R v Chaulk  3 S.C.R. 1303: Accused presumed sane until contrary is proved -- Insanity to be proved by accused on balance of probabilities
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 -- Defences -- Insanity -- Person insane under s. 16(2) of Criminal Code if suffering from disease of the mind rendering him incapable of knowing act is wrong -- Meaning of word "wrong" in s. 16(2) of Code.
Criminal law -- Defences -- Insanity -- Delusions -- Whether s. 16(3) of Criminal Code constitutes independent insanity defence -- Whether trial judge's instructions to jury adequate.
Evidence -- Rebuttal evidence -- Crown adducing evidence of accused's sanity in rebuttal -- Whether evidence of accused's sanity should have been adduced by Crown as part of its case-in-chief.
The accused were convicted of first degree murder. The only defence raised at trial was insanity, but this defence was rejected by the jury. The Court of Appeal upheld the conviction. This appeal is to determine (1) whether s. 16(4) of the Criminal Code, which provides that "Every one shall, until the contrary is proved, be presumed to be and to have been sane", infringes the presumption of innocence guaranteed in s. 11(d) of the Canadian Charter of Rights and Freedoms; and, if so, whether s. 16(4) is justifiable under s. 1 of the Charter; (2) whether the meaning of the word "wrong" in s. 16(2) of the Code should be restricted to "legally wrong"; (3) whether s. 16(3) of the Code provides an alternative defence if the conditions of s. 16(2) were not met; and (4) whether the trial judge erred in permitting the Crown to split its case by presenting its evidence with respect to the sanity of the accused in rebuttal.
Held (L'Heureux-Dubé, Sopinka and McLachlin JJ. dissenting): The appeal should be allowed and a new trial ordered.
(1) Presumption of Sanity/Presumption of Innocence
Per Dickson C.J. and Lamer C.J. and La Forest, Sopinka and Cory JJ.: The insanity defence under s. 16 of the Code should be characterized as an exemption from criminal liability which is based on an incapacity for criminal intent. This claim for an exemption will usually be manifested under s. 16 either as a denial of mens rea in the particular case or as an excuse for what would otherwise be a criminal offence.
Section 16(4) of the Code infringes the presumption of innocence guaranteed in s. 11(d) of the Charter. The real concern under s. 11(d) is not whether the accused must disprove an element or prove an excuse, but whether an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. Accordingly, it is the final effect of the impugned provision on the verdict that is decisive. Whether the claim of insanity is characterized as a denial of mens rea, an excusing defence or, more generally, an exemption based on criminal incapacity, s. 16(4) allows a factor which is essential for guilt to be presumed, rather than proved by the Crown beyond a reasonable doubt. Moreover, the section requires an accused to disprove sanity (or prove insanity) on a balance of probabilities. Section 16(4) therefore violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused. Finally, while the verdict under s. 16 is "not guilty by reason of insanity", the accused raising the s. 16 defence is seeking a "true acquittal" vis-à-vis the attachment of criminal culpability and is entitled to the presumption of innocence.
Section 16(4) of the Code constitutes a reasonable limit on the presumption of innocence. The objective of s. 16(4), which is a purely evidentiary section, is to avoid placing on the Crown the impossibly onerous burden of disproving insanity and to thereby secure the conviction of the guilty. This objective is of sufficient importance to warrant limiting a constitutionally protected right. The means chosen by the government are proportional to the objective. First, the presumption of sanity and the reverse onus embodied in s. 16(4) are rationally connected to the objective. Second, s. 16(4) impairs s. 11(d) as little as possible. To reduce the burden on the accused to a mere evidentiary burden would not achieve the objective as effectively. While s. 16 is seldom raised, given the substantial constraint on liberty which follows a successful insanity plea, if insanity were easier for an accused to establish, the defence would be successfully invoked more often. Parliament may not have chosen the absolutely least intrusive means of meeting the objective, but it has chosen from a range of means which impair s. 11(d) as little as is reasonably possible. It is not the role of this Court to second-guess the wisdom of policy choices made by Parliament. Third, there is proportionality between the effects of the measure and the objective. The burden on the accused is not the full criminal burden; rather, the accused is required to prove his insanity on a balance of probabilities. Section 16(4) represents a compromise of three important societal interests: avoiding a virtually impossible burden on the Crown; convicting the guilty; and acquitting those who truly lack the capacity for criminal intent. The alternatives to this compromise raise their own Charter problems and give no guarantee as to whether they will achieve the objective.
Per L'Heureux-Dubé, Gonthier and McLachlin JJ.: The insanity provisions of the Code relate to the basic preconditions for criminal responsibility rather than to essential elements or defences to criminal offences. The latter approach ignores the historical and philosophical origins of the fundamental precept of the criminal law system that the attribution of criminal responsibility and punishment is justifiable only for those who have the capacity to reason and choose between right and wrong. The accused must be sane before any consideration of the essential elements of the offence or exculpatory defences becomes relevant. This approach also violates the language of s. 16 of the Code, which refers to capacity for criminal responsibility rather than actual states of mind. It is at odds with the fact that insanity in s. 16 can be raised by the Crown in circumstances where neither the elements of the offence nor a defence are at issue. Further, it confuses true acquittal, the result of the absence of an essential element of an offence or the presence of a defence to it, with formal acquittal coupled with alternative coercive measures because mental impairment renders the imposition of true penal responsibility inappropriate.
The presumption of sanity in s. 16(4) of the Code, viewed as the fundamental precondition of criminal responsibility, does not offend the presumption of innocence embodied in s. 11(d) of the Charter, nor does it offend the fundamental notion of procedural fairness which underlies the procedural guarantees of the Charter. The presumption of sanity merely relieves the Crown from establishing that the accused has the capacity for choice which makes attribution of criminal responsibility and punishment justifiable. The Crown must still prove the accused's guilt -- i.e., the actus reus, the mens rea, and the absence of exculpatory defences raised on the evidence -- beyond a reasonable doubt. The presumption of innocence reflects the fundamental precepts upon which our legal system and our Charter are based. There is no suggestion that the present system results in injustice. Accused persons appear to have no difficulty establishing insanity on a balance of probabilities where it exists.
Per Wilson J.: Section 16(4) of the Code infringes s. 11(d) of the Charter. The presumption of sanity requires the accused to establish his insanity on a balance of probabilities. However one conceives the plea of insanity, whether as an exemption, a defence, a justification or an excuse, the persuasive burden imposed on the accused by s. 16(4) permits him to be convicted of a crime notwithstanding a reasonable doubt as to his guilt. Under s. 11(d), it is the net effect of a reverse onus provision on the final guilt or innocence of the accused rather than the precise nature of the provision that must be examined.
Section 16(4) of the Code does not constitute a reasonable and demonstrably justified limit on the presumption of innocence under s. 1 of the Charter. The objective of s. 16(4) is to prevent perfectly sane persons who have committed crimes to escape criminal liability on tenuous insanity pleas. But nothing indicates that successfully fabricated insanity pleas have given rise to an existing pressing and substantial concern. While the legislature may not necessarily wait until such a concern has arisen, the Crown has not succeeded in establishing even a likelihood of its arising. The American experience does not support the contention that a lower standard of proof would result in more people being acquitted by reason of insanity. Further, several reports from Canada and other countries propose that the burden of proving insanity should be made an evidential one. This burden on the accused is seen as a sufficiently high threshold to prevent insanity pleas in cases where there is only tenuous support for such a plea.
In any event, s. 16(4) does not meet the proportionality test. It is rationally connected to the legislative objective but does not impair the accused's right to be presumed innocent as little as is reasonably possible. It is inappropriate in this case to apply the deferential standard of review on the "minimal impairment" issue. The government does not mediate between different groups but acts as the singular antagonist of a very basic legal right of the accused. The government's objective in this case could be met by imposing a purely evidentiary burden on the accused. The possibility of a successful feigned insanity plea diminishes as scientific knowledge about mental illness increases. The burden on the prosecution, while it would not be an easy one, would nevertheless not be an "impossible onerous burden". In the absence of s. 16(4) the onus would still be on the accused to adduce evidence that makes insanity a live issue fit and proper to be left to the jury. The burden on the Crown would then be to remove any doubt in the jury's mind as to the presence of any of the elements of insanity as set out in ss. 16(2) and 16(3). There is no hard evidence that putting a lower burden on the accused would result in more guilty people escaping criminal liability on tenuous insanity pleas. Section 16(4) is accordingly not saved by s. 1 of the Charter. It follows that the common law principle which is reflected in s. 16(4) also infringes s. 11(d) and is not saved by s. 1.
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