R. v. Romeo, [1991] 1 S.C.R. 86
Anthony Romeo Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Manitoba
and the Attorney General for Alberta Interveners
Indexed as: R. v. Romeo
File No.: 21380.
1990: May 30; 1991: January 25.
on appeal from the court of appeal for new brunswick
Present: Chief Justice Lamer* and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Cory and McLachlin JJ.
Constitutional law ‑‑ Charter of Rights ‑‑ Presumption of innocence ‑‑ Accused presumed sane until contrary is proved ‑‑ Insanity to be proved by accused on balance of probabilities ‑‑ Whether s. 16(4) of Criminal Code infringes s. 11(d) of Canadian Charter of Rights and Freedoms ‑‑ If so, whether s. 16(4) justifiable under s. 1 of Charter.
Criminal law ‑‑ Evidence ‑‑ Admissibility ‑‑ Defence's theory that accused insane when he killed police officer ‑‑ Crown adducing evidence that accused's departure from U.S. connected to a court order to provide hair and blood samples in relation with a murder in New York State to counter insanity defence ‑‑ Whether evidence pertaining to New York homicide admissible.
Criminal law ‑‑ Trial ‑‑ Addresses to jury ‑‑ Improper statements by Crown's counsel ‑‑ Whether trial judge erred in failing to comment on Crown counsel's prejudicial remarks in his charge to the jury ‑‑ If so, whether appeal should nonetheless be dismissed under s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C‑46.
The accused was charged with first degree murder. At trial, he admitted killing a police officer in New Brunswick, but raised the defence of insanity. Following a voir dire, the Crown adduced evidence establishing that the accused was a suspect in a murder which had taken place in New York State, and that he had been ordered by the authorities to provide hair and blood samples. The trial judge held that while the evidence was highly prejudicial to the accused, it was relevant and probative to explain why the accused had left his parents' home five days prior to the shooting and countered the defence of insanity. During his address to the jury, Crown counsel made certain prejudicial remarks with respect to the expert testimony of a defence witness. The trial judge did not comment on these remarks in his charge. The jury rejected the defence of insanity and the accused was convicted. On appeal, the majority of the Court of Appeal concluded that the trial judge did not err in admitting the prejudicial evidence pertaining to the New York homicide, and that, while certain remarks made by Crown counsel during his address to the jury were "personal and slanted" and ought to have been the subject of comment by the trial judge so as to temper their effect, the trial judge's failure to do so did not in this case give rise to a miscarriage of justice.
Held (L'Heureux‑Dubé J. dissenting): The appeal should be allowed and a new trial ordered.
(1) Presumption of Sanity/Presumption of Innocence
Per Lamer C.J. and Wilson, La Forest, Sopinka and Cory JJ.: In view of the majority judgment of this Court in Chaulk, s. 16(4) of the Criminal Code infringes s. 11(d) of the Canadian Charter of Rights and Freedoms but constitutes a reasonable limit under s. 1 of the Charter.
Per L'Heureux‑Dubé and McLachlin JJ.: For the reasons given by McLachlin J. in Chaulk, the presumption of sanity in s. 16(4) of the Code, reflecting as it does the fundamental pre‑condition of criminal responsibility and punishment, does not violate s. 11(d) of the Charter.
(2) Admissibility of Evidence
The evidence pertaining to the homicide in New York State was properly admitted at trial. Evidence of the fact that the accused was under an order to provide hair and blood samples in connection with a murder in New York State was admissible as offering to the jury a reason for his flight from his parents' home. The evidence was admitted only after the defence had adduced evidence of the accused's tendency to "take off" on extended trips, without warning, following episodes of strange behaviour, in order to support the contention that he was mentally ill at the time of the offence.
(3) Prejudicial Remarks
Per Lamer C.J. and Wilson, La Forest, Sopinka, Cory and McLachlin JJ.: The remarks of Crown counsel were prejudicial to a degree sufficient to impose a legal duty on the trial judge to comment and thus ensure that the position of the defence was fairly put to the jury. The trial judge's failure to comment on Crown counsel's improper remarks constituted an incorrect decision on a question of law. No case has been made out for the application of s. 686(1)(b)(iii) of the Code. A new trial should be ordered.
Per L'Heureux‑Dubé J., dissenting: For the reasons given by the majority in the Court of Appeal, the appeal should be dismissed under s. 686(1)(b)(iii) of the Code. The trial judge's failure to comment in his charge to the jury on the prejudicial remarks of Crown counsel did not amount to a miscarriage of justice in the circumstances of this case.
Cases Cited
By Lamer C.J.
Applied: R. v. Chaulk, [1990] 3 S.C.R. 1303.
By Wilson J.
Applied: R. v. Chaulk, [1990] 3 S.C.R. 1303.
By McLachlin J.
Applied: R. v. Chaulk, [1990] S.C.R. 1303.
Statutes and Regulations Cited
Canadian Charter of Rights of Rights and Freedoms, ss. 1, 11(d).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 16(4), 235 [formerly s. 218], 686(1)(b)(iii) [formerly s. 613(1)(b)(iii)].
APPEAL from a judgment of the New Brunswick Court of Appeal (1989), 93 N.B.R. (2d) 332, 238 A.P.R. 332, 47 C.C.C. (3d) 113, dismissing the accused's appeal from his conviction on a charge of first degree murder. Appeal allowed and new trial ordered, L'Heureux‑Dubé J. dissenting.
Gary A. Miller and Gabriel Lapointe, Q.C., for the appellant.
Manu Patel, Graham Sleeth and Bruce Judah, for the respondent.
S. R. Fainstein, Q.C., for the intervener the Attorney General of Canada.
R. Libman, for the intervener the Attorney General for Ontario.
Jacques Gauvin, for the intervener the Attorney General of Quebec.
George Dangerfield, Q.C., the intervener the Attorney General of Manitoba.
Michael Watson, for the intervener the Attorney General for Alberta.
//Lamer C.J.//
The judgment of Lamer C.J., La Forest, Sopinka and Cory JJ. was delivered by
Lamer C.J. -- On March 8, 1987, the accused shot and killed a highway patrol officer who had stopped him for speeding on a rural road near Fredericton. The accused was charged with first degree murder, contrary to s. 235 of the Criminal Code, R.S.C., 1985, c. C-46 (formerly s. 218). At trial, the accused pleaded not guilty by reason of insanity.
Romeo was convicted of first degree murder and sentenced to life imprisonment without eligibility for parole for a period of twenty‑five years. The accused's appeal to the New Brunswick Court of Appeal was dismissed, Ayles J.A. dissenting on a question of law: (1989), 93 N.B.R. (2d) 332. The accused now appeals to this Court.
The Facts
Prior to the time of the offence, the accused had lived with his parents in New York State. Evidence was adduced at trial to establish that he had suffered from psychiatric problems since adolescence and would periodically leave his parents' home without warning to go on extended trips. Evidence was also admitted which established that the accused was a suspect in a murder which had taken place in New York State, and had been ordered to submit to the authorities by March 7, 1987, in order to provide hair and blood samples. The accused left his parents' home in New York State on March 3, 1987 and travelled by car through Quebec and on to New Brunswick. Several days later, the accused shot and killed the highway patrol officer who had stopped him for speeding.
At trial, the evidence pertaining to the New York State homicide was admitted after a voir dire. The trial judge held that while the evidence was highly prejudicial to the accused, it was relevant and probative to explain why Romeo had left his parents' home five days prior to the shooting and it therefore countered the defence of insanity.
Certain prejudicial remarks were made by Crown counsel during his address to the jury, with respect to the expert testimony of a defence witness:
Now, I have no quarrel, really, with Suzanne Canning's qualifications, but like Dr. Akhtar, I submit that she is totally wrong, very wrong. I submit that, first of all, she's an excellent witness, very good witness, I think she -‑ she can talk. I'm a lawyer, have been now 30 years, I don't come close to her. She is good, I'll say that, but I submit that she is good in telling stories and that's what she told you, and somebody has made up a story in the whole case, story of insanity, and that's what was given to you, and this story can't be simple because it had to match so many other facts, so what was given to you was even much more than what you see in fairy tales. Fairy tales seem believable some but this is something I submit is far beyond fairy tales. You have to have a monster or a butcher, you have to have a phantom automobile, you have to have racketeering, some underworld going on, and because only when you have all these other delusions that you can answer every action of the accused, but on this monster, it's interesting, and very interesting, a lot of things Suzanne Canning has tried to cover. There is no description of the monster itself, and I bet -‑ we didn't ask, but if we asked we probably would have had a painting of the monster from Dr. Suzanne Canning, but I'm just saying that if there was a delusion and Suzanne Canning was examining Mr. Romeo would you not expect Suzanne Canning to ask Mr. Romeo, "What kind of monster, would you describe the monster". Did it look like Hitler, did it look like some big, huge man? He was going around cutting people's heads. If you are a psychiatrist, well, what did he use, a chainsaw? How was he cutting off people's -‑ where was he burning the bodies. Just it's thrown before you, that's the delusions. Now, maybe Mr. Romeo would not have been able to describe but there's nothing to explain. Just as I said, the monster is cast in front of us, and it boggles my mind. I've heard many stories but this is the top. [Emphasis added.]
(Quoted by the Court of Appeal, at pp. 350-51.)
Stevenson J. did not comment on these remarks in his charge to the jury.
Lower Court Judgments
New Brunswick Court of Queen's Bench (Stevenson J.)
The appellant was tried in the New Brunswick Court of Queen's Bench before Stevenson J., sitting with a jury. Defence counsel admitted that the appellant had shot and killed the highway patrol officer, but raised the defence of insanity. The jury rejected the defence of insanity and the appellant was convicted of first degree murder and was sentenced to life imprisonment without eligibility for parole for a period of 25 years.
Court of Appeal for New Brunswick (Angers, Ayles (dissenting) and Ryan JJ.A.)
The appellant appealed his conviction to the Court of Appeal for New Brunswick on a number of grounds including: that the learned trial judge erred in admitting evidence pertaining to a homicide in New York State; and that the learned trial judge erred in his charge to the jury in that he was inconsistent in his directions on the essential elements of first degree murder, did not properly characterize the theory of the defence, failed to mention certain evidence supportive of the defence, gave differing treatment to psychiatrists for the defence and Crown, and failed to properly warn the jury to disregard certain inflammatory and prejudicial remarks made by Crown counsel during the trial.
The majority of the Court of Appeal concluded that the trial judge did not err in admitting the prejudicial evidence pertaining to the New York State homicide. With respect to the trial judge's charge to the jury, the majority held that the jury was properly and adequately informed with respect to the nature of the appellant's defence and found no favoritism or bias in the language used by the trial judge when referring to the psychiatric evidence. The majority rejected the appellant's contention that Stevenson J. had misdirected the jury on the essential elements of first degree murder.
Finally, the majority found that while certain remarks made by Crown counsel during his address to the jury were "personal and slanted" and ought to have been the subject of comment by the trial judge so as to temper their effect, the failure of the trial judge to comment on the inappropriateness of the remarks did not give rise to a miscarriage of justice when the whole of the evidence was taken into account.
Ayles J.A., in dissent, held that Crown counsel's remarks were calculated to inflame the jury and did not deal with the proper question of "which expert witness was to be believed". He stated (at p. 356):
The intemperate statements in my view were unfair and prejudicial and ought to have been commented upon by the trial judge so as to refocus the minds of the jurors on the real question in issue.
In my opinion, the trial judge's failure to instruct the jury as to these comments was a nondirection that amounted to an error of law.
Ayles J.A. was of the view that no case had been made out for the application of s. 613(1)(b)(iii) (now s. 686(1)(b)(iii)) and that a new trial should therefore be ordered.
Issues
The following constitutional questions were stated by Dickson C.J. on August 18, 1989:
1. Is s. 16(4) of the Criminal Code inconsistent with s. 7 or s. 11(d) of the Canadian Charter of Rights and Freedoms?
2. If the answer to question 1 is yes, is s. 16(4) justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
The appellant has raised two further grounds of appeal in this Court:
3. That the New Brunswick Court of Appeal erred in ruling that the trial judge had not erred in admitting evidence pertaining to a homicide in New York State in connection with which the appellant had been ordered to provide hair and blood samples as a suspect.
4. That the majority in the New Brunswick Court of Appeal erred in failing to hold that the failure of the trial judge to instruct the jury with respect to the prejudicial remarks of Crown counsel constituted an error which could not be remedied by the application of section 686(1)(b)(iii) of the Criminal Code.
Analysis
The constitutional questions have been fully canvassed in this Court's judgment in R. v. Chaulk, [1990] 3 S.C.R. 1303. In Chaulk, I held that while s. 16(4) of the Criminal Code does infringe s. 11(d) of the Canadian Charter of Rights and Freedoms, it constitutes a reasonable limit under s. 1 of the Charter and, therefore, is not inconsistent with the Constitution Act, 1982. Accordingly, the first two grounds of appeal fail. I turn now to a consideration of the other issues raised by the appellant.
Evidence Pertaining to the Homicide in New York State
There are two basic questions which must be addressed in order to resolve this issue. The first question is whether this evidence was wrongly admitted at trial. If the evidence was wrongly admitted, the question arises whether the appeal should be nonetheless dismissed under s. 686(1)(b)(iii) on the basis that no substantial wrong or miscarriage of justice has occurred.
In my view, the evidence was properly admitted at trial. I agree with the Court of Appeal that evidence of the fact that Romeo was under an order to provide hair and blood samples in connection with a murder in New York State was admissible as offering to the jury a reason for his flight other than that it was another of Romeo's "sudden unexplained departures from home". This evidence was admitted only after the defence had adduced evidence (through the testimony of Romeo's father) of the accused's tendency to "take off" on extended trips, without warning, following episodes of strange behaviour, in order to support the contention that he was mentally ill at the time of the offence.
Having found that the evidence was not wrongly admitted at trial, it is unnecessary to consider the application of s. 686(1)(b)(iii) to this issue and the third ground of appeal fails.
Prejudicial Remarks by Crown Counsel
There are two basic questions which must be addressed in order to resolve this issue. The first question is whether the trial judge erred in not commenting on the prejudicial remarks of Crown counsel in his charge to the jury. If the nondirection does amount to an error of law, the question arises whether the appeal should be nonetheless dismissed under s. 686(1)(b)(iii) on the basis that no substantial wrong or miscarriage of justice has occurred.
I am in complete agreement with the dissenting reasons of Ayles J.A. with respect to this issue (at pp. 358-59):
[T]he remarks of Crown counsel were prejudicial to a degree sufficient to impose a legal duty on the trial judge to comment and thus ensure that the position of the defence, in this case the appellant's alleged insanity at the time that Officer Aucoin was killed, was fairly put to the jury. The failure of the trial judge to comment on Crown counsel's improper remarks constituted an incorrect decision on a question of law.
I also share his view that no case has been made out for the application of s. 686(1)(b)(iii) of the Criminal Code. I would therefore allow the appeal and order a new trial.
// Wilson J.//
The following are the reasons delivered by
Wilson J. -- I have had the benefit of reading Chief Justice Lamer's reasons in this appeal. The first two issues concern the constitutionality of s. 16(4) of the Criminal Code, R.S.C., 1985, c. C-46. Dickson C.J. stated the constitutional questions as follows:
1. Is s. 16(4) of the Criminal Code of Canada inconsistent with s. 7 or s. 11(d) of the Canadian Charter of Rights and Freedoms?
2. If the answer to question 1 is yes, is s. 16(4) justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
In the appeal in R. v. Chaulk, [1990] 3 S.C.R. 1303, the majority of this Court held that while s. 16(4) of the Criminal Code infringed an accused's right to be presumed innocent in s. 11(d) of the Canadian Charter of Rights and Freedoms, it constituted a reasonable and justifiable limit on such right within the meaning of s. 1 of the Charter. I dissented on that issue holding that the infringement was not a reasonable and justifiable limit on the s. 11(d) right. I now consider myself bound by the majority decision in Chaulk. Accordingly, since I agree with Lamer C.J.'s reasons on the other issues raised by the appellant, I concur in his proposed disposition of this appeal.
//L'Heureux-Dubé//
The following are the reasons delivered by
L'Heureux-Dubé J. (dissenting) -- I have had the advantage of reading both the reasons of Chief Justice Lamer and Justice McLachlin.
I respectfully agree with McLachlin J. in all respects except as to the ground of appeal relating to the Crown counsel's remarks. Both the Chief Justice and my colleague would order a new trial because of the failure of the trial judge in his charge to the jury to comment on Crown counsel's remarks. I disagree.
On that issue, I agree with the majority of the Court of Appeal for the reasons they expressed. While the Crown counsel's remarks were unfavourably slanted and ought to have been commented upon by the trial judge in his jury charge, I am not convinced that the trial judge's failure to comment amounted to a miscarriage of justice in the circumstances of this case. I would therefore dismiss the appeal under s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46.
//McLachlin J.//
The following are the reasons delivered by
McLachlin J. -- This is one of a series of cases raising fundamental questions relating to the presumption of sanity in s. 16 of the Criminal Code, R.S.C., 1985, c. C-46. As I explained in R. v. Chaulk, [1990] 3 S.C.R. 1303, I respectfully disagree with my colleagues, Lamer C.J. and Wilson J., as to the proper resolution of these questions. In view of the peculiar circumstances of this case, including the fact that it was heard on the same day as Chaulk and that the result for the accused is not affected, I am issuing these reasons notwithstanding the prior issue of judgment in Chaulk, which is binding. I will therefore address one of the issues raised in this case in view of my conclusions in Chaulk.
The appellant argues that the presumption of sanity in s. 16(4) of the Criminal Code offends the presumption of innocence found in s. 11(d) of the Canadian Charter of Rights and Freedoms. As I explained in my reasons in Chaulk, I am of the view that the presumption of sanity, reflecting as it does the fundamental pre-condition of criminal responsibility and punishment, does not violate s. 11(d). Accordingly, this ground of appeal fails, and it is unnecessary for me to consider application of s. 1 of the Charter.
With respect to the other two grounds of appeal, I am in agreement with Lamer C.J. For the reasons expressed by Lamer C.J., the evidence pertaining to the homicide in New York State was properly admitted at trial. I further agree with Lamer C.J., however, that a new trial must be ordered because of the trial judge's error in not commenting in his charge to the jury on the prejudicial remarks of Crown counsel.
I agree, therefore, that the appeal should be allowed and a new trial ordered.
Appeal allowed and new trial ordered, L'Heureux‑Dubé J. dissenting.
Solicitors for the appellant: Breen Miller Clark, Fredericton; Lapointe, Schachter, Champagne & Talbot, Montréal.
Solicitors for the respondent: Manu Patel, Graham Sleeth and Bruce Judah, Fredericton.
Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.
Solicitors for the intervener the Attorney General of Quebec: Jean‑François Dionne and Jacques Gauvin, Ste‑Foy.
Solicitor for the intervener the Attorney General of Manitoba: The Attorney General of Manitoba, Winnipeg.
Solicitor for the intervener the Attorney General for Alberta: M. J. Watson, Edmonton.