R. v. Eisnor (W.P.), (2015) 362 N.S.R.(2d) 157 (CA)

• Judge: Fichaud, Beveridge and Bourgeois, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 25, 2014
• Jurisdiction: Nova Scotia
• Citations: (2015), 362 N.S.R.(2d) 157 (CA);2015 NSCA 64

R. v. Eisnor (W.P.) (2015), 362 N.S.R.(2d) 157 (CA);

    1142 A.P.R. 157

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JN.039

Wayne Paul Eisnor (appellant) v. Her Majesty the Queen (respondent)

(CAC 420821; 2015 NSCA 64)

Indexed As: R. v. Eisnor (W.P.)

Nova Scotia Court of Appeal

Fichaud, Beveridge and Bourgeois, JJ.A.

June 25, 2015.

Summary:

Eisnor was charged with the first degree murder of his estranged wife. He had shot her in the head, twice, and then shot himself in the head. His wound caused significant brain damage. Over time, he regained cognitive function, but had loss of memory of the day of the shooting and six months preceding. Prior to trial, Eisnor applied to have his fitness to stand trial tried by the jury (Criminal Code, s. 672.26), based on his claimed inability to "meaningfully communicate" with counsel.

The Nova Scotia Supreme Court dismissed the application, in decisions reported at 332 N.S.R.(2d) 323; 1052 A.P.R. 323 (application to advance a Charter challenge was dismissed) and 336 N.S.R.(2d) 381; 1063 A.P.R. 381. Eisnor was found guilty as charged. He appealed on the grounds that (a) the trial judge failed to properly interpret s. 2 of the Criminal Code with respect to fitness to stand trial; and (b) the trial judge erred in permitting the jury to hear "extraneous inadmissible evidence".

The Nova Scotia Court of Appeal dismissed the appeal. The trial judge did not err in his interpretation of the legal test for fitness to stand trial. "[T]he common law has never considered memory of the relevant events as a stand alone prerequisite for fitness to stand trial. There is simply no basis to interpret the words of s. 2 as importing that as a requirement." Nor did the trial judge err in admitting the impugned evidence.

Civil Rights - Topic 8318

Canadian Charter of Rights and Freedoms - General - Application - Statutory interpretation - Preference to Charter values - [See third Criminal Law - Topic 92.3 ].

Criminal Law - Topic 92.3

Mental disorder - General - Preliminary trial of issue of fitness - The Nova Scotia Court of Appeal interpreted the provisions of the Criminal Code with respect to fitness to stand trial, and concluded that "[t]he point is this: the statutory provisions as to fitness in s. 2 of the Code, appear to be a codification of the common law criteria. The principles set out by Justice Fish in R. v. Steele, and other leading authorities on the common law test for fitness have held sway after the Code amendments ... The appellant does not cite any cases that suggest otherwise." - See paragraphs 84 to 158.

Criminal Law - Topic 92.3

Mental disorder - General - Preliminary trial of issue of fitness - The accused was charged with the first degree murder of his wife - He had shot her in the head, twice, and then shot himself in the head - His wound caused significant brain damage - He regained cognitive function, but had loss of memory of the day of the shooting (June 30) and six months preceding - The trial judge found that the accused's amnesia did not provide reasonable grounds to believe him to be unable to "communicate with counsel", within the meaning of "unfit to stand trial" as set out in s. 2 of the Criminal Code - The Nova Scotia Court of Appeal dismissed the appeal from conviction - "The position of the appellant is a clear example of the conflation of the two concepts of fitness and trial fairness. If to put the appellant on trial were to cause an injustice, the remedy, if there were one, is a stay of proceedings, not an attempt to find the appellant unfit to stand trial because he cannot remember what he did before and on June 30. There was no suggestion at trial, nor on appeal, that the appellant's trial was in any way unfair." - See paragraph 134.

Criminal Law - Topic 92.3

Mental disorder - General - Preliminary trial of issue of fitness - The accused, at trial and now, on appeal, relied on the Charter to argue that s. 2 of the Criminal Code, in particular, the third prong of the fitness criteria "communicate with counsel", must be interpreted in accordance with "Charter values" to include an ability to communicate about the circumstances of the offence - The Nova Scotia Court of Appeal rejected the argument - "The need to first interpret a statute, including a penal one, by resort to the ordinary principles of statutory interpretation, and only turn to Charter values as an interpretative aid in the eventuality of ambiguity was re-affirmed by the Supreme Court [of Canada] in Bell Express Vu Limited Partnership v. Rex ... The appellant made no submissions that any of the words or phrases set out in s. 2 of the Code were ambiguous. I see none. In my view, 'communicate with counsel' means just that - the ability to hear, understand, and respond. Of course, the ability to respond must be rational, one not beset with delusions about what is going on in the trial, but not necessarily the ability to act in his or her own best interests. Nothing in the evolution of the relevant statutory provisions, and the legislative history indicate that Parliament intended to import into the fitness criteria the need for the accused to be able to recall the events in order to be able to communicate with counsel. ...[T]he common law has never considered memory of the relevant events as a stand alone prerequisite for fitness to stand trial. There is simply no basis to interpret the words of s. 2 as importing that as a requirement." - See paragraphs 147 to 157.

Criminal Law - Topic 5210

Evidence and witnesses - Admissibility and relevancy - Statements prejudicial to the accused - [See first Evidence - Topic 1527 ].

Criminal Law - Topic 5214.2

Evidence and witnesses - Admissibility and relevance - Similar acts - To prove intention - [See second Evidence - Topic 1527 ].

Criminal Law - Topic 5408

Evidence and witnesses - Witnesses - Statements prejudicial to the accused - [See first Evidence - Topic 1527 ].

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - [See second Evidence - Topic 1527 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The accused was charged with the first degree murder of his estranged wife - He had shot her in the head - The trial judge admitted numerous hearsay statements, some of which tended to show that the accused had committed disreputable acts against his former spouse - On appeal from conviction, the accused argued that the trial judge erred in admitting an earlier gun pointing incident circa 1999 - The Nova Scotia Court of Appeal disagreed - "Ordinarily events from eleven years pre-offence might be excluded, but in these circumstances, I see no error by the trial judge's decision to admit this evidence. The earlier gun incident tended to confirm the ultimate reliability of the hearsay statements of the deceased testified to by [three witnesses]. They described the deceased telling them about a handgun incident in the weeks just prior to the homicide where the appellant had used, what the jury could find, to be the same gun to threaten the deceased as he later used to kill her. ... [A]lthough the gun incident was somewhat remote, it was relevant to the evidence about the level of fear experienced by the deceased in the period prior to the shooting. I see no reversible error by the trial judge in his determination that the probative value was not outweighed by its prejudicial effect." - See paragraphs 163 to 169.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The accused was charged with the first degree murder of his estranged wife - He had shot her in the head - The trial judge admitted numerous hearsay statements, some of which tended to show that the accused had committed disreputable acts against his former spouse - A ground of the conviction appeal was that the trial judge erred in admitting the "food on the floor" incident in 2010, described by hearsay by two witnesses: takeout food brought home by the deceased was cold; the accused threw it on the floor, pushed the deceased toward the food, saying she was a dog, and she should eat like one - The Nova Scotia Court of Appeal dismissed that ground of appeal - A similar incident witnessed a month or two prior to separation tended to substantiate the accuracy of the incident described by hearsay - "In addition, prior assaultive behaviour by an accused in a domestic homicide is generally admissible." - The evidence of the relationship and the degree of animus toward the deceased were relevant to the issues of intent and whether the murder was planned and deliberate - See paragraphs 170 to 176.

Statutes - Topic 511

Interpretation - General principles - Source of construction - State of the law prior to enactment of statute - [See third Criminal Law - Topic 92.3 ].

Statutes - Topic 1411

Interpretation - Construction where meaning is not plain - General principles - Avoidance of conflict with Charter - [See third Criminal Law - Topic 92.3 ].

Statutes - Topic 1450

Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - Legislative history - Reference to prior versions or amendments - [See third Criminal Law - Topic 92.3 ].

Words and Phrases

Communicate with counsel - The Nova Scotia Court of Appeal considered the meaning of "communicate with counsel" within the definition of "unfit to stand trial" as set out in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraph 155.

Words and Phrases

Unfit to stand trial - The Nova Scotia Court of Appeal considered the definition of "unfit to stand trial" as set out in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 84 to 158.

Cases Noticed:

R. v. Taylor (D.R.M.) (1992), 59 O.A.C. 43; 77 C.C.C.(3d) 551 (C.A.), consd. [paras. 18, 105 et seq.].

R. v. Morrissey (P.) (2007), 230 O.A.C. 141; 2007 ONCA 770, leave to appeal dismissed (2008), 387 N.R. 399 (S.C.C.), appld. [paras. 18 et seq].

R. v. Jobb (C.V.) (2008), 314 Sask.R. 236; 435 W.A.C. 236; 2008 SKCA 156, refd to. [para. 18].

R. v. Amey (B.) (2009), 278 N.S.R.(2d) 97; 886 A.P.R. 97; 2009 NSPC 29, refd to. [paras. 18, 136 et seq.].

R. v. Adam (R.), [2013] O.T.C. Uned. 373; 2013 ONSC 373, refd to. [paras. 18, 132].

R. v. Steele (1991), 36 Q.A.C. 47; 63 C.C.C.(3d) 149 (C.A.), consd. [para. 87].

M'Naghten's Case (1843), 8 E.R. 718 (H.L.), refd to. [para. 92, footnote 1].

R. v. Cooper, [1980] 1 S.C.R. 1149; 31 N.R. 234, consd. [para. 95].

R. v. Chetwynd (1978), 25 N.S.R.(2d) 492; 36 A.P.R. 492 (C.A.), refd to. [para. 96].

R. v. S.H. (2014), 319 O.A.C. 58; 2014 ONCA 303, refd to. [para. 96].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, consd. [para. 97].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201, consd. [para. 109].

R. v. L.J.H. (1997), 118 Man.R.(2d) 198; 149 W.A.C. 198; 120 C.C.C.(3d) 88 (C.A.), refd to. [para. 129].

R. v. Sharp, [1958] 1 All E.R. 62, consd. [paras. 136, 141].

Wilson v. United States (1968), 391 F.2d 460, consd. [paras. 136, 144].

R. v. Amey (B.) (2010), 352 N.S.R.(2d) 1; 1112 A.P.R. 1; 2010 NSPC 100, refd to. [para. 140].

R. v. Carvery (L.A.) (2012), 321 N.S.R.(2d) 321; 1018 A.P.R. 321; 2012 NSCA 107, refd to. [para. 148].

Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1, refd to. [para. 149].

R. v. Wust (L.W.) et al. (2000), 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 149].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, appld. [para. 152].

R. v. Youvarajah (Y.) (2013), 447 N.R. 47; 308 O.A.C. 284; 2013 SCC 41, refd to. [para. 159].

R. v. Handy (J.) (2002), 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 160].

R. v. C.J. (2011), 307 N.S.R.(2d) 200; 975 A.P.R. 200; 2011 NSCA 77, refd to. [para. 160].

R. v. Underwood (G.R.) (2002), 320 A.R. 151; 288 W.A.C. 151; 2002 ABCA 310, refd to. [para. 162].

R. v. James (W.A.) et al. (2007), 251 N.S.R.(2d) 255; 802 A.P.R. 255; 216 C.C.C.(3d) 490; 2007 NSCA 19, affd. (2009), 383 N.R. 329; 273 N.S.R.(2d) 388; 872 A.P.R. 388; 2009 SCC 5, refd to. [para. 162].

R. v. Smith (N.W.) - see R. v. James (W.A.) et al.

R. v. Pasqualino (C.) (2008), 239 O.A.C. 59; 2008 ONCA 554, refd to. [para. 162].

R. v. Poulette (B.A.) (2008), 269 N.S.R.(2d) 314; 860 A.P.R. 314; 2008 NSCA 95, leave to appeal denied (2009), 396 N.R. 392 (S.C.C.), refd to. [para. 162].

R. v. Merz (H.J.) (1999), 127 O.A.C. 1; 140 C.C.C.(3d) 259 (C.A.), refd to. [para. 173].

R. v. Krugel (N.R.) (2000), 129 O.A.C. 182; 143 C.C.C.(3d) 367 (C.A.), refd to. [para. 173].

R. v. Cudjoe (R.) (2009), 251 O.A.C. 163; 2009 ONCA 543, refd to. [para. 173].

R. v. Assoun (G.E.) (2006), 244 N.S.R.(2d) 96; 774 A.P.R. 96; 2006 NSCA 47, leave to appeal denied (2006), 359 N.R. 392 (S.C.C.), refd to. [para. 173].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 672.23 [para. 14].

Authors and Works Noticed:

Stuart, Don, Canadian Criminal Law (6th Ed. 2011), pp. 325, 326 [para. 89]; 407 [para. 86].

Counsel:

Malcolm Jeffcock, Q.C., and Roger Burrill, for the appellant;

William Delaney, Q.C., for the respondent.

This appeal was heard on November 25, 2014, in Halifax, Nova Scotia, before Fichaud, Beveridge and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal. In reasons written by Beveridge, J.A., the Court delivered the following judgment, dated June 25, 2015.