R. v. Morrissey (P.),

• Jurisdiction: Ontario
• Judge: Feldman, Blair and LaForme, JJ.A.
• Neutral Citation: 2007 ONCA 770
• Citation: (2007), 230 O.A.C. 141 (CA),2007 ONCA 770,87 OR (3d) 481,227 CCC (3d) 1,54 CR (6th) 313,[2007] OJ No 4340 (QL),163 CRR (2d) 312,230 OAC 145,230 OAC 141,230 O.A.C. 141,87 O.R. (3d) 481,[2007] O.J. No 4340 (QL),(2007), 230 OAC 141 (CA)
• Date: 09 November 2007
• Court: Court of Appeal (Ontario)

R. v. Morrissey (P.) (2007), 230 O.A.C. 141 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. NO.021

Her Majesty The Queen (respondent) v. Peter Morrissey (appellant)

(C42027; 2007 ONCA 770)

Indexed As: R. v. Morrissey (P.)

Ontario Court of Appeal

Feldman, Blair and LaForme, JJ.A.

November 9, 2007.

Summary:

The accused was driving his estranged girlfriend in his car. A police officer signalled the accused to stop. The accused shot his girlfriend, then shot himself in the head. The girlfriend died. The accused survived, but suffered brain damage. The accused was charged with first degree murder. The accused raised the issue of his fitness to stand trial. The trial judge refused to instruct the jury that the accused's testimonial competence was a pre-condition to his fitness to stand trial. The jury found the accused fit to stand trial. The accused then re-elected to be tried by a judge alone. At the close of the Crown's case, the accused submitted that his ss. 7 and 11(d) Charter rights were denied because the memory loss occasioned by his brain damage fatally impaired his right to make full answer and defence, because he was incompetent to testify. The trial judge ruled that if the accused raised the issue of his testimonial competence, he would be required to testify on a competency voir dire. The accused declined to do so and the testimonial incompetency application was dismissed. The accused was then convicted of second degree murder (see [2003] O.T.C. 908). The accused appealed, submitting that the trial judge erred in failing to instruct the jury at the fitness hearing that his testimonial competence was a pre-condition to his fitness to stand trial and erred in requiring him to testify on a competency voir dire. Further, the accused sought a stay of proceedings on the ground of abuse of process resulting from his inability to make full answer and defence.

The Ontario Court of Appeal dismissed the appeal. Testimonial competence was not a pre-condition to finding an accused fit to stand trial. Alternatively, if testimonial incompetence caused by memory loss could be a factor in determining fitness to stand trial, the evidence did not support a finding of testimonial competence or unfitness to stand trial. The trial judge was correct in finding that for the accused to meet his evidential burden on an incompetency application, he had to testify at the voir dire. Finally, the trial judge did not err in finding no violation of the accused's Charter right to make full answer and defence.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The accused shot his estranged girlfriend, then himself - The girlfriend died - The accused survived, but suffered severe brain damage resulting in memory loss of the critical events (retrograde amnesia) - The accused was charged with first degree murder - The accused submitted that his Charter right to make full answer and defence was denied because of the memory loss of the critical events surrounding the shooting - He sought a stay of proceedings for abuse of process - The Ontario Court of Appeal agreed that his right to make full answer and defence was not denied - The court stated that "the appellant was able to cross-examine Crown witnesses, to call defence witnesses, and even to adduce evidence to support the theory that the shooting was unintentional. ... While it is likely that the appellant's brain injury and ensuing retrograde amnesia had some impact on the manner in which he was able to conduct his defence, they have not so interfered with his ability to defend himself that it can be said that he was denied his constitutional right to make full answer and defence." - There were strong policy reasons for not allowing a claim of memory loss for critical events to found a stay of proceedings - The court noted that amnesia was an easy claim to make and a difficult one to disprove - See paragraphs 71 to 75.

Criminal Law - Topic 92.3

General principles - Mental disorder - General - Preliminary trial of issue of fitness - The accused shot his estranged girlfriend, then himself - The girlfriend died - The accused survived, but suffered severe brain damage resulting in memory loss of the critical events (retrograde amnesia) - The accused was charged with first degree murder - The accused raised the issue of his fitness to stand trial - The trial judge refused to instruct the jury that the accused's testimonial competence was a pre-condition to his fitness to stand trial - The jury found the accused fit to stand trial - The accused re-elected trial by judge alone - At the close of the Crown's case, the accused submitted that his Charter right to make full answer and defence was denied because of the memory loss occasioned by his brain damage (testimonial incompetence) - The trial judge ruled that an accused raising testimonial incompetence due to mental incapacity had to testify on the competency voir dire - The accused declined to do so and the testimonial incompetency application was dismissed - The accused was then convicted of second degree murder - The accused appealed, submitting that the trial judge erred in failing to instruct the jury at the fitness hearing that his testimonial competence was a pre-condition to his fitness to stand trial and erred in requiring him to testify on a competency voir dire - Further, the accused sought a stay of proceedings on the ground of abuse of process resulting from his inability to make full answer and defence - The Ontario Court of Appeal dismissed the appeal - Testimonial competence was not a pre-condition to finding an accused fit to stand trial - Even if it was a factor in determining fitness to stand trial, the evidence did not support a finding of testimonial competence or unfitness to stand trial - The trial judge was correct in finding that for the accused to establish testimonial incompetence on a balance of probabilities, he had to testify at the voir dire.

Criminal Law - Topic 92.3

General principles - Mental disorder - General - Preliminary trial of issue of fitness - The accused shot his estranged girlfriend, then himself - The girlfriend died - The accused survived, but suffered severe brain damage resulting in memory loss of the critical events (retrograde amnesia) - The accused was charged with first degree murder - The accused raised the issue of his fitness to stand trial - The trial judge refused to instruct the jury that the accused's testimonial competence was a pre-condition to his fitness to stand trial - The jury found the accused fit to stand trial and convicted of second degree murder - The Ontario Court of Appeal dismissed the accused's appeal - Testimonial competence was not a pre-condition to finding an accused fit to stand trial - Even if it was a factor in determining fitness to stand trial, the evidence did not support a finding of testimonial competence or unfitness to stand trial - Pursuant to s. 2 of the Criminal Code, an accused was unfit to stand trial on account of mental disorder if he could not understand the nature and object of the proceedings or the consequences of the proceedings, and if he could not communicate with counsel - Fitness to stand trial had a low threshold, requiring only "limited cognitive ability" - The court stated that "an inability to recount the facts immediately connected with the event giving rise to the charges is not the same as an inability to communicate with counsel in a way that permits an accused to seek and receive effective legal advice. ... while the inability of a person to recall or testify about the immediate events surrounding a crime may be a factor to be weighed in determining whether the Crown has met its onus of establishing guilt beyond a reasonable doubt, amnesia has never been considered, by itself, to be a basis for declaring the accused unfit for trial." - Alternatively, if testimonial incompetence caused by memory loss could be a factor in determining fitness to stand trial, the evidence did not support a finding of testimonial competence or unfitness to stand trial - See paragraphs 24 to 59.

Criminal Law - Topic 109

General principles - Mental disorder - Insanity, automatism, etc. - Insanity - Preliminary issue respecting the ability of the accused to conduct his defence - [See both Criminal Law - Topic 92.3 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3133 ].

Evidence - Topic 5542

Witnesses - Competency and compellability - Competency - Mental competency - [See first Criminal Law - Topic 92.3 ].

Evidence - Topic 5542

Witnesses - Competency and compellability - Competency - Mental competency - The Ontario Court of Appeal held that pursuant to s. 16 of the Criminal Code, where an accused's mental capacity to testify was in issue, an inquiry was to be conducted respecting his testimonial competence to determine whether he understood the nature of an oath or solemn affirmation and whether he could "communicate the evidence" - The ability to communicate the evidence required an examination of the accused's ability to observe and interpret, his capacity to recollect and his capacity to communicate - The court agreed that where the issue of testimonial competence called for an inquiry, in order to prove incompetence on a balance of probabilities, the accused was required to testify at the voir dire to enable the trial judge to base his or her decision on direct observations of the accused - The decision was not to be made solely on the basis of expert evidence - See paragraphs 22 to 23, 60 to 70.

Evidence - Topic 5555

Witnesses - Competency and compellability - Competency - Procedure - [See second Evidence - Topic 5542 ].

Cases Noticed:

R. v. Marquard (D.) (1993), 159 N.R. 81; 66 O.A.C. 161; 85 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 22].

R. v. Farley (A.W.) (1995), 80 O.A.C. 337; 99 C.C.C.(3d) 76 (C.A.), refd to. [para. 22].

R. v. Taylor (D.R.M.) (1992), 59 O.A.C. 43; 77 C.C.C.(3d) 551 (C.A.), refd to. [para. 27].

R. v. Whittle (D.J.) (1994), 170 N.R. 16; 73 O.A.C. 201; 92 C.C.C.(3d) 11 (S.C.C.), refd to. [para. 27].

R. v. L.S.C. (2003), 327 A.R. 262; 296 W.A.C. 262 (C.A.), refd to. [para. 28].

R. v. Peepeetch (K.D.) (2003), 238 Sask.R. 14; 305 W.A.C. 14 (C.A.), refd to. [para. 28].

Reference Re R. v. Gorecki (No. 1) (1976), 32 C.C.C.(2d) 129 (Ont. C.A.), refd to. [para. 32].

R. v. Trecroce (1980), 55 C.C.C.(2d) 202 (Ont. C.A.), refd to. [para. 32].

R. v. Robertson (1962), 52 Cr. App. Rep. 690, refd to. [para. 32].

R. v. Steele (1991), 63 C.C.C.(3d) 149 (Que. C.A.), refd to. [para. 36].

R. v. Roberts (1975), 24 C.C.C.(2d) 539 (B.C.C.A.), refd to. [para. 36].

R. v. Lowe (1974), 21 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 40].

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. 40].

R. v. Mailes, 2001 NSWCCA 155, refd to. [para. 40].

R. v. Podola (1959), 43 Cr. App. Rep. 220 (Ct. Crim. App.), refd to. [para. 40].

Bratty v. Attorney General for Northern Ireland, [1963] A.C. 386, refd to. [para. 40].

Russell v. H.M. Advocate, [1946] S.C.(J.) 37 (H.C.), refd to. [para. 40].

Hughes v. H.M. Advocate, [2002] S.C.(J.) 23 (H.C.), refd to. [para. 40].

R. v. Richards, 1994 SASC 4889, refd to. [para. 40].

R. v. Conway (2002), 172 A.L.R. 185 (F.C.A.), refd to. [para. 40].

R. v. Arnold (2003), 40 M.V.R. 488 (S.A.S.C.), refd to. [para. 40].

Colorado v. Palmer (2001), 31 p. 3d 863 (Col. Sup. Ct.), refd to. [para. 40].

United States v. Andrews (2006), 469 F.3d 1113 (7th Cir.), refd to. [para. 40].

R. v. Daviault (H.) (1993), 173 N.R. 1; 64 Q.A.C. 81; 93 C.C.C.(3d) 21 (S.C.C.), refd to. [para. 47, footnote 5].

R. v. Boylen (1972), 18 C.R.N.S. 273 (N.S. Mag. Ct.), refd to. [para. 47, footnote 6].

R. v. Majid (F.S.) (1997), 159 Sask.R. 104; 119 C.C.C.(3d) 161 (Q.B.), refd to. [para. 47, footnote 7].

R. v. Stone (B.T.) (1999), 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1; 134 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 47, footnote 7].

R. v. McLeod, Pinnock and Farquharson (1983), 66 N.R. 309; 6 C.C.C.(3d) 29 (Ont. C.A.), affd. (1986), 66 N.R. 308; 27 C.C.C.(3d) 383 (S.C.C.), refd to. [para. 54, footnote 8].

R. v. Parrott (W.), [2001] 1 S.C.R. 178; 265 N.R. 304; 198 Nfld. & P.E.I.R. 260; 595 A.P.R. 260, refd to. [para. 62].

R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91, refd to. [para. 69, footnote 9].

R. v. Rose (J.) (1998), 232 N.R. 83; 115 O.A.C. 201; 129 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 73].

R. v. Lyons (1987), 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 73].

R. v. Mills (B.J.) (1999), 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201; 139 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 73].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 16(1), sect. 16(4) [para. 22].

Criminal Code, R.S.C. 1985, c. C-46, sect. 2 [para. 24].

Authors and Works Noticed:

Barrett and Shandler, Mental Disorder in Canadian Criminal Law (2006), pp. 3-6 to 3-7, fn. 15 [para. 27].

Martin's Annual Criminal Code (2007), p. 1218 [para. 28, footnote 2].

Tollefson, Edwin A., and Starkman, Bernard, Mental Disorder in Criminal Proceedings (1993), p. 42 [para. 28, footnote 2].

Tremeear's Criminal Code (2008), p. 15 [para. 28, footnote 2].

Counsel:

Timothy E. Breen, for the appellant;

David Finley, for the respondent.

This appeal was heard on May 29, 2007, before Feldman, Blair and LaForme, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court was delivered by Blair, J.A., and released on November 9, 2007.