Court of Appeal of Quebec

Demontigny c. R.

Gagnon, Vauclair, Sansfaçon

Application for leave to appeal from the conviction and on related issues. Granted. Appeal from the conviction. Dismissed.

Following a jury trial, the appellant was convicted of one count of second degree murder. He did not deny causing the victim’s death. The only issue was whether the appellant’s intoxication invalidated his intention to commit murder. The appellant argued that the trial judge violated his right not to testify by expressing her opinion on the value of the expert report concerning his mental state in the absence of testimony. Furthermore, he challenges various questions relating to the second opinion report prepared by the expert appointed by the prosecution and its content.

The evidence at trial did not establish the nature or quantity of the drugs consumed by the appellant. The report by the expert appointed by the defence was based on the appellant’s account, heard during his clinical interview, about his drug consumption in the days leading up to the incident and on the day of the incident. The expert also used several explanations given by the appellant about his delirious state of mind that day. Furthermore, the conclusions of his expert report were based on the appellant’s remarks recorded in past expert reports, written by different psychiatrists. Without the appellant’s testimony, these elements were not in evidence before the jury. It was therefore legitimate for the judge to question the weight of the expert report. In addition, the appellant’s defence placed a tactical compulsion on him. It is trite law that an accused is not protected from the tactical compulsion of having to testify where the evidentiary burden of a defence rests on him or her.

Context must be taken into account to determine whether a witness was able to answer the attack on his or her credibility. The real question is whether the manner of proceeding with the witness then authorizes the attack of his or her credibility based on one or several important points when that witness could not have expected that attack. Obviously, if the accused is aware of the obstacles likely to undermine his or her credibility, this forms part of the context and will ground a conclusion that there was no unfairness. In this case, it was established that the appellant had to defend his account of the toxic psychosis. It was clear that his earlier versions were known and that the credibility of his testimony on this account would be attacked. Cross-examination would have given the appellant the opportunity to explain himself.

Finally, the appellant asked the jury to believe that his state of mind was such that he was in a psychosis that rendered him incapable of forming the intent to kill. That opened the door for the prosecution to prove the opposite. The expert for the defence referred to privileged statements by the appellant, who cannot therefore complain that the expert for the prosecution did so as well. As for references to the appellant’s credibility, the debate on malingering is a legitimate psychiatric debate. A jury does not need an expert report to determine whether a version represents the truth. However, in the context of an account presented as a psychosis, expert evidence is necessary in most cases to determine whether, based on science, the delirious account is the result of an actual psychosis. It stands to reason that the appellant agreed since he personally called an expert to explain it to the jury.

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