R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 SCR 579

R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 SCR 579

Her Majesty The Queen Appellant

v.

Kristian Lee Warsing Respondent

Indexed as: R. v. Warsing

File No.: 26303.

1998: June 19; 1998: December 17.

Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Appeals ‑‑ Fresh evidence ‑‑ Accused applying for admission of psychiatric evidence as fresh evidence on appeal ‑‑ Due diligence requirement of test for admission of fresh evidence not met ‑‑ Whether Court of Appeal erred in admitting psychiatric evidence.

Criminal law ‑‑ Appeals ‑‑ Defences ‑‑ Defence of not criminally responsible on account of mental disorder raised for first time on appeal by way of fresh evidence ‑‑ Whether Court of Appeal erred in allowing defence.

Criminal law ‑‑ Appeals ‑‑ Powers of court of appeal ‑‑ Accused convicted of first degree murder and attempted murder following jury trial ‑‑ Defence of not criminally responsible on account of mental disorder raised for first time on appeal by way of fresh evidence ‑‑ Court of Appeal ordering new trial limited to issue of accused’s mental capacity at time of offences ‑‑ Whether Court of Appeal had jurisdiction to order new trial ‑‑ If so, whether Court of Appeal had jurisdiction to make order for limited trial ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 686(1)(a)(iii), (1)(d), (2)(b), (8).

The accused was convicted by a jury of two counts of first degree murder and one count of attempted murder. He was subsequently committed to a mental health institution and examined by several psychiatrists, one of whom diagnosed him as having a manic depressive disorder and concluded that he was suffering from this illness at the time of the offences and should have been found not criminally responsible on account of mental disorder (“NCRMD”). The accused applied to the Court of Appeal to have the expert evidence of the psychiatrist admitted as fresh evidence and to raise, for the first time, the NCRMD defence. The majority of the Court of Appeal held that the fresh evidence should be admitted and ordered a new trial on the limited issue of the mental capacity of the accused at the time of the offences. The Crown appealed to this Court.

Held (L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting in part and Lamer C.J. and Bastarache J. dissenting): The appeal should be dismissed and a full new trial ordered.

Per Cory, Iacobucci, Major and Binnie JJ.: The Court of Appeal’s decision to admit the fresh evidence, after balancing the relevant factors, was correct and should be upheld. While the fresh evidence failed the due diligence test in Palmer, it is desirable that due diligence remain only one factor and its absence, particularly in criminal cases, should be assessed in light of other circumstances. If the evidence is

compelling and the interests of justice require that it be admitted then the failure to meet the test should yield to permit its admission. Here, the fresh evidence sought to be introduced was relevant, credible and, if believed, could affect the verdict. The accused’s failure to meet the due diligence requirement is serious and in many circumstances would be fatal; however, in the circumstances of this case, that failure was overborne by the interests of justice.

In appropriate circumstances, it is permissible to allow an accused to raise the NCRMD defence for the first time on appeal. Although the raising of a new defence on appeal is an exception to the general rule, the circumstances and evidence of this case run in favour of allowing the accused to raise the defence. It is a principle of fundamental justice that a person who was not criminally responsible at the time of the offence should not be convicted.

The Court of Appeal had jurisdiction to order a new trial. When the NCRMD defence is raised on appeal for the first time, the Court of Appeal has the power pursuant to s. 686(1)(d) of the Criminal Code to set aside the conviction and find the accused NCRMD. However, if the Court of Appeal concludes that it cannot make a determination on the NCRMD issue, it is within its jurisdiction in avoiding a miscarriage of justice to order a new trial pursuant to ss. 686(1)(a)(iii) and 686(2)(b) of the Code. While, in most cases, it is likely that the Court of Appeal would have sufficient evidence to determine the issue of mental capacity, in cases where the facts are complex and the court concludes that further evidence is required a new trial should be ordered.

The Court of Appeal erred, however, in limiting the new trial to the NCRMD issue. The principles enunciated by the majority in Thomas indicate that orders issued pursuant to s. 686(8) of the Code are ancillary in nature and cannot be inconsistent or at direct variance with a court of appeal’s disposition under s. 686(2). When a new trial is ordered pursuant to s. 686(2) a court of appeal’s ability to make an ancillary order pursuant to s. 686(8) is limited by the condition that justice requires that order. In light of these principles, the Court of Appeal did not have jurisdiction to limit the scope of the new trial. The presumption of innocence is integral to ensuring a fair trial and the fair trial principle is obviously offended by a trial that precludes a verdict of not guilty. A limited trial which restricts the accused’s right to control his defence also offends a fundamental principle of justice. The accused must have the opportunity to put forward whatever defence he has. In this case, if the evidence of mental disorder was not sufficient to convince the trier of fact that the accused was NCRMD, such evidence could be considered on the issue of whether the accused had the requisite mens rea. In this light, it is evident that an accused’s ability to make full answer and defence could be significantly prejudiced by restricting his trial to the NCRMD issue.

Per L’Heureux‑Dubé, Gonthier and McLachlin JJ. (dissenting in part): There is substantial agreement with Major J.’s reasons, except on the issue of the Court of Appeal’s jurisdiction to order a limited new trial.

As a general rule, courts of appeal will not allow an issue to be raised on appeal for the first time. There are, however, a number of exceptions, one of which is the admission of fresh evidence on appeal. The failure to meet the due diligence criterion of the Palmer test is not always fatal and must be weighed against the strength of the other criteria and the interests of justice. The interests of justice must take into account the special treatment our criminal justice system grants the NCRMD defence, as reflected in Swain, s. 16 and s. 686(1)(d) of the Criminal Code. In the unusual circumstances of this case, the rule requiring due diligence, the practice of not permitting new defences to be raised on appeal and the need for finality must all give way to the principle that a person incapable of criminal intent should not be convicted. Therefore, the psychiatric evidence was properly admitted by the Court of Appeal and the accused should be allowed to raise the NCRMD defence of mental disorder for the first time on appeal.

The power to order a new trial where fresh evidence is admitted is found under s. 686(1)(a)(iii) in conjunction with s. 686(2)(b). Nothing in the wording of s. 686(1)(a)(iii) restricts its application to evidence produced at trial. Sections 686(1)(a)(iii) and 686(1)(d) read together provide the Court of Appeal with the possibility of either ordering a new trial or substituting a verdict of NCRMD in cases where the defence of NCRMD is raised for the first time on appeal. The possibility of either ordering a new trial or substituting an NCRMD verdict is consistent with the general rules concerning the admission of fresh evidence.

For the reasons given by the minority in Thomas, the Court of Appeal had jurisdiction to order a limited new trial. Section 686(8) of the Code grants a court of appeal a broad jurisdiction to decide what type of order would be appropriate considering the nature and the extent of the wrong occasioned at trial, including the power to restrict a new trial. Further, such an order will be an exceptional one dictated by what “justice requires”. In the circumstances of this case, a limited new trial on the NCRMD issue was consistent with what “justice requires” since the Court of Appeal’s order is compatible with a “Swain‑type hearing”. A “Swain-type hearing” is conducted after a finding that the accused committed the criminal acts, but before a conviction is entered, to determine whether the accused is NCRMD. The Court of Appeal’s order does not offend the principles of fundamental justice or the presumption of innocence enshrined in ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. First, since the accused’s situation in this new trial will be the same as in a Swain‑type hearing, he will not benefit from the presumption of innocence during the stage where the issue of mental disorder is examined. The Crown has already proved all the elements of the offences and a jury was satisfied beyond a reasonable doubt that the accused had committed the crimes. The fresh evidence only relates to the issue of whether the accused is NCRMD. Second, an order compatible with the procedure established in Swain, which was found to respect the principles of fundamental justice, cannot violate those same principles. Finally, the evidence of mental disorder cannot be considered on the issue of whether the accused had the requisite mens rea. In a Swain‑type hearing, the trier of fact only has to determine whether the result of the finding that the accused committed the essential elements of the offence should be a conviction or an NCRMD finding. The Court of Appeal’s order in this case is to the same effect.

Per Lamer C.J. and Bastarache J. (dissenting): The Court of Appeal properly exercised its discretion in admitting the fresh evidence. Where the issue of mental illness is raised for the first time on appeal by way of fresh evidence, s. 686(1)(d) of the Criminal Code, which refers specifically to the question of mental illness, exclusively governs the Court of Appeal’s jurisdiction. This jurisdiction is limited to either upholding the conviction or substituting a verdict of NCRMD. The court cannot order a new trial on the basis of s. 686(1)(a)(iii) and s. 686(2)(b). The application of s. 686(1)(a)(iii) involves an assessment of the evidence before the trial judge so as to determine whether there was a miscarriage of justice. No miscarriage of justice can be found by the Court of Appeal as a result of fresh evidence that was not before the original trier of fact. The matter should be sent back to the Court of Appeal for disposition according to the terms of s. 686(1)(d).

Cases Cited

By Major J.

Applied: R. v. Thomas, 1998 CanLII 774 (SCC), [1998] 3 S.C.R. 535; distinguished: R. v. Pearson, 1998 CanLII 776 (SCC), [1998] 3 S.C.R. 620; R. v. Barnes, 1991 CanLII 84 (SCC), [1991] 1 S.C.R. 449; Guillemette v. The Queen, 1986 CanLII 59 (SCC), [1986] 1 S.C.R. 356; considered: Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759; R. v. Mailloux, 1988 CanLII 27 (SCC), [1988] 2 S.C.R. 1029; R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933; referred to: R. v. Buxbaum (1989), 1989 CanLII 9944 (ON CA), 70 C.R. (3d) 20; McMartin v. The Queen, 1964 CanLII 43 (SCC), [1964] S.C.R. 484; R. v. McAnespie, 1993 CanLII 50 (SCC), [1993] 4 S.C.R. 501; R. v. Stolar, 1988 CanLII 65 (SCC), [1988] 1 S.C.R. 480; R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24; R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852; R. v. C. (R.) (1989), 1989 CanLII 7204 (ON CA), 47 C.C.C. (3d) 84; R. v. Potvin, 1993 CanLII 113 (SCC), [1993] 2 S.C.R. 880; R. v. R. (R.) (1994), 1994 CanLII 8728 (ON CA), 91 C.C.C. (3d) 193; R. v. Vidulich (1989), 1989 CanLII 231 (BC CA), 37 B.C.L.R. (2d) 391; R. v. Wade (1994), 1994 CanLII 10562 (ON CA), 89 C.C.C. (3d) 39.

By L’Heureux‑Dubé J. (dissenting in part)

R. v. Thomas, 1998 CanLII 774 (SCC), [1998] 3 S.C.R. 535; R. v. Pearson, 1998 CanLII 776 (SCC), [1998] 3 S.C.R. 620; R. v. Brown, 1993 CanLII 114 (SCC), [1993] 2 S.C.R. 918; Perka v. The Queen, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232; R. v. R. (R.) (1994), 1994 CanLII 8728 (ON CA), 91 C.C.C. (3d) 193; R. v. Trabulsey (1995), 1995 CanLII 1414 (ON CA), 97 C.C.C. (3d) 147; R. v. Vidulich (1989), 1989 CanLII 231 (BC CA), 37 B.C.L.R. (2d) 391; Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759; McMartin v. The Queen, 1964 CanLII 43 (SCC), [1964] S.C.R. 484; R. v. McAnespie, 1993 CanLII 50 (SCC), [1993] 4 S.C.R. 501; R. v. Price, 1993 CanLII 76 (SCC), [1993] 3 S.C.R. 633; R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933; R. v. Stolar, 1988 CanLII 65 (SCC), [1988] 1 S.C.R. 480; R. v. Thomson (1995), 1995 CanLII 8936 (BC CA), 102 C.C.C. (3d) 350; Mahoney v. The Queen, 1982 CanLII 21 (SCC), [1982] 1 S.C.R. 834; R. v. Mailloux, 1988 CanLII 27 (SCC), [1988] 2 S.C.R. 1029; R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903; R. v. Laverty (1990), 1990 CanLII 176 (BC CA), 80 C.R. (3d) 231; R. v. Barnes (1990), 1990 CanLII 534 (BC CA), 54 C.C.C. (3d) 368, aff’d 1991 CanLII 84 (SCC), [1991] 1 S.C.R. 449; R. v. Maxwell (1990), 1990 CanLII 6693 (ON CA), 61 C.C.C. (3d) 289; R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979; Reference re Regina v. Gorecki (No. 2) (1976), 1976 CanLII 684 (ON CA), 32 C.C.C. (2d) 135.

By Lamer C.J. and Bastarache J. (dissenting)

Melnychuk v. Heard (1963), 1963 CanLII 815 (AB SCTD), 45 W.W.R. 257; Gould v. Yukon Order of Pioneers, 1996 CanLII 231 (SCC), [1996] 1 S.C.R. 571; R. v. Chartrand, 1994 CanLII 53 (SCC), [1994] 2 S.C.R. 864; Reference re Goods and Services Tax, 1992 CanLII 69 (SCC), [1992] 2 S.C.R. 445; R. v. Deruelle, 1992 CanLII 73 (SCC), [1992] 2 S.C.R. 663; Thomson v. Canada (Deputy Minister of Agriculture), 1992 CanLII 121 (SCC), [1992] 1 S.C.R. 385; Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456; Mitchell v. Peguis Indian Band, 1990 CanLII 117 (SCC), [1990] 2 S.C.R. 85; Canadian Imperial Bank of Commerce v. 64576 Manitoba Ltd., 1990 CanLII 11061 (MB QB), [1990] 5 W.W.R. 419, aff’d 1991 CanLII 8271 (MB CA), [1991] 2 W.W.R. 323; Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653; Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70; R. v. Thompson, 1990 CanLII 43 (SCC), [1990] 2 S.C.R. 1111; Bell Canada v. Canada (Canadian Radio‑Television and Telecommunications Commission), 1989 CanLII 67 (SCC), [1989] 1 S.C.R. 1722; R. v. Mailloux, 1988 CanLII 27 (SCC), [1988] 2 S.C.R. 1029.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 11(d).

Criminal Code, R.S.C. 1970, c. C‑34, s. 613(1)(d).

Criminal Code, R.S.C., 1985, c. C‑46, ss. 16 [rep. & sub. 1991, c. 43, s. 2], 683(1)(b), (d), 686(1) [am. c. 27 (1st Supp.), s. 145; 1991, c. 43, s. 9 (Sch., item 8)], (2), (8), 695(1).

Authors Cited

Driedger on the Construction of Statutes, 3rd ed. By Ruth Sullivan. Toronto: Butterworths, 1994.

Lagarde, Irénée. Droit pénal canadien, vol. II, 2^e éd. Montréal: Wilson & Lafleur, 1974.

McKinnon, Gil D. The Criminal Lawyers’ Guide to Appellate Court Practice. Aurora, Ont.: Canada Law Book, 1997.

APPEAL from a judgment of the British Columbia Court of Appeal (1997), 1997 CanLII 12527 (BC CA), 97 B.C.A.C. 137, 157 W.A.C. 137, 119 C.C.C. (3d) 385, 11 C.R. (5th) 383, [1997] B.C.J. No. 2239 (QL), allowing the accused’s appeal from his convictions for first degree murder and attempted murder and ordering a new trial limited to the issue of the mental capacity of the accused at the time of the offences. Appeal dismissed and a full new trial ordered, L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting in part and Lamer C.J. and Bastarache J. dissenting.

William F. Ehrcke, Q.C., and W. J. Scott Bell, for the appellant.

Manuel A. Azevedo and Albert C. Peeling, for the respondent.

The following are the reasons delivered by

//The Chief Justice and Bastarache J.//

1The Chief Justice and Bastarache J. (dissenting) -- We agree with Major J. that the Court of Appeal properly exercised its discretion in admitting the fresh evidence.

2Once the evidence is admitted, it must be determined whether the Court of Appeal has jurisdiction to order a new trial to establish whether the accused should be found not criminally responsible by reason of mental disorder, or whether its jurisdiction is limited to either upholding the conviction or substituting a verdict of not criminally responsible by reason of mental disorder.

3The powers of the Court of Appeal are set out in s. 686 of the Criminal Code, R.S.C., 1985, c. C-46. The relevant provisions are as follows:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

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

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

(d) may set aside a conviction and find the appellant unfit to stand trial or not criminally responsible on account of mental disorder and may exercise any of the powers of the trial court conferred by or referred to in section 672.45 in any manner deemed appropriate to the court of appeal in the circumstances.

(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

(a) direct a judgment or verdict of acquittal to be entered; or

(b) order a new trial.

(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.

4Section 686(1)(d) refers specifically to the question of mental illness. It creates an obligation on the Court of Appeal to exercise its powers to set aside a conviction and find the accused unfit to stand trial or not criminally responsible on account of mental disorder when such a case arises. This section confers no discretion to order a new trial. The powers given under this section mandate a court of appeal to hold a disposition hearing. In such a hearing, a court of appeal sits as a trier of fact and decides the issue of mental disorder. It does not, nor can it order that issues be returned to the trial court.

5The appellant’s submission is that where an issue of mental illness is raised for the first time on appeal, the Court of Appeal may act either under s. 686(1)(d) to set aside the conviction and find the accused not criminally responsible on account of mental disorder, or under s. 686(1)(a)(iii) (in conjunction with s. 686(2)(b)) to order a new trial on the basis that there has been a miscarriage of justice. The appellant submits that by enacting s. 686(1)(d) Parliament has not ousted the court’s jurisdiction to act under s. 686(1)(a)(iii).

6The rules of interpretation applicable in the present circumstances do not support the position of the appellant. From reading the legislation in context, the courts infer the legislature’s reasons for including a particular provision or detail. In drawing these inferences courts pay special attention to the scheme of the legislation. As R. Sullivan puts it in Driedger on the Construction of Statutes (3rd ed. 1994), at pp. 56 and 248:

Inferences about purpose are often drawn from analyzing the structure or scheme embodied in an Act. In carrying out this analysis the court, in effect, retraces the steps of the legislative drafter, examining the relationship among provisions to surmise the overall plan. It attempts to discover why each provision was included and the contribution each makes toward implementing the legislature’s goals. It looks at the way provisions are grouped under headings or divided into parts to discover a common theme or rationale.

When analyzing the scheme of an Act, the court tries to discover how the provisions or parts of the Act work together to give effect to a plausible and coherent plan. It then considers how the provision to be interpreted can be understood in terms of that plan.

7The court’s reasoning is described by Greschuk J. in Melnychuk v. Heard (1963), 1963 CanLII 815 (AB SCTD), 45 W.W.R. 257 (Alta. S.C.), at p. 263:

The court must not only consider one section but all sections of an Act including the relation of one section to the other sections, the relation of a section to the general object intended to be secured by the Act, the importance of the section, the whole scope of the Act and the real intention of the enacting body.

Reliance on this type of analysis to determine purpose is also illustrated in Gould v. Yukon Order of Pioneers, 1996 CanLII 231 (SCC), [1996] 1 S.C.R. 571; R. v. Chartrand, 1994 CanLII 53 (SCC), [1994] 2 S.C.R. 864; Reference re Goods and Services Tax, 1992 CanLII 69 (SCC), [1992] 2 S.C.R. 445; R. v. Deruelle, 1992 CanLII 73 (SCC), [1992] 2 S.C.R. 663; Thomson v. Canada (Deputy Minister of Agriculture), 1992 CanLII 121 (SCC), [1992] 1 S.C.R. 385; Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456; Mitchell v. Peguis Indian Band, 1990 CanLII 117 (SCC), [1990] 2 S.C.R. 85, at pp. 130-34; Canadian Imperial Bank of Commerce v. 64576 Manitoba Ltd., 1990 CanLII 11061 (MB QB), [1990] 5 W.W.R. 419 (Man. Q.B.), aff’d 1991 CanLII 8271 (MB CA), [1991] 2 W.W.R. 323 (Man. C.A.); Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653; Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, at pp. 90 and 97-98; R. v. Thompson, 1990 CanLII 43 (SCC), [1990] 2 S.C.R. 1111, at pp. 1160 and 1163-64, per La Forest J., dissenting; Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), 1989 CanLII 67 (SCC), [1989] 1 S.C.R. 1722, at pp. 1740-41, 1752 and 1756.

8Our position in regard to the proper interpretation of ss. 686(1)(d) and 686(1)(a)(iii) is consistent with the reasons of this Court in R. v. Mailloux, 1988 CanLII 27 (SCC), [1988] 2 S.C.R. 1029, at p. 1040:

What was then the purpose of s. 1016(4) [the predecessor section to s. 686(1)(d)]? In seeking an answer one must not overlook the fact that a new trial could be triggered through the general provisions of s. 1014 [the predecessor section to s. 686(1)(a)] 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.

9The application of s. 686(1)(a)(iii) involves an assessment of the evidence before the trial judge so as to determine whether there was a miscarriage of justice. However, no miscarriage of justice can be found by the Court of Appeal as a result of fresh evidence that was not before the original trier of fact.

10Thus, where the issue of mental illness is raised for the first time on appeal by way of fresh evidence, the Court of Appeal cannot order a new trial on the basis of s. 686(1)(a). Section 686(1)(d) exclusively governs the Court of Appeal’s jurisdiction in circumstances such as these.

11Consequently, the admission of new evidence, in this case, calls for the application of para. (d), which creates an obligation on the Court of Appeal to exercise the same powers as the trial court and decide the litigious issue of mental illness. In this case, the Court of Appeal ordered a new trial on the limited issue of insanity. It did so without statutory jurisdiction. We would therefore allow the appeal, quash the decision and send the matter back to the Court of Appeal for disposition according to the terms of s. 686(1)(d).

12In passing, we would add that if the Court of Appeal had had jurisdiction to send it back for a new trial, we are then in full agreement with Major J. for the majority that the new trial could not have been limited to the issue of not criminally responsible on account of mental disorder.

The reasons of L’Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by

//L’Heureux-Dubé J.//

13L’Heureux-Dubé J. (dissenting in part) -- This appeal concerns the admission of a psychiatric opinion as fresh evidence by the Court of Appeal, allowing the respondent to raise for the first time the defence of not criminally responsible by reason of a mental disorder (“NCRMD”), and its jurisdiction, on the basis of such evidence, to order a new trial limited to the issue of whether the respondent was NCRMD at the time of the commission of the offences.

14I have had the benefit of the reasons of Major J. and of the Chief Justice and Bastarache J. I agree substantially with the reasons of Major J. as they relate to the admission of the fresh evidence and the jurisdiction of the Court of Appeal, on the basis of that evidence, to order a new trial. However, for reasons similar to those I expressed in R. v. Thomas, 1998 CanLII 774 (SCC), [1998] 3 S.C.R. 535, judgment rendered concurrently, I disagree with Major J.’s conclusion that the Court of Appeal did not have the power to order a new trial limited to the question of the mental capacity of the accused.

15Before addressing this last question, I wish to add some comments on the question of the admission of fresh evidence on appeal.

I. New Issues Raised on Appeal

16The general rule is that courts of appeal will not allow an issue to be raised on appeal for the first time. I stressed in my dissenting opinion R. v. Brown, 1993 CanLII 114 (SCC), [1993] 2 S.C.R. 918, at p. 923, that the rationale for the severity of that rule is twofold: “first, prejudice to the other side caused by the lack of opportunity to respond and adduce evidence at trial and second, the lack of a sufficient record upon which to make the findings of fact necessary to properly rule on the new issue”. (See also Perka v. The Queen, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232, R. v. R. (R.) (1994), 1994 CanLII 8728 (ON CA), 91 C.C.C. (3d) 193 (Ont. C.A.), R. v. Trabulsey (1995), 1995 CanLII 1414 (ON CA), 97 C.C.C. (3d) 147 (Ont. C.A.).) I also expressed in Brown, supra, at pp. 923-24, the basis for the general ban against entertaining issues on appeal which were not raised at trial:

[T]he general prohibition against new arguments on appeal supports the overarching societal interest in the finality of litigation in criminal matters. Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases. Moreover, society’s expectation that criminal matters will be disposed of fairly and fully at the first instance and its respect for the administration of justice would be undermined. Juries would rightfully be uncertain if they were fulfilling an important societal function or merely wasting their time. For these reasons, courts have always adhered closely to the rule that such tactics will not be permitted.

See also R. v. Vidulich (1989), 1989 CanLII 231 (BC CA), 37 B.C.L.R. (2d) 391 (C.A.), at pp. 398-99.

17In addition, this rule recognizes the important responsibility of defence counsel to make decisions that represent his or her client’s best interests and put forward all appropriate arguments throughout the trial. Counsel too has a responsibility to ensure the finality of the litigation process.

18However, the general rule prohibiting new issues on appeal is not absolute. There are a number of exceptions, one of which is the admission of fresh evidence on appeal. The statutory power to admit fresh evidence on appeal is granted by s. 683(1)(d) of the Criminal Code, R.S.C., 1985, c. C-46:

683. (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

(d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness;

19This Court’s decision in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, provides a framework for the exercise of that discretionary power. McIntyre J., writing for the Court, specified that a court of appeal’s overriding consideration in exercising its discretion to admit fresh evidence must be “the interests of justice” and formulated the following criteria at p. 775:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable

of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

20As the first criterion set out by McIntyre J. indicates, the due diligence requirement will not be applied as strictly in criminal cases, since the liberty of the subject is usually at stake. As Major J. notes, this Court has recognized that, in criminal cases, the lack of due diligence will not always be fatal and will have to be weighed against the strength of the other criteria and the interests of justice (McMartin v. The Queen, 1964 CanLII 43 (SCC), [1964] S.C.R. 484, R. v. McAnespie, 1993 CanLII 50 (SCC), [1993] 4 S.C.R. 501, and R. v. Price, 1993 CanLII 76 (SCC), [1993] 3 S.C.R. 633).

21The interests of justice must take into account the special treatment our criminal justice system grants the defence of NCRMD. As noted by Major J., the special treatment of the NCRMD defence emerges from the principle of fundamental justice that a person who was “insane” at the time of the offence should not be convicted of a crime (R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933; see also s. 16 of the Criminal Code). The special character of the NCRMD defence is further reflected in the power granted to appellate courts under s. 686(1)(d) of the Criminal Code to set aside a conviction and impose a finding of NCRMD, which effectively permits the defence to be raised for the first time on appeal. Pursuant to Swain, supra, the common law also allows the defence of NCRMD to be raised after a finding that the accused committed the guilty act but before the conviction is entered. Thus, the mental state of an accused at the time of the offence has always been of primary importance in our criminal justice system.

22I agree with Major J. that all the criteria of the Palmer test for the admission of fresh evidence were met in this case except for that of due diligence. Therefore, while the due diligence requirement of the Palmer test was not met, I agree with McEachern C.J.B.C., for the majority of the Court of Appeal, that “the rule requiring due diligence, the practice of not permitting new defences to be raised on appeal, and the need for finality in the trial process, must all give way in such unusual circumstances to the principle that a person incapable of criminal intent should not be convicted” ((1997), 1997 CanLII 12527 (BC CA), 97 B.C.A.C. 137, at para. 72). In the particular circumstances of this case the respondent should be allowed to raise the defence of NCRMD for the first time on appeal and, therefore, I agree with the conclusion of Major J. that the psychiatric evidence was properly admitted by the Court of Appeal.

23This brings us to the proper remedy in cases where fresh evidence is admitted on appeal.

II. The Remedy

24The power of a court of appeal to admit fresh evidence is granted by s. 683(1)(d) of the Criminal Code. However, s. 683 does not specify the appropriate remedy in such cases. Appellate courts have frequently ordered new trials in criminal matters when admitting fresh evidence without specifically referring to a particular section of the Criminal Code (see McMartin, supra, and R. v. Stolar, 1988 CanLII 65 (SCC), [1988] 1 S.C.R. 480). The jurisdiction to order a new trial in the context of fresh evidence, in my view, comes from the general powers conferred on appellate courts by s. 686 and in particular s. 686(1)(a). The relevant provisions read:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, 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 unfit to stand trial or not criminally responsible on account of mental disorder and may exercise any of the powers of the trial court conferred by or referred to in section 672.45 in any manner deemed appropriate to the court of appeal in the circumstances.

(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

(a) direct a judgment or verdict of acquittal to be entered; or

(b) order a new trial.

(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.

25The very broad terms of s. 686(1)(a)(iii) in particular support such an interpretation by spelling out the power to “allow the appeal where it is of the opinion that on any ground there was a miscarriage of justice” (emphasis added). (See G. D. McKinnon, The Criminal Lawyers’ Guide to Appellate Court Practice (1997), at p. 93; I. Lagarde, Droit pénal canadien (2nd ed. 1974), vol. II, at p. 1685, and R. v. Thomson (1995), 1995 CanLII 8936 (BC CA), 102 C.C.C. (3d) 350 (B.C.C.A.), where the Court of Appeal ordered a new trial after it admitted fresh evidence in order to make sure that there was no miscarriage of justice.) This is consistent with the “free and unrestricted discretion” vested to courts of appeal in allowing an appeal under s. 686(1)(a)(iii) (Mahoney v. The Queen, 1982 CanLII 21 (SCC), [1982] 1 S.C.R. 834, per McIntyre J. at p. 845). Therefore, I agree with Major J. that the power to order a new trial where fresh evidence is admitted is found under s. 686(1)(a)(iii) in conjunction with s. 686(2)(b).

26The position of the Chief Justice and Bastarache J. that “no miscarriage of justice can be found by the Court of Appeal as a result of fresh evidence that was not before the original trier of fact” (para. 9) is contrary to the broad interpretation given to s. 686(1)(a)(iii) and its application by appellate courts. Their position greatly restricts the jurisdiction of appellate courts under that section and essentially removes the jurisdiction of appellate courts to order a new trial after admitting fresh evidence in all cases, and not only those relating to the NCRMD defence. No other subsection of s. 686 would apply in such a case. There is nothing in the wording of s. 686(1)(a)(iii) that restricts its application to evidence produced at trial, and I fail to see any reason to do so.

27On the basis that no miscarriage of justice can be found under s. 686(1)(a)(iii) from evidence that was not before the trier of fact, the Chief Justice and Bastarache J. conclude, for their part, that s. 686(1)(d) “exclusively governs the Court of Appeal’s jurisdiction in circumstances such as these” (para. 10) and, therefore, the matter should be sent back to the Court of Appeal for disposition according to the terms of that section (para. 11). I disagree. As noted by Major J., the plain wording of s. 686(1)(d) and, in particular, the use of the word “may” do not exclude the application of s. 686(1)(a) when dealing with mental disorder issues. Furthermore, I agree with Major J. at para. 66 that the “reference to the issue of NCRMD in the opening passage of s. 686(1) must allow a court of appeal to order a new trial to prevent a miscarriage of justice flowing from a failure to raise the issue of NCRMD at the trial”. This Court’s decision in R. v. Mailloux, 1988 CanLII 27 (SCC), [1988] 2 S.C.R. 1029, is not determinative of the jurisdiction issue raised here for the reasons expressed by Major J. Sections 686(1)(a)(iii) and 686(1)(d) read together provide the Court of Appeal with the possibility of either ordering a new trial or substituting a verdict of NCRMD in cases where the defence of NCRMD is raised for the first time on appeal.

28I would add that this approach is consistent with the general rules concerning the admission of fresh evidence developed in Stolar, supra, at p. 492, where this Court held that, once a court of appeal decides to admit the evidence, it may either dispose of the matter immediately, if the evidence is conclusive, or if not, order a new trial.

29To adopt the Chief Justice and Bastarache J.’s approach would mean that in a case where the fresh evidence is not conclusive but could potentially affect the verdict, such as the psychiatric evidence in this case, the Court of Appeal could allow the appeal but it could not provide a remedy. As a result, the court would have no option, even if the admitted fresh evidence were not tested in court, other than to allow the appeal and enter a finding of NCRMD or to uphold the conviction. This cannot be what justice requires, particularly since it is not generally the function of a court of appeal to act as a court of first instance and conduct a trial on this issue. In this connection McEachern C.J.B.C. observed at para. 64:

[T]he fact pattern here is complex and a number of witnesses, possibly on both sides, may be required. In my view, it will be better if these matters are decided in a new trial, presumably with a judge and jury.

30Having concluded that the remedy of a new trial is the proper one and that it is within a court of appeal’s jurisdiction, I will now deal with the order made by the Court of Appeal limiting the new trial to the issue of whether the respondent was NCRMD at the time of the commission of the offences.

III. Power to Order a Limited New Trial

31I cannot agree with Major J. that the Court of Appeal does not have the authority to order a limited new trial. In Thomas, judgment released concurrently, I expressed the view that s. 686(8) grants a court of appeal a broad jurisdiction to decide what type of order would be “appropriate considering the nature and the extent of the wrong occasioned below”, including the power to restrict the new trial to manslaughter or second degree murder verdicts (para. 74). Further, such an order will be an exceptional one dictated by what “justice requires” (s. 686(8)) for the reasons I expressed in Thomas to which I refer as if herein recited at length.

32The Court of Appeal in this case was concerned about the risk of convicting someone who might be suffering from a mental disorder, since the defence of NCRMD had not been raised at trial. On the basis of the procedure set out in Swain, supra, the court ordered a new trial limited to the issue of whether the respondent was NCRMD at the time of the commission of the offences.

33This Court held in Swain, supra, that the issue of whether the accused is NCRMD may be determined by a hearing conducted after a finding that the accused committed the criminal acts, but before a conviction is entered. The issue of NCRMD may be tried by the jury after it has determined that the accused committed the guilty act in order to decide whether the result of that finding should be a conviction, or a finding of NCRMD. This new common law rule was found to be consistent with an accused’s right to have the Crown prove all the elements of the offence before raising other matters. The order contemplated by the Court of Appeal in this case is of the same nature as a “Swain-type hearing”, since the Crown proved beyond a reasonable doubt that the respondent committed the guilty act before the NCRMD defence was raised. Therefore, since the trial process itself contemplates a two-stage procedure, I find the order to be consistent with the NCRMD defence raised by the respondent on appeal.

34This Court’s judgment in Swain, supra, shows, in my view, that a limited new trial on the issue of whether the accused is NCRMD is consistent with what “justice requires” in these circumstances. A new trial is being granted because of the fresh evidence relating to the question of whether the accused is NCRMD. This evidence in no way relates to the determination that the accused committed the guilty act. Had the accused put forward this evidence at trial after the jury found he had committed the guilty act, it would have been considered in a Swain-type hearing, where the only issue for determination by the jury would have been whether there should be a conviction or a finding of NCRMD. It is consistent with the requirements of justice that the same procedure be followed when a new trial is granted, to allow consideration of the fresh evidence. This avoids determining for a second time issues which have already been decided by the jury and which are in no way implicated by the reasons for granting the new trial.

35There are ample precedents to support an order of this kind in the context of entrapment, which also provides a two-stage procedure where the defence of entrapment is separated from the issue of whether the accused committed the essential elements of the offence (R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903). In R. v. Pearson, [1998] S.C.R. 620, released concurrently, this Court upheld the order limiting the new trial to the issue of entrapment under s. 686(8). A new trial limited to the defence of entrapment was ordered in R. v. Laverty (1990), 1990 CanLII 176 (BC CA), 80 C.R. (3d) 231 (B.C.C.A.), where the procedural aspects of that order were based on s. 686(8) (see supplementary reasons delivered November 1, 1990, Victoria Registry V00270; see also R. v. Barnes (1990), 1990 CanLII 534 (BC CA), 54 C.C.C. (3d) 368 (B.C.C.A.), aff’d 1991 CanLII 84 (SCC), [1991] 1 S.C.R. 449; R. v. Maxwell (1990), 1990 CanLII 6693 (ON CA), 61 C.C.C. (3d) 289 (Ont. C.A.), and R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, per Sopinka J., at p. 1019, also per McLachlin J., at pp. 1017-18, both in dissent on another issue). It is worth mentioning that a five-member panel of the Ontario Court of Appeal decided in Reference re Regina v. Gorecki (No. 2) (1976), 1976 CanLII 684 (ON CA), 32 C.C.C. (2d) 135, to order a new trial limited to the defence of insanity, much before this Court decided in Swain, supra, that the insanity issue could be raised after a finding that the accused committed the guilty act. These authorities clearly demonstrate that justice may require an order limiting the new trial to the defence of NCRMD.

36The respondent contends that this order offends the principles of fundamental justice and the presumption of innocence enshrined in ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. I disagree for the following reasons. First, the situation of the respondent in this new trial will be the same as in a Swain-type hearing and, accordingly, he will not benefit from the presumption of innocence during the stage where the issue of NCRMD is examined. The Crown has already proved all the elements of the offences and a jury was satisfied beyond a reasonable doubt that the respondent had committed the crimes. The only issue outstanding is whether he possessed the mental capacity to be held criminally responsible for them.

37Second, contrary to Major J., I do not see how an order of the same nature as the procedure established in Swain, supra, which was found to respect the principles of fundamental justice, could possibly violate those same principles. Rather, I believe that the limited new trial in this case guarantees the respondent’s opportunity to make a full answer and defence. Indeed, this Court held in Swain, supra, at p. 986, that the new common law rule permitting the insanity defence to be raised after a finding that the accused committed the criminal act “would safeguard an accused’s right to control his or her defence”. Under such a rule the accused can present at trial any type of defence, even one that is inconsistent with insanity. If these defences are unsuccessful, and it is determined that the accused committed the guilty act, the accused can still raise the insanity defence. In this case, the respondent presented a defence that his stepmother had committed the crimes, this defence was rejected and the respondent was found by a jury to have committed the essential elements of the offences. The Court of Appeal’s order allows him to present his NCRMD defence, and he will be able to raise any evidentiary and Charter issues he wishes on the issue of NCRMD. Therefore, the respondent will suffer no prejudice arising from the Court of Appeal’s order for a limited new trial in this case.

38Third, Major J. referring to Swain, supra, alludes to the possibility that “if evidence led with respect to a mental disorder was not sufficient to convince the trier of fact that the accused was NCRMD, such evidence could be considered on the issue of whether the accused had the requisite mens rea” (para. 74). That possibility was discussed in Swain, supra, concerning certain cases where the NCRMD defence is raised during the course of the trial, but does not extend to the second stage of the procedure provided in Swain, where the defence is raised after a finding that the accused committed the guilty act has been rendered. As such, the post-verdict Swain hearing is not different from an entrapment hearing which does not involve mens rea; see Pearson, supra. As I already mentioned above, this Court has established that in a Swain-type hearing, the trier of fact only has to determine whether the result of that finding that the accused committed the essential elements of the offence should be a conviction or a finding of NCRMD. The order made by the Court of Appeal in this case is to the same effect.

39The fresh evidence relates solely to the defence of NCRMD. Therefore, there is no need to relitigate the jury’s findings that the respondent committed the crimes, which is not the object of the appeal. The only issue raised by the respondent is his claim of NCRMD, and I believe that justice will be done by ordering a new trial on this sole issue. Therefore, considering the nature of the NCRMD defence and the possible miscarriage of justice the court’s order was made to remedy, I find that the Court of Appeal correctly exercised its discretion to order a limited new trial on this issue in the present case.

IV. Disposition

40For these reasons, I would uphold the Court of Appeal’s order of a new trial limited to the issue of whether the respondent was NCRMD at the time of the commission of offences. Therefore, I would dismiss the appeal.

The judgment of Cory, Iacobucci, Major and Binnie JJ. was delivered by

//Major J.//

Major J. --

I. Facts

41The respondent, Warsing, was convicted by a jury of two counts of first degree murder and one count of attempted murder in relation to the death of his two siblings and injuries to his stepmother. The defence of not being criminally responsible on account of mental disorder (“NCRMD”) was not raised at trial. Subsequent to his conviction, the respondent was committed to a mental health institution and examined by several psychiatrists, one of whom diagnosed the respondent as suffering from a “Manic Depressive Disorder”, otherwise known as “Bipolar Affective Disorder”, and concluded that Warsing was suffering from this illness at the time of the offences and should have been found NCRMD.

42The respondent applied to the British Columbia Court of Appeal to have the expert evidence of the psychiatrist admitted as fresh evidence and to raise, for the first time, the defence of NCRMD. The majority of the British Columbia Court of Appeal held that Warsing was entitled to enter the psychiatric evidence and ordered a new trial on the limited issue of NCRMD.

II. Relevant Statutory Provisions

43Criminal Code, R.S.C., 1985, c. C-46

683. (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

(b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial,

(i) to attend and be examined before the court of appeal, or

(ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose;

(d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness;

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, 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 unfit to stand trial or not criminally responsible on account of mental disorder and may exercise any of the powers of the trial court conferred by or referred to in section 672.45 in any manner deemed appropriate to the court of appeal in the circumstances.

(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

(a) direct a judgment or verdict of acquittal to be entered; or

(b) order a new trial.

(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make an order, in addition, that justice requires.

III. Judicial History

British Columbia Court of Appeal (1997), 1997 CanLII 12527 (BC CA), 97 B.C.A.C. 137

(1) Majority

44McEachern C.J.B.C. (Finch J.A. concurring) identified three issues:

(a) Does the fresh evidence meet the test for admissibility?

(b) If not, can the accused be permitted to adduce this new evidence given his failure to disclose why he did not plead insanity at his trial?

(c) Is it possible for the accused to have a trial on the insanity issue under the authority of Swain?

45McEachern C.J.B.C. held that the accused failed to meet the test of due diligence set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. He noted that the defence of NCRMD would have been apparent to anyone who was familiar with the bizarre conduct of the accused and the statements made by him about the offences with which he had been charged. In spite of that, he concluded that the failure to satisfy the due diligence portion of Palmer was not fatal to the accused’s appeal as the other three requirements of the Palmer test had been satisfied and it was in the interests of justice to admit the evidence.

46On the second issue, McEachern C.J.B.C. held that R. v. Mailloux, 1988 CanLII 27 (SCC), [1988] 2 S.C.R. 1029, was not relevant. He found that the appeal before the court turned primarily on whether the accused having made a deliberate decision not to plead insanity should now be entitled to raise that defence and to introduce evidence with respect to it. While in most cases the accused will be barred from raising the defence of NCRMD for the first time on appeal, McEachern C.J.B.C. found that in light of the extraordinary circumstances surrounding this case and the support found in R. v. Buxbaum (1989), 1989 CanLII 9944 (ON CA), 70 C.R. (3d) 20 (Ont. C.A.), the court should do what is just and admit the evidence.

47On the third issue, McEachern C.J.B.C. relying on R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, concluded that the fresh evidence should be admitted and ordered a new trial on the limited issue of the mental capacity of the accused at the time of the offences.

(2) Dissent

48Ryan J.A. agreed with the majority that in extraordinary circumstances it would be proper to order a new trial notwithstanding that the accused made a strategic decision not to pursue an NCRMD defence at trial. She dissented because in her view there was insufficient evidence to convince her that it was in the interests of justice to order a new trial.

IV. Issues

49Four issues arise in this appeal:

(1) Did the British Columbia Court of Appeal err in admitting fresh evidence when all the conditions for the admission of fresh evidence on appeal had not been met?

(2) Did the British Columbia Court of Appeal err by permitting the respondent to raise an entirely new defence on appeal which was not raised at trial?

(3) Did the British Columbia Court of Appeal err in ordering a new trial based on the fresh evidence adduced on appeal?

(4) Did the British Columbia Court of Appeal err in ordering a new trial limited to the issue of NCRMD?

V. Analysis

Issue 1

50The rule for the admission of fresh evidence on appeal has been set out in Palmer, supra, at p. 775:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

The parties agree that the evidence tendered meets the second test in Palmer, the relevance criterion, but the appellant submitted that the first, third and fourth criteria were not satisfied.

51In this case the psychiatric evidence was undoubtedly available upon the exercise of due diligence. The respondent’s counsel at the Court of Appeal, hampered by solicitor-client privilege, was unable to provide an explanation as to why the evidence of NCRMD was not led. This privilege could have been waived by the respondent and his failure to do so would usually weigh against admitting the fresh evidence, however that is only one factor. See McMartin v. The Queen, 1964 CanLII 43 (SCC), [1964] S.C.R. 484, per Ritchie J., at p. 491:

In all the circumstances, if the evidence is considered to be of sufficient strength that it might reasonably affect the verdict of the jury, I do not think it should be excluded on the ground that reasonable diligence was not exercised to obtain it at or before the trial.

In R. v. McAnespie, 1993 CanLII 50 (SCC), [1993] 4 S.C.R. 501, the Court rejected fresh evidence on the appeal that was available at the sentencing portion of the trial; see Sopinka J. at pp. 502-3:

[W]e are of the opinion that the respondent failed to satisfy the criterion of due diligence. While this factor is not applied strictly in criminal cases and is not to be considered in isolation, the strength of the other factors is not such that failure to satisfy the due diligence requirement in this case is overborne by the other factors. [Emphasis in original.]

It is desirable that due diligence remain only one factor and its absence, particularly in criminal cases, should be assessed in light of other circumstances. If the evidence is compelling and the interests of justice require that it be admitted then the failure to meet the test should yield to permit its admission.

52The appellant submitted that the evidence of insanity was not credible and failed the third component of the Palmer test. The respondent was examined by a psychiatrist within days of the murders but no finding of mental disorder was made. However, this examination was conducted to determine whether the respondent was fit to stand trial, not to determine his mental capacity at the time of the offences. The appellant cited R. v. Stolar, 1988 CanLII 65 (SCC), [1988] 1 S.C.R. 480, for the proposition that an assessment of credibility should be carried out against the whole background of the case and not restricted to the fresh evidence application. McEachern C.J.B.C. recognized this proposition at para. 28 where he stated “it is credible, in the sense that it is reasonably capable of belief when viewed in the context of other evidence relevant to that issue” and at para. 63 where he referred to “the apparently consistent psychiatric assessment based upon the facts and the family history of the accused”. It is apparent that the evidence is reasonably capable of belief. Whether it is actually believed is up to the trier of fact.

53Finally, the appellant submitted that the evidence, if admitted, should be accorded no weight because it is an expert opinion based on self-reported facts from the respondent that have not been proven: R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24; R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852. This submission overlooks the fact that there was some evidence adduced at the trial related to the respondent’s family history and past conduct that supported the findings of the psychiatrist. In many cases the evidence of experts depends on the hypothesis or assumptions that they are asked to make. The value of the opinion will depend on the validity of the assumptions and is related to weight not admissibility.

54The appellant’s submissions on the strict application of the rule in Abbey should be assessed in light of Wilson J.’s later decision in Lavallee, which considered Abbey. Wilson J., there, set out four propositions which represented the ratio of Abbey (at p. 893):

1. An expert opinion is admissible if relevant, even if it is based on second-hand evidence.

2. This second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based.

3. Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion.

4. Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist.

Wilson J. in considering the fourth principle held that as long as there is some admissible evidence on which the expert’s testimony is based it cannot be ignored; but it follows that the more the expert relies on facts not in evidence, the weight given to the opinion will diminish.

55In the present appeal the issue of weight has not yet arisen as the Court of Appeal did not decide whether the respondent was NCRMD, but instead found that the expert’s opinion convinced them that it was an issue that should be heard. The expert opinion combined with the fact that the respondent had been diagnosed with bipolar mood disorder raised an issue regarding the mental condition of the respondent at the time of the offences. Such evidence was credible, and depending on the findings of the trier of fact it could have affected the outcome of the trial.

56While the fresh evidence failed the due diligence test in Palmer, the evidence sought to be introduced was credible and if believed could affect the verdict. It is my opinion that the Court of Appeal’s decision to admit the evidence after balancing the factors described was correct and should be upheld. The respondent’s failure to meet the due diligence requirement is serious and in many circumstances would be fatal; however it is overborne by the interests of justice and as Carthy J.A. stated in R. v. C. (R.) (1989), 1989 CanLII 7204 (ON CA), 47 C.C.C. (3d) 84 (Ont. C.A.), at p. 87, a failure to meet the due diligence requirement should not “override accomplishing a just result”.

Issue 2

57The appellant submitted that the finality of litigation mitigated against the respondent raising a defence that was disavowed at trial: R. v. Potvin, 1993 CanLII 113 (SCC), [1993] 2 S.C.R. 880; R. v. R. (R.) (1994), 1994 CanLII 8728 (ON CA), 91 C.C.C. (3d) 193 (Ont. C.A.). However, the Court of Appeal had a discretion to allow a new issue or defence to be raised for the first time on appeal: R. v. Vidulich (1989), 1989 CanLII 231 (BC CA), 37 B.C.L.R. (2d) 391, and in the absence of an error that discretion should not be disturbed. The record is not clear whether the respondent actually disavowed the defence of NCRMD, and as the respondent did not waive his solicitor client privilege that avenue of information remains closed.

58The defence of NCRMD is complex and relatively unclear. While Mailloux, supra, is not directly applicable, it offers some guidance. Mailloux was accused of two second degree murders and at trial he unsuccessfully raised insanity as his primary defence. On appeal, this Court examined s. 613(1)(d), the predecessor to s. 686(1)(d), and Lamer J. (as he then was), in obiter, held that it was enacted to permit a court of appeal to quash the verdict even in those cases where there was no error of law made, but the issue of insanity had not been raised at first instance. Section 613(1)(d) read:

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

(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.]

Although there have been considerable changes to the Code in this area, I am of the view that Lamer J.’s comments support my position that it is permissible to allow the accused to raise NCRMD for the first time on appeal under appropriate circumstances.

59A second factor assisting the accused in raising the insanity defence for the first time on appeal is Swain, supra, and the legislative response to that decision. Swain recognized that it would be unfair to force the accused to plead insanity as an alternative defence, as this might prejudice both his claim of insanity and his claim of innocence. Swain allowed the accused to wait until a finding of guilt had been made before the defence of insanity had to be raised. While an accused is seldom allowed to “hold back” a defence in anticipation of using it on appeal if convicted, Swain provides that option and confirms that the policy concerns about raising an NCRMD defence for the first time on appeal are not stringent because of the nature of the defence of NCRMD. Swain confirms that it is a principle of fundamental justice that a person who was not criminally responsible at the time of the offence should not be convicted.

60This procedure is an exception to the general rule, but the circumstances and evidence of this case run in favour of allowing the respondent to raise the defence of NCRMD for the first time at his appeal.

Issue 3

61This issue relates to the jurisdiction of the Court of Appeal to order a new trial on the issue of insanity as contemplated by Swain. The appellant and respondent both take the position that the Court of Appeal has the power pursuant to s. 686(1)(d) to set aside the conviction and find the accused NCRMD, or order a new trial on the basis that there has been a miscarriage of justice under ss. 686(1)(a)(iii) and 686(2). However, the appellant submitted that the Court of Appeal has the ability to send the trial back on a limited issue while the respondent argues that the trial should be a trial de novo.

62 Section 686(l)(a) and (d) and s. 686(2) of the Criminal Code provide:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, 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 unfit to stand trial or not criminally responsible on account of mental disorder and may exercise any of the powers of the trial court conferred by or referred to in section 672.45 in any manner deemed appropriate to the court of appeal in the circumstances.

(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

(a) direct a judgment or verdict of acquittal to be entered; or

(b) order a new trial.

63 In Mailloux it was held that a court of appeal should substitute a verdict of NCRMD in place of a conviction when insanity is raised for the first time pursuant to s. 613(1)(d), the predecessor of s. 686(1)(d). In the present case, the Court of Appeal declined to make a finding with respect to NCRMD and instead ordered a new trial because, as the majority stated at para. 64, “the fact pattern here is complex and a number of witnesses, possibly on both sides, may be required”.

64 While the Criminal Code clearly contemplates a court of appeal making a determination on the issue of NCRMD, it is ambiguous as to whether a court of appeal has the power to order a new trial if it comes to the conclusion that it cannot make a dispositive determination with respect to NCRMD.

In Mailloux Lamer J. in discussing the predecessor sections to s. 686 stated at p. 1040:

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.

In Buxbaum, supra, similar circumstances arose, and the Ontario Court of Appeal in reviewing Mailloux was of the opinion that it was not open to a court of appeal to order a new trial. At pp. 32-33 the court held:

It appears then that in circumstances such as these, when the defence of insanity was not raised at trial for whatever reason, no appeal lies to this court under s. 686(1)(a) on the grounds that there has been a miscarriage of justice, and there is no power to set aside the verdict and direct a new trial on such grounds. Nor have we the power in such circumstances to direct a new trial before a jury limited to the defence of insanity, as was done by this court in Gorecki, supra.

65 Mailloux dealt with the reasonableness of the jury’s finding on a defence of NCRMD, not with the defence of NCRMD being raised for the first time at the appeal. To that extent and in the context of this appeal the observations of Lamer J. are not determinative of the question raised here. McEachern C.J.B.C. distinguished Buxbaum on its facts, noting that it did not involve the unusual history and conduct of an accused like the respondent. It is my opinion that it is in the interests of justice that Mailloux be read to recognize that where the defence of NCRMD is not raised at the trial and if the court of appeal concludes that it cannot make a determination with respect to NCRMD it is within the jurisdiction of the court of appeal in avoiding a miscarriage of justice, to order a new trial. In most cases it is likely that the court of appeal would have sufficient evidence to determine the NCRMD question. It is only in cases where the facts are complex and the court concludes that further evidence is required that a new trial would be ordered.

66 Sections 686(1)(a)(iii) and 686(2)(b) provide a court of appeal with the jurisdiction to order a new trial. The submission that s. 686(1)(d) is an all- encompassing stand-alone section regarding the court of appeal’s jurisdiction governing an appeal from a conviction with respect to an issue of NCRMD is not persuasive. The reference to the issue of NCRMD in the opening passage of s. 686(1) must allow a court of appeal to order a new trial to prevent a miscarriage of justice flowing from a failure to raise the issue of NCRMD at the trial.

67 Paragraphs (a), (b), (c) and (d) of s. 686(1) all begin with the permissive word “may” clearly indicating that Parliament was conferring permissive powers on the courts of appeal in this regard. The permissive nature of these paragraphs allows a court of appeal the flexibility to act in the interests of justice as fully discussed in Buxbaum.

68 This conclusion is buttressed by the comments of Lamer J. in Mailloux at pp. 1037-38 where a similar issue with respect to the interplay between ss. 613(1)(a) and 613(1)(d), the predecessor sections to ss. 686(1)(a) and 686(1)(d), is discussed. Allowing s. 686(1)(a) to operate in conjunction with s. 686(1)(d) does not render s. 686(1)(d) redundant. Without s. 686(1)(d) a court of appeal would not be able to substitute a verdict of NCRMD as ss. 686(1)(a) and 686(2) alone do not provide for this remedy.

Issue 4

69 While I agree with the decision of the British Columbia Court of Appeal to order a new trial I respectfully disagree with their decision to limit the trial to the issue of NCRMD. The appellant submitted that the Court of Appeal is empowered to limit a new trial pursuant to s. 686(8).

686. . . .

(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.

The appellant submitted that the setting aside or quashing of a conviction does not necessarily result in a full presumption of innocence for the accused on re-trial unless the factual finding of guilt is set aside. According to the appellant this proposition is particularly so when dealing with the defence of mental disorder as that defence is usually raised after a finding of guilt has been made, but before a conviction has been entered. This is in contrast to most other defences that are raised prior to a finding of guilt.

70 The respondent countered by raising concerns related to the respondent’s right to a fair trial and presumption of innocence as guaranteed by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The respondent disagreed with Doherty J.A.’s interpretation of ss. 686(8) and 686(2) in R. v. Wade (1994), 1994 CanLII 10562 (ON CA), 89 C.C.C. (3d) 39 (Ont. C.A.). While s. 686(8) overlaps with s. 686(2) the respondent submitted that s. 686(2) is a specific provision and the general provision of s. 686(8) cannot derogate from it. It is a rudimentary principle of statutory interpretation that general words do not derogate from special provisions.

71 The principles enunciated by the Chief Justice, for the majority, in R. v. Thomas, 1998 CanLII 774 (SCC), [1998] 3 S.C.R. 535 (being released concurrently with these reasons), are helpful in resolving the case on appeal. Thomas was charged with the second degree murder of his common law spouse and pleaded the defence of intoxication in an effort to vitiate the specific intent element required for second degree murder and raise the option of manslaughter. The British Columbia Court of Appeal ordered a new trial restricted only to whether Thomas was guilty of second degree murder or the lesser included offence of manslaughter.

72 As determined in Thomas, orders issued pursuant to s. 686(8) are ancillary in nature and cannot be inconsistent or at direct variance with a court of appeal’s disposition under s. 686(2). When a new trial is ordered pursuant to s. 686(2) a court of appeal’s ability to make an ancillary order pursuant to s. 686(8) is caveated by the condition that justice requires that order. In Thomas, the Chief Justice held that when a court of appeal quashes a trial by jury conviction on the basis that a miscarriage of justice has occurred and orders a new trial, it must order a full new trial. Section 686(8) does not in such circumstances provide the authority to order a limited new trial.

73 In following the principles of Thomas, the British Columbia Court of Appeal did not have the jurisdiction to limit the scope of the new trial to which the accused was entitled. The Court of Appeal quashed the accused’s conviction but restricted his new trial to the issue of NCRMD. This order restricted the outcome of the respondent’s trial to two possible verdicts, not guilty by reason of NCRMD or guilty. The presumption of innocence is integral to ensuring a fair trial which is the mission of our criminal justice system. The principle of a fair trial is obviously offended by a trial that precludes a verdict of not guilty.

74 A limited trial which restricts the accused’s right to control his defence, offends a fundamental principle of justice and is an untenable result. The accused must be able to put forward whatever defence he has. In the circumstances of this case the respondent should be granted that opportunity. An accused is able to raise the defence of NCRMD at any time during his or her trial or wait to raise the defence once the trier of fact has made a determination of guilt. Swain also contemplated that if evidence led with respect to a mental disorder was not sufficient to convince the trier of fact that the accused was NCRMD, such evidence could be considered on the issue of whether the accused had the requisite mens rea. In this light, it is evident that an accused’s ability to make full answer and defence could be significantly prejudiced in his defence by restricting his trial to the issue of NCRMD. In this respect, the issue of NCRMD is different from the issue of entrapment and, as the reasons in R. v. Pearson, 1998 CanLII 776 (SCC), [1998] 3 S.C.R. 620 (released at the same time as these reasons), indicate, the latter allows a distinct approach.

75 The appellant (Crown) in their supplementary factum raised the issue of whether an appellant can leave this Court with less than obtained in the Court of Appeal: R. v. Barnes, 1991 CanLII 84 (SCC), [1991] 1 S.C.R. 449, at p. 466, and Guillemette v. The Queen, 1986 CanLII 59 (SCC), [1986] 1 S.C.R. 356, at p. 364. The respondent did not file a cross appeal with respect to the issue of the limited trial and therefore if the appellant (Crown) had not appealed to this Court the new trial would still be limited to the issue of NCRMD. Two difficulties arise from this proposition. Barnes and Guillemette both dealt with the position of an accused person as opposed to that of the Crown. In addition, the issue of whether to order a new trial or a limited trial is an issue of jurisdiction and accordingly one that this Court can raise on its own. Given our finding that the Court of Appeal did not have jurisdiction to order a limited trial, this Court is left with no option but to order a new trial. Section 695(1) of the Criminal Code states:

695. (1) The Supreme Court of Canada may, on an appeal under this Part, make any order that the court of appeal might have made and may make any rule or order that is necessary to give effect to its judgment.

VI. Disposition

76 The appeal is dismissed and a full new trial is ordered.