R. v. Charlebois, [2000] 2 S.C.R. 674
Patrick Charlebois Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Charlebois
Neutral citation: 2000 SCC 53.
File No.: 27213.
2000: April 13; 2000: November 10.
Present: Gonthier, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for quebec
Criminal law — Powers of Court of Appeal — No subtantial wrong or miscarriage of justice — Court of Appeal dismissing accused’s appeal from conviction — Whether Court of Appeal erred in applying Criminal Code proviso to cure trial judge’s errors — Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(b)(iii).
The accused was charged with first degree murder for the shooting of a man in the back of the head while he was sleeping. At trial, the accused argued that he committed the homicide in self‑defence. His defence was based on an overwhelming fear of the victim that he had developed over the course of their long and difficult relationship. A psychiatrist who was called by the defence testified that, in his opinion, the accused was suffering from acute anxiety at the time of the shooting. The accused was convicted of second degree murder. On appeal, he challenged inter alia the trial judge’s instructions to the jury on self‑defence, on the defence expert’s evidence and on the evidence of the accused’s good character. He also challenged the trial judge’s decision to allow the Crown to ask him in cross‑examination whether he would undergo a blood test and submit to an examination by a Crown psychiatrist. The majority of the Court of Appeal dismissed the accused’s appeal.
Held (Arbour J. dissenting): The appeal should be dismissed.
Per Gonthier, Bastarache, Binnie and LeBel JJ.: When assessing whether s. 686(1)(b)(iii) of the Criminal Code should be applied, the ultimate question is whether there is any reasonable possibility that the verdict would have been different absent the error. In this case, the Court of Appeal did not err in applying the proviso. Viewed individually or even collectively, the trial judge’s errors did not give rise to the possibility that the jury might have acquitted in their absence.
A review of the trial judge’s charge demonstrates that any errors in the charge on the issue of self‑defence caused minimal prejudice. The trial judge’s reference to “a reasonable person . . . in the accused’s situation” was not so incomplete as to create a substantial wrong or miscarriage of justice. Taken as a whole, the charge could not have given the jury the impression that they were to consider the reasonableness of the accused’s perceptions from the perspective of the hypothetically neutral reasonable man, divorced from the accused’s personal circumstances. The trial judge related the history of violence and fear that the accused suffered at the hands of the victim to the reasonable person. He then clearly directed the jury to consider, “in light of all that”, the reasonableness of the accused’s perception and whether an ordinary person, in the same circumstances, would have had the same perception. This is a proper approach to the application of s. 34(2) of the Criminal Code.
The errors in the trial judge’s summary and handling of the expert’s testimony also caused minimal prejudice. A review of the charge as a whole indicates that the trial judge directed the jury to consider the climate of fear described by the expert in their deliberations and repeated on numerous occasions his evidence that the accused was in a state of anxiety at the time of the shooting. By pointing to the expert’s evidence, the trial judge ensured that his testimony would be considered during the discussion of each of the elements of self‑defence. While the trial judge could have expressed himself more clearly in connecting the expert’s evidence to the elements of self‑defence, there is no requirement that the jury be perfectly instructed. Further, the trial judge’s insistence on what the expert did not consider did not cause serious prejudice to the accused. A judge must warn the jury that the more the expert relies on facts not proved in evidence, the less weight the jury may attribute to the opinion. The corollary is also true: the more the expert fails to consider relevant facts, the less weight the jury may attribute to the opinion. Lastly, although it would have been preferable for the trial judge to expand his comments on the details of the expert’s testimony, his failure to do so, in light of the whole charge and the overwhelming evidence, did not result in a substantial wrong or miscarriage of justice. The accused’s contention that where the defence is difficult there is no room for error on the part of the judge is rejected. The curative proviso is applicable if, as here, the standard is met.
The verdict would have been the same if the trial judge had properly directed the jury that the accused’s character evidence was relevant in assessing whether he could have committed murder. He only mentioned this once and thereafter restricted his comments to the relation between the evidence and the credibility of the accused. This error is of minor significance in the context of the charge as a whole and consequently caused little prejudice to the accused. The focus here is on the reasonableness of the accused’s perception that an attack was imminent and on his perception that there was no reasonable alternative when he approached his sleeping victim and shot him in the back of the head at close range. The evidence of good character sheds little light on this question.
With respect to the accused’s refusal to give a blood sample, even if this refusal had some effect on the accused’s credibility, the effect was greatly diminished by the trial judge’s direction that no adverse inference could be drawn from the refusal. In light of the trial judge’s warning, the prejudice suffered by the accused was minimal. When considered in the context of the defence as a whole, this issue was so removed from the heart of the case that it had very little significance.
Finally, since the Crown had the right to counter the expert evidence used to support the accused’s theory that he killed in self‑defence, it was entitled to ask the accused whether he would undergo a psychiatric assessment. While it would have been preferable if the question acknowledged that the Crown had previously received the accused’s refusal, that issue, coupled with the request for a blood test, does not amount to a substantial wrong or miscarriage of justice. The trial judge did not err in law by instructing the jury that the refusal was relevant to the probative value of the defence expert’s evidence. Even if this were not the case, this is a situation where s. 686(1)(b)(iii) could be applied to rectify an error since there would have been little prejudice caused to the accused.
Per Arbour J. (dissenting): At trial, without notice and in the presence of the jury, the Crown asked the accused whether he would agree to submit to a second psychiatric assessment by a particular expert. The accused refused. When an accused relies on a psychiatric assessment in support of any defence, his refusal to be examined for the same purposes by a Crown expert may be the subject of an inference adverse to him and the trial judge must so instruct the jury. This rule is an exception to the fundamental principle of the right to silence. It is therefore essential that this exceptional rule be administered fairly and equitably and in a manner consistent with its underlying principle. From this perspective, it is inappropriate for the Crown to invite the jury to draw a negative conclusion from the accused’s refusal to submit to examination by its experts, when the Crown itself led no evidence challenging the expert opinion offered by the defence. Before taking advantage of the exception, the Crown must first lay the factual foundation of its assertion by challenging the defence’s psychiatric assessment. It may then lead evidence of the accused’s refusal, provided it does so avoiding tactics that are unfair or unduly prejudicial to the accused. Because of how the Crown chose to proceed in this case, it cannot now rely on the exception. The Crown did not retain the services of an expert, and did not contradict the opinion of the defence expert. It confined itself to putting the question here in issue to the accused. The question was asked in the presence of the jury, immediately following a question of the same type which also should never have been asked. The cumulative effect of the accused’s refusal to provide a blood sample and refusal to submit to a second psychiatric assessment, in rapid succession, proved highly prejudicial, for no good reason, to the general credibility of his defence. Moreover, the question itself was not particularly helpful, since it contained an inherent ambiguity regarding the specific subject-matter of the refusal, thus making it difficult for the jury to be invited to draw any conclusion whatsoever from that refusal. In view of the circumstances of this case, the judge’s instructions in his charge to the jury at the end of the trial regarding what use could be made of the accused’s refusal failed to remedy the original error of allowing the question to be asked.
As to the application of s. 686(1)(b)(iii), where an error, or a series of errors, relates to the very essence of the defence and could influence the jury’s assessment of a question of fact that has a very direct bearing on the accused’s guilt, it is difficult to conclude that the rest of the evidence is sufficiently conclusive for the curative provision to be applied. The central issue in this case was whether, at the time the accused shot the victim, he had a reasonable perception that his life was in danger and that he could not otherwise escape from the threat to his safety. The psychiatric evidence of the accused’s pathological fear of the victim was therefore fundamental. As well, the nature of the evidence also required very clear instructions regarding the assessment of the reasonableness of the accused’s beliefs. The errors in the judge’s instructions to the jury concerning these two issues were inevitably fatal, since it is impossible to argue that the verdict would have been the same had it not been for those errors. The cumulative effect of the errors unanimously found by the Court of Appeal to have occurred, combined with the serious and prejudicial error of allowing the Crown to ask the accused whether he would consent to a second psychiatric assessment by its expert, requires that the conviction be set aside and a new trial ordered. The majority of the Court of Appeal did not systematically consider the requirements of that provision and, in particular, the cumulative effect of the errors they identified. All that the majority did was to make several isolated references to the fact that the error committed had not prejudiced the accused. That approach does not meet the rigorous requirement of the curative provision of the Code.
Cases Cited
By Bastarache J.
Distinguished: R. v. Lavallee, [1990] 1 S.C.R. 852; referred to: Mahoney v. The Queen, [1982] 1 S.C.R. 834; R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. S. (P.L.), [1991] 1 S.C.R. 909; R. v. Pétel, [1994] 1 S.C.R. 3; Reilly v. The Queen, [1984] 2 S.C.R. 396; R. v. G. (R.M.), [1996] 3 S.C.R. 362; R. v. Malott, [1998] 1 S.C.R. 123; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Dickhoff (1998), 130 C.C.C. (3d) 494; R. v. H. (C.W.) (1991), 68 C.C.C. (3d) 146; R. v. Borden, [1994] 3 S.C.R. 145; R. v. Kuldip, [1990] 3 S.C.R. 618; R. v. Sweeney (1977), 35 C.C.C. (2d) 245; R. v. Stevenson (1990), 58 C.C.C. (3d) 464; R. v. Worth (1995), 98 C.C.C. (3d) 133, leave to appeal refused, [1996] 3 S.C.R. xiv.
By Arbour J. (dissenting)
Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Symonds (1983), 9 C.C.C. (3d) 225; R. v. Crawford, [1995] 1 S.C.R. 858; R. v. Noble, [1997] 1 S.C.R. 874; R. v. Sweeney (1977), 35 C.C.C. (2d) 245; R. v. Stevenson (1990), 58 C.C.C. (3d) 464; R. v. Worth (1995), 98 C.C.C. (3d) 133; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11; R. v. Bevan, [1993] 2 S.C.R. 599.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C., 1985, c. C‑5, ss. 4(1), (6).
Canadian Charter of Rights and Freedoms, ss. 7, 11(c).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 16 [rep. & sub. 1991, c. 43, s. 2], 34, 686(1)(b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)], 691(1) [am. c. 34 (3rd Supp.), s. 10].
APPEAL from a judgment of the Quebec Court of Appeal (1999), 135 C.C.C. (3d) 414, [1999] Q.J. No. 568 (QL), dismissing the accused’s appeal from his conviction of second degree murder. Appeal dismissed, Arbour J. dissenting.
Michel Pennou, for the appellant.
Stella Gabbino, for the respondent.
The judgment of Gonthier, Bastarache, Binnie and LeBel JJ. was delivered by
1 Bastarache J. — The appellant Patrick Charlebois was convicted of second degree murder for shooting Éric Jetté in the back of the head while he was sleeping. At trial, Charlebois argued unsuccessfully that he committed the homicide in self-defence. The question raised in this appeal is whether the appellant is entitled to a new trial, based on errors committed by the trial judge. In my view, any errors committed by the trial judge did not cause significant prejudice to the appellant and can be cured by s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46.
I. Facts
2 The appellant’s argument of self-defence was based on an overwhelming fear of Jetté that he had developed over the course of their long and difficult relationship. The record establishes that while Charlebois and the victim were sometimes friendly, Jetté dominated and regularly took advantage of the more dependent Charlebois. The appellant’s unstable and violent childhood explains in part how Jetté was able to make him his [translation] “whipping boy”.
3 The night of the murder, Jetté argued with his girlfriend and came over to Charlebois’ apartment. Shortly thereafter, while the appellant’s neighbour Alain Lalancette was still present, Jetté flicked a knife in front of the accused’s face and said: [translation] “Yea, we’re going to have some fun tonight, you and me.”
4 Charlebois testified that his apprehension grew after Lalancette departed, particularly when Jetté noticed that the appellant actually had in his possession a firearm that he had refused to sell to Jetté on the pretense that he no longer had it. Nevertheless, Jetté said nothing about the rifle. After the accused’s roommate came home, Jetté relaxed on the couch and told the appellant to go to sleep.
5 The appellant testified that once in his bedroom, his panic became overwhelming. He got up, took the rifle, approached Jetté and shot him in the back of the head while he was sleeping. There was no argument, skirmish or threat. Immediately after the shooting, the accused phoned 911 and made up the following story about a physical altercation:
[translation] . . . I’ve just committed a murder . . . I was so afraid, I split. . . . [H]e was completely drunk when he came to my place. . . . So, anyways, so he knew that I had a gun, then he took it, his girlfriend left him, so anyways, he was totally tripping, so I tried to convince him not to do anything stupid, then we started arguing, and the shot went off. . . . I was really stoned eh so bang everything happened at once oh shit. . . .
When he was arrested, the accused said: [translation] “I’ve done something stupid.” The jury found the accused guilty of murder in the second degree.
6 On appeal, the accused challenged inter alia the trial judge’s instructions to the jury on self-defence, the defence expert’s evidence, and the evidence of the appellant’s good character. He also challenged the trial judge’s decision to allow the Crown to ask him in cross-examination whether he would undergo a blood test and submit to an examination by a Crown psychiatrist. The Quebec Court of Appeal dismissed the appeal, Fish J.A. dissenting: (1999), 135 C.C.C. (3d) 414. The accused appeals to this Court as of right.
II. Legislation
7 Section 34 of the Code sets out the elements of self-defence:
34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
While the trial judge left both s. 34(1) and s. 34(2) with the jury, the circumstances of the present appeal fall under subs. (2) since it is evident that the appellant responded with force intending to cause death or grievous bodily harm.
8 The focus of this appeal is the application of the curative provision of the Code. Section 686(1)(b)(iii) of the Code reads:
686. (1) On the hearing of an appeal against a conviction . . . the court of appeal
. . .
(b) may dismiss the appeal where
. . .
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) [on a question of law] the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;
III. Issues
9 The appellant argues that the Court of Appeal erred by applying s. 686(1)(b)(iii) to four errors of the trial judge:
a) erring in his instructions to the jury on self-defence;
b) improperly presenting the defence expert’s evidence to the jury;
c) limiting the relevancy of the evidence of the accused’s good character; and
d) allowing the Crown to ask whether the accused would undergo a blood test.
The appellant also argues that, contrary to the conclusion of the Court of Appeal, the trial judge erred in law by allowing the Crown to ask him whether he would submit to an examination by a Crown psychiatrist. Before I address each of these errors and this latter question, I will review the standard for the application of the proviso.
IV. Analysis
10 Section 686(1)(b)(iii) of the Code authorizes an appeal court to dismiss an appeal, despite the presence of an error at trial, where the court believes there has been no “substantial wrong or miscarriage of justice”. In Mahoney v. The Queen, [1982] 1 S.C.R. 834, at p. 852, McIntyre J. explained how the Court is to determine whether a substantial wrong or miscarriage of justice has occurred:
[T]he proviso may be applied only following a legal determination that errors have been made at trial, but that “no substantial wrong or miscarriage of justice has occurred”, and then only according to a strict legal test. The determination of what will constitute a substantial wrong or miscarriage of justice must involve the construction of those words in the context in which they are used in the Statute, and such statutory construction has long been considered a matter of law. The Court’s decision involves an analysis of the rights accorded by law to an accused and the measurement of the impact of the errors which were made at trial. Once an appellant establishes in the Court of Appeal that errors of law were made at his trial he becomes entitled to have his appeal allowed and a new trial or an acquittal, depending on the circumstances, unless the proviso is applied to annul those rights. The Court of Appeal must consider the errors against the background of the whole trial. While a reconsideration of the evidence is involved, clearly the inquiry goes far beyond the determination of matters of fact. [Emphasis added.]
In Mahoney, the Court applied the proviso to cure the trial judge’s error (instructing the jury that an adverse inference could be drawn from the accused’s delay in revealing his whereabouts) due to the overwhelming weight of the real evidence.
11 The proper application of s. 686(1)(b)(iii) was recently addressed in R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11. Writing for the dissent, Major J. adopted his statement in R. v. Bevan, [1993] 2 S.C.R. 599, which precisely outlines the threshold for applying the proviso. Major J. confirmed at para. 104 that the task of the appellate court is to
determine whether there is any reasonable possibility that the verdict would have been different had the error at issue not been made.
Implicit in my reasons in Brooks is my acceptance of his statement as a proper explanation of the law. As conceded by the Crown, the proviso should only be applied where
the evidence is so overwhelming that a trier of fact would inevitably convict. In such circumstances, depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction.
(R. v. S. (P.L.), [1991] 1 S.C.R. 909, at p. 916)
12 With that in mind, I will examine each of the errors which allegedly entitles the appellant to a new trial to determine first the extent of error, and second, whether the proviso should be applied in the circumstances of this case. This latter question involves determining whether there is any reasonable possibility that the jury would have acquitted if the errors had not been made.
(1) The Extent of the Error in Charging the Jury on Self-defence
13 The trial judge properly identified the three elements of self-defence for the jury: (1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing: see R. v. Pétel, [1994] 1 S.C.R. 3. He directed that the assessment of each of these elements involved considering first, the accused’s perception, and second, the view of [translation] “a reasonable person, an average person, in the accused’s situation”. This is consistent with the simultaneously subjective and objective nature of the test, as described in Reilly v. The Queen, [1984] 2 S.C.R. 396, at p. 404:
Subsection (2)
of s. 34 places in issue the accused’s state of mind at the time he caused death. The subsection can only afford protection to the accused if he apprehended death or grievous bodily harm from the assault he was repelling and if he believed he could not preserve himself from death or grievous bodily harm otherwise than by the force he used. Nonetheless, his apprehension must be a reasonable one and his belief must be based upon reasonable and probable grounds. The subsection requires that the jury consider, and be guided by, what they decide on the evidence was the accused’s appreciation of the situation and his belief as to the reaction it required, so long as there exists an objectively verifiable basis for his perception. [Emphasis added; underlining in original deleted.]
The trial judge explained the objective aspect of the test to the jury in the following terms:
[translation] Assuming that your deliberations lead you to answer “yes” to each of these questions [the three elements of s. 34(2), from a subjective point of view], you must then determine whether the accused’s perception was reasonable. This is the reasonable person test. Would a reasonable person, an average person, in the accused’s situation have had the same perceptions? The reasonable person is not “superman”, but neither is he mentally incompetent. The reasonable person is John or Jane Doe, an average person. So, each element . . . perception of an unlawful assault, apprehension of the risk of death, and the belief that it is not possible to preserve oneself from harm except by killing the victim must first be assessed subjectively. And by subjective I mean from the accused’s point of view, the accused’s perception. And second, objectively, from the point of view of a reasonable person. In the three cases, in the three situations, in other words, in assessing the three elements that are essential if a defence of self‑defence is to be available, you must determine what the accused’s perception of the relevant facts was and whether it was reasonable. It therefore involves an objective assessment, and so an honest but reasonable mistake with respect to whether there was an attack is therefore allowed. [Emphasis added.]
The Court of Appeal held that the trial judge erred by introducing a reference to “a reasonable person, an average person, in the accused’s situation” that was ambiguous and unclear. The appellant suggests that at a minimum the trial judge should have informed the jury that the ordinary person was infused with the appellant’s individual characteristics.
14 After reviewing the charge as a whole, I do not believe the lack of precision in the trial judge’s reference was serious. The trial judge related the history of violence and fear that the appellant suffered at the hands of the victim to the reasonable person. When read in the context of the charge as a whole, this part of the directions would have clearly indicated to the jury that the appellant’s perception was to be weighed by considering whether a reasonable person, infused with Charlebois’ experience, placed in the circumstances of the night in question, would reasonably have had the same perceptions. This was not a case where the jury was misdirected to assess the reasonableness of the appellant’s perceptions from the view of an “outsider”; see R. v. Lavallee, [1990] 1 S.C.R. 852, at p. 883.
15 In Pétel, supra, at p. 14, the Court, unanimous on this point, concluded that the trial judge correctly charged the jury by saying it should “try to determine how the accused assessed the situation and compare that assessment with what a reasonable person placed in the same circumstances would have thought”. This is precisely how the trial judge proceeded here. The trial judge indicated that the jury should assess the reasonableness of Charlebois’ perceptions in light of the previous violence experienced by the accused:
[translation] Would a reasonable person, in the same circumstances, have perceived the events in the same way?
I suggest that you use the same reasoning when you consider the second element: reasonable apprehension of a risk of death or grievous bodily harm. The accused used the word fear quite often in his testimony. Does the evidence demonstrate a history of violence between him and Jetté? There is certainly evidence of violence on two occasions, each one involving a theft. Other than that, is there reason to believe that the accused apprehended a risk of death? You have all sorts of evidence to help you. You have the testimony about Jetté. You have testimony that he was a violent man, an individual who was very fond of fighting. You have his criminal record, which, as the Crown pointed out, shows no violent crimes. You have the period of time for which the accused had known Jetté. And you have evidence of a relationship that was stormy at times and harmonious at others.
So, in light of all that, you will consider whether he had a reasonable apprehension of a risk of danger under the circumstances. And whether a reasonable person, under the same circumstances, would have had the same perception. [Emphasis added.]
Having completed his description of the violence between the appellant and the victim, the trial judge quite clearly directed the jury to consider, “in light of all that”, the reasonableness of the accused’s perception and whether an ordinary person, in the same circumstances would have had the same perception. In my view, this is a proper approach to the application of s. 34(2).
16 The appellant relies on Lavallee, supra, for support. In my view, that case has no application here. In Lavallee, the Court found that in applying the objective part of s. 34(2) in the context of battered woman syndrome, the reference to the “ordinary man” was inappropriate (at p. 874):
If it strains credulity to imagine what the “ordinary man” would do in the position of a battered spouse, it is probably because men do not typically find themselves in that situation. Some women do, however. The definition of what is reasonable must be adapted to circumstances which are, by and large, foreign to the world inhabited by the hypothetical “reasonable man”.
It was conceded by the appellant that the relationship between the appellant and the victim here is quite distinguishable from that present in Lavallee. To allow the appeal on this ground would be to legitimize an extension of Lavallee that is not justified on the facts or in policy. While we have relaxed the requirement of imminency of the threat in the self-defence analysis particular to battered women, on the basis of expert evidence outlining the unique conditions they face, there is no justification for extending its scope further on the evidence presented in this case.
17 Finally, the appellant also argues that the jury was misdirected on the critical third element, whether the accused had an honest but mistaken belief that he had no other option except to kill. The appellant contends that the trial judge did not clearly set out that, if the accused’s perception was honestly and reasonably held, it would satisfy the requirements of s. 34(2) even if the perception was in error. The following passage from the charge demonstrates that the trial judge perfectly understood his task:
[translation] There is evidence that at the moment when the accused shot the victim, he believed that an attack was imminent. It may be that you will find that the accused’s perception was mistaken. Even if the accused’s perception was mistaken, but you believe that he still acted reasonably, he is entitled to be found not guilty, as long as the force used meets the requirements of 34(2), that is, that he could not otherwise preserve himself from death than by killing the victim. [Emphasis added.]
This direction is consistent with the seminal direction given in Reilly, supra, at p. 404:
Since s. 34(2) places in issue the accused’s perception of the attack upon him and the response required to meet it, the accused may still be found to have acted in self‑defence even if he was mistaken in his perception. Reasonable and probable grounds must still exist for this mistaken perception in the sense that the mistake must have been one which an ordinary man using ordinary care could have made in the same circumstances.
The appellant also argues that the jury should have been directed that there is no formal obligation to retreat from one’s home. In the precise circumstances of this case in view of the general allegation made, I do not think it is necessary to deal with the broader issue. The accused and victim did not live together. The issue here is whether there was a reasonable possibility of retreat at the time of the homicide.
18 A review of the trial judge’s charge demonstrates that any errors in the charge on the issue of self-defence caused minimal prejudice and, consequently, I would follow the lead of the majority of the Court of Appeal and apply s. 686. I accept the respondent’s position that the reference to “a reasonable person . . . in the accused’s situation” was not so incomplete as to create a substantial wrong or miscarriage of justice. Taken as a whole, the charge could not have given the jury the impression that they were to consider the reasonableness of the appellant’s perceptions from the perspective of the hypothetically neutral reasonable man, divorced from the appellant’s personal circumstances.
(2) The Extent of the Error Related to the Expert Testimony
19 Dr. Lafleur is a psychiatrist who was called by the appellant to offer an expert opinion that the appellant was suffering from acute anxiety at the time of the shooting. He was the last witness to testify. The appellant emphasized the failure of the trial judge to properly summarize Dr. Lafleur’s evidence and to relate it to his defence. Both the dissent and the majority of the Court of Appeal were of the view that the charge was somewhat defective in those respects. As the following demonstrates, the majority of the Court of Appeal very properly decided that s. 686(1)(b)(iii) should apply.
(i) The Summary of Dr. Lafleur’s Testimony
20 The judge must squarely put before the jury the essential elements of the evidence that can support the accused’s defence. Here, the appellant contends the trial judge erred in two respects: first, in failing to summarize Dr. Lafleur’s evidence, and second, in unfairly discounting Dr. Lafleur’s testimony by over-emphasizing the fact that his opinion was not based on all the relevant evidence.
21 In my view, these allegations do not reveal a serious miscarriage of justice. On the first complaint, a review of the charge as a whole demonstrates that the trial judge detailed Dr. Lafleur’s evidence on several occasions. In fact, the charge is replete with references to his testimony, which, I repeat, was the last one heard and fresh in the memory of the jury. I also do not accept that the trial judge’s insistence on what Dr. Lafleur did not consider caused serious prejudice to the appellant.
22 The trial judge first referred to Dr. Lafleur’s testimony early in his charge, when directing the jury on the assessment of expert evidence. Immediately prior to an adjournment, the trial judge summarized the basis of Dr. Lafleur’s opinion as follows:
[translation] You must, in my view, weigh the testimony of Dr. Lafleur with great prudence because the conclusions of Dr. Lafleur were contested during Crown arguments. In many cases, Dr. Lafleur alluded to statements obtained from a whole series of persons who testified before you, but, on the other hand, there are certain other things which he did not examine at all. Particularly, the 911 cassette. I would also mention the photographs and the plan of the apartment. Nor did he take any interest in the position of the victim when assessing something which went to the very heart of the argument of self-defence.
I am not stating any opinion on the value of his testimony. That is up to you to decide, but certainly you must look not only at the information he addressed but also at those things he did not consider in reaching his conclusion.
This direction was clearly proper. As directed in Lavallee, supra, at p. 896, “[t]he judge must, of course, warn the jury that the more the expert relies on facts not proved in evidence the less weight the jury may attribute to the opinion.” I would add that the corollary is also true: the more the expert fails to consider relevant facts, the less weight the jury may attribute to the opinion.
23 The appellant argues that the trial judge unnecessarily repeated the shortcomings of the evidentiary foundation of Dr. Lafleur’s report. This contention is based on the comment made by the trial judge upon resuming, after the above noted adjournment:
[translation] Before the adjournment, I was in the process of cautioning you that, particularly with respect to the testimony of Dr. Lafleur, it was important that you take into account not only what he considered, but what he failed to consider. Dr. Lafleur offered an opinion with respect to the state of mind of the accused at the time the incident occurred with the aim of supporting the claim of the accused, that he apprehended an immediate assault.
The fact that Dr. Lafleur did not ask any questions as to whether or not the victim was sleeping, whether the lights were on or off, nor whether or not the victim was even aware of the accused’s entry. That he was not aware that the victim was stretched out on his stomach on the sofa. Nor saw the photos. He was not aware of the “blow with the butt of the gun”. These are all factors which you might want to consider in deciding what weight you wish to attach to the opinion of Dr. Lafleur relating to the perception of the accused.
In my view, the repetition of directions made before the break was unnecessary. I note, however, that in his first sentence, the trial judge properly warned the jury that in assessing Dr. Lafleur’s evidence, they should consider both what he considered and what he did not.
(ii) The Failure to Relate Dr. Lafleur’s Testimony to the Elements of Self-
defence
24 In R. v. G. (R.M.), [1996] 3 S.C.R. 362, at para. 9, our Court recalled the long accepted rule that:
In the course of giving directions to a jury, it is essential that the trial judge outline for them the theory or position of the defence and refer the jury to the essential elements bearing on that defence in such a way that it will ensure the jury’s proper appreciation of the evidence.
The appellant asserts that the trial judge did not specifically relate Dr. Lafleur’s evidence to the relevant elements of self-defence. This was the heart of the dissent in the court below (at p. 433):
. . . as my colleague notes, the judge did not review uncontradicted expert evidence called in support of that defence. Still less did he relate that evidence to the component of self-defence upon which it bore – the reasonableness of appellant’s perception that he was acting in self-defence.
The trial judge connected Dr. Lafleur’s evidence to the elements of self-defence on several occasions, although he did not specifically announce each time that this is what he was doing. Even if the trial judge could have expressed himself more clearly, “a standard of perfection is not the test when an appellate court reviews a jury charge” (R. v. Malott, [1998] 1 S.C.R. 123, at para. 15). In R. v. Jacquard, [1997] 1 S.C.R. 314, our Court recognized at para. 2 that while there is an entitlement to a properly instructed jury, “[t]here is . . . no requirement for perfectly instructed juries” (emphasis deleted). One must accept that it is not incumbent on the trial judge to make an argument for the defence or to fashion the most favourable charge to the defence; see R. v. Dickhoff (1998), 130 C.C.C. (3d) 494 (Sask. C.A.).
25 As reproduced previously, in explaining the significance of Dr. Lafleur’s evidence to the defence, the trial judge correlated his evidence with the first element of self-defence, the apprehension of an immediate attack:
[translation] Dr. Lafleur offered an opinion with respect to the state of mind of the accused at the time the incident occurred with the aim of supporting the claim of the accused, that he apprehended an immediate assault.
By highlighting that Dr. Lafleur’s assessment of the appellant’s state of mind supported the appellant’s fear of an imminent attack, the trial judge described the essence of the expert testimony and the defence purpose behind calling it. Moreover, in discussing the third element of self-defence, whether the appellant had a reasonable belief that he had no other option but to use force, the trial judge again referred to Lafleur’s testimony:
[translation] The belief that one cannot preserve oneself otherwise than by killing the assailant, reasonable belief. Did he believe that the only way to preserve himself was to kill the victim? That is the first question you are going to ask yourselves. And of course, to help you, you have the evidence that Piché was in his room. The Lalancettes were in apartment 3. The door that was in the hallway was accessible even before entering the living room. Yes, it’s true, Dr. Lafleur talked about a climate of fear, but do not forget his testimony that the accused realized that killing someone was morally and legally wrong. There is no question in this case of a mental disorder in any sense.
The appellant contends that in connecting Dr. Lafleur’s evidence with the plainly irrelevant issue of mental disorder, the trial judge improperly discounted its value. I do not believe this narrow claim is very significant. In my view, the trial judge simply reminded the jury that Dr. Lafleur’s evidence of the appellant’s fear was relevant in their consideration of this element of self-defence. The fact that afterwards he dismissed irrelevant issues has little significance, especially when the charge is looked at as a whole.
26 Finally, I note that the trial judge recognized that Dr. Lafleur’s testimony was relevant to the presence of the premeditation required for a conviction of first degree murder. He stated:
[translation] Perhaps Dr. Lafleur’s testimony would be useful in this respect. If you accept the state of anxiety described by the accused and Dr. Lafleur in their testimony, you will perhaps ask yourselves, could he, the accused, in that kind of state, weigh and analyse the pros and cons of killing Jetté?
By finding him guilty of second degree murder, the jury accepted that there existed a reasonable doubt that the appellant had premeditated the murder. The trial judge’s reference to Dr. Lafleur’s testimony supported the appellant’s position that it was only in his state of anxiety that he was incapable of weighing and analyzing his decision to act. The trial judge’s acknowledgment that Dr. Lafleur’s evidence, if accepted, would cast doubt on the appellant’s ability to weigh alternatives is another tie between the evidence and the third element of self-defence.
27 The foregoing passages of the jury charge demonstrate that the errors in the trial judge’s summary and handling of Dr. Lafleur’s testimony caused minimal prejudice. The trial judge directed the jury to consider the climate of fear described by Dr. Lafleur in their deliberations and repeated on numerous occasions his evidence that the appellant was in a state of anxiety at the time of the shooting. By pointing to Dr. Lafleur’s evidence, the trial judge ensured that his testimony would be considered during the discussion of each of the elements of self-defence.
28 That being said, I agree that it would have been preferable for the trial judge to expand his comments on the details of Dr. Lafleur’s testimony, as was suggested in the majority reasons of Beauregard J.A. (at p. 424):
[translation] It would have been preferable, after having stated to the jury that Charlebois relied on self‑defence, that the judge refer the jury to the opinion of the psychiatrist Lafleur further to which, when he pulled the trigger, Charlebois was suffering from chronic anxiety which became acute by the arrival of Jetté at his home, the knife incident and the presence and discovery by Jetté of the gun in the apartment. Thus, prior to dealing with the weak points of the psychiatrist’s testimony, the judge could have shown the positive aspects.
I agree with Beauregard J.A. in that I remain convinced that the failure to fully detail Dr. Lafleur’s evidence, in light of the whole charge and the overwhelming evidence, did not cause significant prejudice to the accused. When assessing whether the proviso should be applied, the ultimate question is whether there is any reasonable possibility that the verdict would have been different absent the error. It was argued that where the defence is difficult, there is no room for error on the part of the judge. However, where the defence is difficult, it is less likely that the defence would be made out. I see no legal justification for a different standard to be applied where the accused simply raises an unlikely defence. In my view, the law applies invariably in all situations. Absent an error in the handling of Dr. Lafleur’s evidence, the verdict would in my view have remained the same, and hence I agree with Beauregard J.A.’s conclusion that it did not result in a substantial wrong or miscarriage of justice to the appellant. Thus I conclude that this is an appropriate situation for the application of the proviso.
(iii) Character Evidence
29 It is argued that the relevance of the accused’s evidence that he was peaceful and non-violent was restricted by the trial judge to the sole issue of supporting his credibility. This is not entirely accurate. The trial judge did refer to the relation between the appellant’s good character evidence and his defence that he was not a type of person capable of committing a murder:
[translation] Mr. Bordeleau presented evidence that was quite, through a number of witnesses, I should rather say, evidence through a number of witnesses, as to the accused’s morals. Actually, it was in the nature of character evidence. The aim of this evidence was to present the accused as being someone who is peaceful and non-violent. The accused does not deny that he shot the victim, but character evidence was presented firstly, in support of the appellant’s claim that he had acted in self-defence, and secondly, and this is related to the first point, that the accused was not a person of such a character that would lend itself to committing such a crime.
He only mentioned this once, however, and thereafter restricted his comments to the relation between the evidence and the credibility of the accused. Without contesting the essential nature of the two uses of good character evidence in the charge to the jury (see R. v. H. (C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A.)), the Crown argues that the curative provision should be applied.
30 In my view, the application of the proviso is appropriate since this error is of minor significance in the context of the charge as a whole and consequently caused little prejudice to the accused. Perhaps that explains the fact that the appellant did not object on this point at trial, which is a fact that can be considered when determining the gravity of the error; see Jacquard, supra, at para. 38. The focus here is on the reasonableness of the accused’s perception that an attack was imminent and on his perception that there was no reasonable alternative when he approached his sleeping victim and shot him in the back of the head at close range. The evidence of good character sheds little light on this question. This is not a case where the actions of the accused are in doubt; rather it is only his mental state which is under consideration. Given the evidence, the argument that the accused could not have committed murder because he was of good character has little significance. I am convinced that the verdict would have been the same if the trial judge had properly directed the jury that the appellant’s character evidence was relevant in assessing whether he could have committed murder. Thus, I would apply s. 686(1)(b)(iii) to cure the error.
(iv) Blood Test
31 The Crown’s question in cross-examination which gave rise to this complaint is only tangentially relevant to the issues in this appeal. The appellant testified that he had never fired, charged or discharged the firearm before the night in question. In order to test the veracity of this statement, the Crown asked for a sample of the accused’s blood to see whether it matched the blood found on Charlebois’ ammunition belt. As I understand the Crown’s position, evidence of a blood match would be of some use to the Crown in demonstrating that Charlebois was lying when he testified he had never previously fired, charged or discharged the gun.
32 Evidently, since the issue of Charlebois’ prior use of the gun is irrelevant to this appeal, the Crown’s request was made to undermine the appellant’s denial that he had previously used the gun and to cast doubt on his credibility. The appellant contends that by forcing him to assert, in front of the jury, his constitutional right to refuse the blood test (R. v. Borden, [1994] 3 S.C.R. 145), the judge unfairly tarnished his credibility.
33 In my opinion, even if this refusal had some effect on the appellant’s credibility, the effect was greatly diminished by the trial judge’s direction that no adverse inference could be drawn from the refusal. It must also be remembered that when the appellant decided to testify, he put his credibility on the line (R. v. Kuldip, [1990] 3 S.C.R. 618).
34 The Crown concedes that the request was inappropriate, but contends that it is cured under s. 686(1)(b)(iii). In light of the trial judge’s warning, I agree that the prejudice suffered by the appellant was minimal. When considered in the context of the defence as a whole, it is plainly obvious that the issue of blood on the gun belt was so removed from the heart of the case that it had very little significance. I have faith that the jury recognized this fact. In my view, this is a clear situation where the proviso should be applied.
(v) Did the Trial Judge Err by Allowing the Crown to Ask the Appellant
to Submit to an Examination by a Crown Psychiatrist?
35 After the request for a blood test was made, the Crown was allowed to ask the following question:
[translation] Mr. Charlebois, over the course of the last few weeks, you met Dr. Lafleur, the psychiatrist, with a view to preparing your defence. Would you agree to meet in the near future, at the request of the Crown, a psychiatric expert named John Wolwertz so as to allow the Crown to prepare a second psychiatric opinion?
In his charge, the trial judge informed the jury that the accused was within his rights to refuse the assessment, and that while no adverse inference as to his guilt could be drawn from that refusal, the refusal was relevant to the probative value of the evidence relating to his apprehension on the night in question:
[translation] By refusing to undergo a psychiatric assessment at the request of the Crown, the accused is absolutely acting within his rights and you cannot and you must not draw any adverse conclusion as a result of this refusal. However, given that the accused has submitted that his apprehension of an immediate attack, or his perception . . . his perception that he felt about to be attacked as one of . . . he submitted as one of the cornerstones of his defence and he called upon a “shrink” to support this claim. Under these circumstances, his refusal to submit to an expert assessment by a Crown expert is a relevant fact and that is why the question was allowed. . . . [Y]ou may, without obviously being obliged to, take the refusal into consideration when determining the probative value that you are going to grant to the evidence in connection with the apprehension of the accused on the night in question.
It has been argued that the trial judge erred by allowing the Crown to ask the accused whether he would submit to an assessment by Dr. Wolwertz in the manner chosen and by instructing the jury that the refusal was relevant to the probative value of the evidence. In my view the request for an assessment was not improper as it is conceded that the Crown was entitled to call a psychiatrist to rebut the expert evidence presented by the accused. While it would have been preferable if the question acknowledged that the Crown had previously received the accused’s refusal, I reject the view that coupled with the request for a blood test, this question amounted to a substantial wrong or miscarriage of justice.
36 The court below was divided on the issue of whether, in discussions between counsel and the trial judge, the accused had refused to be assessed by Dr. Wolwertz or by any psychiatrist at all. In my view, the question of whether the accused’s refusal was limited to a rejection of Dr. Wolwertz or whether it was a blanket denial of any assessment is of little significance. The jury was only aware that the accused refused to be assessed by Dr. Wolwertz. The Crown had the right to ask the accused to submit to a psychiatric assessment conducted by an expert of its choice; it was open to counsel for the accused to question Dr. Wolwertz’s qualifications and impartiality.
37 In finding that the trial judge improperly allowed the question, the dissent in the Court of Appeal acknowledged that R. v. Sweeney (1977), 35 C.C.C. (2d) 245 (Ont. C.A.), allows for the possibility that the Crown may, in appropriate circumstances, introduce evidence of the accused’s refusal to speak to a Crown psychiatrist; see also R. v. Stevenson (1990), 58 C.C.C. (3d) 464 (Ont. C.A.), and more recently R. v. Worth (1995), 98 C.C.C. (3d) 133 (Ont. C.A.), leave to appeal refused, [1996] 3 S.C.R. xiv. As recognized by Fish J.A., allowing the evidence of the refusal is justified as a necessary exception to the accused’s right of silence where the defence has called psychiatric evidence. The exception recognizes that the weight of the Crown’s evidence might be unfairly diminished by the fact that its experts have been denied access to the accused when the ultimate issue in question is the accused’s mental state or condition. In Worth, the Ontario Court of Appeal found (at pp. 140-41):
Having put his sanity in issue, we do not think the appellant could preclude the jury from drawing an adverse inference from his refusal to speak to the Crown psychiatrist. An accused’s right to silence is not absolute. It is protected in the terms of s. 7, that is, an accused cannot be deprived of his right to silence except in accordance with the principles of fundamental justice. Since the appellant put his sanity in issue and had the burden of proving his mental disorder, we do not think that the trial judge’s comments contravened the principles of fundamental justice. In R. v. Stevenson . . . Morden J.A. specifically approved Sweeney notwithstanding s. 7 of the Charter. He wrote at p. 495:
I appreciate that the right to remain silent under s. 7 in all its manifestations does not necessarily have the identical content and scope of the common law right. In the context of a case such as this, however, I can think of no reason why the general approach in Sweeney should not be followed. In that case, Zuber J.A., for this court, noted at p. 251 that the rule relating to the right to remain silent was “not so rigid nor so pervasive that it admits no exceptions nor limit”.
The fact that in Sweeney the accused chose not to take the stand is not a sufficient basis for distinguishing it from the present appeal. Since Sweeney chose not to testify, the Crown could not have directly asked him to undergo an examination. In my view, if a third party can enter the accused’s refusal in evidence (as in Sweeney), it is not improper to allow the Crown to ask the accused directly, where that option is available because the accused decided to take the stand. As my colleague suggests, the Crown might have directly challenged Dr. Lafleur’s evidence by bringing its own expert to observe the witnesses, including the accused. However, I know of no authority which obligates the Crown to retain a psychiatrist for the duration of the proceedings.
38 In sum, the Crown had the right to counter the expert evidence used to support the accused’s theory that he killed in self-defence, and thus the Crown was entitled to ask the accused whether he would undergo an assessment. The trial judge did not err in law by instructing the jury that the refusal was relevant to the probative value of the defence expert’s evidence. Even if this were not the case, this is a situation where s. 686(1)(b)(iii) could be applied to rectify an error since there would have been little prejudice caused to the accused.
V. Conclusion
39 The trial judge did not commit any errors that would entitle the appellant to a new trial. I think it is plain that each of the errors alone did not cause a miscarriage of justice that would prevent the application of s. 686(1)(b)(iii). Even when viewed collectively, the appellant’s objections could have had very little influence on the outcome of the proceeding; the errors here do not give rise to the possibility that the jury might have acquitted in their absence.
40 In sum, this is a clear case where the proviso should be applied. The appellant was convicted because the evidence was overwhelming. The real evidence established, and the appellant conceded, that he shot the helpless victim from behind. The argument of self-defence, which defence counsel conceded was a difficult defence, could not be made out. The evidence demonstrates the unreasonableness of the appellant’s perception that there was no alternative to shooting the victim. The denial of a new trial is justified here since the invariable result would be another conviction. Accordingly, I would dismiss the appeal.
English version of the reasons delivered by
Arbour J. (dissenting) —
I. Introduction
41 The appellant, Patrick Charlebois, admits that he caused the death of Éric Jetté. During his trial, Charlebois testified that he had acted in self‑defence. He also called a psychiatrist, Dr. Paul‑André Lafleur, to testify in support of that defence.
42 The appellant, who was deprived of affection during his childhood, developed a dependent personality which was reflected in his friendship with Jetté. He was chronically afraid of Jetté, a violent individual for whom he was a [translation] “whipping boy”.
43 On the night of the incident, Jetté came to the appellant’s home after being kicked out by his girlfriend. According to the appellant, Jetté waved a knife in his face while uttering: [translation] “Yea, we’re going to have some fun tonight, you and me.” This incident was corroborated by a witness, Alain Lalancette, who was present during the incident but failed to mention it to the police investigators who questioned him. The appellant’s fear of Jetté was then exacerbated when he realized that Jetté had noticed a gun in his apartment that Jetté had wanted to buy from him but that the appellant had refused to sell him, claiming that he no longer owned it.
44 The appellant testified that he was afraid to go to bed and went back to his bedroom only when Jetté, who had been watching television with him, ordered him to go to bed, since he wanted to sleep. Jetté, who was not completely sober, then stretched out on his stomach on the living room couch and the appellant went to his bedroom. A few moments later, when Jetté was apparently asleep, the appellant approached him and shot him in the back of the head with a shotgun. He then called 911 and told the operator:
[translation] . . . I’ve just committed a murder. . . I was so afraid, I split. . . . . [H]e was completely drunk when he came to my place. . . So, anyways, so he knew that I had a gun, then he took it, his girlfriend left him, so anyways, he was totally tripping, so I tried to convince him not to do anything stupid, then we started arguing, and the shot went off.
45 The appellant was of sound mind at the time of the homicide. However, he claims that he was anxious and felt threatened by Jetté to a point where he could think of no alternative but to kill him in order to escape the threat. In support of his defence, the appellant submitted evidence of his peaceful and non‑violent nature, as well as psychiatric expert opinion, which was not contradicted by the Crown.
46 The appellant was convicted of second degree murder following a jury trial during which he claims a number of errors were made. Although the majority of the Quebec Court of Appeal acknowledged that certain errors did occur during the trial, particularly in the judge’s instructions to the jury, it found that the errors were not prejudicial to the appellant and dismissed the appeal. Fish J.A., dissenting, would have granted a new trial.
47 The issue before us in this appeal as of right is a narrow one. The appeal relates only to the question of law raised by the dissenting opinion of Fish J.A. regarding the application of s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C‑46, in relation to the errors that the Court of Appeal unanimously recognized had been committed by the trial judge. In an appeal of this nature, there is therefore no need to review the merits of the Court of Appeal’s decision regarding the existence of those errors, except insofar as it is necessary to assess their impact in order to determine whether those errors nonetheless resulted in no substantial wrong or miscarriage of justice within the meaning of s. 686(1)(b)(iii).
48 In essence, I am in agreement with Fish J.A., and I conclude, as did he, that the errors identified by the Court of Appeal are such that it would be inappropriate to remedy them by applying the curative provision contained in s. 686(1)(b)(iii) of the Code. In my view, the majority of the Court of Appeal did not systematically consider the requirements of that provision and, in particular, the cumulative effect of the errors they identified. All that the majority did was to make several isolated references to the fact that the error committed had not prejudiced the accused. In my opinion, that approach does not meet the rigorous requirement of the curative provision, which has been accurately explained by my colleague Bastarache J., of ensuring that it is not necessary to order a new trial despite the errors that occurred in the first trial, since the evidence as a whole indicates that such an exercise would be futile and that a conviction would be inevitable following a trial in which no errors occurred.
II. Quebec Court of Appeal (1999), 135 C.C.C. (3d) 414
49 In the case at bar, the Quebec Court of Appeal unanimously held that it would have been preferable for the trial judge to draw the jury’s attention to the opinion of the psychiatrist, Dr. Lafleur, which was tendered in support of the defence put forward by the appellant. However, the majority concluded that this defect had not prejudiced the appellant, since Dr. Lafleur’s testimony was clear and fresh in the jury’s mind. Similarly, the court unanimously concluded that the trial judge had been ambiguous when presenting to the jury the requirement of a reasonable perception of the impossibility of escaping the threat that the appellant believed to exist. Beauregard J.A., for the majority, concluded on that point (at p. 427):
[translation] Notwithstanding that, I am of the view that, even had the charge of the judge on this point not been ambiguous, the result would still have been the same. If, in spite of the 911 telephone conversation, one can have a doubt as to whether Charlebois actually felt threatened by Jetté, there can be no doubt about the fact that Charlebois could not reasonably have believed that there was no other solution other than killing Jetté.
50 As to the question of whether the Crown should have been allowed to ask the appellant, in the presence of the jury, whether he would consent to providing a blood sample, the majority said that while the question was perhaps excessive, the appellant’s negative response was not prejudicial to him.
51 Last, the court unanimously found that the judge should have instructed the jury that the evidence relating to the appellant’s good character could be used to support the defence’s argument that the accused was not the type of man to commit a murder. Once again, the majority simply held that this error had not been prejudicial to the appellant.
52 The dissenting opinion of Fish J.A. extends beyond s. 686(1)(b)(iii) only with respect to one final point. The majority held that the Crown was properly allowed to ask the accused whether he would agree to undergo a psychiatric assessment by Dr. John Wolwertz, and that the trial judge had adequately addressed his refusal. On this issue, Fish J.A. expressed a dissenting view, concluding that the question should not have been allowed. I share that opinion.
III. Issues
53 Given the scope of an appeal as of right under s. 691(1) of the Code, it is not appropriate for this Court to review the merits of the unanimous conclusions of the Court of Appeal, let alone, as we are invited to do by the respondent, to accept an argument that was not raised in the Court of Appeal, that is, that Dr. Lafleur’s testimony was not even admissible in support of the defence of self‑defence.
54 There are therefore only two issues before this Court. First, did the majority of the Court of Appeal err in law in respect of the admissibility of the question relating to a psychiatric assessment by a Crown expert; and second, did the errors found by the Court of Appeal allow for the curative provision to be applied? Unlike my colleague Bastarache J., I would answer yes to the first question and no to the second.
IV. Analysis
A. Psychiatric Assessment by a Crown Expert
55 It is crucial to place the analysis in its factual context from the outset. When the Crown closed its case at trial, and in preparation for opening of the defence case, counsel for the parties held discussions before the judge but in the absence of the jury. Defence counsel told the judge that he had informed Crown counsel that he intended to submit a defence of self‑defence and that he had retained the services of a psychiatrist, Dr. Lafleur, in support of that defence. He also stated that he had refused the Crown’s request that his client undergo a second psychiatric assessment by Dr. Wolwertz.
56 The discussions between counsel concerning the possibility of a second assessment were held a few weeks before the trial began. In this regard, defence counsel told the judge that the Crown had made no proposal to him other than Dr. Wolwertz, and that, in his view, it was now too late, in mid-trial and right before his client was to testify, to have his client undergo a psychiatric assessment by anyone. Subsequent discussions focused on the issue of whether the Crown was entitled to request a second psychiatric assessment in a case like this. Finally, noting the difficulty of reaching a decision without hearing the defence evidence, the judge decided to leave the question open.
57 When the trial resumed, the appellant was the first witness to testify in his defence. In cross‑examination, Crown counsel asked him, in the presence of the jury, whether he would consent to providing a blood sample. The appellant refused. At that point, the defence asked the judge to exclude the jury so that the admissibility of the question asked could be argued. After some discussion, the judge allowed the question, and told counsel that he would immediately caution the jury as to what use it could make of the appellant’s answer. I will return to this point later. Once the jury had come back in, the following exchange took place:
[translation]
IN THE PRESENCE OF THE JURY
THE COURT:
So, ladies and gentlemen, after reflecting on this, I have decided that the question put by the Crown attorney is legal. Therefore, the objection is overruled.
PATRICK CHARLEBOIS, STILL UNDER OATH.
CONTINUATION OF CROSS‑EXAMINATION BY MR. LECOURS
Crown counsel:
Q: So, Mr. Charlebois, the question is as follows. Would you agree to provide a sample of your blood over the next weekend for the purpose of determining blood type?
A: No.
THE COURT:
So, you have heard the answer, I would now like to immediately make a remark. At no time is the accused obliged to provide in such a case a blood sample for analysis by Crown experts and, as members of the jury, you cannot, you must not draw any adverse conclusion against the accused due to the response which you have just heard. It is his absolute constitutional right to say no.
MR. LECOURS:
Q: Mr. Charlebois, over the course of the last few weeks, you met Dr. Lafleur, the psychiatrist, with a view to preparing your defence. Would you agree to meet in the near future, at the request of the Crown, a psychiatric expert named John Wolwertz so as to allow the Crown to prepare a second psychiatric opinion?
A: No.
MR. LECOURS:
On this point, my Lord, I have some case law to submit for your review concerning the instruction which you have just given on the question of whether a blood sample is not applicable to. . . .
THE COURT:
For the moment, that is another matter, unless you wish to address that aspect immediately.
58 Without notice, and in the presence of the jury, the Crown then asked the accused whether he would agree to submit to a second psychiatric assessment by Dr. Wolwertz. The appellant refused and the judge gave no instruction to the jury regarding what use could be made of his refusal. In his charge to the jury at the end of the trial, the judge returned to this issue in the following terms:
[translation] You will recall that at one point, the Crown prosecutor asked a question concerning a blood sample. And I instructed you that the accused was absolutely entitled to refuse to provide any such sample and that you could not draw any adverse conclusion from his refusal, and that you could not even take that into account in your deliberations. I will repeat now what I said then. But you will recall that immediately after, the Crown asked another question as to whether the accused would consent to being examined by a psychiatrist, Dr. Wolwertz, Crown expert witness. And the accused gave the same answer, he said no. I repeat what I said, but I also have something else to add. By refusing to undergo a psychiatric assessment at the request of the Crown, the accused is absolutely acting within his rights and you cannot and you must not draw any adverse conclusion as a result of this refusal. However, given that the accused has submitted that his apprehension of an imminent attack, or his perception . . . his perception was such that he felt about to be attacked as one of . . . he submitted as one of the cornerstones of his defence and he called upon a “shrink” to support this claim. Under these circumstances, his refusal to submit to an expert assessment by a Crown expert is a relevant fact and that is why the question was allowed. The jury may, you may, without obviously being obliged to, take the refusal into consideration when determining the probative value that you are going to grant to the evidence in connection with the apprehension of the accused on the night in question.
59 In the Court of Appeal, the parties argued the question of whether, by his refusal, the appellant had refused any psychiatric assessment at the request of the Crown, or had simply refused to be examined by Dr. Wolwertz. In my opinion, it is neither possible nor very helpful to go beyond the evidence heard by the jury. What is clear is that, before the jury, the appellant unequivocally answered the question put to him, and that question referred only to Dr. Wolwertz. On this point, Fish J.A. wrote, at p. 439:
Let me say at once that defence counsel’s advice to his client — that he decline to be examined by Dr. Wolwertz — can hardly be considered capricious. In at least three separate matters, a total of eight different members of this Court have found that Dr. Wolwertz, as a Crown witness, had exceeded the acceptable limits governing expert testimony (“outrepassé les limites ainsi fixées pour témoigner”) and gone much too far (“est allé beaucoup trop loin”), thereby causing the accused irreparable prejudice (R. v. Roy, [1988] A.Q. No. 90 (QL) (Que. C.A.) (Beauregard, Nichols and Tyndale JJ.A.)); that he had given evidence amounting to a diatribe devoid of any objectivity (“une diatribe dépourvue de toute objectivité”), “flagrantly contravening” the rule that prohibits experts from expressing their own opinion on the credibility of other witnesses (R. v. Fortin, [1997] A.Q. No. 2887 (QL) (Proulx and Rousseau‑Houle JJ.A. and Zerbisias J. (ad hoc)). To the same effect: R. v. Demers, [1998] A.Q. No. 1667 (QL) (Rothman, Proulx and Pidgeon JJ.A.)).
A little later, Fish J.A. refers to Dr. Wolwertz as an expert “who had been found by this Court to have previously testified (and since as well) in a tendentious and unprofessional manner” (p. 439).
60 However, Beauregard J.A., for the majority, simply concluded (at p. 429):
[translation] Defence counsel perhaps had personal reasons to doubt whether the psychiatrist selected by the prosecution would be objective, but in the absence of any decision to the contrary taken by the judge, it was not Charlebois’ right to require that the prosecution retain the services of a psychiatrist other than the one they had chosen.
In any event, I understand, [as did the trial judge], from the exchanges . . . during the voir dire [that ultimately at the trial] Charlebois refused to be assessed by any psychiatrist whatsoever on the grounds that it was too late.
61 The discussions during the voir dire were obviously not in evidence before the jury, nor were the reservations expressed by numerous judges of the Court of Appeal regarding the professionalism of Dr. Wolwertz, which were referred to by Fish J.A. If the jury is to be invited to draw conclusions from the accused’s refusal to meet with Dr. Wolwertz for the purposes of a second psychiatric opinion, the ambiguity inserted into the question by the prosecutor who asked it should not be resolved in the prosecution’s favour.
62 In fact, in my view, that ambiguity reflects the unsatisfactory nature of the procedure followed in this case. It is therefore important to establish an appropriate procedure in the exceptional case where the Crown is permitted to refer to the accused’s exercise of his right to silence and invite the jury to draw conclusions unfavourable to the accused from the exercise of that right.
63 The right of the accused to remain silent is a fundamental right: Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Hebert, [1990] 2 S.C.R. 151. This constitutional right may be exercised at the investigation stage as well as at the trial: Canadian Charter of Rights and Freedoms, ss. 7 and 11(c); Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 4(1).
64 It follows that the accused cannot be penalized for exercising his right to remain silent, and the exercise of that right must not be put in evidence for inculpatory purposes. In that regard, in R. v. Chambers, [1990] 2 S.C.R. 1293, Cory J. wrote for the majority (at p. 1316):
It has as well been recognized that since there is a right to silence, it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer’s question but nonetheless put in evidence that the accused clearly exercised his right and remained silent in the face of a question which suggested his guilt.
In fact, attention was drawn to the importance of this principle even before the impact of the Charter. In R. v. Symonds (1983), 9 C.C.C. (3d) 225 (Ont. C.A.), Martin J.A. wrote the following at p. 227:
It is fundamental that a person charged with a criminal offence has the right to remain silent and a jury is not entitled to draw any inference against an accused because he chooses to exercise that right. We think that in the absence of some issue arising in the case which makes the statement of an accused, following the giving of a caution, that he has nothing to say relevant to that issue, such evidence is inadmissible. In the present case there was no issue with respect to which the appellant’s failure to reply was relevant and the evidence should not have been tendered. . . .
65 It is therefore settled law that, as a general rule, the jury must not be invited to draw inferences adverse to the accused from the mere exercise by the accused of his right to silence. This Court confirmed that rule in R. v. Crawford, [1995] 1 S.C.R. 858, at para. 22, and R. v. Noble, [1997] 1 S.C.R. 874, at paras. 71‑72. Furthermore, s. 4(6) of the Canada Evidence Act expressly prohibits the drawing of unfavourable conclusions from the fact that an accused opts to remain silent during his trial.
66 However, the right to silence is not absolute. In connection with psychiatric assessments, there have been three decisions of the Ontario Court of Appeal in which a set of exceptions to the fundamental rule stated above has been developed. In R. v. Sweeney (1977), 35 C.C.C. (2d) 245, the Ontario Court of Appeal held that the evidence of the accused’s refusal to submit to examination by a Crown psychiatrist, even though he was tendering a psychiatric assessment in support of his defence of insanity, was admissible for the purpose of challenging the credibility of the assessment offered by the defence. On this point, Zuber J.A. said the following (at p. 252):
It is, after all, the accused who has raised the defence and made his sanity an issue. Can it be said he has the exclusive right to call psychiatric evidence and also to deny the prosecution even the ability to explain why the Crown has called no evidence to meet this issue? It has been submitted that the Crown psychiatrists can testify on a hypothetical basis, or from having observed the accused in the court‑room. However, the cross‑examination of the Crown’s psychiatrists and the address to the jury by defence counsel could not avoid emphasizing superiority of the witnesses who had examined the accused.
67 The procedure followed in Sweeney is interesting and merits our consideration. At the beginning of the trial, the Crown applied for an order allowing the accused to be interviewed by a psychiatrist chosen by the Crown. The judge declined to make this order and raised the issue of whether the appellant’s refusal, if that were the case, would be admissible at trial. Counsel for the defence then formally informed the Court that he was going to advise his client to refuse the second psychiatric examination proposed by the Crown.
68 On the second day of the trial, the defence stated that the accused would have no objection to being examined by the Crown experts, provided there was first a conference between both parties’ psychiatrists and psychologists. This offer was declined by the Crown and the defence accordingly refused to allow the accused to submit to the second psychiatric examination sought by the Crown.
69 The defence called its psychiatric evidence at trial, during which the accused did not testify. In reply, the Crown was permitted to call a psychiatrist and a psychologist, who testified that they had been present during the trial and gave an opinion based on the facts in evidence. They both stated that they had not interviewed the accused, since he had refused them access unless they consented to a preliminary conference with the defence experts, which was unacceptable to them for professional reasons.
70 Following this evidence in reply, the defence was allowed to call evidence in surrebuttal showing the reasons why such a conference was necessary. The jury thus had the benefit of the factual framework, which it could use to draw the conclusions it considered appropriate from the defence’s refusal to submit to a second psychiatric examination. I would point out that this evidence was called without the accused being personally involved in explaining his refusal.
71 The second case of interest is R. v. Stevenson (1990), 58 C.C.C. (3d) 464 (Ont. C.A.), in which the accused argued that he did not have the capacity to form the requisite intent for murder. However, he did not put forward the defence of insanity. In support of his defence, the accused adduced expert psychiatric evidence. Although he had agreed to meet with the psychiatrist proposed by the Crown, the accused refused to discuss the circumstances of the homicide of which he was accused with that psychiatrist, as a result of advice from counsel. However, he had discussed the circumstances with the psychiatrists retained by the defence. After referring to the accused’s right to silence guaranteed by s. 7 of the Charter, Morden J.A. held that the principle of the decision in Sweeney was still applicable. The Crown was therefore entitled to put in evidence the fact that its experts, unlike the defence experts, had not been given the same access to the information in the possession of the accused. Morden J.A. explained the consequences of this fact as follows, at p. 496:
I think that the jury should have been instructed that the appellant, in not discussing the circumstances of the homicide with the Crown psychiatrists, was exercising his right to remain silent and that no inference of guilt could be drawn against him on this account but that, in assessing the Crown’s expert evidence in comparison with that of the appellant’s, they could properly take into account the accused’s refusal to discuss the homicide with the Crown’s expert witnesses.
72 Last, in R. v. Worth (1995), 98 C.C.C. (3d) 133 (Ont. C.A.), the accused relied on a defence of insanity under s. 16 of the Code to a charge of murder. The accused did not testify at his trial. Both the defence and the Crown called psychiatrists on the issue of the accused’s state of mind at the time of the homicide. The Court of Appeal approved the trial judge’s comments to the jury, in which he stated that the Crown psychiatrists had been refused the opportunity to interview the accused, and that it was open to the jury to conclude from this that his defence would not withstand such scrutiny.
73 It therefore seems to me to be settled law that when an accused relies on a psychiatric assessment in support of any defence, his refusal to be examined for the same purposes by a Crown expert may be the subject of an inference adverse to him and the trial judge must so instruct the jury. In my view, there is no reason to limit this rule to cases in which the defence is a defence of mental disorder within the meaning of s. 16 of the Code. The principle behind this exception to the general rule of the right to silence is one of fairness between the parties which applies in all cases where the accused calls an expert to whom he has given exclusive access.
74 In addition, Sweeney is the only decision that addresses the procedure to follow in the case of a refusal by the accused to submit to a second assessment, and it does so indirectly. In my view, the procedure followed in Sweeney is much preferable to the procedure followed in the present case. The fundamental distinctions between this case and the three cases cited above are, first, that the accused testified at his trial and, second, that the Crown did not call any experts to rebut the expert evidence introduced by the accused, although it had been informed some weeks before the trial started that the defence would be introducing a psychiatric assessment. The Crown could have retained the services of a psychiatrist to assess the expert evidence introduced at the trial and provide an opinion, if necessary, to contradict the defence expert.
75 The Crown did not retain the services of an expert, and did not contradict Dr. Lafleur’s opinion. It confined itself to putting the question here in issue to the appellant. In my view, because of how the Crown chose to proceed, it cannot now rely on the exception to the exercise of the right to silence.
76 In fact, there are several reasons why the procedure followed in this case should be avoided. First, the question asked here was ambiguous and inconclusive. There was nothing in the evidence that showed that the accused had previously refused to submit to a second psychiatric assessment. In cross‑examination, the Crown merely asked the accused: [translation] “Would you agree to meet in the near future, at the request of the Crown, a psychiatric expert named John Wolwertz so as to allow the Crown to prepare a second psychiatric opinion?” It seems to me to be quite apparent that it is a little late to ask the accused to submit to second psychiatric assessment in the middle of his defence during a jury trial for murder. If that question was being put to him for the first time, which the jury did not know, his negative response would be completely acceptable and no negative inference should be drawn from it. The question also arises of how the trial should have proceeded had the accused consented there and then.
77 In addition, it seems to me to be very inappropriate to ask the accused to explain the reasons for his refusal in detail, and to invite him to impugn Dr. Wolwertz’s motives. The accused himself had no personal knowledge regarding the professional qualifications of the psychiatrist selected by the Crown, and could not have expressed in an appropriate and credible manner the reasons why his counsel advised him not to agree to be examined by Dr. Wolwertz. Similarly, it would have been difficult for the accused to testify concerning the discussions that had taken place between his counsel and Crown counsel, since there is no indication that he was present at those discussions. At most, if the question had been put to him directly, he could have said that he refused to meet with Dr. Wolwertz on the advice of counsel.
78 It is greatly preferable, in my view, that the Crown establish the accused’s refusal in one of the following two ways: either by seeking an admission from the defence concerning the refusal, which could include the grounds for the refusal, or by calling another witness, as was done in Sweeney, Stevenson and Worth, in which case the defence could offer evidence in reply if it considered it necessary to do so.
79 In light of the principles on which the exception rule is based, it seems clear to me that the procedure adopted in this case was particularly inappropriate. First, the question was asked in the presence of the jury, immediately following a question of the same type which also should never have been asked (by the Crown’s own admission, at least in the Court of Appeal). The cumulative effect of the accused’s refusal to provide a blood sample and refusal to submit to a second psychiatric assessment, in rapid succession, in my view, proved highly prejudicial, for no good reason, to the general credibility of his defence. Second, the question itself was not particularly helpful, since it contained an inherent ambiguity regarding the specific subject-matter of the refusal, thus making it difficult for the jury to be invited to draw any conclusion whatsoever from that refusal.
80 The bottom line on this issue is that it is important to remember that the rule by which a conclusion unfavourable to the accused may be drawn from his refusal to submit to a second psychiatric assessment is an exception to the fundamental principle of the right to silence, which is itself rooted not only in the common law but also in the Charter. It is essential that this exceptional rule be administered fairly and equitably and in a manner consistent with its underlying principle. From this perspective, it seems to me to be particularly inappropriate for the Crown to invite the jury to draw a negative conclusion from the accused’s refusal to submit to examination by its experts, when the Crown itself led no evidence challenging the expert opinion offered by the defence. Before taking advantage of the exception, the Crown must first lay the factual foundation of its assertion by challenging the defence’s psychiatric assessment. It may then lead evidence of the accused’s refusal, provided it does so accurately and in a manner consistent with the facts, that is, avoiding tactics that are unfair or unduly prejudicial to the accused.
81 In view of the circumstances of this case, the judge’s instructions to the jury on the issue failed to remedy the original error of allowing the question to be asked.
B. Application of Section 686(1)(b)(iii)
82 I would note that the Court of Appeal unanimously concluded that the trial judge committed errors in his instructions to the jury, specifically in the summary of the testimony of the defence’s expert witness (Dr. Lafleur), the characterization of the evidence of good character submitted by the appellant, the outline of the facts of the case that were relevant to the theory put forward by the defence, and the description of the application of s. 34(2) of the Code, and more particularly the reference to the reasonable man in connection with how the perceptions associated with self‑defence are formed. This is the starting point from which I shall now consider the applicability of the curative provision.
83 The curative provision set out in s. 686(1)(b)(iii) of the Code applies in exceptional situations where the evidence is so overwhelming that the trier of fact would inevitably find an accused guilty despite the errors committed during the trial: R. v. B. (F.F.), [1993] 1 S.C.R. 697.
84 Very recently, in R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11, at para. 104, this Court adopted Major J.’s statement in R. v. Bevan, [1993] 2 S.C.R. 599, in which he provided a reminder, at pp. 616‑17, of the exact nature of the test that the Crown must meet pursuant to s. 686(1)(b)(iii):
The question to be asked in determining whether there has been no substantial wrong or miscarriage of justice as a result of a trial judge’s error is whether “the verdict would necessarily have been the same if such error had not occurred”: see Colpitts v. The Queen, [1965] S.C.R. 739, per Cartwright J. (as he then was), at p. 744; Wildman v. The Queen, [1984] 2 S.C.R. 311, at pp. 328‑29. This test has also been expressed in terms of whether there is any possibility that if the error had not been committed, a judge or properly instructed jury would have acquitted the accused: see Colpitts, per Spence J., at p. 756; R. v. S. (P.L.), [1991] 1 S.C.R. 909, per Sopinka J., at p. 919; R. v. Broyles, [1991] 3 S.C.R. 595, at p. 620; R. v. B. (F.F.), [1993] 1 S.C.R. 697, per Iacobucci J. at pp. 736‑37. I do not interpret these two approaches as being intended to convey different meanings. Under either approach, the task of an appellate court is to determine whether there is any reasonable possibility that the verdict would have been different had the error at issue not been made.
85 Where more than one error was committed during the trial, whether regarding the admissibility of evidence, the judge’s instructions to the jury or otherwise, the cumulative effect of those errors, however minimal they may be when taken individually, must be taken into account for the purposes of applying s. 686(1)(b)(iii).
86 Where an error, or a series of errors, relates to the very essence of the defence and could influence the jury’s assessment of a question of fact that has a very direct bearing on the accused’s guilt, it is difficult to conclude that the rest of the evidence is sufficiently conclusive for the curative provision to be applied.
87 In the present case, the central issue was whether, at the time the appellant shot the victim, he had a reasonable perception that his life was in danger and that he could not otherwise escape from the threat to his safety.
88 Some of the errors found by the Court of Appeal related to secondary matters and, taken in isolation, could have been excused by applying the curative provision. For example, I am of the view, as was the Court of Appeal, that the question put to the accused by the Crown asking him whether he would consent to providing a blood sample “went too far”. It is difficult to see the relevance of this question, which was asked in a prejudicial manner and followed by an instruction which did little to remedy that prejudice. However, that error, taken alone, would not in my opinion have vitiated the trial to the point that the curative provision could not be applied.
89 On other hand, the psychiatric evidence of the accused’s pathological fear of the victim was fundamental. As well, the nature of the evidence also required very clear instructions regarding the assessment of the reasonableness of the accused’s beliefs. In my view, the errors in the judge’s instructions to the jury concerning these two issues were inevitably fatal, since it is impossible to argue that the verdict would have been the same had it not been for those errors. Such a conclusion would amount to rejecting the defence out of hand, and thus to usurping the decision‑making authority of the jury.
90 The appellant killed a defenceless sleeping man whom he had known for years, who was violent towards him and of whom he was chronically afraid. He was entitled to have a jury determine his guilt in accordance with properly explained and applied rules of law. This was not the case here, and it is not for appellate courts to dismiss a defence on which an appropriately instructed jury has not expressed a view.
91 In my view, the cumulative effect of the errors unanimously found by the Court of Appeal to have occurred, combined with the serious and prejudicial error of allowing the Crown to ask the accused whether he would consent to a second psychiatric assessment by Dr. Wolwertz, requires that the conviction be set aside and a new trial ordered.
92 I would therefore allow the appeal and order a new trial.
Appeal dismissed, Arbour J. dissenting.
Solicitor for the appellant: Michel Pennou, Laval.
Solicitor for the respondent: The Attorney General’s Prosecutor, Montréal.