R. v. Abbey, (1982) 43 N.R. 30 (SCC)

• Judge: Laskin, C.J.C, Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer, JJ.
• Court: Supreme Court (Canada)
• Case Date: July 22, 1982
• Jurisdiction: Canada (Federal)
• Citations: (1982), 43 N.R. 30 (SCC);68 CCC (2d) 394;39 BCLR 201;[1983] 1 WWR 251;[1982] SCJ No 59 (QL);43 NR 30;1982 CanLII 25 (SCC);29 CR (3d) 193;JE 82-762;AZ-82111071;[1982] CarswellBC 740;8 WCB 81;138 DLR (3d) 202;[1982] 2 SCR 24

R. v. Abbey (1982), 43 N.R. 30 (SCC)

MLB headnote and full text

R. v. Abbey

Indexed As: R. v. Abbey

Supreme Court of Canada

Laskin, C.J.C, Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer, JJ.

July 22, 1982.

Summary:

The accused was found not guilty by reason of insanity by a judge sitting alone on charges of importing cocaine and unlawful possession of cocaine for the purposes of trafficking. The British Columbia Court of Appeal dismissed the Crown's appeal. The Crown appealed.

The Supreme Court of Canada allowed the appeal and ordered a new trial, because the trial judge misdirected himself on the defence of insanity and also treated as factual the hearsay bases of an expert medical witness' testimony.

Criminal Law - Topic 96

General principles - Insanity - General - The Supreme Court of Canada discussed and explained the defence of insanity under s. 16(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - See paragraphs 13 to 28.

Criminal Law - Topic 98

General principles - Insanity - Disease of the mind - What constitutes - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 16(2) - The Supreme Court of Canada held that hypomania, which made an accused feel he would not be punished for a crime, was a disease of the mind, but merely impaired his judgment and did not render him incapable of appreciating the nature and quality of his acts or of knowing they were wrong - See paragraphs 13 to 28.

Criminal Law - Topic 99

General principles - Insanity - Wrong - Meaning of - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 16(2) - The Supreme Court of Canada held that the word "wrong" in s. 16(2) means wrong according to law - The court held that an accused, who knew that he was committing a crime, knew the act was wrong, notwithstanding that he thought he would not be punished - See paragraphs 22 to 28.

Criminal Law - Topic 101

General principles - Insanity - Nature and quality - Meaning of - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 16(2) - The accused knew that he was committing a crime, but thought that he would not be punished for it - The Supreme Court of Canada held that the accused's failure to appreciate that he would be punished did not render him incapable of appreciating the nature and quality of his criminal act, because punishment was not part of the criminal act - See paragraphs 13 to 21.

Criminal Law - Topic 210

General principles - Common law defences - Irresistible impulse - The Supreme Court of Canada held that there was no defence of irresistible impulse; although an irresistible impulse could be a symptom of a disease of the mind - See paragraphs 29 to 32.

Evidence - Topic 1500

Hearsay rule - General principles - Definition and general rule - The Supreme Court of Canada discussed and explained hearsay evidence and stressed that evidence of a statement made by an absent person is only hearsay if it is introduced for the purpose of proving its truth - See paragraphs 33 to 38, 44.

Evidence - Topic 1504

Hearsay rule - General principles - Hearsay - What constitutes - The Supreme Court of Canada held that the introduction of statements made to a physician on which he based a medical opinion do not offend the hearsay rule, because they are not introduced to prove their truth, but only the basis of the physician's opinion - The Supreme Court of Canada held that a trial judge erred in treating such statements as proof of their truth - See paragraphs 33 to 48.

Evidence - Topic 7000

Opinion evidence - Expert evidence - General - The Supreme Court of Canada discussed and explained the nature and purpose of opinion evidence, particularly expert evidence - The court stated that normally a witness must testify only about observed facts and not about inferences from observed fact, which was opinion - The court stated that in matters calling for special knowledge an expert's function is to provide the judge and jury with a ready-made inference, which they are unable to formulate - See paragraphs 39 to 48.

Evidence - Topic 7010

Opinion evidence - Expert evidence - Admissibility of information used to support opinion - The Supreme Court of Canada held that a psychiatrist could testify about statements made to him about a patient's condition on which he based his medical opinion, because the statements were not introduced to prove their truth, but merely to show the basis of the medical opinion - The court held that the trial judge erred in accepting the statements as proof of their truth - See paragraphs 39 to 48.

Cases Noticed:

R. v. Cooper, [1980] 1 S.C.R. 1149; 31 N.R. 234, appld. [para. 8].

R. v. Barnier, [1980] 1 S.C.R. 1124; [1980] 2 W.W.R. 659; 31 N.R. 273, appld. [para. 13].

R. v. Kjeldsen (1981), 39 N.R. 376, consd. [para. 14].

R. v. Schwartz, [1977] 1 S.C.R. 673; 8 N.R. 585, appld. [para. 18].

R. v. Codere (1916), 12 Cr. App. R. 21 (C.C.A.), consd. [para. 19].

R. v. Harrop (1940), 74 C.C.C. 228 (Man. C.A.), refd to. [para. 19].

R. v. Crook (1980), 1 Sask.R. 273 (Sask. C.A.), refd to. [para. 19].

R. v. Rabey (1977), 37 C.C.C.(2d) 461, consd. [para. 20].

R. v. Borg, [1969] S.C.R. 551, dist. [para. 30].

R. v. Creighton, (1908), 14 C.C.C. 349, dist. [para. 32].

Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965, appld. [para. 37].

Turner (1974), 60 Crim. App. R. 80, appld. [para. 40].

Wilband v. The Queen, [1967] S.C.R. 14, appld. [para. 42].

R. v. Dietrich (1970), 1 C.C.C.(2d) 49 (Ont. C.A.), appld. [para. 44].

R. v. Rosik, [1971] 2 O.R. 47, appld. [para. 44].

R. v. Phillion, [1978] 1 S.C.R. 18; 14 N.R. 371, appld. [para. 44].

R. v. Perras (1972), 8 C.C.C.(2d) 209, appld. [para. 48].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 16 [para. 3].

Authors and Works Noticed:

Cross on Evidence (5th Ed. 1979), pp. 8 [para. 38]; 20 [para. 35]; 442 [para. 39].

Cross, What should be done about the Rule Against Hearsay, [1965] Crim. L. Rev. 68, 82 [para. 36].

Martin, G.A., Insanity as a Defence (1965-1966), 8 Crim. L.Q. 240, 243 [para. 16].

McRuer Report, p. 36 [para. 27].

Mewett, S. 16 and "Wrong", 18 Crim. L.Q. 413 [para. 25].

Phipson on Evidence (12th Ed. 1976), pp. 263-264 [para. 36].

Williams, Glanville, Criminal Law, The General Part (2nd Ed. 1961), pp. 478 [para. 22]; 525 [para. 20].

Counsel:

Eugene G. Ewaschuk, Q.C., and S. David Frankel, for the appellant;

Josiah Wood, for the respondent.

This case was heard on December 16, 1981, at Ottawa, Ontario, before LASKIN, C.J.C., MARTLAND, RITCHIE, DICKSON, BEETZ, ESTEY, McINTYRE, CHOUINARD and LAMER, JJ., of the Supreme Court of Canada.

On July 22, 1982, DICKSON, J., delivered the following judgment for the Supreme Court of Canada: