NOT CRIMINALLY RESPONSIBLE
R. v. Molodowic, 2000 SCC 16,  1 SCR 420 CanLII
ile No.: 26645.
The accused suffers from a severe mental disorder, which was diagnosed as paranoid schizophrenia. After shooting and killing his grandfather, the accused drove to a friend’s house and told her father that he had just shot his grandfather and that the police should be called. The accused was arrested and, after being properly informed of his rights, he gave a statement to the police. He was tried before a judge and jury on a charge of second degree murder. The accused relied primarily on the defence of mental disorder. Prior to trial, he had undergone two psychiatric assessments and both doctors testified that the accused’s act of shooting his grandfather was consistent with his mental disorder having caused him to believe that only in so doing could he save himself from further torment. Further, the doctors agreed that the accused did not have the capacity to appreciate that his actions were morally wrong at the relevant time. The Crown did not call a rebuttal expert to contradict their testimony but on cross-examination challenged the expert evidence and was successful in eliciting a number of admissions and concessions. The accused was convicted of second degree murder. The majority of the Court of Appeal dismissed his appeal. The only issue in this appeal was whether the verdict was unreasonable with respect to the effects of the accused’s illness on his criminal responsibility.
Held: The appeal should be allowed.
The applicable legal principles and the proper test to apply in assessing the reasonableness of a verdict were set out in R. v. Biniaris, 2000 SCC 15 (CanLII),  1 S.C.R. 381, 2000 SCC 15.
Judicial experience with the effects of mental disorder on criminal responsibility, with the type of evidence that is available to demonstrate it, and with the unjustified skepticism that may be directed at an accused relying on the defence of mental disorder, should have given the Court of Appeal cause for concern that the verdict reached by the jury in the present case was unreasonable and not supported by the evidence. Careful and thorough scrutiny of the record confirms that concern was warranted. Apart from the psychiatric evidence, the statements made by the accused to the police, and, prior to that, to the father of his friend, whom he informed of the killing and whom he asked to inform the police, are not inconsistent with the conclusions reached by the experts, nor is the accused’s conduct surrounding the commission of the offence. It is not necessarily easy for a jury to accept that, in lay person’s terms, an accused who knows what he is doing and knows that it is a crime could still genuinely believe that he would not be morally condemned by reasonable members of society for his conduct. The defence proved this to be the case and, on the evidence tendered at this trial, it was unreasonable to conclude otherwise.
III. Relevant Statutory Provisions
5 Criminal Code, R.S.C., 1985, c. C-46
16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.
. . .
IV. General Principles
6 At trial, it was conceded that the appellant appreciated both the nature and quality of his acts, in the sense that he understood that he was causing the death of his grandfather, and that he knew that it was against the law to do so. However, under the terms of s. 16 of the Criminal Code, the appellant was entitled to be found not criminally responsible for the killing if he could prove, on a balance of probabilities, that, by reason of his mental disorder, he was incapable of knowing that his act was morally wrong. Defence counsel relied on the testimony of two psychiatrists, Drs. Harold Shane and Stanley Yaren, for the purpose of establishing that when he killed his grandfather, the appellant did not know that his act was morally wrong. This was the narrow issue confronting the jury.
7 In R. v. Ratti, 1991 CanLII 112 (S.C.C.),  1 S.C.R. 68, at p. 80, this Court held that an act or omission is “wrong”, within the meaning of s. 16, where that act or omission “in the particular circumstances would have been morally condemned by reasonable members of society” (emphasis in original). In deciding whether or not an accused appreciated that his actions were morally wrong, a jury is not “bound by the expert psychiatric testimony and . . . its probative value [is] to be assessed in the same manner as any other testimony” (Ratti, supra, at p. 81). Further, in weighing expert evidence a jury is entitled to examine the factual foundations of the opinion and is entitled to accord less weight to that opinion where it is not based on facts proved at trial and/or where it is based upon factual assumptions with which they disagree. See R. v. Lavallee, 1990 CanLII 95 (S.C.C.),  1 S.C.R. 852, at pp. 896-97, and Ratti, supra, at p. 81.
8 The jury may therefore reject the opinion of experts, even when the experts called are unanimous and uncontradicted by other experts. For example, in R. v. Mailloux reflex, (1985), 25 C.C.C. (3d) 171, the Ontario Court of Appeal was faced with a verdict rejecting purportedly uncontradicted expert evidence. Lacourcière J.A., speaking for the court, stated at p. 177:
This Court is not at liberty to come to its own conclusion on the issue of insanity and thereby disregard the verdict pronounced by a jury. Having regard to the statutory presumption of sanity, this Court ought not to interfere with the verdict of a jury unless on consideration of all the evidence, we are satisfied that it was one which no jury acting judicially and properly instructed could have reached. . . .
However, there has to be a rational foundation, in the evidence, for the jury to reasonably reject the opinion of the experts. In Mailloux, two eminent forensic psychiatrists had expressed the opinion that the appellant suffered from a paranoid personality disorder dating back to a period well before the shooting. Lacourcière J.A. summarized more precisely the purport of their evidence at p. 173:
Both psychiatrists testified that the [accused] at the material time, by reason of psychotic delusions, was incapable of appreciating the nature and quality of his acts and of knowing that his acts were wrong. They also agreed that the [accused] was incapable of forming the specific intent necessary to commit murder. However, the opinions expressed in their evidence-in-chief were substantially qualified and diluted by the evidence which they gave during cross-examination, which was obviously accepted by the jury, to the effect that the [accused] knew that pulling the trigger would cause the gun to fire and that he was able to appreciate the nature and quality of the act and to understand the immediate physical consequence which would flow from it, i.e., that someone would be killed. In particular, Dr. Orchard admitted in cross-examination that first the [accused] was capable of knowing that the act was wrong and was also capable of forming the specific intent to kill.
To reject all of this evidence was, in my view, unreasonable and invites appellate intervention. I would set aside the verdict on the ground that it is unreasonable and cannot be supported by the evidence, and I would substitute a verdict that the accused is not criminally responsible by reason of mental disorder.
I agree with the foregoing conclusions and need expand only briefly on the reasons of Huband J.A.
13 This, in my view, is a case in which the weight of judicial experience must be brought to bear on the assessment of the reasonableness, as a matter of law, of the conclusion reached by the jury. There is a real danger, which manifested itself here, that a jury will be unduly skeptical of a “defence” that is often perceived as easy to fabricate and difficult to rebut. This is particularly so when the actions of the accused present a large component of rationality, as they do in a case such as this where it is conceded that the appellant knew what he was doing and realized that his actions were prohibited by law. More dangerous still, the statements of the appellant made shortly after the killing, and in particular his answers to the questions of the police, presented him in a most unfavourable light. The endless flow of obscenities that they contain makes it difficult to overcome an impression of the accused as a cold-hearted, callous and remorseless killer. Further, they confirm that the appellant understood that the killing of his grandfather was legally wrong. They can also be viewed as indicating that he felt a deep hatred for his grandfather, and as providing a sane and rational explanation as to why he would want to kill this man that he describes as his tormentor. However, the statements also reveal a very disturbed mind. Huband J.A. puts it this way (at pp. 245-46):
20 In my view, the Court of Appeal misapprehended the significance of the evidence dealing with the possibility that the appellant might have killed his grandfather while experiencing a moment or period of lucidity by interpreting “islands of lucidity”, the concept used by Dr. Shane, as referring to moments or periods of psychiatric normalcy experienced by otherwise psychotic individuals. Dr. Yaren, on cross-examination, explained why this interpretation is not correct:
I agree with Huband J.A. that the evidence, particularly the testimony of Dr. Yaren, does not reasonably support the conclusion that the appellant was lucid to the point of knowing that his acts were morally wrong at the time of the shooting. In my view, the totality of the psychiatric evidence did not give rise to the reasonable possibility that the appellant, who laboured under the effects of a severe mental disorder at the time he committed a homicide, and whose moral judgment was impaired as a result, would have had a momentary reprieve from the effects of his disorder, at the critical time, sufficient to provide him with the moral insight necessary to engage his criminal responsibility.
VI. Conclusion and Disposition
23 In my respectful view, judicial experience with the effects of mental disorder on criminal responsibility, with the type of evidence that is available to demonstrate it, and with the unjustified skepticism that may be directed at an accused relying on the defence of mental disorder, should have given the Court of Appeal cause for concern that the verdict reached by the jury in the present case was unreasonable and not supported by the evidence. Careful and thorough scrutiny of the record confirms that concern was warranted.
It is not necessarily easy for a jury to accept that, in lay person’s terms, an accused who knows what he is doing and knows that it is a crime, could still genuinely believe that he would not be morally condemned by reasonable members of society for his conduct. In my view, the defence proved this to be the case and, on the evidence tendered at this trial, it was unreasonable to conclude otherwise.
24 For these reasons, I would allow the appeal, set aside the judgment of the Court of Appeal and enter a verdict of not criminally responsible by reason of mental disorder in substitution for the verdict entered at trial. I would remit the matter to the trial court for a disposition hearing pursuant to s. 672.45 of the Criminal Code.