R. v. Kjeldsen, (1980) 20 A.R. 267 (CA)

• Judge: McGillivray, C.J.A., Laycraft and Harradence, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 14, 1980
• Citations: (1980), 20 A.R. 267 (CA)

R. v. Kjeldsen (1980), 20 A.R. 267 (CA)

MLB headnote and full text

R. v. Kjeldsen

(11873)

Indexed As: R. v. Kjeldsen

Alberta Court of Appeal

McGillivray, C.J.A., Laycraft and Harradence, JJ.A.

February 14, 1980.

Summary:

This case arose out of a charge of murder against the accused after he admittedly killed a female taxi driver with a rock after raping her. Medical evidence showed that the accused was a psychopath and understood that hitting the woman with a rock would kill her; although he had inappropriate psychological responses to the act. The trial judge instructed the jury that psychopathy was a disease of the mind and the jury convicted the accused of first degree murder. The accused appealed.

The Alberta Court of Appeal allowed the appeal in part and substituted a verdict of second degree murder, because the trial judge failed to adequately instruct the jury on the issue of whether the murder was first or second degree - see paragraphs 14 to 15 and 98 to 116.

The Court of Appeal held that the trial judge properly instructed the jury on the defence of insanity and held that the accused appreciated the nature and quality of his act, because he understood the physical nature and consequences of it, notwithstanding his inappropriate psychological responses - see paragraphs 1 to 11.

Harradence, J.A., dissenting in part would have allowed the appeal, quashed the conviction and ordered a new trial, because the trial judge misdirected the jury on the defence of insanity, in that he did not make clear to the jury that not only must the accused understand the nature of his act, but also must understand the consequences of his act - see paragraphs 50 to 82.

Criminal Law - Topic 98

Insanity - Disease of the mind - What constitutes - Psychopathy - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 16 - The Alberta Court of Appeal held that what constitutes a disease of the mind within the meaning of s. 16 was a question of law for the judge and that a trial judge did not err in instructing the jury that psychopathy was a disease of the mind - The Court of Appeal discussed the meaning of the words "disease of the mind", noting that it was a legal term of wide scope and that medical opinion, although relevant, was not determinative of whether a condition constituted a disease of the mind - See paragraphs 1 and 33 to 49.

Criminal Law - Topic 100

Insanity - Appreciating - Meaning of - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 16 - The Alberta Court of Appeal held that a person appreciates the nature and quality of an act within the meaning of s. 16, if he knows or is aware of the physical nature and consequences of the act, whether or not he views the act and its consequences in appropriate psychological terms - See paragraphs 1 to 11.

Criminal Law - Topic 1265

Offences against the person - Murder - Jury charge - The Alberta Court of Appeal held that on a charge of murder the jury must first determine whether the accused committed culpable homicide within the meaning of s. 212 and then, if so, whether the murder was planned and deliberate and therefore first degree murder or whether it was second degree murder - The Court of Appeal substituted a verdict of second degree murder for one of first degree murder, where the jury was misdirected on the issue of whether the murder was first or second degree - See paragraphs 14 to 15 and 98 to 116.

Criminal Law - Topic 1270

Offences against the person - Murder - Planned and deliberate - Meaning of - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 214(2) - The Alberta Court of Appeal held that planning and deliberation involve the exercise of mental processes - See paragraph 104 - The Court of Appeal held that psychiatric evidence, falling short of supporting a defence of insanity, should be put to the jury on the question of deliberation - See paragraph 109 - The Court of Appeal held that the trial judge erred in failing to instruct the jury that they must first decide whether the murder was culpable homicide and then, if so, whether it was first or second degree murder - The Court of Appeal held that the trial judge should have instructed the jury on the meaning of "deliberate" and then set out the evidence tending to show that the accused acted from impulse rather than deliberation - See paragraphs 14 to 15 and 98 to 116.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscarriage of justice - Where jury charge incomplete - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 613(1)(b)(iii) - At the trial of the accused for murder the trial judge failed to instruct the jury that they might return a verdict of "not guilty" or that they might bring in a verdict of manslaughter - It was admitted that the accused killed the victim - The Alberta Court of Appeal applied s. 613(1)(b)(iii) and dismissed the appeal, because there was no miscarriage of justice, where it was common ground that the accused killed the victim and where no properly instructed jury could have brought in a verdict of manslaughter - See paragraphs 12 to 13 and 83 to 98.

Criminal Law - Topic 5055

Appeals - Indictable offences - Substitution of verdict - General - Criminal Code of Canada, R.S.C. 1970, c. C- 34, s. 613(1)(b)(i),(3) - The Alberta Court of Appeal substituted verdict of guilty of second degree murder for that of first degree murder, where the accused was not properly convicted of first degree murder as a result of the trial judge's failure to properly instruct the jury on the issue of whether the murder was first degree or second degree - See paragraphs 14 to 15 and 98 to 116.

Cases Noticed:

R. v. Augustus et al., [1977] 6 W.W.R. 36; 5 A.R. 499, appld. [para. 9].

R. v. Simpson (1977), 35 C.C.C.(2d) 337, appld. [para. 10]; consd. [para. 37].

R. v. Rabey (1978), 37 C.C.C.(2d) 461, consd. [para. 37].

R. v. Harrinanan (1977), 40 C.R.N.S. 231, appld. [para. 58].

Azoulay v. The Queen (1952), 104 C.C.C. 97, consd. [para. 76].

Colpitts v. The Queen, [1965] S.C.R. 739; [1966] 1 C.C.C. 146, consd. [para. 78].

R. v. Krawchuk (1941), 75 C.C.C. 219 (S.C.C.), consd. [para. 79].

R. v. Budic (1978), 12 A.R. 131; [1979] 1 W.W.R. 11 (Alta. C.A.), consd. [para. 80].

R. v. Duguay (1967), 50 C.C.C. 317, appld. [para. 92].

R. v. Olbey (1979), 30 N.R. 152 (S.C.C.), appld. [para. 93].

R. v. Kilian, 102 C.C.C. 241, appld. [para. 94].

R. v. Mitchell, [1965] 1 C.C.C. 153, appld. [para. 102].

R. v. Knuff (1980), 19 A.R. 168 (Alta. C.A.), appld. [para. 102].

More v. The Queen, [1963] S.C.R. 522, appld. [para. 107].

R. v. McMartin, [1965] 1 C.C.C. 142, appld. [para. 108].

R. v. Harms, [1936] 2 W.W.R. 114, consd. [para. 79].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 16, sect. 212 [para. 98]; sect. 213 [para. 85]; sect. 214(2) [para. 99]; sect. 217 [para. 84]; sect. 613(1)(b)(i) [para. 14]; sect. 613(1)(b)(iii) [paras. 12, 88, 94]; sect. 613(3) [paras. 15, 115].

Authors and Works Noticed:

Dixon, Owen, A Legacy of Hadfield, M'Naughten and MacLean, 31 A.L.J. 255, 260 [para. 39].

McRuer, Report of the Royal Commission on the Law of Insanity as a Defence in Criminal Cases [para. 61].

McRuer, Report of the Royal Commission on the Law of Insanity as a Defence in Criminal Cases (McRuer Report) [para. 61].

Counsel:

P.S. Chrumka, Q.C., for the Crown;

J.D. Brimacombe, for the accused (appellant).

This case was heard before McGILLIVRAY, C.J.A., LAYCRAFT and HARRADENCE, JJ.A., of the Alberta Court of Appeal.

On February 14, 1980, the judgment of the Court of Appeal was delivered and the following opinions were filed:

McGILLIVRAY, C.J.A. - see paragraphs 1 to 17;

LAYCRAFT, J.A. - see paragraph 18;

HARRADENCE, J.A., dissenting in part - see paragraphs 19 to 116.