R. v. McMillan, (1977) 15 N.R. 20 (SCC)

• Judge: Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 04, 1977
• Jurisdiction: Canada (Federal)
• Citations: (1977), 15 N.R. 20 (SCC);1977 CanLII 19 (SCC);[1977] ACS no 32;33 CCC (2d) 360;15 NR 20;[1977] SCJ No 32 (QL);[1977] CarswellOnt 474;[1977] 2 SCR 824;73 DLR (3d) 759

R. v. McMillan (1977), 15 N.R. 20 (SCC)

MLB headnote and full text

R. v. McMillan

Indexed As: R. v. McMillan

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.

April 4, 1977.

Summary:

This case arose out of a charge of murder against the accused. The accused was charged with the murder of his child. Both the accused and his wife were with the child at most material times and the theory of the defence was that the accused's wife was more likely to have killed the child. At his trial the accused called his wife as a witness and she testified that she did not know how the child was hurt. The accused then called psychiatric testimony respecting his wife's psychopathic personality. The trial judge refused to permit the Crown to cross-examine the psychiatric witness on the wife's personality. The trial judge also refused to permit the Crown to cross-examine the witness on the accused's psychopathic personality, even though the witness was familiar with the accused and the accused had put his mental condition in issue. The trial judge also refused to permit the Crown to call rebuttal evidence on the accused's mental condition. The Crown appealed. In a judgment reported 7 O.R.(2d) 750 the Ontario Court of Appeal allowed the appeal and held that the Crown should have been permitted to cross-examine the psychiatric witness on the mental condition of the accused and his wife and that the Crown should have been permitted to call rebuttal evidence. The Ontario Court of Appeal ordered a new trial. The accused appealed.

The Supreme Court of Canada dismissed the appeal and affirmed the judgment of the Ontario Court of Appeal.

Criminal Law - Topic 5208

Evidence - Relevance - Facts relevant to the theory of the defence - The accused was charged with the murder of his child - The theory of the defence was that the accused's wife was more likely to have killed the child - Both the accused and his wife were with the child at most material times - The accused called psychiatric testimony on his wife's psychopathic personality - The Supreme Court of Canada held that testimony was properly permitted, because it was relevant in the circumstances - See paragraphs 4 to 8.

Evidence - Topic 510

Presentation of evidence - Rebuttal evidence - General principles - The accused was charged with the murder of his child - At the trial the accused raised the issue of his mental condition and called evidence to show that he was normal mentally - The trial judge refused to permit the Crown to call evidence in reply on the accused's mental condition - The Supreme Court of Canada held that the Crown should have been permitted to call such rebuttal evidence - See paragraphs 13 to 15.

Evidence - Topic 4703

Examination of witnesses - Cross-examination - Range of cross-examination - The accused was charged with the murder of his child - The theory of the defence was that the accused's wife was more likely to have killed the child - Both the accused and his wife were with the child at most material times - The accused called psychiatric testimony on his wife's psychopathic personality - The trial judge refused to allow the Crown to cross-examine the psychiatric witness on the wife's personality - The Supreme Court of Canada held that the Crown should have been permitted to cross-examine the witness on the wife's personality - See paragraphs 9 to 12.

Evidence - Topic 4784

Examination of witnesses - Impeaching or discrediting own witness - By calling other witnesses - The accused was charged with the murder of his child - Both the accused and his wife were with the child at most material times and the theory of the defence was that the wife was more likely to have killed the child - The accused called his wife as a witness and she testified that she did not know how the child was hurt - The husband then called psychiatric testimony on the wife's psychopathic personality - The Supreme Court of Canada held that it was proper for the accused to call psychiatric testimony about his wife's personality, even where the accused had called her as a witness - See paragraph 8.

Evidence - Topic 7005

Opinion evidence - Expert evidence - Range of cross-examination - The accused was charged with the murder of his child - The theory of the defence was that the accused's wife was more likely to have killed the child - Both the accused and his wife were with the child at most material times - The accused called psychiatric testimony respecting his wife's psychopathic personality - The psychiatric witness also was familiar with the psychopathic personality of the accused, who had called evidence to show that he was mentally normal - The trial judge refused to permit the Crown to cross-examine the witness on the accused's personality - The Supreme Court of Canada held that the Crown should have been permitted to cross-examine the witness on the accused's personality, since the accused had put it in issue - See paragraphs 11 to 12.

Cases Noticed:

Lowery v. The Queen, [1974] A.C. 85, consd. [para. 7].

Counsel:

Bernard Cugelman, for the appellant;

E.G. Hachborn, for the respondent.

This case was heard on November 22, 1976, at Ottawa, Ontario, before LASKIN, C.J.C., MARTLAND, JUDSON, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ and de GRANDPRE, JJ., of the Supreme Court of Canada.

On April 4, 1977, SPENCE, J., delivered the following judgment of the Supreme Court of Canada: