughly the history of s. 613(1)(d) and the case law in this country and in the U.K., even though my reading of the history is somewhat different.

7. Appellant argues that the Court of Appeal was wrong in applying the test set out at s. 613(1)(a)(i), that is, whether the verdict is unreasonable or cannot be supported by the evidence. Though acknowledging that provincial courts of appeal have consistently refused to interfere with a jury's verdict in insanity cases when there is evidence to support it, the appellant says that they have been in error in so refusing. The plain meaning of the words used in s. 613(1)(d) of the Criminal Code impose upon a court of appeal a positive duty to review the evidence and to arrive at its own conclusion on the issue of insanity regardless of the applicability of the other provisions of s. 613. In that regard, the appellant relies upon the primary rule of statutory construction, namely, that the terms of a statutory enactment are to be given their plain and rational meaning in order to promote the objects of the statute.

8. Furthermore, the object of s. 613(1)(d) is to ensure compliance with s. 16(1) of the Code and to ensure an appropriate balance to the statutory presumption of sanity under s. 16(4) of the Code.

9. The section should be interpreted in the manner contended for because:

a) A court of appeal which seeks to invoke the section may only "set aside a conviction"; it cannot "allow the appeal" as provided in s. 613(1)(a).

b) Where a conviction is "set aside" the court of appeal must "find the Appellant not guilty on account of insanity"; it cannot order a new trial . . . [A] judicial finding must be based on evidence. In order to make such a finding the court must, of its own accord, review the evidence and reach an opinion.

c) The section specifically requires that the court of appeal may only set aside the conviction, "where it is of the opinion" that the Appellant was insane at the relevant time . . .

d) A fresh review of the evidence permits a court of appeal to determine whether the medical evidence of insanity was unjustifiably rejected by the jury, whether the non‑medical evidence of insanity was given due weight by the jury in light of the medical evidence and the surrounding circumstances of the case, and whether on the whole of the case the Appellant satisfied the burden of demonstrating insanity on a balance of probabilities.

The Arguments of Respondent Crown

10. The Crown invites us not to give a literal interpretation to s. 613(1)(d) but a purposive one, taking into account the context within which the section is to be found, its legislative history, and, finally, the proper role of courts of appeal in relation to the review of findings of facts.

11. The Crown's position is stated as follows:

a) where the issue of insanity has not been raised at trial, s. 613(1)(d) empowers a Court of Appeal to explore, on its own motion, the merits of the defence and to substitute a special verdict of not guilty by reason of insanity, thereby conforming to the mandatory provision of s. 16(1):

b) where the issue of insanity has been considered by the trier of fact, s. 613(1)(d) permits a Court of Appeal, having proper regard to the well settled division of functions separating the roles of the triers of fact and courts of review, to substitute the special verdict of not guilty by reason of insanity, where,

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

iii) on any ground there was a miscarriage of justice,

that is, by applying s. 613(1)(a).

Analysis

12. The first question which must be addressed is whether s. 613 is worded in such a way that it is clear and without any ambiguities that only s. 613(1)(d) governs a court of appeal's jurisdiction as regards an insanity issue. If so, and absent any absurdity resulting from such an interpretation, that would end the matter in favour of the appellant's position.

13. Because of the way the section is structured, I think that it is unclear whether s. 613(1)(a) applies to an insanity issue or not. At first blush, s. 613(1)(d) appears all‑encompassing. However, the reference to verdicts on insanity issues at the beginning of the whole section makes it debatable whether that reference is introductory to s. 613(1)(d) only or whether it is also introductory to s. 613(1)(a).

14. As a plain reading of the whole section can be supportive of either view, we should seek out the purpose of the section as regards insanity issues before a court of appeal, having regard to the proper respective functions of trial and appeal courts. The legislative history of the section is most useful in that regard.

15. Prior to 1923, insanity issues were dealt with in appeal under the general appeal provisions which were at the time ancestor sections of s. 613(1)(a). There was no provision such as s. 613(1)(d), which was introduced in its actual form in 1961, and in a somewhat different form in 1923.

16. The courts of appeal were then generally enabled, when allowing an appeal, to order a new trial or enter an acquittal, as is the case today. Of course, on an insanity issue, as there was no section enabling them to substitute the verdict of not guilty by reason of insanity that the trial court should in their view have entered, and as they did not want to acquit simpliciter, one finds, upon reviewing the cases over that period, that pleas of insanity successful in appeal resulted in the ordering of a new trial (see for example, R. v. Blythe (1909), 1909 CanLII 189 (ON CA), 15 C.C.C. 224 (Ont. C.A.))

17. In 1923, by virtue of s. 9 of An Act to amend the Criminal Code, S.C. 1923, c. 41, new ss. 1014 and 1016 were added to Part XIX of the existing Criminal Code, R.S.C. 1906, c. 146:

18. (1) On the hearing of any such appeal against conviction the court of appeal shall allow the appeal if it is of opinion‑‑

(a) that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

(b) that the judgment of the trial court should be set aside on the ground of a wrong decision of any question of law; or

(c) that on any ground there was a miscarriage of justice; and

(d) in any other case shall dismiss the appeal.

(2) The court may also dismiss the appeal if, notwithstanding that it is of opinion that on any of the grounds above mentioned the appeal might be decided in favour of the appellant, it is also of the opinion that no substantial wrong or miscarriage of justice has actually occurred.

(3) Subject to the special provisions contained in the following sections of this Part, when the court of appeal allows an appeal against conviction it may

(a) quash the conviction and direct a judgment and verdict of acquittal to be entered; or

(b) direct a new trial;

and in either case may make such other order as justice requires.

(4) When the court of appeal directs a new trial in the case of an appellant convicted, under the provisions of Part XVI or Part XVIII of this Act, of an indictable offence, if his consent or election was necessary to give jurisdiction to the magistrate or judge before whom he was tried, the new trial shall be before a jury if the appellant so requests in his notice of appeal or notice of application for leave to appeal, but otherwise shall, in the discretion of the court of appeal, be either before the proper magistrate or judge or before a jury.

1016. (1) If it appears to the court of appeal that an appellant, though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the court may either affirm the sentence passed on the appellant by the trial court or pass such sentence in substitution therefor as the court thinks proper, and as may be warranted in law by the verdict on the count or part of the indictment on which the court considers that the appellant has been properly convicted.

(2) Where an appellant has been convicted of an offence and the jury or, as the case may be, the judge or magistrate, could on the indictment have found him guilty of some other offence, and on the actual finding it appears to the court of appeal that the jury, judge or magistrate must have been satisfied of facts which proved him guilty of that other offence, the court of appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed by the trial court as may be warranted in law for that other offence, not being a sentence of greater severity.

(3) Where on the conviction of the appellant the jury have found a special verdict, and the court of appeal considers that a wrong conclusion has been arrived at by the trial court as to the effect of that verdict, the court of appeal may, instead of allowing the appeal, order such conclusion to be recorded as appears to the court to be in law required by the verdict, and pass such sentence in substitution for the sentence passed by the trial court as may be warranted in law.

(4) If on any appeal it appears to the court of appeal that, although the appellant was guilty of the act or omission charged against him, he was insane at the time the act was done or omission made so as not to be responsible according to law for his actions, the court may quash the sentence passed by the trial court and order the appellant to be kept in strict custody, in such place and such manner as to the court of appeal seems fit, until the pleasure of the lieutenant‑governor of the province is known. [Emphasis added.]

18. But nothing changed in 1923, with the introduction of s. 1016(4). Issues of insanity continued to be dealt with through those general provisions of s. 1014 which are similar to s. 613(1)(a). A review of the cases shows that, whenever successful, such appeals resulted in new trials under s. 1014 (see R. v. Gibbons (1946), 1946 CanLII 113 (ON CA), 86 C.C.C. 20 (Ont. C.A.)) The courts did not resort to the power available under s. 1016(4) (see Hébert v. The Queen, 1954 CanLII 48 (SCC), [1955] S.C.R. 120). It is to be noted that s. 1016(4) did not enable the courts to quash the conviction but enabled them only to modify the sentence. The courts obviously felt it unfair, a sentiment that was also later expressed by the McRuer Commission, to let an improper conviction stand when the proper remedy, that is a verdict of not guilty by reason of insanity, was available in lower courts albeit only after undergoing a new trial.

19. What was then the purpose of s. 1016(4)? In seeking an answer one must not overlook the fact that a new trial could be triggered through the general provisions of s. 1014 only if there had been below an error of law, unreasonable findings, or miscarriage of justice as regards the issue of insanity. This could occur only if insanity was an issue raised at trial. In my view, s. 1016(4) was introduced to enable a court of appeal to give some relief, albeit incomplete, to the accused when the insanity issue was raised for the first time in appeal.

20. As I have said, I have found no instances in which s. 1016(4) and its successor section (until it was modified in 1961) was resorted to. This is probably because of the fact that, when insanity issues were not raised at trial by the defence, they could and were in this country successfully raised when appropriate by the Crown. In 1961, what was s. 1016(4), and has since become s. 613(1)(d) at the time of this case, was amended. The only change that was made enabled the court, when applying the section, to enter an acquittal by reason of insanity.

21. The question therefore becomes:

Was Parliament, in fact, making a fundamental change to the dynamics of the appeal process and to the traditional role of appeal courts and giving them full unfettered first instance jurisdiction by allowing all insanity issues to be determined under s. 613(1)(d), including the cases where the issue was raised at trial and determined by the trier of fact?

or

By giving appeal courts the power to enter the verdict that the trial court should have entered, was Parliament addressing the two mischiefs I have identified in the historical review; first, the anomaly of having to order a new trial after reviewing the finding below, and second, the injustice of leaving untouched the verdict of guilty because the issue of insanity, though successful in the court of appeal, had been raised in that court for the first time?

With respect for the contrary view, I think the latter to be the sounder, as being more consistent with the history of the section and the proper role of appeal courts.

22. Indeed, a few years earlier, the Royal Commission on the Law of Insanity as a Defence in Criminal Cases was in the process of investigating this entire area. The Report of the Royal Commission on the Law of Insanity as a Defence in Criminal Cases (1956), also known as the McRuer Report on Insanity, ultimately recommended to Parliament that the power under the predecessor of s. 613(1)(d) only to substitute a sentence and not to change the verdict was inconsistent with a verdict rendered under s. 523 (now s. 542), under which the accused person is declared to be "acquitted on account of insanity". As the Commission noted (at p. 37):

It is also inconsistent with the whole concept of Canadian law, under which no one should be found guilty of a criminal offence who is not criminally responsible according to the definition of criminal responsibility contained in the Criminal Code.

23. Nowhere in the report did the Commission discuss or suggest ‑‑ let alone justify ‑‑ that the traditional role of courts of appeal should be so fundamentally different when dealing with issues of insanity. The Commission's only concern was that alluded to in the passage cited above.

24. That recommendation was adopted by Parliament without more discussion in 1961, as is indicated by the statement of the Minister of Justice at the time, the Honourable Davie Fulton (Debates of the House of Commons, 1960‑61, vol. VI, at p. 6570):

Mr. Chairman, in respect to clause 26 [the proposed s. 592(1)(d) now s. 613(1)(d)], my hon. friends opposite asked if I could give the background. Clause 26 is the clause which arises out of the recommendation of the McRuer commission on the law of insanity.

25. I am therefore of the view that s. 613(1)(a) governs the determination in appeal of issues of insanity and that s. 613(1)(d) operates in two ways: first, to enable a court of appeal to determine the issue as would have a trial court when the issue has not been raised below; and second, to enable the court, whether acting under s. 613(1)(a) or s. 613(1)(d), to enter, in the appropriate case, a verdict of "not guilty on account of insanity". I am supported in this view by the manner in which courts of appeal throughout Canada have exercised their jurisdiction under s. 613(1)(a) and (d) as regards issues of insanity in the context of appeals against conviction, which was usefully summarized by respondent's counsel in its factum, substantially as follows:

26. When raised for the first time in appeal the court will examine the issue and if it is satisfied that the appellant was insane at the time of the wrongful act, it will exercise its power under s. 613(1)(d) to quash the conviction and to substitute the special verdict of not guilty by reason of insanity.

‑‑ R. v. Irwin (1977), 1977 CanLII 2071 (ON CA), 36 C.C.C. (2d) 1 (Ont. C.A.);

‑‑ R. v. Trecroce (1980), 1980 CanLII 2854 (ON CA), 55 C.C.C. (2d) 202 (Ont. C.A.);

‑‑ R. v. Hendry (1985), 1985 CanLII 3929 (MB CA), 37 Man. R. (2d) 66 (Man. C.A.)

2. If insanity has been raised at trial and there has been an error of law in the form of a misdirection on the issue and,

a) if the court is satisfied that a proper direction would have resulted in a verdict of not guilty by reason of insanity, it will substitute that verdict;

‑‑ R. v. Kane (1975), 6 A.P.R. 13 (N.S.S.C. App. Div.);

‑‑ R. v. Barnier, 1977 CanLII 2091 (BC CA), [1978] 1 W.W.R. 137 (B.C.C.A.), aff'd 1980 CanLII 184 (SCC), [1980] 1 S.C.R. 1124;

‑‑ R. v. Zilke (1978), 1978 CanLII 2383 (SK CA), 44 C.C.C. (2d) 521 (Sask. C.A.);

‑‑ R. v. Winters (1985), 1985 CanLII 1847 (NL CA), 51 Nfld. & P.E.I.R. 271 (Nfld. C.A.);

b) if the court is not satisfied that, absent the misdirection, the inevitable verdict would have been not guilty by reason of insanity, it will decline to act under s. 613(1)(d) but will order a new trial.

‑‑ R. v. O'Brien, 1965 CanLII 590 (NB CA), [1966] 3 C.C.C. 288 (N.B.S.C. App. Div.);

‑‑ R. v. Baltzer (1974), 1974 CanLII 1668 (NS CA), 27 C.C.C. (2d) 118 (N.S.S.C. App. Div.)

3. If there has been no misdirection, but the verdict is either unreasonable or cannot be supported by the evidence, the court will set aside the conviction and substitute the special verdict provided for under s. 613(1)(d).

‑‑ Periard v. The Queen (1963), 1963 CanLII 1120 (QC CA), 40 C.R. 85 (Que. Q.B.);

‑‑ R. v. Kelly (1971), 6 C.C.C. (2d) 186 (Ont. C.A.);

‑‑ R. v. Futo (1980), 4 W.C.B. 437 (Ont. C.A.);

‑‑ R. v. Scono (1986), 13 O.A.C. 23 (Ont. C.A.)

4. If there has been no error of law and the verdict cannot be said to be unreasonable or unsupported by the evidence, the court will decline to interfere with the verdict.

‑‑ R. v. Cassidy and Letendre, 1963 CanLII 689 (AB SCAD), [1963] 2 C.C.C. 219 (Alta. S.C. App. Div.);

‑‑ R. v. Wolfson, 1965 CanLII 557 (AB SCAD), [1965] 3 C.C.C. 304 (Alta. S.C. App. Div.);

‑‑ R. v. Prince (1971), 1971 CanLII 1285 (ON CA), 6 C.C.C. (2d) 183 (Ont. C.A.);

‑‑ R. v. Fisher (1973), 1973 CanLII 1392 (AB SCAD), 12 C.C.C. (2d) 513 (Alta. S.C. App. Div.);

‑‑ R. v. Thériault (1978), 1978 CanLII 2507 (QC CA), 45 C.C.C. (2d) 46 (Que. C.A.);

‑‑ R. v. Leboeuf (1979), 1979 CanLII 2961 (QC CA), 57 C.C.C. (2d) 257 (Que. C.A.)

26. Now, I turn to the second issue. Stated in technical terms, the finding by the jury was that the accused had not rebutted by a preponderance of evidence the presumption of sanity. After reviewing the evidence, I am in agreement with the Court of Appeal's finding that there was evidence supportive of the jury's conclusion and that the verdict, in that regard, was not unreasonable.

27. I would therefore dismiss this appeal.

Appeal dismissed.

Solicitors for the appellant: Rosen, Fleming, Toronto.

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

• Le Dain J. took no part in the judgment.