March 30, 2017
Duval Hesler, Marcotte, Émond
Appeal from a conviction. Allowed; a new trial is ordered.
Following a trial by jury, the appellant was convicted of the first degree murder of the man in whose foster home he had been placed as a young child and where he was abused physically and sexually. The appellant suffers from serious personality disorders, but he does not have a medically identifiable mental illness. During the assault, he was suffering from suicidal and homicidal ideation and was in crisis due to the imminent end of his work stoppage, due to the fact that he could not obtain a medical opinion to justify its continuation given that his psychological state was attributed to his personality disorders rather than a mental illness per se. The jury did not accept the defence of not criminally responsible on account of mental disorder under section 16 of the Criminal Code (R.S.C. 1985, c. C-46). The appellant argues that, in light of all the evidence at trial, the trial judge should have presented a defence of automatism with or without mental disorder to the jury, even if his counsel at the time failed to suggest that the judge do so.
It appears that counsel for the appellant waived asking the judge to present the defence of automatism with mental disorder to the jury. A judge is not bound by an accused waiving a defence, however, and has an obligation to present any defence deemed to have an air of reality for the jury’s consideration. The appellant’s new counsel argue that the expert reports and other testimony, including the appellant’s, give both automatism defences a sufficient air of reality to be submitted to the jury. In light of the teachings of the Supreme Court in R v. Fontaine (S.C. Can., 2004-04-22), 2004 SCC 27, SOQUIJ AZ-50231697, J.E. 2004-933,  1 S.C.R. 702, this case meets the air of reality test and, consequently, the ground of appeal based on insufficient instructions is accepted. A second ground based on the prejudice the appellant may have suffered with respect to the jury viewing a video recording is also accepted.
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