Supreme Court Judgments

Supreme Court of Canada

Schwartz v. R., [1977] 1 S.C.R. 673

Date: 1976-05-05

Edward Samuel Schwartz Appellant;

and

Her Majesty The Queen Respondent.

1975: October 21; 1976: May 5.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz, and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Defence of insanity on charges of non-capital murder—Person insane under Criminal Code provision if suffering from disease of the mind rendering him incapable of knowing act is wrong—Interpretation of the word “wrong”—Criminal Code, R.S.C. 1970, c. C‐34, s. 16(2)—Applicability of s. 613(1)(b)(iii).

On charges of non-capital murder, the appellant was convicted in a trial by judge and jury and his conviction was affirmed by the British Columbia Court of Appeal. Apart from the general issue, the appellant’s main defence was insanity at the time of the alleged offences. Leave to appeal to this Court was granted in respect of the following question of law: Did the Court of Appeal err in holding that there had been no error in law in the direction given to the jury as to the meaning of the word “wrong”, as used in s. 16(2) of the Criminal Code, in defining insanity? In his charge to the jury the trial judge said that the defence of insanity rested inter alia on the accused’s incapacity to know that his actions were wrong and that “wrong” meant “forbidden by law”.

The appellant’s submission was that the word “wrong” as used in s. 16(2) means contrary to the ordinary standard of reasonable men. It was argued that, even if an accused person, relying upon the defence of insanity, knew that his act was legally wrong, he would still be within the definition of insanity if he believed his action to be right according to the ordinary standard of reasonable men.

Held (Laskin C.J. and Spence, Dickson and Beetz JJ. dissenting): The appeal should be dismissed.

Per Martland, Judson, Ritchie, Pigeon and de Grandpré JJ.: There was no evidence relating to the issue as to whether, at the time the offences were committed, the

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appellant, owing to disease of the mind, though appreciating the nature and quality of his acts, did not know that what he was doing was morally, or legally, wrong. There was no evidence to meet the onus imposed on the appellant by s. 16(4) to establish his insanity within the latter part of the definition in s. 16(2) no matter how the word “wrong” be interpreted. This being so, the portion of the charge to which objection is taken was irrelevant, and, therefore, even if it were erroneous, this would be a case in which the provisions of s. 613(1)(b)(iii) should be applied.

However, the judge’s charge upon the meaning of the word “wrong” in s. 16(2) was not erroneous. Section 16(2) only becomes operative if, previously, it has been proved beyond a reasonable doubt that the accused person has committed a crime; i.e., has been guilty of some criminal act with the requisite criminal intent. It is at that point that he may seek the protection against conviction afforded by s. 16(1) on the ground that the offence was committed while he was insane. But mere proof of insanity alone is not enough. He is only to be considered insane for the purpose of that subsection if he has a disease of the mind to an extent that renders him incapable of: (a) appreciating the nature and quality of his act; or (b) knowing that such act was wrong. The words “nature and quality” deal with the physical character of the act. If, therefore, a person who has committed a crime did not, by reason of disease of the mind, know what he was doing, he is not to be convicted, because it really was not his act. The second and alternative portion of the definition deals not with the criminal act, but with the criminal intent. Although he has committed a crime, and understood what he was doing, the accused is still protected from conviction if, because of mental disease, he did not know that by his act he was committing a crime. The test as to whether the accused knew that his act was wrong according to the ordinary principles of resonable men does not really differ from the test as to whether he knew he was committing a crime. Surely, according to the ordinary principles of reasonable men, it is wrong to commit a crime. This must be so in relation to the crime of murder. If there is a difference between these tests, and it could be contended that the commission of a particular crime, though known to be illegal, was considered to be morally justifiable in the opinion of ordinary men, there is no reason why a person who committed a crime in such circumstances should be protected from conviction if suffering from disease of the mind, and not protected if he committed the crime when sane.

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The test provided in s. 16(2) is not as to whether the accused, by reason of mental disease, could or could not calmly consider whether or not the crime which he committed was morally wrong. He is not to be considered as insane within s. 16(2) if he knew what he was doing and also knew that he was committing a criminal act.

Per Laskin C.J. and Spence, Dickson and Beetz JJ., dissenting: It is the thinking process of the accused, as opposed to his actual knowledge of wrongness, that should be the focus of inquiry in the defence of insanity. The question is not whether the accused knew that the act was wrong but whether he was capable of knowing it was wrong. Was he capable of comprehending that which militated to make the act wrong? In applying s. 16(2), one must delve into the thought process of the accused, coherence, logic, rationality, rather than merely his knowledge of the wrongness of the particular act. Has disease of the mind so affected the capacity of the accused to make a moral choice that he is unable to discern between what is right and what is wrong? Attention must then be directed to the last word of s. 16(2), the word “wrong”. The inquiry must be as to whether Parliament intended the word to be construed in what one might call the popular sense of “wrong” or in the sense of “contrary to law” or “illegal”.

Accepted legal authorities respecting statutory construction confirm the validity of construing one part of a statute by reference to another part of the same statute. If Parliament had intended “wrong” to mean “contrary to law”, one might expect use of the word “unlawful”, which is used in other sections of the Code. In s. 13, which deals with the criminal responsibility of children, one finds a provision the structure of which parallels s. 16(2). The effect of s. 13 is to relieve certain children of criminal responsibility because they, like the insane, do not have the capacity to comprehend the moral implications of their harmful acts.

The M’Naghten formulation focuses only on the cognitive element of the personality, i.e., the ability to know right from wrong. The question is “Did the accused know it was wrong?” One is confined to the choice of legal wrong or moral wrong. Section 16(2), however, does not speak in simplistic terms based solely upon a person’s ability to know right from wrong. It speaks of “capacity” and the question then is “Was he capable of knowing that it was wrong?” Section 16(2) must be read in toto. One looks at capacity to reason and to reach rational decisions as to whether the act is morally wrong. If wrong simply means “illegal” this virtually

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forecloses any inquiry as to capacity. The question for the jury is whether mental illness so obstructed the thought processes of the accused as to make him incapable of knowing that his acts were morally wrong.

[R. v. Windle, [1952] 2 Q.B. 826, followed; M’Naghten’s Case (1843), 10 Cl. & Fin. 200; R. v. Codere (1916), 12 Cr. App. R. 21; R. v. Holmes, [1953] 1 W.L.R. 686; R. v. Cardinal (1953), 10 W.W.R. (N.S.) 403; Stapleton v. The Queen (1952), 86 C.L.R. 358; R. v. Porter (1933), 55 C.L.R. 182; R. v. O. (1959), 3 Crim. L.Q. 151; R. v. Borg, [1969] S.C.R. 551; R. v. Riel (No. 2) (1885), 1 Terr. L.R. 23, aff’d. 10 App. Cas. 675; R. v. Jessamine (1912), 19 C.C.C. 214; R. v. Mathews (1953), 9 W.W.R. (N.S.) 649; R. v. Cracknell, [1931] O.R. 634; R. v. Harrop (1940), 74 C.C.C. 228; R. v. Arnold (1724), 16 St. Tr. 695; Bellingham’s Case (1812) 1 Collinson on Lunatics 636; People v. Schmidt (1915), 216 N.Y. 324; Doyle v. Council of County of Wicklow, [1974] I.R. 55; Hadfield’s Trial (1800), 27 St. Tr. 1281; R. v. Davis (1881), 14 Cox C.C. 563, referred to.]

APPEAL, with leave, from a unanimous judgment of the Court of Appeal for British Columbia[1], dismissing the appellant’s appeal from his conviction for the non-capital murder of two persons. Appeal dismissed, Laskin C.J. and Spence, Dickson and Beetz JJ. dissenting.

J.B. Clarke, for the appellant.

G.S. Cumming, Q.C., for the respondent.

The judgment of Laskin C.J. and Spence, Dickson and Beetz JJ. was delivered by

DICKSON J. (dissenting)—This is a non-capital murder case in which a rather narrow point of interpretation arises. The appellant was indicted for the murders of Barbara Jean Blum and Edward Julius Mernickle on January 7, 1973. He was convicted in a trial by judge and jury on November 1, 1973 and his conviction was affirmed by the British Columbia Court of Appeal. Leave to appeal to this Court was granted June 26, 1975. Apart from the general issue, the appellant’s main defence was insanity at the time of the alleged offences. Evidence was led by the Crown including

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psychiatric evidence and police testimony of the violent and frenzied state of the accused on the night of the arrest. In his charge to the jury, Hinkson J. said that the defence of insanity rested inter alia on the accused’s incapacity to know that his actions were wrong and that “wrong” meant “forbidden by law”.

There is no occasion to review the evidence. Counsel for the appellant advised the Court that he had prepared his factum and would present oral argument relying upon the concession made by counsel for the Crown that the accused was entitled to a new trial if this Court should hold there was error in charging the jury on the basis that “wrong” meant “contrary to law.” Counsel for the Crown confirmed he had made such concession.

As the consequence of a successful insanity defence is not freedom but an indeterminate detention in a mental hospital, this defence is unlikely to be raised if any less threatening alternative is available. Thus the defence is raised infrequently and usually when the death sentence or life imprisonment is in the offing. The infrequency of the defence does not, however, serve to diminish the importance of mental disorder as it affects criminal responsibility.

The word “wrong” is ambiguous. It may mean either “illegal” or “morally wrong”. The extended debate over whether “wrong” means legally or morally wrong has given rise to two conflicting lines of authority. The present English authorities, at odds with many earlier cases, hold the view that wrong means contrary to law. Australian, and a number of American cases, hold the opposite view. Canadian cases go in both directions: R. v. Riel

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(No. 2)[2]; R. v. Cardinal[3]; R. v. Jessamine[4]; R. v. Mathews[5]; R. v. Cracknell[6]; R. v. Harrop[7]; R. v. O.[8]

Just as there is a lack of unanimity on the meaning to be ascribed to the word “wrong”, so is there variance of opinion on whether the insanity defence is extended or narrowed by departing from the view that “wrong” means contrary to law. In most cases, it will make little difference, for in serious crime the legal standard and society’s moral judgment are not likely to differ. It would be a rare occasion on which an accused would consider that, in killing, his act was legally wrong but right according to the ordinary standards of reasonable men. “Moral wrong” is not to be judged by the personal standards of the offender but by his awareness that society regards the act as wrong. Society’s moral judgment may well be identical with the legal standard, but such is not inevitably the case. An offender may know that it is legally wrong to kill but do so in the belief that it is in response to a divine order and therefore not morally wrong. The legal and the moral do not always coincide.

The law of insanity, as it relates to criminal responsibility at the time of committing an offence, is derived from rules laid down by the English judges in 1843 following the acquittal, on the grounds of insanity, of one M’Naghten, charged with murdering the Secretary to Sir Robert Peel (M’Naghten’s Case[9]). Although our law is now statutory it rests heavily upon what has come to be referred to as the M’Naghten rules. The M’Naghten rules speak of not knowing “he was doing what was wrong”; our Criminal Code s. 16(2) speaks of being incapable of “knowing that

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an act or omission is wrong.” The concern then is with the interpretation to be given to s. 16(2) of the Criminal Code and specifically the meaning of “wrong” therein. Section 16(1) provides that no person shall be convicted of an offence in respect to an act or omission on his part while he was insane. Section 16(2) then goes on to say:

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

Although our immediate concern is with the word wrong, the wording of s. 16(2) makes it clear that the section is primarily concerned with mental disease and incapacity resulting therefrom. It is the thinking process of the accused, as opposed to his actual knowledge of wrongness, that should be the focus of inquiry in the defence of insanity. The question is not whether the accused knew that the act was wrong but whether he was capable of knowing it was wrong. Was he capable of comprehending that which militated to make the act wrong? Mr. Justice Stephen in History of the Criminal Law of England, vol. 2 (1883) at p. 163 poses this question: “Was he deprived by disease affecting the mind of the power of passing a rational judgment on the moral character of the act which he meant to do?” In applying s. 16(2), one must delve into the thought process of the accused, coherence, logic, rationality, rather than merely his knowledge of the wrongness of the particular act. Has disease of the mind so affected the capacity of the accused to make a moral choice that he is unable to discern between what is right and what is wrong? Attention must then be directed to the last word of s. 16(2), the word “wrong”. The inquiry must be as to whether Parliament intended the word to be construed in what one might call the popular sense of “wrong” or in the sense of “contrary to law” or “illegal”. Is there any compelling reason for giving the word “wrong” other than the common and ordinary meaning of the word?

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Before considering the authorities it would be well, I think, to have regard to the internal structure of the Criminal Code. Accepted legal authorities respecting statutory construction confirm the validity of construing one part of a statute by reference to another part of the same statute. If Parliament had intended “wrong” to mean “contrary to law”, one might expect use of the word “unlawful”, which is used in sections of the Code dealing with assembly (s. 64), riots (s. 65), drilling (s. 71), and solemnization of marriage (s. 258) or, possibly the word “illegal”, which is used in s. 215(4) of the Code dealing with arrests.

The French version of s. 16(2) uses the word “mauvais” for the word “wrong” appearing in the English version. Harrap’s New Shorter French and English Dictionary contains a rather lengthy definition of “mauvais” which commences with “evil, ill (thought, omen, etc.); bad, wicked (person)” and continues through many uses of the word, none of which suggest the sense of “contrary to law”.

If one turns then to s. 13 of the Code dealing with the criminal responsibility of children between the ages of seven years and 13 years, one finds a provision the structure of which parallels s. 16(2). It reads:

13. No person shall be convicted of an offence in respect of an act or omission on his part while he was seven years of age or more, but under the age of fourteen years, unless he was competent to know the nature and consequences of his conduct and to appreciate that it was wrong.

A child of seven years of age might know the difference between “right” and “wrong” in a moral sense but it seems highly unlikely that a child of tender years would think in terms of “contrary to law”. The effect of s. 13 is to relieve certain children of criminal responsibility because they, like the insane, do not have the capacity to comprehend the moral implications of their harmful acts. Anthony Platt and Bernard L. Diamond, in a scholarly and helpful article entitled, “The Origins of the ‘Right and Wrong’ Test of Criminal Responsibility and Its Subsequent Development in

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the United States: An Historical Survey”, (1966), 54 Calif. L. Rev. 1227, observe that the criminal law generally perceived the insane person as resembling a young child in terms of his moral development and cognitive abilities and that as long ago as the year 1581, an Elizabethan writer, Lambard, wrote (p. 1234):

“If a mad man or a naturall foole, or a lunatike in the time of his lunacie, or a childe y apparantly hath no knowledge of good nor evil, do kil a ma, this is no felonious acte, nor any thing forfeited by it... for they cannot be said to have any understanding wil.”

(Emphasis added.)

In 1728 Wood, An Institute of the Laws of England, wrote, p. 339:

“But those that are to be esteemed guilty of any offences must have the use of their reason, and be at their own disposal or liberty. For those that want reason to distinguish betwixt good and evil (as infants under the age of discretion (viz.), under the age of fourteen years, ideots, lunaticks etc.) ought not to be prosecuted for any crime.”

Four years earlier, in R. v. Arnold[10], at p. 765, the jury was instructed that the defendant was not to be held insane if he “was able to distinguish whether he was doing good or evil”. The authors of the article to which I have referred, after citing R. v. Arnold, continue (p. 1236):

The same test was used in Rex v. Ferrer (1760), Parker’s Case (1812), Bellingham’s Case (1812), Rex v. Bowler (1812), Martins Case (1829), Offord’s Case (1831), and Oxford’s Case (1840). The “good and evil” test was momentarily abandoned in Hadfïeld’s Case (1800) as a result of the brilliance and oratory of the defense counsel, Thomas Erskine, but this decision had no lasting effect on the rules of criminal responsibility for the insane. By the time M’Naghten was tried for the murder of Edward Drummond in 1843, the earlier test of responsibility had been re-established.

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In Bellingham’s Case[11], a murder case, Sir James Mansfield C.J. instructed the jury that “the single question was, whether, at the time this act was committed, (the defendant) ...possessed a sufficient understanding to distinguish good from evil, right from wrong”. The interrelationship of the rules affecting criminal responsibility of children and of insane persons, the historical development of the “right and wrong” test, and the M’Naghten Rules are canvassed in detail by the authors who conclude their article with these two paragraphs (p. 1258):

The evolution of the “right and wrong” test of criminal responsibility can be traced from Hebrew law, Greek moral philosophy, Roman law, the literature of the Church in the Middle Ages, and English common law to its final elaboration in American case law. There is substantial evidence to suggest that the role of the child, as a prospective member of adult society, was an expedient and ideologically meaningful reference for rules of criminal responsibility for the insane criminal offender. The “right and wrong” test was used in England to determine the criminal capacity of children as early as the fourteenth century and of the insane probably by the seventeenth century. It has been used widely in the United States for both children and the insane since 1800.

It is clear that the “right and wrong” test of criminal responsibility did not arise in 1843, either in England or in the United States. The “knowledge of right and wrong” test, in the form of its earlier synonym (“knowledge of good and evil”), is traceable to the Book of Genesis. The famous M’Naghten trial of 1843 and the subsequent opinion of the judges provided only the name, “M’Naghten Rule.” The essential concept and phraseology of the rule were already ancient and thoroughly embedded in the law.

Goldstein, The Insanity Defence (1967), writes to the same effect (p. 10):

By the end of the eighteenth century, the insane were viewed by the criminal law much as they are today. The formula then prevalent described them as persons who lacked the capacity to choose between good and evil.

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It was within this background that the judges in M’Naghten’s Case gave answer to the prolix questions which were asked as to the extent to which a person accused of crime would be relieved of criminal responsibility by virtue of mental disease, and the answer was, in substance, that he is accountable if he knew what he was doing when he committed the crime. The language of M’Naghten tells jurors (p. 210 (Cl. & F.); p. 722 (E.R.)):

...that every man is to be presumed to be sane, and... that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.

M’Naghten emphasizes knowledge, exempting from criminal consequences those suffering from serious cognitive impairment as a result of disease of the mind. The M’Naghten judges said that a person is punishable “if he knew at the time of committing such crime that he was acting contrary to law; by which expression we understand Your Lordships to mean the law of the land.” (p. 210 (Cl. & F.); p. 722 (E.R.)).

If the judges had stopped there, we would at least know their attitude to the question whether “wrong” meant moral or legal wrong. The second paragraph in the opinion reads, however (p. 10 (Cl. & F.); p. 723 (E.R.)):

If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered on the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was at the same time contrary to the law of the land, he is punishable...

The concluding sentence draws a clear distinction between (i) knowledge that the act was contrary to the law of the land and (ii) knowledge that the act was one which the accused knew he ought not to do.

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The leading authorities cited in support of the position that “wrong” means “wrong in law” are R. v. Codere[12] and R. v. Windle[13] which purported to follow Codere’s case. In Codere, a young Canadian officer committed a brutal and senseless murder, the plans for which he had openly discussed with other soldiers. It was conceded by counsel for the accused that Codere must have known that the act he committed was punishable by law, but it was contended that that in itself was not enough to show that he was not insane. Codere, it was argued, should be judged “by the standard which he believes is that of the majority of reasonable men ...it would probably be sufficient to render him punishable if he knew ...that the act would be condemned and regarded as wrong by his fellow-creatures.” Lord Reading, in dismissing the application for leave to appeal, stated that “the standard to be applied is whether according to the ordinary standard adopted by reasonable men the act was right or wrong.” These words seem to leave no room for doubt that, in the opinion of Lord Reading as so expressed, “wrong” meant wrong according to generally accepted societal standards and not wrong according to law. He observed however, without elaborating, that “the question of the distinction between morally and legally wrong opens wide doors” and went on to say (p. 27):

In a case of this kind, namely, killing, it does not seem debateable [sic] that the appellant could have thought that the act was not morally wrong, judged by the ordinary standards, when the act is punishable by law, and is known by him to be punishable by law.

In the cited passage, his Lordship used the words “in a case of this kind” and in a later passage prefaced his remarks with “in this case”, viz. (pp. 27-28):

...in this case there can be no room for doubt; once it is clear that the appellant knew that the act was wrong in law, then he was doing an act which he was conscious he ought not to do, and as it was against the law, it was punishable by law.

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The judgment might be said to lack something in clarity. If his Lordship is saying that on the facts of the particular case before him there was no distinction possible between morally wrong and legally wrong, then the judgment is understandable. If some broader enunciation of the law was intended, then difficulties appear. One is told that the standard to be applied is whether according to the ordinary standard adopted by reasonable men the act was right or wrong and that the distinction between morally wrong and legally wrong opens wide doors. These statements acknowledge that “wrong” in the M’Naghten rules can mean more than “contrary to law.” In the other passages cited, his Lordship holds that if Codere knew his act was wrong in law then he was doing an act which he was conscious he ought not to do. This would seem to equate legally wrong with morally wrong, which is not readily reconciled with the reference to wide doors. If it were intended to convey that the greater will always embrace the lesser, and knowledge of legal wrong will always connote knowledge of moral wrong, then, with the greatest respect, I would disagree. As I have earlier indicated, such will usually be true but it is not difficult to envisage a child or an insane person who, by reason of infancy or disease of the mind, is without knowledge of law and legal proscriptions but is aware that killing is morally wrong “according to ordinary accepted standards of reasonable men.”

In R. v. Windle, supra, the accused was charged with poisoning his wife with an overdose of aspirin. The medical evidence on behalf of the accused was slight. The accused had told the police that he supposed he would be hanged for his act. He was therefore aware that his act was contrary to law. The trial judge, Devlin J., withdrew the issue of insanity from the jury. On the appeal, counsel took the point that the mere fact that the accused knew that what he was doing was forbidden by law was not conclusive on the issue of insanity. Counsel contented, relying upon Lord Reading’s statement in Codere that “wrong” meant “morally wrong according to the ordinary accepted standards of reasonable men.” The appeal was dismissed. It was

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held that knowledge of illegality concluded the matter. Lord Goddard went beyond what was required for the purposes of the judgment in stating that (p. 3):

...there is no doubt that the word “wrong” in the M’Naghten rules means contrary to law and does not have some vague meaning which may vary according to the opinion of different persons whether a particular act might or might not be justified.

and at p. 2:

Courts of law, however, can only distinguish between that which is in accordance with law and that which is contrary to law. ...The test must be whether an act is contrary to law.

With the greatest respect for those of contrary view, I do not think that Windle’s case should be taken as authority for several reasons. The remarks of Lord Goddard were obiter: they seem to me, with deference, to proceed from a misreading of the M’Naghten rules and they entirely ignore the great body of earlier law which the High Court of Australia examined in rejecting Windle in Stapleton v. The Queen[14]. The law in 1843 dealt with insanity in terms of “rightness” and “wrongness” and good and evil. As Cardozo, J. stated in People v. Schmidt[15], at p. 334:

There is nothing to justify the belief that the words right and wrong, when they became limited by M’Naghten’s case to the right and wrong of the particular act, cast off their meaning as terms of morals, and became terms of pure legality.

This conclusion is approved by N. Morris in “‘Wrong’ in the M’Naghten Rules”, (1953), 16 Mod. L. Rev. at p. 436. See also J.L. Montrose in (1954), 17 Mod. L. Rev. 383.

With the utmost respect, I have come to the conclusion, as did the High Court of Australia, that Windle was wrongly decided. The English law antedating Windle would suggest that if an accused believes his act to be right according to the ordinary standards of reasonable men he is entitled to be acquitted, even though he knew it to

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be legally wrong. As stated in Glanville Williams, Criminal Law, 2d ed., p. 492: “The earlier authorities had gone on moral wrong.”

It is, I think, of utmost importance, as I have earlier indicated, to observe that the M’Naghten formulation focuses only on the cognitive element of the personality, i.e., the ability to know right from wrong. The question is “Did the accused know it was wrong?” One is confined to the choice of legal wrong or moral wrong. Section 16(2) of our Criminal Code, however, does not speak in simplistic terms based solely upon a person’s ability to know right from wrong. It speaks of “capacity” and the question then is “Was he capable of knowing that it was wrong?” It was the opinion of Stephens J. that a man cannot be said to know an act is wrong if through mental disorder he cannot think rationally of the reasons that to the sane person make the act wrong. This view was adopted by the High Court of Australia in Stapleton, supra, at p. 367, adopting as a correct statement of the law the following passage from Dixon J.’s jury charge in R. v. Porter[16], at pp. 189-90:

“The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.”

The same conclusion was reached by The Supreme Court of Ireland in Doyle v. Council of the County of Wicklow[17]. Strong and reasoned support for such approach will be found in Pope’s Law & Practice of Lunacy, 2d ed., (1890), p. 385:

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Accordingly, in a reasonable system of law, that person only will be criminally responsible who, at the moment of committing a criminal act, is capable of remembering that the act is wrong, contrary to duty, and such as in any well-ordered society would subject the offender to punishment.

It is by a reference, such as this, to principles of general morality rather than to the enactments of positive law that the courts of this country have been content to test criminal responsibility in individual cases. That ignorance of the positive law cannot be pleaded as an excuse for crime, is a maxim necessary to the safety of society, and sufficiently near the truth for practical purpose. It would, therefore, be misleading to raise the issue of capacity or incapacity to know that a particular act is contrary to the law of the land. But a judge may, without fear of misleading, direct the jury that the accused is not responsible for his criminal acts if he has not the mental capacity to know that the particular act is wrong, or, in other words, if he cannot distinguish between right and wrong in regard to the particular act; and this is accordingly the form commonly adopted in practice.

The Stapleton formulation would properly exempt a mother who, though aware that killing is contrary to the law of the land, in religious ecstasy kills her child in the insane belief the voice of God has called upon her to offer a sacrifice and atonement; or a man like Hadfield (Hadfield’s Trial[18]) who suffered from the delusion that the world was coming to an end and that he had been commissioned by God to save mankind by the sacrifice of himself. He knew the act of killing was contrary to law, indeed that he could be hanged for it. He therefore decided in response to his delusion to shoot the King in order to be hanged. Knowledge of the illegality of his act was the reason for doing it. In R. v. Davis[19], a very mild, peaceable man, on friendly terms with his sister-in-law, attempted to cut her throat with a knife, later explaining to the police, “The man-in-the-moon told me to do it. I will have to commit murder, as I must be hanged.”

The distinction between the statute law of Canada and the common law of England appears in the following passage from the Report of the

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Royal Commission on the Law of Insanity as a Defence in Criminal Cases (1956), (The McRuer Report), p. 13:

The word “wrong” as used in section 16 of the Criminal Code has not yet been interpreted by the Supreme Court of Canada. The Ontario Court of Appeal ordered a new trial where the court was of the opinion that no reasonable jury could find that the accused was by reason of disease of the mind incapable of appreciating the nature and quality of the act and on the evidence has admitted that he knew the act was against the law but the court was of the view that the evidence of the psychiatrist, which tended to show that, although the accused knew the act was against the law, nevertheless by reason of disease of the mind he believed it was the right thing to do, was not properly put before the jury (R. v. Laycock, 104 Can. C.C. 274). The Alberta Court of Appeal would appear to restrict the word “wrong” to legally wrong, but it is clear from the judgment that it did not consider the effect of the statute law of Canada but was considering only the common law of England and applying the English law (R. v. Cardinal, (1953) 10 W.W.R. N.S. 403).

The Report also contains the following passage, p. 13:

Applying the provisions of the Interpretation Act, the word “wrong” must be given a broad meaning. We think it means wrong not only in the legal sense but something that would be condemned in the eyes of mankind.

Section 16(2) must be read in toto. One looks at capacity to reason and to reach rational decisions as to whether the act is morally wrong. If wrong simply means “illegal” this virtually forecloses any inquiry as to capacity. The question for the jury is whether mental illness so obstructed the thought processes of the accused as to make him incapable of knowing that his acts were morally wrong. The argument is sometimes advanced that a moral test favours the amoral offender and that the most favoured will be he who had rid himself of all moral compunction. This argument overlooks the factor of disease of the mind. If, as a result of disease of the mind, the offender has lost completely the ability to make moral distinctions and acts under an insane delusion, it can well be said that he should not be criminally accountable. Cardozo J. in People v. Schmidt, supra, dealt with the

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problem of those who know an act is illegal and yet do not find it wrong, in these words, p. 343:

It is not enough, to relieve from criminal liability, that the prisoner is morally depraved... It is not enough that he has views of right of wrong in variance with those that find expression in the law. The variance must have its origin in some disease of the mind.

For the foregoing reasons, I would hold that there was error in law in the direction given to the jury as to the meaning of the word “wrong” as used in s. 16(2) of the Criminal Code, in defining insanity and accordingly allow the appeal, quash the conviction, and direct a new trial.

The judgment of Martland, Judson, Ritchie, Pigeon and de Grandpré JJ. was delivered by

MARTLAND J.—This is an appeal, by leave, from the unanimous judgment of the Court of Appeal for British Columbia which had dismissed the appellant’s appeal from his conviction for the non-capital murder of two persons. Leave to appeal was granted in respect of the following question of law:

Did the Court of Appeal err in holding that there had been no error in law in the direction given to the jury as to the meaning of the word “wrong”, as used in s. 16, subs. (2), of the Criminal Code, in defining insanity?

The portions of s. 16 of the Criminal Code which are relevant to this appeal are as follows:

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

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

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...

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

When instructing the jury in respect of the defence of insanity, the learned trial judge said:

Now, the test of insanity which you must apply in this case is twofold. You first ask yourselves whether at the time of the offence the Accused knew the nature and the quality of the acts he was doing and if as a result of disease of the mind, he did not, that establishes insanity for the purpose of this trial. If, however, you find that the Accused did in fact cause the deaths of Barbara Jean Blum and Edward Julius Mernickle by unlawful acts and that he knew the nature and quality of his acts, you must then go further and you must decide whether he knew what he was doing was wrong; and, if you find that as a result of a disease of the mind he did not know he was doing wrong, then that establishes insanity.

When I use the word “wrong” that means wrong according to law, wrong in the sense the act was forbidden by law.

It is the contention of the appellant that the learned trial judge was in error in saying that “wrong” means wrong according to law, wrong in the sense that the act was forbidden by law. The submission is that the word “wrong” as used in s. 16(2) means contrary to the ordinary standard of reasonable men. It is argued that, even if an accused person, relying upon the defence of insanity, knew that his act was legally wrong, he would still be within the definition of insanity if he believed his action to be right according to the ordinary standard of reasonable men.

Although leave to appeal was granted on this question, a consideration of the relevant testimony discloses that there was no evidence adduced at trial which would show that if the appellant was capable of appreciating the nature and quality of his acts he nonetheless had a disease of the mind to an extent which rendered him incapable of knowing that his acts were wrong, whether that word be construed as meaning contrary to law, or as meaning contrary to the ordinary standards of reasonable men.

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It is clear from the learned trial judge’s address to the jury that the only contention made by counsel for the appellant was as to whether the appellant was capable of appreciating the nature and quality of his acts. After summarizing the submissions of defence counsel that on the evidence the jury should not be satisfied beyond a reasonable doubt that the accused was the killer, he went on to say:

If you do reach that conclusion, then Defence counsel submitted on the evidence you should conclude the Accused was suffering from a disease of the mind at the time and as a result did not appreciate the nature and consequences of his acts.

Consider the evidence of Dr. Klassen and Dr. Borschneck. They saw him shortly after he was apprehended. They examined him. He was not reacting to external stimuli. He appeared to be disoriented. They both concluded he was suffering from psychosis, that he had a disease of the mind, as a result of which he was not aware of the nature and consequences of his acts.

The appellant did not give evidence at the trial, and no medical witnesses were called on behalf of the defence. On the issue of insanity the appellant relied upon the evidence of two general practitioners called by the Crown. They had attended at the city gaol at the request of the police shortly after the appellant had been arrested because of the appellant’s condition and conduct at that time.

The first of these, Dr. Borschneck, said, in direct examination, after describing his observation of the appellant and his conduct:

My, I felt that this patient was suffering from a severe form of mental illness. I believe that he was psychotic and, however, the basis of the psychosis I couldn’t determine at that time. I felt that the psychosis could be caused by possibly a chemical, some drug or just a severe psychotic breakdown of fairly recent onset.

Q. You’ve, Doctor, you’ve used the word “psychosis” and “psychotic breakdown”, could you define these two terms?

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A. A patient with psychosis, that is who is psychotic, is one who has lost touch with reality. He has no, he may, he may be disorientated as to time, place, person and, and he may be suffering from a large spectrum of different types of delusions.

Q. From your observations, did you form any opinion as to what, as to the onset of this psychosis as you called it?

A. I felt, having examined the man at this point, that it was of recent onset.

Q. And having formed this conclusion what did you do?

A. I signed a committal form.

On cross-examination he was asked the following questions and gave the following answers:

Q. Yes, and would you also say, Doctor, a person who was completely psychotic would be a person who would be incapable of appreciating the nature and quality of—of his surroundings?

A. Would you repeat that?

Q. All right. Would you say that a person who was completely psychotic would be a person who would be incapable—being out of touch with reality, being a person who was probably disorientated as to time and place—would he be a person who would be incapable of appreciating the nature and the quality of any acts that he might perform in that condition?

A. Yes.

Q. And that again would apply to Schwartz as you observed him at seven o’clock that evening?

A. Yes.

The second doctor, Dr. Klassen, also observed the appellant and formed the conclusion that he was psychotic. On cross-examination he gave the following answers to the following questions:

Q. Would it also be part of this term psychotic—psychosis, that a person in that condition would be incapable of appreciating the consequence of his actions?

A. Yes, that’s true.

Q. I see, and I believe that the diagnosis which you made in this particular case was that Mr. Schwartz was completely psychotic, would that not be correct?

A. Yes, that’s what I stated.

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The Crown called two expert witnesses, both practising psychiatrists. Dr. Choi had the appellant as his patient for two months following his committal to hospital. His opinion, based primarily upon his own observations, was that the appellant was suffering from psycho‐neurosis, which is not considered as psychotic and is not considered as a disease of the mind, but is transient. This opinion was supported by Dr. Whitman.

In the result, the jury had before it the expert evidence of two psychiatrists, one of whom had observed the appellant over a period of two months, whose opinion was that the appellant did not have a disease of the mind, and that of two general practitioners based upon what they observed shortly after the appellant’s arrest, and, thus, shortly after he had committed two murders, that he was psychotic and therefore would not appreciate the nature and quality of his acts. The jury was properly told by the trial judge that if, as a result of disease of the mind, the appellant, at the time he committed the offences, did not know the nature and quality of the acts he was doing, that would establish insanity for the purpose of the trial. The jury’s verdict establishes that it did not accept the opinion of the general practitioners as against that of the psychiatrists.

There is no evidence in the case which relates to the issue as to whether, at the time the offences were committed, the appellant, owing to disease of the mind, though appreciating the nature and quality of his acts, did not know that what he was doing was morally, or legally, wrong. That issue never arose on the facts of this case. There was no evidence to meet the onus imposed on the appellant by s. 16(4) to establish his insanity within the latter part of the definition in s. 16(2) no matter how the word “wrong” be interpreted. This being so, the portion of the charge to which objection is taken was irrelevant, and, therefore, even if it were erroneous, this would be a case in which the provisions of s. 613(1)(b)(iii) should be applied.

In my opinion the judge’s charge upon the meaning of the word “wrong” in s. 16(2) was not erroneous. I propose to deal with this issue only

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because the matter was fully argued before us, and it would be desirable that an expression of opinion on this point by this Court should be made.

The origin of the provisions found in s. 16(2) of the Criminal Code is found in the answers of the judges to the questions of law propounded by the House of Lords following the acquittal of Daniel M’Naghten on a charge of murder, on the ground of insanity[20]. The first three questions and answers were as follows:

The first question proposed by your Lordships is this: “What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons: as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?”

In answer to which question, assuming that your Lordships’ inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion that, notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law; by which expression we understand your Lordships to mean the law of the land.

Your Lordships are pleased to inquire of us, secondly, “What are the proper questions to be submitted to the jury, where a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?” And, thirdly, “In what terms ought the question to be left to the jury as to the prisoner’s state of mind at the time when the act was committed?” And as these two questions appear to us to be more conveniently answered together, we have to submit our opinion to be, that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction;

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and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the difference between right and wrong: which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally and in the abstract, as when put with refrence to the party’s knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course therefore has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong: and his course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.

The application of the M’Naghten rules was considered by the Court of Criminal Appeal in R. v. Codere[21]. Reading L.C.J. dealt with the meaning of the words “nature and quality of the act” in the following passage from his judgment, at p. 27:

The Court is of opinion that in using the language “nature and quality” the judges were only dealing with the physical character of the act, and were not intending to distinguish between the physical and moral aspects of the act. That is the law as it has been laid down by judges in many directions to juries, and as the Court understands it to be at the present time.

With respect to the meaning of the word “wrong” counsel for the accused contended that it was not sufficient to preclude the defence of

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insanity that the accused knew that his act would be punishable by law. He contended that “wrong” meant an act which would be regarded as wrong by his fellow creatures. On this point, the Lord Chief Justice, at p. 27, said this:

It was suggested at one time in the course of the argument that the question should be judged by the standard of the accused, but it is obvious that this proposition is wholly untenable, and would tend to excuse crimes without number, and to weaken the law to an alarming degree. It is conceded now that the standard to be applied is whether according to the ordinary standard adopted by reasonable men the act was right or wrong. There may be cases where it is difficult to decide that question, but that is not the case here. The judges in M’Naghten’s case, in answering the second and third questions put to them, said, “If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong.” That is the accepted test, and applying it in this case there can be no room for doubt; once it is clear that the appellant knew that the act was wrong in law, then he was doing an act which he was conscious he ought not to do, and as it was against the law, it was punishable by law; assuming, therefore, that he knew the nature and quality of the act, he was guilty of murder, and was properly convicted.

The difficulty no doubt arises over the words “conscious that the act was one which he ought not to do,” but, looking at all the answers in M’Naghten’s case, it seems that if it is punishable by law it is an act which he ought not to do, and that is the meaning in which the phrase is used in that case.

The meaning of the word “wrong” was considered by the Court of Criminal Appeal in R. v. Windle[22]. In that case the accused was charged with the murder of his wife. She was eighteen years older than he was, appeared, on the evidence, to have been certifiable, and talked constantly about committing suicide. The accused gave her a hundred aspirin tablets, a fatal dose. The defence raised at trial was that of insanity. There was some

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evidence that the accused suffered some defect of reason because of disease of the mind. The two doctors who testified, one for the accused, and one for the Crown, both agreed that when he was administering the drugs to his wife the accused knew that he was doing an act which the law forbade. The trial judge ruled that there was no evidence of insanity to be left to the jury.

The appeal was dismissed. Goddard L.C.J. said, at p. 832:

As I endeavoured to point out in giving the judgment of the court in Rex v. Rivett, 34 Cr. App. R. 87, in all cases of this kind, the real test is responsibility. A man may be suffering from a defect of reason, but if he knows that what he is doing is “wrong,” and by “wrong” is meant contrary to law, he is responsible. Mr. Shawcross, in the course of his very careful argument, suggested that the word “wrong,” as it was used in the M’Naghten rules, did not mean contrary to law but had some kind of qualified meaning, such as morally wrong, and that if a person was in such a state of mind through a defect of reason that, although he knew that what he was doing was wrong in law, he thought that it was beneficial or kind or praiseworthy, that would excuse him.

Courts of law can only distinguish between that which is in accordance with law and that which is contrary to law.... The law cannot embark on the question, and it would be an unfortunate thing if it were left to juries to consider whether some particular act was morally right or wrong. The test must be whether it is contrary to law.

and at p. 834:

In the opinion of the court there is no doubt that in the M’Naghten rules “wrong” means contrary to law and not “wrong” according to the opinion of one man or of a number of people on the question whether a parties lar act might or might not be justified.

The proposition stated in the Windle case was reiterated in R. v. Holmes[23]. That case was followed by the Alberta Appellate Division in R. v. Cardinal[24].

The High Court of Australia refused to follow the Windle case in Stapleton v. The Queen[25], and

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held that, in applying the second branch of the legal test of insanity, as defined in M’Naghten’s case, the question is whether the accused knew that his act was wrong according to the ordinary principles of reasonable men, and not whether he knew it was wrong as being contrary to law. This view of the law, which is stated in the reasons of Dixon C.J., for the Court, is the same as the view which he had expressed, as a trial judge, in his charge to the jury, almost twenty years earlier, in R. v. Porter[26]. In the course of that charge he said, at p. 189:

The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong.... We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by “wrong”? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.

McRuer C.J.H.C., in R. v. O.[27], at p. 153, instructed a jury respecting the defence of insanity in a manner similar to the charge in the Porter case when he said:

...if on a mere preponderance of probability, based on the evidence taken as a whole, you come to the conclusion that the accused was labouring under disease of the mind to such an extent that she was incapable of knowing that the act was wrong—and by that I do not mean merely legally wrong, but wrong in the sense that it was something that she ought not to do and for which she would be condemned in the eyes of her right-thinking fellow men—you should find her not guilty on account of insanity.

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Counsel for the appellant referred us to other Canadian cases dealing with the defence of insanity, but none of them deals specifically with the issue now under consideration. Some of them are reviewed in the judgment of Branca J.A. in the Court of Appeal.

The defence of insanity was considered by this Court in R. v. Borg[28]. That case was not, however, concerned with the interpretation of s. 16 of the Criminal Code, but dealt with the adequacy of the review of the defence evidence in the charge to the jury on the question of insanity in the light of the particular circumstances of the case.

In determining the meaning of the word “wrong” in s. 16(2) it is important to remember that this subsection only becomes operative if, previously, it has been proved beyond a reasonable doubt that the accused person has committed a crime; i.e., has been guilty of some criminal act with the requisite criminal intent. It is at that point that he may seek the protection against conviction afforded by s. 16(1) on the ground that the offence was committed while he was insane. But mere proof of insanity alone is not enough. He is only to be considered insane for the purposes of that subsection if he has a disease of the mind to an extent that renders him incapable of:

(a) appreciating the nature and quality of his act; or

(b) knowing that such act was wrong.

The Codere case, in my opinion correctly, decided that “nature and quality” dealt with the physical character of the act. If, therefore, a person who has committed a crime did not, by reason of disease of the mind, know what he was doing, he is not to be convicted, because it really was not his act.

The second and alternative portion of the definition is dealing not with the criminal act, but with the criminal intent. Although he has committed a crime, and understood what he was doing, the accused is still protected from conviction if,

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because of mental disease, he did not know that by his act he was committing a crime.

In brief, it is my opinion that the effect of s. 16(2) is to provide protection to a person suffering from disease of the mind who has committed a crime if, in committing the crime, he did not appreciate what he was doing, or, if he did have that appreciation, he did not know that he was committing a crime.

The test as to knowledge of “wrong” which is stated by Dixon C.J. in the Stapleton case is as to whether the accused knew that his act was wrong according to the ordinary principles of reasonable men. I find it difficult to see how this test really differs from the test as to whether he knew he was committing a crime. Surely, according to the ordinary principles of reasonable men, it is wrong to commit a crime. This must be so in relation to the crime of murder. If there is a difference between these tests, and it could be contended that the commission of a particular crime, though known to be illegal, was considered to be morally justifiable in the opinion of ordinary men, I do not see why a person who committed a crime in such circumstances should be protected from conviction if suffering from disease of the mind, and not protected if he committed the crime when sane.

In Porter and in Stapleton, Dixon C.J. went further than testing “wrong” by the application of the principles of ordinary men, and held that, given a disease of the mind, it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. In my opinion this is not a test of insanity contemplated by s. 16(2). It is, essentially, a subjective test. In my opinion the test provided in s. 16(2) is not as to whether the accused, by reason of mental disease, could or could not calmly consider whether or not the crime which he committed was morally wrong. He is not to be considered as insane within s. 16(2) if he knew what he was doing and also knew that he was committing a

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criminal act.

For the foregoing reasons I would dismiss the appeal.

Appeal dismissed, LASKIN C.J. and SPENCE, DICKSON and BEETZ JJ. dissenting.

Solicitors for the appellant: Deverell, Harrop & Co., Vancouver.

Solicitors for the respondent: Cumming, Richards & Co., Vancouver.