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Supreme Court of Canada

Criminal law—Judge’s charge to jury—Failure to summarize certain testimony—Failure to simplify expert testimony.

Appellant was charged with murder in the first degree. Following an altercation in a tavern, he went to his home nearby, got a dismantled firearm, assembled and loaded it, returned to the tavern and shot the victim. The evidence disclosed that the accused had a history of mental disturbance and of treatment for drug and alcohol abuse. At his trial, the accused relied on the defence of insanity under s. 16(2) of the Criminal Code.

He was convicted by a judge and jury and the Court of Appeal dismissed his appeal.

Three grounds of appeal were submitted to the Court: 1. the evidence of insanity was not contradicted, and thus the jury verdict was incompatible with the evidence presented; 2. the trial judge did not adequately sum up the evidence, and thus the jury could not properly assess the defence presented; 3. the trial judge did not fully explain the defence of insanity, and thus the jury was not able to understand the characteristics of mental illness as defined by the law.

Held (Lamer J. dissenting): The appeal should be dismissed.

Per Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre and Chouinard JJ.: For the reasons stated by Lamer J., grounds 1 and 3 are without merit and cannot be sustained. With regard to the second ground: the trial judge is not bound to summarize unimportant testimony, nor is he required to translate the language used by expert witnesses into the vernacular for the benefit of the jury; finally, the trial judge is not required in his summary of the evidence to refer to the testimony of every single witness. In the case at bar, the evidence of a policeman, a lawyer and a doctor was only peripheral, tending to demonstrate that the accused was mentally disturbed, a point which was not contested by the Crown: the essential difference was

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as to the accused’s mental condition at the time of the offence alleged. Counsel for the accused himself referred to this evidence only in passing and did not comment, at the conclusion of the charge, on the failure of the judge to direct the attention of the jury to the testimony of these three persons. In the case at bar, failure to mention these witnesses does not constitute procedural error necessitating a new trial.

Per Lamer J., dissenting: The charge was relatively short in the case at bar. Certain testimony did not call for any further summary. Additionally, a judge is not obliged to simplify the testimony of an expert witness: he may ask the witness to do so himself, and if he does so in his charge to the jury, he must warn the jurors that his interpretation of the testimony is only an opinion, but he cannot be said to have failed to simplify. However, although a judge is not required to summarize all the evidence or refer the jury to the testimony of each and every one of the witnesses, he must draw the jury’s attention to testimony and to passages from the testimony tending to support the defence argument. A summing up must be fair having regard to the circumstances of the particular case and the nature of the defence put forward by the accused, and the testimony by means of which it is presented. In the case at bar the accused, who pleaded insanity, having no witnesses to call who could have examined him shortly after the crime, called witnesses to testify to his condition before the crime and some time afterwards, and they indicated the possibility of a relapse, a matter of capital significance. Although in general a judge may take the short duration of the trial into account and conclude that the jurors still had all the evidence fresh in their minds, this fact clearly could not relieve him of the necessity of presenting the defence argument, or of doing so fairly.

[Abrath v. North Eastern Ry. Co. (1883), 11 Q.B.D. 440; R. v. Demeter (1975), 10 O.R. (2d) 321; Savard and Lizotte v. The King, [1946] S.C.R. 20; Bray v. Ford, [1896] A.C. 44; Spencer v. Alaska Packers Association (1904), 35 S.C.R. 362; Azoulay v. The Queen, [1952] 2 S.C.R. 495; Kelsey v. The Queen, [1953] 1 S.C.R. 220; Lizotte v. The Queen, [1953] 1 S.C.R. 411; Derek Clayton-Wright (1948), 33 Cr. App. R. 22; Chartrand v. The Queen, [1977] 1 S.C.R. 314; R. v. Borg, [1969] S.C.R. 551, referred to.]

APPEAL from a judgment of the Court of Appeal of Quebec[1], dismissing the appeal from a

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guilty verdict of a judge and jury. Appeal dismissed, Lamer J. dissenting.

Alain Généreux, for the appellant.

Marc Vanasse, for the respondent.

English version of the judgment of Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre and Chouinard JJ. delivered by

DICKSON J.—The appellant, Christian Thériault, was charged before judge and jury and convicted of murder in the first degree of Jimmy Massey, at Joliette, in the Province of Quebec. The facts and the circumstances of the murder were not contested. The appellant relied, however, upon the defence of insanity under s. 16(2) of the Criminal Code. He said that he had a disease of the mind to an extent that rendered him incapable of appreciating the nature and quality of his act or of knowing that the act was wrong. An appeal to the Court of Appeal of Quebec was dismissed (Bélanger and Jacques JJ.A., Kaufman J.A. dissenting).

I

The facts may be briefly stated. Shortly before 1:00 a.m. on the morning of July 2, 1976 an altercation took place between Thériault and one Claude Foucher in a tavern in the Hotel St‑Louis in Joliette. The victim, Jimmy Massey, intervened to tell Thériault to leave. Thériault went to his home nearby, got a firearm which was in a box, dismantled. He assembled the firearm, loaded it with what he called a “slug”, returned to the hotel and shot Massey through the head, killing him. After his arrest Thériault made a statement which was taken down in writing and confirmed the essential facts. He refused to sign the statement but initialed a correction. At the time Thériault was nineteen years of age with a history of mental disturbance and of treatment for drug and alcohol abuse.

The Crown and defence evidence was adduced during three and one-half days of trial. Twenty-one witnesses were called. On the morning of December 20, 1976, defence and Crown counsel delivered their respective addresses to the jury. Later on the same day, the trial judge delivered his

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charge and the verdict of the jury was rendered that evening.

II

On appeal to the Quebec Court of Appeal counsel for the accused took three points, which Bélanger J.A. summarized as follows:

[TRANSLATION] (1) the evidence of insanity at the time of the offence was not contradicted by the evidence for the prosecution, so that the jury verdict is incompatible with the evidence presented and unreasonable overall;

(2) this verdict was rendered because, in his charge, the trial judge did not sum up the evidence so that the jury could properly assess the defence presented;

(3) the trial judge did not give sufficient information on the defence of insanity to enable the jury to understand the characteristics of mental illness as defined by the law.

All of the judges in the Court of Appeal were of the view that grounds (1) and (3) were not well founded and could not be sustained. The same grounds of appeal, worded in slightly different language, were advanced in this Court. I have had the opportunity of reading the reasons prepared by my brother Lamer for delivery in this appeal. I share the view of Mr. Justice Lamer and of the judges of the Court of Appeal that neither of these grounds of appeal has merit and I do not think that I can usefully add anything to what has been said on these two grounds by Mr. Justice Lamer and the judges of the Quebec Court of Appeal.

The difference of opinion in the Quebec Appellate Court, and in this Court, arises in respect of what was the second ground of appeal in the Quebec Court and the first ground of appeal in this Court, namely, that the trial judge, in his charge to the jury, failed to deal adequately with the defence evidence. On this subject, Mr. Justice Bélanger noted that the inquiry had lasted only three and one-half days and that the Crown evidence in chief concluded on the second day, consisting, as it did, of the uncontested circumstances and acts constituting the offence. The two other days were devoted to proof of the insanity of the

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accused and Crown rebuttal evidence in respect of that defence. Mr. Justice Bélanger said:

[TRANSLATION] In my opinion, the trial judge adequately summarized the defence evidence, which the jurors certainly still had fresh in their minds. He referred to the main facts on which legal evidence was provided by witnesses who did not testify as expert witnesses, and to the broad outlines and conclusions of the opinions given by expert witnesses for the defence. He even read the jury extracts from the testimony of the chief expert witness for the defence. To my mind, he did not have to follow the expert witnesses in theories foreign to the standards of s. 16 of the Criminal Code, which are the only ones that should guide the jury.

Mr. Justice Jacques, who concurred in the judgment of Mr. Justice Bélanger was of the view that the medical diagnosis of the medical experts heard in defence had been recalled by the trial judge and that of Dr. Talbot, an important defence witness, cited “in extenso”. Mr. Justice Jacques said:

[TRANSLATION] As was their right, the jurors chose the diagnosis made by the expert witness for the Crown. The reason they did so was surely not because the judge failed to explain the defence argument; he even said that he considered the extracts from the testimony of Dr. Talbot which he cited to be “most important”.

Mr. Justice Kaufman in dissent expressed himself as unable to agree that the trial judge, in his charge to the jury, adequately dealt with the evidence on which the appellant’s sole defence was based. It is upon Mr. Justice Kaufman’s dissent that the appellant relies in coming to this Court without leave. Mr. Justice Kaufman observed that seven witnesses had been called by the accused: a social worker, a policeman, a lawyer, two general practitioners and two psychiatrists and that their evidence covered 276 pages of the Joint Record, of which 212 pages were devoted to psychiatric assessments. Mr. Justice Kaufman considered it imperative that the evidence be summed up for the jury not, as the trial judge said, by giving [TRANSLATION] “merely a very short summary of the testimony of these witnesses, what I regard as most important”, but rather by “distilling” from the mass of evidence those parts which would help the jury in reaching their verdict.

The justice of appeal said:

The judge’s résumé occupies less than five pages of the transcript, and while he did touch on some highlights, he

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failed to review parts of the evidence which the defence clearly considered important. Thus, the lawyer, the policeman and one of the doctors are not mentioned at all, and while the impact of their testimony may not have been great, it should, at least, have been discussed.

The next passage in the judgment of Mr. Justice Kaufman which I think is of particular importance is this:

As I indicated before, the defence, which was serious, should, in my view, have been put to the jury in much greater detail. It should also, where necessary, have been explained in terms which were more comprehensible than those employed by the witnesses. That is a difficult task, beset by the risk of losing precision. But, as was said by the Supreme Court of Canada in Azoulay v. The Queen (1952), 15 C.R. 181 [reported also in [1952] 2 S.C.R. 495] “highly technical and conflicting evidence” (of experts) must be stripped of non-essentials so that the jury may “fully appreciate the value and effect of the evidence” (per Taschereau J., at 184) [at p. 499 in the S.C.R. report].

The first objection raised by Mr. Justice Kaufman was that the trial judge had given an overly short résumé of the evidence of some of the defence witnesses. I agree with my brother Lamer that when the trial judge spoke of giving a résumé of the evidence, he was referring simply to the testimony of the social worker and Dr. Reid. The testimony of these witnesses did not merit any more than a brief reference. The social worker had not seen the accused since 1973, three years before the crime was committed. Dr. Reid did not feel competent to express an opinion on the mental state of the accused, not being a psychiatrist.

The second objection of Mr. Justice Kaufman was that the trial judge did not explain to the jury in layman’s language the technical testimony of the medical experts. Mr. Justice Kaufman felt that the evidence of these experts was overly technical and should have been simplified for the jury. On this point, in the Quebec Court of Appeal, Mr. Justice Jacques had this to say:

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[TRANSLATION] In my opinion there is no need to require a trial judge to re-word in popular language the technical language used by expert witnesses, when the technical expressions have been explained during the course of the testimony.

With respect, I agree with Jacques J.A. and Mr. Justice Lamer that there is no obligation on the trial judge to interpret the testimony of experts. Mr. Justice Kaufman speaks of the risk of “losing precision”. Equally grave is the danger of error in translating technical language into common and everyday vernacular. If the testimony is highly technical counsel who has called the expert witness should ask the witness to explain himself in language the layman can understand. The judge may, in his discretion, decide that some simplification is desirable but failure on his part to undertake this difficult and potentially hazardous task is not, in my view, reversible error.

The final objection of Mr. Justice Kaufman and the one to which my brother Lamer would give effect was that the trial judge had not referred to the testimony of other defence witnesses: these witnesses were a policeman, a lawyer and another doctor.

With the greatest of respect for the contrary opinion, I disagree. The evidence of the lawyer was that he had been consulted by the accused one month before the shooting after minor provocation from the police. To the lawyer, Thériault seemed lost, dangerous and aggressive. Thériault spoke of wanting to kill police officers. The evidence of the doctor, not a psychiatrist, was that he had seen the accused for fifteen minutes, one month before the shooting. Thériault had spoken to him of having problems and of hallucinations. He appeared anxious and aggressive. The doctor recommended psychiatric treatment and prescribed mild Valium. The policeman had seen the accused in February of 1976, some months before the shooting. The evidence of these witnesses was only peripheral. At most, it demonstrated that the accused was mentally disturbed. This was not contested by the Crown. Thériault had been in treatment for an extended period some months before the shooting.

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The issue at trial, however, was not the general mental health of the accused but whether he was, at the time of the offence alleged, ‘insane’ within the legal definition of the term. Was he incapable of appreciating the nature and quality of his act? The important defence evidence on this point was offered by the two psychiatrists. The defence would stand or fall on whether or not the jury accepted their testimony. The testimony of the other witnesses was of secondary importance. Mr. Justice Kaufman recognized that “the impact of their testimony may not have been great”.

In his address to the jury, counsel for the accused devoted one paragraph to the evidence of the doctor. The evidence of the lawyer merited one paragraph. Thirty-three paragraphs of the address were devoted to the evidence of the two psychiatrists called by the defence. And properly so, because, as I have said, the only issue was insanity and the only persons who could speak authoritatively on that subject were the psychiatrists. The other background witnesses, including the lawyer and the doctor, who was not a psychiatrist, could only speak to what was a non-issue—the fact that Thériault was mentally disturbed.

It is important to note that the trial judge repeatedly directed the attention of the jury to the entirety of the evidence. He spoke of [TRANSLATION] “the evidence overall”, “after examining all the evidence”. The last words the jury heard from him before rendering their verdict were these:

[TRANSLATION] As I have already told you, you are bound to consider not only the evidence or testimony of the physicians, but all the evidence presented before you, before you arrive at a conclusion: you can take into account all the actions of the accused, the words spoken by him, his acts, immediately before, a long time before, and those which he did immediately before and at the instant of the crime.

Although by no means determinative, it is not irrelevant that counsel for the accused did not comment, at the conclusion of the charge, upon the failure of the trial judge to direct the attention of

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the jury to the evidence of the lawyer, the doctor and the policeman.

As Sir William Brett M.R. said in Abrath v. North Eastern Ry Co[2]. at p. 453, “It is no misdirection not to tell the jury everything which might have been told them”. It was open to the trial judge to make reference to the evidence of the lawyer and of the doctor in his charge but this evidence had been reviewed earlier in the day by defence counsel. It was fresh in the minds of the jury. It was well within the bounds of the wide discretion enjoyed by trial judges that he should decide not to repeat it. Failure to mention these two witnesses in the charge does not, in my view, constitute procedural error necessitating a new trial. This conclusion finds support in the unanimous decision of the Ontario Court of Appeal in R. v. Demeter[3], at p. 340:

There will probably never be a perfect charge or one that cloistered appellate counsel cannot find objectionable after minute scrutiny. However, no case has been cited to us where non-direction on a matter of evidence has been held to be misdirection requiring a new trial except where a single item of evidence is the foundation of the defence.

I would dismiss the appeal.

English version of the reasons delivered by

LAMER J. (dissenting)—This appeal is from a judgment of the Court of Appeal for Quebec. By its decision the Court dismissed the appeal brought by the accused from the verdict of a court of assizes for the Judicial District of Joliette, finding him guilty of the first degree murder of one Jimmy Massey. The facts are not in dispute. They are summarized by Bélanger J.A. of the Court of Appeal as follows:

[TRANSLATION] The murder occurred in a public house in the Hôtel St-Louis, in Joliette, at about 1:00 a.m. on July 2, 1976. There had earlier been a brawl involving appellant, Christian Thériault, and one Foucher. They were separated after a time. The victim, Jimmy Massey, intervened to tell Thériault to leave. At this point,

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Thériault left the premises and went to his home, a short distance from the Hôtel St‑Louis, to get his gun which he kept there dismantled in a box.

Five to ten minutes after his departure from the hotel, Thériault returned through the back door, aimed at Massey and fired. Thériault had loaded his gun with what he called a “slug”. The bullet passed through Massey’s head and he was killed on the spot.

The only defence put forward by the accused was that of insanity, as provided in s. 16 of the Criminal Code of Canada (R.S.C. 1970, c. C-34).

In the Court of Appeal, the accused submitted three grounds, summarized by Bélanger J.A. as follows:

[TRANSLATION] (1) The evidence of insanity at the time of the offence was not contradicted by the evidence for the prosecution, so that the jury verdict is incompatible with the evidence presented and unreasonable overall;

(2) This verdict was rendered because, in his charge, the trial judge did not sum up the evidence so that the jury could properly assess the defence presented;

(3) The trial judge did not give sufficient information on the defence of insanity to enable the jury to understand the characteristics of mental illness as defined by the law.

The three appellate judges unanimously dismissed the first and third of these grounds as without foundation. The Court did not allow the second ground either, but one of the three judges wrote a dissenting opinion. Appellant’s appeal to this Court is based on this dissent, as of right; thus, though he raised other grounds in his factum, the jurisdiction of this Court is limited to this dissent on a question of law.

In the judgment, the dissent reads as follows: [TRANSLATION] “(Kaufman J.A. dissenting, on the ground that the trial judge inadequately summarized the evidence for the defence).” The reasons for Kaufman J.A.’s dissent are contained in the written opinion in the record. Before referring to this (as the Court may do: see Savard and

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Lizotte v. The King[4], at p. 23), it is preferable to consider the evidence of insanity put forward by the defence and the evidence of the prosecution in rebuttal.

The accused called seven witnesses.

A social worker, who had not seen him since 1973 (the murder occurred in 1976), told the jury of the accused’s unhappy and turbulent childhood, and the fact that he was aggressive.

Another witness, Gaétan Barrette, a police officer in the City of Joliette, met him in February 1976. Answering a call for help placed by Thériault’s mother, he went to their home and found Thériault apparently deranged, saying he wanted to die, and constantly eyeing the service revolver carried by the officer. Instead of incarcerating him, he was taken to the St-Charles Hospital in Joliette. The officer added that Thériault had behaved in a similar fashion in the past.

Charles Reid, a doctor attached to the St-Charles Hospital, specifically to the department where alcoholics and drug addicts are treated, related the circumstances under which he became acquainted with and treated Thériault in 1973 and 1974. In his opinion, Thériault frequently consumed an excessive quantity of drugs, but he was not physically addicted. He considered that the accused took drugs because he was unhappy, uncomfortable around other people, and in revolt against authority. He found that the accused’s mental condition was lucid, except of course when he had taken drugs. He did not find in him any indication of physical aggression. Finally, he related an incident in which his patient told him he wanted to commit suicide, but said that in his opinion he was not serious, and that it was only a game since the incident occurred in the presence of hospital staff. The witness refused to give any opinion as to the accused’s mental condition, as he was not a psychiatrist.

Pierre Thibault, a general practitioner at the St-Charles Hospital, saw Thériault on June 3, 1976 for reasons which he said were psychological. The accused claimed that he was hearing threaten-

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ing voices, was having hallucinations, felt depressed and wanted to kill himself. The interview lasted fifteen minutes and the doctor prescribed “valium”.

Mr. Ferland, a lawyer in Joliette, had a surprise visit from the accused at his office a few weeks before the murder. He said that Thériault seemed nervous, his eyes were glassy, he was trembling and that he said he wanted to kill policemen.

Following this testimony, two psychiatrists were heard: Drs. Cayouette and Talbot, of the St‑Charles Hospital in Joliette and the Philippe Pinel Institute in Montreal respectively.

Dr. Cayouette treated Thériault from February 4 to March 18, 1976. In his opinion, there was no doubt that he was a schizophrenic, whose illness was of such a nature that he was sometimes dangerous to himself and to others, and sometimes not. Dr. Cayouette had to place him in close treatment (involuntary treatment) on two occasions: first, from February 4 to 24, 1976, and the following day, February 25, until March 5. He placed the patient in open treatment on March 5 because his behaviour indicated that he was no longer dangerous, and especially—at least this is the impression given by his testimony as a whole—because of the clinical advantages of open treatment:

[TRANSLATION] Q. You feel that open treatment is easier, it is easier for treatment…

A. Well, yes, because close treatment really is an enormous handicap for the doctor treating patients, he can be given absolutely no rights to leave the hospital, the law is specific on this point; you cannot—it is really a great limitation in terms of treatment—the patient says that the people who look after me don’t really have my interests at heart, they won’t even let me put my foot outside the hospital; the law states in as many words that as soon as the treatment can be changed it should be.

Q. In your opinion at that point, in ordering open treatment, would Thériault have had to remain in open treatment for very long?

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A. The situation usually depends on the individual patient: for a patient who co-operates fairly well with the doctor, it is a matter of judgment as to the patient’s condition, and what the doctor thinks can be done, and it may be a matter of a few weeks, it may sometimes even continue for a month or two, and medical leave may be given if you think that the patient will continue to co-operate and come in on an out-patient basis, but in the case under consideration, which is important, there were five earlier instances in which the patient signed a refusal of care; in any case, in order for the treatment to progress the therapeutic approach has to be varied a bit at some point, because it is true that an environment like the close department in our hospital—we have only one for men, it is called department 2D, and patients sometimes feel a bit unhappy at being there, and think they are not being well treated if they are left there.

Nonetheless, the doctor did not think that his patient had ceased to be dangerous. This is in fact why he refused to sign the patient’s leave. It is worth mentioning that a patient in open treatment really does not need leave in order to unilaterally terminate his treatment, and this is what Thériault did on March 18. When questioned by his counsel, who asked him whether Thériault, when he took leave from the hospital, constituted a danger to the public, Dr. Cayouette replied:

[TRANSLATION] Q. Did you sign medical leave—in other words, to put it another way, was Thériault free to disappear?

A. Certainly not.

Q. In your opinion on March 18, when he left, when he signed a refusal of treatment and was legally able to go, should he in your opinion have remained in the hospital or was he ready to return to the outside world, as we say?

A. Not based on my experience; the reason I refused to sign medical leave is because I thought that the patient had not sufficiently improved, although he had made some progress.

Q. He still needed treatment?

A. Absolutely, in my opinion.

He later told the judge, who returned to the point:

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[TRANSLATION] A. At the point when the patient gave himself leave, he represented a relative danger, because a relapse can occur at any time, but the danger was undoubtedly relative.

Q. Was it a possibility or a probability?

A. Well, I would say a possibility, perhaps a little greater than the average patient in his condition in the hospital centre: when they have made some progress and leave, there are seventy (70%) per cent of our patients that do all right.

To the reasons already given, and cited above, why he terminated the close treatment, he added:

[TRANSLATION] Q. There was surely a difference in your opinion when you ordered close treatment the first time and the second time, and in both cases when you did not give leave—you did not give leave but terminated the close treatment—what is the difference?

A. The difference is based mainly on one’s practical understanding of a given case, and it is also based on what one might call general experience of cases resembling the one in question, but once again, if nothing is changed, to begin with, the patient’s attitude to the treatment centre, including the doctor and all the staff, becomes so negative, he becomes convinced that he will not progress, there is thus a practical change by the treatment facility, because otherwise we would be into a vicious circle, with no way out. The fact that we know the patient a bit better, that our relationship with him is somewhat better, all of this helps because otherwise the treatment would never be changed, because it is an illness which goes through successive phases, phases of remission, and when there is co-operation on the part of the patient progress is made. I think that the turning point is when the patient co-operates in his treatment.

Discussing the guidelines contained in s. 16 of the Criminal Code, the doctor considered that his patient’s capacity to appreciate his own actions was impaired to various degrees as the illness developed, but he could give no opinion as to the degree of such impairment at the precise time of the murder. Finally, the judge asked him:

[TRANSLATION] If I have understood your testimony correctly, a person with the symptoms you have just

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mentioned could at one point be sound of mind, able to distinguish between right and wrong, and at another point, a few days later, perhaps a few weeks, be unable to do so, that is, be unable to make this distinction: is that correct?

to which he replied:

[TRANSLATION] Essentially that is correct, with perhaps one qualification, that it is mainly his judgment—because the individual’s understanding does not change so much, what happens is that when the illness worsens the practical judgment is greatly disturbed, much more than his understanding, and at such times the subject is able to recognize the doctor, to recognize the nurses, to recognize the staff present, but his practical judgment is much more distorted at such times.

Dr. Talbot testified at length. His opinion was based on the patient’s condition from the time when he saw him shortly after the murder, on August 12, 1976, and on Thériault’s psychiatric record at the Joliette Hospital. He explained in detail the diagnostic progression which led him to a conclusion of schizophrenia. I grant that these explanations are often difficult to follow, because they are learned in nature and replete with highly technical terms; however, I hasten to add that, in my opinion, the primary and secondary conclusions are clear and readily understandable by the layman. On August 26, 1976, Dr. Talbot noted the presence “of a very marked homicidal aggression”. The doctor observed, regarding appellant’s mental condition on the day of the murder:

[TRANSLATION] …he is unable to perceive reality in the usual way, he cannot accurately analyse events which occur, he cannot control…

…could not exercise rational judgment on what took place around him and on his actions.

Q. How would you characterize the judgment of a schizophrenic in circumstances like those of July 2?—as we know he related the facts very clearly the following day, but in a phase like that of July 2, in the case of Christian Thériault, to what extent was he able to understand what was happening?

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A. As I mentioned earlier, his judgment was based on premises, on perceptions which were inaccurate, which were incomplete, and at the same time he was subject to a sort of internal aggressive explosion as a result of which, in my opinion, he could no longer exercise rational judgment.

Q. At the present time, Dr. Talbot, with the treatment you gave Christian Thériault—you heard the testimony of other doctors—do you still maintain the opinion that on July 2 he was unable to appreciate the consequences of his actions?

A. Yes.

Q. In your view, on July 2, could Christian Thériault appreciate the quality of the act he committed when he shot Jimmy Massey?

A. I answered this question a minute ago, when I tried to show and to illustrate the processes leading one to make a judgment: in the case of a psychotic individual, in the case of an individual like Mr. Thériault, with his particular pathology, I think it is very difficult if not impossible for him to arrive at a rational judgment.

Further, because he has difficulty apprehending reality as it is, perceiving it as it is, he adds to this reality other aspects which are peculiar to him, and which he projects onto the world around him.

The strength of the tension, of the internal aggression is such that it impedes or will not allow the faculties of judgment to operate.

A. As a consequence of compensating for disorientation, when he is subject to the internal pressure, to the explosive aggression which I referred to, I think he is unable to exercise rational, truly normal judgment.

Q. As to the quality, the nature of his act?—is that right?

A. Yes.

Q. Was he in your opinion able to appreciate whether the act which he committed was right or wrong?

A. I think that at this time what was happening inside of him was of such intensity that the question had no significance, that in fact such a question was not even asked, because this is a process, this is a condition in which the patient is disorient-

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ed and acts on impulse, without the question of right or wrong being raised—that is not important: what is important is the action he is in the course of taking, to satisfy a psychotic hostility. [My emphasis.]

The doctor went on to say that at the time Thériault went to get the rifle he was in a psychotic state. To the question:

[TRANSLATION] In your opinion the fact that he left the Hôtel St-Louis, the fact that he went home, the fact that he assembled his gun and returned to the Hôtel St-Louis, did not succeed in quelling the irritation he felt when Jimmy Massey told him to leave?

he answered:

[TRANSLATION] Apparently not. I had an opportunity while the patient was at the institute under my care, and when I evaluated him, to see this vigorous aggression in action, disorienting and disoriented, on certain occasions while he was there. This aggressive disorientation was not of a permanent nature. There were highs and lows, there were improvements; as I said a moment ago, in my view at the time in question Mr. Thériault was subject to the pathology, that he exhibited, that he suffered from this pathology when he was incapable, as a result of it, to exercise a rational judgment.

…that at the time in question the patient was acting under a significant mental disorder of psychotic intensity. [My emphasis.]

When questioned by the judge, the doctor admitted that the accused, between leaving St‑Charles and arriving at Pinel, may have had moments when he was perfectly lucid. But he also stated:

[TRANSLATION] Q. You said, doctor, that on July 2 the accused could not understand the nature of the quality of the act he committed—is that correct?

A. Could not appreciate its nature.

Q. Could not appreciate its nature?

A. Yes.

Q. In your opinion, did the accused know he was committing a crime?

A. During this period his cognitive faculties do not appear to have been greatly or markedly affected; additionally, I think what is important…

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Finally, his lengthy testimony was summed up in these concluding words:

[TRANSLATION] Q. In the specific case of Christian Thériault, on July 2, was his judgment impaired?

A. I told you this morning, I think that, in my view, at that time, this is my opinion, he was incapable of exercising rational judgment.

The evidence in rebuttal was brief. Aside from the testimony of a former employer of Thériault, who said he found him normal in April 1976, it consisted of only one other witness, Dr. Daoust, a psychiatrist employed by the Department of Justice of Quebec.

He stated that Thériault’s action was not that of a schizophrenic, but rather of an individual who had problems with his temper and behaviour.

He maintained that Thériault was capable of appreciating the nature and quality of his action. He agreed it was possible that he might be suffering from schizophrenia, but the doctor stated that he rather inclined to the view that he was a problem personality— “…a fellow with a bad temper, with an impulsive, bad temper, lacking the usual degree of self-control”.

In his written opinion, Kaufman J.A. stated his dissent as follows:

However, with the greatest respect, I am unable to agree that the learned trial judge, in his charge to the jury, adequately dealt with the evidence on which Appellant’s sole defence was based.

He further stated:

The expert evidence abounds with words and phrases like “symptômes primaires ou secondaires de la schizophrénie”, “trouble de l’affectivité”, “affectivité profondément aplatie”, “flambée de psychose”, “autisme” [[TRANSLATION] Primary or secondary symptoms of schizophrenia, manic-depressive disorder, deeply deflated affectivity, exacerbated psychosis, autism] and the like. This, as I already noted, makes heavy reading, and I dare say it is even harder to follow in court.

It was therefore imperative that the evidence be summed up for the jury not, as the learned trial judge said, by giving “simplement un très petit résumé des témoignages de ces témoins, ce que je considère le plus important” (J.R., at p. 723), but rather distilling from

[Page 354]

this mass of evidence those parts which would help the jury in reaching their verdict.

The judge’s résumé occupies less than five pages of the transcript, and while he did touch on some highlights, he failed to review parts of the evidence which the defence clearly considered important. Thus, the lawyer, the policeman and one of the doctors are not mentioned at all, and while the impact of their testimony may not have been great, it should, at least, have been discussed.

Finally, he summarized the essence of his reservations regarding the judge’s charge as follows:

As I indicated before, the defence, which was serious, should, in my view, have been put to the jury in much greater detail. It should also, where necessary, have been explained in terms which were more comprehensible than those employed by the witnesses. That is a difficult task, beset by the risk of losing precision. But, as was said by the Supreme Court of Canada in Azoulay v. The Queen (1952), 15 C.R. 181, “highly technical and conflicting evidence” (of experts) must be stripped of nonessentials so that the jury may “fully appreciate the value and effect of the evidence” (per Taschereau, J., at p. 184).

It appears, therefore, that in the opinion of the dissenting judge, the trial judge should have:

(1) summed up the evidence by something other than “merely a very short summary”;

(2) explained to the jurors in terms more accessible to a layman the meaning of what Drs. Cayouette and Talbot had stated;

(3) referred the jurors to the testimony of the Joliette policeman, of the lawyer, and to that of Dr. Pierre Thibault, testimony which he did not deal at all with in his charge.

Before examining what the judge said to the jurors, it is appropriate to recall here certain rules by which judges must be guided in making their charges to jurors, and in giving them instructions on the law; but first we must recall the principles applicable to judges weighing these instructions on appeal.

The first rule which an appellate judge must remember is that he is not called upon to assess a judge’s charge in terms of what he himself would have done, but in terms of the standard laid down

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in Bray v. Ford[5], by the House of Lords, which, obvious though it may be, is still in the final analysis the real standard. In that case, Lord Watson observed (at p. 49):

Every party to a trial by jury has a legal and constitutional right to have the case which he has made, either in pursuit or in defence, fairly submitted to the consideration of that tribunal. [My emphasis.]

A few years later, this Court issued a warning to guard against certain dangers awaiting those called on to review charges to the jury, in Spencer v. Alaska Packers Association[6]. Nesbitt J. stated (at p. 367):

I think it is very dangerous to quote from cases statements of the duty of a judge in directing a jury which are only applicable to the particular case.

Killam J., on his part, wrote (at p. 373):

Stated in the abstract, it may be said that it is the duty of a judge presiding at a jury trial to see that the jury are instructed as to what are the issues of fact upon which their findings are required, and the law relating to these, and how their verdict should be according as their findings of fact are in one way or another. But the degree in which it is important to point out these things expressly in a formal charge must always depend upon the circumstances of the case.

The rule stated by Lord Watson and the warning given by this Court in Spencer have been restated on several occasions, their formulation varying with the circumstances presented by the cases in question. There is no need here to make a complete review of the point; this Court has done it so many times; it will suffice to refer to the statements of the Court in three cases: Azoulay v. The Queen[7]; Kelsey v. The Queen[8] and Lizotte v. The Queen[9].

Nonetheless, I should like to add to this reference the remarks of Lord Goddard of the Court of Appeal of England, remarks relied on by the

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judges of this Court in Kelsey and Lizotte, when he said, in the case of Derek Clayton‑Wright[10] (at p. 29):

The duty of the Judge… is adequately and properly performed… if he puts before the jury clearly and fairly the contentions on either side, omitting nothing from his charge, so far as the defence is concerned, of the real matters upon which the defence is based. He must give… a fair picture of the defence, but that does not mean to say that he is to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence which has been given by experts or anyone else. [My emphasis.]

Now to consider the judge’s charge to the jury on the defence of insanity and the observations of Kaufman J.A. of the Court of Appeal.

The charge was relatively short, since the only question was whether the accused had succeeded in establishing on a balance of probabilities that at the time of the crime he was suffering from a “disease of the mind to an extent that renders him incapable of appreciating the nature of an act or omission or of knowing that an act or omission is wrong”.

After giving general instructions, the judge considered the evidence as follows:

[TRANSLATION] I now intend to indicate what I consider to be the essence of the evidence presented by the prosecution and by the defence. I do not intend to repeat the testimony given word for word; I shall simply summarize what I take to be the facts proven. If your memory differs from mine in this regard, do not rely on my observations, but trust to your memory. You are entitled to ignore my opinion in its entirety with regard to the interpretation of one or more facts or of the evidence.

He subsequently commented on the nature of the defence as follows:

[TRANSLATION] The defence is based on the insanity of the accused, that is, the defence contends that at the time of the crime the accused was suffering from insanity. The defence maintains that at that time, when the crime was committed, the accused could not appreciate the nature and quality of the act committed by him. Several witnesses were heard for the defence. Yvan Goulet, a social worker, saw the accused in September

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and October 1973, and he stated that the accused mistreated animals and that, on one or more occasions, he held his mother with his arms.

Dr. Reid, a physician, met the accused in December 1973. I am giving you, I am giving you merely a very short summary of the testimony of these witnesses, what I regard as most important. When he saw the accused, the accused told him that “I am crazy, a lunatic, I’m uncomfortable with other people”. He further stated that the accused knew where he was, but that he was utterly miserable. The doctor further testified that the accused did not commit violent acts, he was merely aggressive, aggressive in what he said.

These remarks were followed by his commentary on the testimony of Drs. Cayouette and Talbot. We may pause here a moment to consider the first of the reservations made by Kaufman J.A., namely, that the trial judge summarized the testimony too briefly.

In this regard, it should first be noted that when the judge told the jury that he was making “merely a very short summary”, he was referring to the testimony of the social worker Yvan Goulet and of Dr. Reid, not to the testimony as a whole, as Kaufman J.A. appears to suggest. In my opinion, this is all that the testimony of these two witnesses called for. The social worker had not seen the accused since 1973, and in any case did not say anything of great relevance, except perhaps for offering some background to the accused’s family life. Dr. Reid, for his part, pointed out that he was not competent to make any judgment as to his patient’s mental condition, as he was not a psychiatrist. Accordingly, the judge properly gave only a brief summary of this testimony.

Kaufman J.A. further concluded that the trial judge had not explained the purport and meaning of the testimony of Drs. Cayouette and Talbot, using language which a layman could understand.

I have carefully examined the testimony of these doctors and the remarks of the judge. I find that the judge took care to cite for the jury only passages from the testimony where, at his urging, at that of one of the counsel or of their own accord, the two doctors had explained the meaning of the terms they were using; other examples are

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provided by their testimony. Moreover, in my view the jury should not be underestimated. The trial judge was in a better position than this Court to determine, in view of the personality and education of each juror, the extent to which he should further simplify what the doctors had already explained.

In this connection, I feel I should add that a judge is not obliged to simplify the testimony of an expert witness. He may, as may counsel, ask the witness to do so. The judge may do so in his charge to the jury, but if so he must warn them that his interpretation of the meaning and purport of what the witness has said is only an opinion and that, in the final analysis, it is up to them and no one else, including the judge, to draw their own conclusions as to what the witness meant. Here, the judge used the passages from the testimony which were most readily comprehensible. In my view, he cannot be said to have failed to simplify, let alone be required to do so, beyond what the witnesses stated.

The third ground of appeal remains: the fact that he made no mention of the testimony of police officer Barrette, Dr. Thibault and of the lawyer Ferland.

It was mentioned earlier that a judge is not required to summarize all the evidence or to refer the jury to the testimony of each and every one of the witnesses. He must draw the jury’s attention to testimony and to passages from the testimony tending to support the defence argument; and as each case is different, there is in the end no other rule than that a summing up must be fair having regard to the circumstances of the particular case and the nature of the defence put forward by the accused, and the testimony by means of which it is presented. The accused, who pleaded in his defence that he was insane at the time of the crime, namely on July 2, 1976, having no witnesses to call who could have examined him at the actual instant of the crime or immediately thereafter, called witnesses to testify to his condition before the crime and some time afterwards. It is on the basis of these findings and the circumstances of the murder that Drs. Cayouette, Talbot and Daoust arrived at their opinion that, at the time of

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the murder, Thériault probably was, according to Cayouette and Talbot, or was not, according to Daoust, insane within the meaning of s. 16 of the Criminal Code.

Dr. Cayouette explained at some length that his patient was subject to dangerous periods and that the level of this danger could be reduced, by medication and other treatment, for more or less lengthy periods. His testimony as a whole indicates that always lurking was the possibility of a relapse. In addition, the situation is clearly illustrated by the alternation between open and close treatment at the St-Charles Hospital. The possibility of a relapse is further increased when all treatment ceases, as happened from March 18, 1976 onwards. Dr. Talbot was of the same opinion. When these two psychiatrists gave their opinions on the accused’s mental condition at the date of the crime, they undoubtedly took into account, as they had to do, the testimony of witnesses at the hearing who provided them with factual information enabling them to speculate in terms of probability on the development of the accused’s schizophrenia between the date on which he left the St-Charles Hospital (against the doctor’s orders), on March 18, 1976, and the day of the murder, the following July 2. The only witnesses who saw the accused during this time were Mr. Ferland and Dr. Thibault. The accused’s bizarre behaviour at Mr. Ferland’s office early in June and the aggressiveness noted by Dr. Thibault on June 3 are facts which, in light of the circumstances of this case, are of capital significance in that they may perhaps have indicated—and this was for the jury to decide—a relapse, thus supporting the opinion of the two psychiatrists summoned for the defence, who concluded that at the date of the murder the accused had in fact suffered a relapse. No mention was made by the judge of these two witnesses, or of the disturbing events related by them.

Bélanger J.A. of the Court of Appeal, approving the manner in which the judge summed up the evidence, pointed to the fact that in view of the short duration of the trial the jurors still had all the testimony fresh in their minds. This fact, I agree, is one factor which a judge takes into

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account in determining, in light of the circumstances peculiar to each trial, the manner in which he must summarize the evidence and present the defence arguments. (See, in this regard, Chartrand v. The Queen[11]; R. v. Borg[12].) However, this fact clearly could not relieve a judge of the necessity of presenting the defence argument, or of doing so fairly. In the case at bar, assuming that the jury remembered the witnesses Ferland and Thibault, the fact that the judge omitted to refer to them probably left them with the impression that this testimony was of so little relevance that it did not even require being mentioned.

In my view, the judge should have given these witnesses all the importance which they deserved, especially as it is not immediately apparent to a layman. To do this, he should have linked the facts related by them to the possibilities of a relapse explained by Drs. Cayouette and Talbot.

This omission seems to me to have been of such seriousness that it is impossible to conclude that the accused nevertheless had his defence fairly presented to the jury.

Before concluding, I should emphasize that I am not unaware that the task incumbent upon trial judges of presenting a defence of insanity to the jury is a most demanding one in view of the state of the law, the nature of the questions raised by the defence itself and the difficulty which when testifying psychiatrists have in presenting in legal terms (s. 16 of the Criminal Code) conclusions based on reasoning very remote from the determination of legal responsibility.

Nonetheless, I would allow this appeal and order a new trial.

Appeal dismissed, LAMER J. dissenting.

Solicitors for the appellant: Généreux, Fréchette & Varin, Joliette.

Solicitor for the respondent: Marc Vanasse, Joliette.

 



[1] (1979), 5 C.R. (3d) 72.

[2] (1883), 11 Q.B.D. 440.

[3] (1975), 10 O.R. (2d) 321.

[4] [1946] S.C.R. 20.

[5] [1896] A.C. 44.

[6] (1904), 35 S.C.R. 362.

[7] [1952] 2 S.C.R. 495.

[8] [1953] 1 S.C.R. 220.

[9] [1953] 1 S.C.R. 411.

[10] (1948), 33 Cr. App. R. 22.

[11] [1977] 1 S.C.R. 314.

[12] [1969] S.C.R. 551.

 

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