R. v. McClenaghan (M.A.), 2008 ABCA 7

• Judge: Hunt, Costigan and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 09, 2008
• Citations: 2008 ABCA 7;(2008), 437 A.R. 247 (CA)

R. v. McClenaghan (M.A.) (2008), 437 A.R. 247 (CA);

      433 W.A.C. 247

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MR.078

Her Majesty The Queen (appellant) v. Murray Archibald McClenaghan (respondent)

(0603-0054-A; 2008 ABCA 7)

Indexed As: R. v. McClenaghan (M.A.)

Alberta Court of Appeal

Hunt, Costigan and Watson, JJ.A.

January 9, 2008.

Summary:

The accused shot his business partner three times. The accused was charged with first degree murder and possession of a weapon (pump action shotgun) for a purpose dangerous to the public peace. The accused was found not guilty of first or second degree murder. For the offences of manslaughter and possession of a weapon, the jury found the accused guilty, but not criminally responsible on account of mental disorder (based on expert evidence that accused acted in a dissociative state). The Crown appealed, submitting that: "1. The learned trial judge erred in instructing the jury that a dissociative state of mind emanating from disease of the mind could negate proof of planning and deliberation and negate proof of the mens rea for murder. 2. The learned trial judge erred in her instructions with respect to the burden of proof. 3. The learned trial judge erred in not instructing the jury on the impact of hearsay and other inadmissible evidence in the opinion evidence by experts. 4. The learned trial judge erred in failing to properly relate the evidence to the issues.".

The Alberta Court of Appeal allowed the appeal and ordered a new trial on the original counts in the indictment.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - The accused admittedly shot and killed his business partner - A jury found him not guilty of first or second degree murder, but guilty of manslaughter and a weapons offence - However, the accused was found not criminally responsible on account of mental disorder - That defence was based on the uncontradicted evidence of two medical experts who opined that the accused shot his partner while in a dissociative state - The Alberta Court of Appeal allowed the appeal and ordered a new trial on the original counts - The court stated that "parts of the charge confuse the burdens of proof, which party bore which burden of proof and how to treat the [accused's] testimony in this regard." - The trial judge's direction that the accused did not have to present evidence or prove anything was misleading "because the [accused] had conceded his guilt on manslaughter and put forward the theory that he was not criminally responsible for that offence. Thus, whether or not the Crown was able to establish his guilt on murder, the [accused] at least bore the burden of proving he was not criminally responsible on a balance of probabilities as regards manslaughter" - The trial judge, in instructing the jury on the defence of not criminally responsible, incorrectly referred to the reasonable doubt standard of proof, rather than balance of probabilities standard - The trial judge's recharge could have further "muddied already muddy waters, leaving the jury with the impression that the instructions about how to treat the [accused's] testimony for conviction purposes was somehow relevant to their treatment of the same testimony for the purposes of not criminally responsible" - See paragraphs 2 to 9.

Criminal Law - Topic 4356

Procedure - Charge or directions - Jury or judge alone - Directions regarding intent or mens rea - [See Criminal Law - Topic 4373.1 ].

Criminal Law - Topic 4365

Procedure - Charge or directions - Jury or judge alone - Directions regarding expert evidence - The accused admittedly shot and killed his business partner - A jury found him not guilty of first or second degree murder, but guilty of manslaughter and a weapons offence - However, the accused was found not criminally responsible on account of mental disorder - That defence was based on the uncontradicted evidence of two medical experts who opined that, based on what the accused told them, which they believed to be true, the accused shot his partner while in a dissociative state - The Alberta Court of Appeal ordered a new trial - The court stated that "although the trial judge explained more than once that the jury must decide whether or not it accepted the expert testimony, in her discussion of not criminally responsible she did not underscore the great extent to which the opinions of both experts rested on their positive assessment of the respondent's veracity. ... She did not revisit the issue when reviewing their evidence in the context of not criminally responsible. On the other hand, when she charged on that defence she mentioned at least twice that the expert evidence was uncontradicted and once that their evidence was consistent. She again referred to their agreement and the absence of contradictory evidence when she described the defence's theory. It was technically correct that no other witness contradicted their views that the respondent was in a dissociative state when he shot the victim and that, on this point at least, they both agreed. But given the way the charge was structured (considering the expert testimony first as it related to intent for murder and last as it related to not criminally responsible); given the legal requirement that there be expert testimony to establish the latter; and given that the respondent bore the burden of establishing he was not criminally responsible, it was critical to re-emphasize that the experts' opinion on dissociation rested significantly on their belief that the respondent was honest. Without this, when deciding whether the respondent had discharged his burden of establishing the defence there was a real danger that the jury would put too much weight on the experts' opinions and fail to reach its own conclusion about the respondent's credibility." - See paragraphs 10 to 13.

Criminal Law - Topic 4373.1

Procedure - Charge or directions - Jury or judge alone - Directions respecting verdict of not responsible by reason of mental disorder - The accused admittedly shot and killed his business partner - A jury found him not guilty of first or second degree murder, but guilty of manslaughter and a weapons offence - However, the accused was found not criminally responsible on account of mental disorder - The Crown appealed, submitting that the trial judge should have first instructed the jury on the not criminally responsible defence before instructing them on the mens rea required of murder - The Alberta Court of Appeal, per Watson, J.A., stated that "this order of instruction is established as the traditional method to charge a jury, and accepted as the logical way to do so. Under s. 672.34 of the Criminal Code, the issue of NCRMD arises on proof by the Crown of the actus reus; the defence of NCRMD may arise on the evidence as a complete answer. If the evidence falls short of proof of NCRMD on a balance of probabilities, it may still be relevant to the mens rea for the offence though not operative as a complete answer. The Crown here contends that the order of instruction here confused the jury as to the legal tests and the proper use of the evidence. ..." - Hunt, J.A. (Costigan, J.A., concurring), stated that "I do not say that a charge must always deal with the defence of not criminally responsible before discussing the element of intent. I do not think the authorities cited by the Crown go that far. Nonetheless, the charge in this case demonstrates why that approach is normally to be preferred: if the defence is accepted, it prevents the jury from having to plunge into the complexities of intent and the challenge of using the same expert testimony more than once to help resolve different legal issues that give rise to different burdens of proof borne by different parties" - See paragraphs 14, 105.

Evidence - Topic 7156

Opinion evidence - Prohibited opinions - Re truthfulness of statement made by a party or an accused - [See Criminal Law - Topic 4365 ].

Cases Noticed:

R. v. Malott (M.A.), [1998] 1 S.C.R. 123; 222 N.R. 4; 106 O.A.C. 132, refd to. [para. 2].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 2].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 8].

R. v. Reid (W.J.) (2003), 167 O.A.C. 336; 65 O.R.(3d) 723;177 C.C.C.(3d) 260 (C.A.), refd to. [para. 8].

R. v. Heil (D.D.) (2005), 376 A.R. 156; 360 W.A.C. 156; 2005 ABCA 397, refd to. [para. 8].

R. v. Deschamplain (D.), [2004] 3 S.C.R. 601; 347 N.R. 287; 211 O.A.C. 323; 2004 CarswellOnt 4766; 2004 SCC 76, refd to. [para. 24].

R. v. Sazant (M.), [2004] 3 S.C.R. 635; 348 N.R. 1; 210 O.A.C. 376; 2004 CarswellOnt 4768; 2004 SCC 77, refd to. [para. 24].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 113].

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; 135 C.C.C.(3d) 129, refd to. [para. 114].

R. v. Rabey (1977), 37 C.C.C.(2d) 461; 40 C.R.N.S. 46 (Ont. C.A.), affd. [1980] 2 S.C.R. 513; 32 N.R. 451, refd to. [para. 117].

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, refd to. [para. 118].

R. v. Daviault (H.), [1994] 3 S.C.R. 63; 173 N.R. 1; 64 Q.A.C. 81, refd to. [para. 122].

R. v. Parent (R.), [2001] 1 S.C.R. 761; 268 N.R. 372; 2001 SCC 30, refd to. [para. 122].

R. v. Seymour (J.), [1996] 2 S.C.R. 252; 197 N.R. 81; 76 B.C.A.C. 1; 125 W.A.C. 1, refd to. [para. 141].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209; 78 C.C.C.(3d) 289, refd to. [para. 141].

R. v. Faid, [1983] 1 S.C.R. 265; 46 N.R. 461; 42 A.R. 308; 2 C.C.C.(3d) 513, refd to. [para. 141].

R. v. Sinclair (B.E.) (1993), 145 A.R. 214; 55 W.A.C. 214 (C.A.), refd to. [para. 141].

R. v. Point (D.L.) (2003), 327 A.R. 96; 296 W.A.C. 96 (C.A.), refd to. [para. 141].

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, refd to. [para. 141].

R. v. Cassidy, [1989] 2 S.C.R. 345; 100 N.R. 321; 36 O.A.C. 1, refd to. [para. 142].

R. v. Mulligan, [1977] 1 S.C.R. 612; 9 N.R. 27, refd to. [para. 147].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161, refd to. [para. 147].

R. v. David (D.) (2002), 164 O.A.C. 61; 169 C.C.C.(3d) 165 (C.A.), refd to. [para. 147].

R. v. Molodowic (A.J.), [2000] 1 S.C.R. 420; 252 N.R. 250; 145 Man.R.(2d) 201; 218 W.A.C. 201; 2000 SCC 16, refd to. [para. 151].

R. v. Wright (1979), 16 A.R. 474; 48 C.C.C.(2d) 334 (C.A.), refd to. [para. 153].

R. v. Allard (1990), 57 C.C.C.(3d) 397; 78 C.R.(3d) 228 (Que. C.A.), refd to. [para. 155].

R. v. Bailey (A.J.) (1996), 82 B.C.A.C. 105; 133 W.A.C. 105; 111 C.C.C.(3d) 122 (C.A.), refd to. [para. 156].

R. v. Hilton (1977), 34 C.C.C.(2d) 206 (Ont. C.A.), refd to. [para. 156].

R. v. Lechasseur (1977), 38 C.C.C.(2d) 319 (Que. C.A.), refd to. [para. 156].

R. v. Browning (1976), 34 C.C.C.(2d) 200 (Ont. C.A.), refd to. [para. 156].

R. v. Curry (1980), 38 N.S.R.(2d) 575; 69 A.P.R. 575 (C.A.), refd to. [para. 156].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 179].

R. v. Turner, [1975] Q.B. 834; 60 Cr. App. Rep. 80 (C.A.), refd to. [para. 179].

Director of Public Prosecutions v. Jordan, [1977] A.C. 699 (H.L.), refd to. [para. 179].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 179].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 180].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111, refd to. [para. 181].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 108 D.L.R.(4th) 47; 85 C.C.C.(3d) 193; 25 C.R.(4th) 1; 108 D.L.R.(4th) 47; 1993 CarswellOnt 995, refd to. [para. 184].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293, refd to. [para. 184].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 184].

R. v. B. (R.H.) - see R. v. Burns (R.H.).

R. v. W.A.W. (2001), 277 A.R. 226; 242 W.A.C. 226; 153 C.C.C.(3d) 56; 2001 ABCA 77, refd to. [para. 184].

R. v. French (1977), 37 C.C.C.(2d) 201 (Ont. C.A.), refd to. [para. 184].

R. v. Rowe (M.) (2006), 209 O.A.C. 50; 208 C.C.C.(3d) 412 (C.A.), leave to appeal denied (2006), 363 N.R. 395; 228 O.A.C. 399 (S.C.C.), refd to. [para. 184].

R. v. Morrissey (P.) (2007), 230 O.A.C. 141 (C.A.), refd to. [para. 185].

R. v. Robertson (1975), 21 C.C.C.(2d) 385 (Ont. C.A.), refd to. [para. 186].

R. v. Karaibrahimovic (J.J.) (2002), 303 A.R. 181; 273 W.A.C. 181; 164 C.C.C.(3d) 431; 2002 ABCA 102, refd to. [para. 187].

R. v. Fiqia (N.A.) (1993), 145 A.R. 254; 55 W.A.C. 254; 87 C.C.C.(3d) 377 (C.A.), refd to. [para. 187].

R. v. Giesbrecht (E.H.), [1994] 2 S.C.R. 482; 168 N.R. 191; 95 Man.R.(2d) 309; 70 W.A.C. 309, affing. (1993), 85 Man.R.(2d) 69; 41 W.A.C. 69; 20 C.R.(4th) 73 (C.A.), refd to. [para. 188].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97, refd to. [para. 188].

R. v. Fontaine (D.) (2005), 195 Man.R.(2d) 113; 351 W.A.C. 113; 199 C.C.C.(3d) 349; 18 M.V.R.(5th) 203; 31 C.R.(6th) 273; 2005 CarswellMan 229; 2005 MBCA 85, refd to. [para. 188].

R. v. George, [1960] S.C.R. 871; 34 C.R. 1; 128 C.C.C. 289, refd to. [para. 191].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 198].

R. v. Ng (K.-F.) (2006), 397 A.R. 176; 384 W.A.C. 176; 212 C.C.C.(3d) 277; 2006 ABCA 230, leave to appeal denied (2007), 375 N.R. 392; 433 A.R. 399; 429 W.A.C. 399 (S.C.C.), refd to. [para. 198].

R. v. Kjeldsen, [1981] 2 S.C.R. 617; 39 N.R. 376; 34 A.R. 576; 64 C.C.C.(2d) 161, refd to. [para. 199].

R. v. Yellowfly, [1977] A.J. No. 173 (C.A.), refd to. [para. 199].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 16 [para. 116]; sect. 672.34 [para. 150].

Authors and Works Noticed:

Stuart, Donald, Canadian Criminal Law (5th Ed. 2007), p. 399 [para. 8].

Williams, Glanville, Textbook of Criminal Law (2nd Ed. 1983), p. 676 [para. 120].

Counsel:

J.C. Robb, Q.C., for the appellant;

L.K. Stevens, Q.C., for the respondent.

This appeal was heard on June 5, 2007, before Hunt, Costigan and Watson, JJ.A., of the Alberta Court of Appeal.

On January 9, 2008, the following memorandum of judgment was delivered and the following opinions were filed:

Hunt, J.A. (Costigan, J.A., concurring) - see paragraphs 1 to 15;

Watson, J.A. - see paragraphs 16 to 205.