R. v. Warsing (K.L.), (1998) 233 N.R. 319 (SCC)

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Major, Bastarache and Binnie, JJ.
• Citation: (1998), 233 N.R. 319 (SCC)
• Court: Supreme Court (Canada)
• Date: 17 December 1998

R. v. Warsing (K.L.) (1998), 233 N.R. 319 (SCC)

MLB Headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1998] N.R. TBEd. DE.007

Her Majesty The Queen (appellant) v. Kristian Lee Warsing (respondent)

(26303)

Indexed As: R. v. Warsing (K.L.)

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé,

Gonthier, Cory, McLachlin, Iacobucci,

Major, Bastarache and Binnie, JJ.

December 17, 1998.

Summary:

The accused was convicted by a jury of two counts of first degree murder and one count of attempted murder in the death of his step-brother and step-sister and attempted murder of his step-mother. The defence of not criminally responsible on account of mental disorder was not raised at trial. Sub­sequent to his conviction, psychia­trists diag­nosed the accused as suffering from "Bipolar Affective Disorder" at the time of the offen­ces and opined that he should have been found not criminally re­sponsible on account of mental disorder. The accused appealed his convictions and sought to have the psychia­tric evidence admitted as fresh evidence and to raise, for the first time on appeal, the defence of not criminally responsible on account of mental disorder.

The British Columbia Court of Appeal, Ryan, J.A., dissenting, in a judgment report­ed 97 B.C.A.C. 137; 157 W.A.C. 137, ad­mitted the fresh evidence on appeal notwith­standing the lack of due diligence at trial, permitted the defence to be raised for the first time on appeal, ordered a new trial and made an order under s. 686(8) of the Crimi­nal Code limiting the new trial to the issue of whether the accused was not criminally responsible on account of mental disorder. The Crown appealed.

The Supreme Court of Canada, Lamer, C.J.C., and Bastarache, J., dissenting, and L'Heureux-Dubé, Gonthier and McLachlin, JJ., dissenting in part, dismissed the appeal. The court unanimously held that the Court of Appeal properly exercised its discretion in admitting the fresh evidence on appeal and in permitting the defence to be raised for the first time on appeal. Four judges (Major, Cory, Iacobucci and Binnie, JJ.) held that the Court of Appeal had jurisdiction to order a new trial and it was to be a full new trial. Three judges (L'Heureux-Dubé, Gonthier and McLachlin, JJ.) agreed that the Court of Appeal had jurisdiction, but held that the new trial should be limited to the issue of whether the accused was not criminally responsible on account of mental disorder. Two judges (Lamer, C.J.C., and Bastarache, J.) held that the Court of Appeal had no jurisdiction to order a new trial; the Court of Appeal must either uphold the conviction or substitute a verdict of not criminally respon­sible on account of mental disorder. How­ever, Lamer, C.J.C., and Bastarache, J., agreed that if the Court of Appeal did have jurisdiction to order a new trial, it must be a full new trial not limited to the mental dis­order issue.

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - The accused was con­victed by a jury of two counts of first degree murder and one count of attempted murder - The defence of not criminally responsible on account of mental disorder was not raised at trial - Subsequent to his conviction, psychiatrists diagnosed the accused as suffering from "Bipolar Affective Dis­order" at the time of the offences and opined that he should have been found not criminally responsible on account of men­tal disorder - The accused appealed his convictions and sought to have the psy­chiatric evidence admitted as fresh evi­dence and to raise, for the first time on appeal, the defence of not crimi­nally re­sponsible on account of mental disorder - The Supreme Court of Canada held that the Court of Appeal did not err in exercis­ing its "discretion to allow a new issue or defence to be raised for the first time on appeal" - The court stated that, inter alia, "it is a principle of fundamental justice that a person who was not crimi­nally respon­sible at the time of the offence should not be convicted" - See paragraphs 17 to 20.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evi­dence - General - The Supreme Court of Canada restated the rule for the admission of fresh evidence on appeal: "(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see Mc­Martin v. The Queen. (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief; and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result." - See paragraph 10.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evi­dence - General - The accused was con­victed by a jury of two counts of first degree murder and one count of attempted murder - The defence of not criminally responsible on account of mental disorder was not raised at trial - Subsequent to his conviction, psychiatrists diagnosed the accused as suffering from "Bipolar Affective Disorder" at the time of the offences and opined that he should have been found not criminally responsible on account of mental disorder - The accused appealed his convictions and sought to have the psychiatric evidence admitted as fresh evidence and to raise, for the first time on appeal, the defence of not crimi­nally responsible on account of mental disorder - The Supreme Court of Canada held that the Court of Appeal did not err in admitting the "new evidence" on appeal notwithstanding the failure to exercise due diligence (no satisfactory explanation why evidence not adduced at trial) - Although the failure to exercise due diligence would normally be fatal, where the evidence was credible and if believed could affect the verdict, the interests of justice justified admitting the evidence - See paragraphs 10 to 16.

Criminal Law - Topic 4983

Appeals - Indictable offences - Powers of Court of Appeal - Power to make any order that justice requires - The accused was convicted by a jury of two counts of first degree murder and one count of attempted murder - The defence of not criminally responsible on account of men­tal disorder was not raised at trial - Sub­sequent to his conviction, psychiatrists diagnosed the accused as suffering from "Bipolar Affective Disorder" at the time of the offences and opined that he should have been found not criminally responsible on account of mental disorder - The accused appealed his convictions and sought to have the psychiatric evidence admitted as fresh evidence and to raise, for the first time on appeal, the defence of not criminally responsible on account of men­tal disorder - The Supreme Court of Canada ruled as follows: four judges (Major, Cory, Iacobucci and Binnie, JJ.) held that the Court of Appeal had jurisdic­tion to order a new trial and it was to be a full new trial; three judges (L'Heureux-Dubé, Gonthier and McLachlin, JJ.) agreed that the Court of Appeal had jurisdiction, but held that the new trial should be limited to the issue of whether the accused was not criminally responsible on account of mental disorder; two judges (Lamer, C.J.C., and Bastarache, J.) held that the Court of Appeal had no jurisdiction to order a new trial (the Court of Appeal must either uphold the conviction or sub­stitute a verdict of not criminally respon­sible on account of mental disorder); how­ever, if the Court of Appeal did have jurisdiction to order a new trial, it must be a full new trial not limited to the mental disorder issue - See paragraphs 21 to 76.

Criminal Law - Topic 4989.2

Appeals - Indictable offences - Powers of Court of Appeal - Power to limit scope of new trial - [See Criminal Law - Topic 4983 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admis­sion of "new evidence" - [See both Cri­minal Law - Topic 4970 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 5].

R. v. Mailloux, [1988] 2 S.C.R. 1029; 89 N.R. 222; 30 O.A.C. 358, refd to. [para. 6].

R. v. Buxbaum (1989), 33 O.A.C. 1; 70 C.R.(3d) 20 (C.A.), refd to. [para. 6].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81; 63 C.C.C.(3d) 481, refd to. [para. 7].

R. v. McMartin, [1964] S.C.R. 484, refd to. [para. 11].

R. v. McAnespie (R.B.), [1993] 4 S.C.R. 501; 162 N.R. 155; 68 O.A.C. 185, refd to. [para. 11].

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46, refd to. [para. 12].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 13].

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. 13].

R. v. R.C. (1989), 31 O.A.C. 375; 47 C.C.C.(3d) 84 (C.A.), refd to. [para. 16].

R. v. Potvin (R.), [1993] 2 S.C.R. 880; 155 N.R. 241; 66 O.A.C. 81, refd to. [para. 17].

R. v. Rollocks (R.) (1994), 72 O.A.C. 269; 91 C.C.C.(3d) 193 (C.A.), refd to. [para. 17].

R. v. Vidulich (1989), 37 B.C.L.R.(2d) 391 (C.A.), refd to. [para. 17].

R. v. Wade (W.) (1994), 69 O.A.C. 321; 89 C.C.C.(3d) 39 (C.A.), refd to. [para. 30].

R. v. Thomas (A.F.) (1998), 233 N.R. 266 (S.C.C.), refd to. [para. 31].

R. v. Pearson (E.) (1998), 233 N.R. 367 (S.C.C.), refd to. [para. 34].

R. v. Barnes (1990), 54 C.C.C.(3d) 268 (B.C.C.A.), affd. [1991] 1 S.C.R. 449; 121 N.R. 267, refd to. [paras. 35, 59].

R. v. Guillemette, [1986] 1 S.C.R. 356; 66 N.R. 19, refd to. [para. 35].

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163, refd to. [para. 40].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1; [1984] 6 W.W.R. 289, refd to. [para. 40].

R. v. Trabulsey (K.) et al. (1995), 80 O.A.C. 43; 97 C.C.C.(3d) 147 (C.A.), refd to. [para. 40].

R. v. Price (S.L.), [1993] 3 S.C.R. 633; 157 N.R. 378; 145 A.R. 231; 55 W.A.C. 231, refd to. [para. 44].

R. v. Thomson (B.C.) (1995), 63 B.C.A.C. 60; 104 W.A.C. 60; 102 C.C.C.(3d) 350 (B.C.C.A.), refd to. [para. 49].

R. v. Mahoney, [1982] 1 S.C.R. 834; 41 N.R. 582, refd to. [para. 49].

R. v. Mack, [1988] 2 S.C.R. 903; 90 N.R. 173, refd to. [para. 59].

R. v. Laverty (1990), 80 C.R.(3d) 231 (B.C.C.A.), refd to. [para. 59].

R. v. Maxwell (1990), 42 O.A.C. 71; 61 C.C.C.(3d) 289 (C.A.), refd to. [para. 59].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 59].

Reference Re R. v. Gorecki (No. 2) (1976), 32 C.C.C.(2d) 135 (Ont. C.A.), refd to. [para. 59].

Melnychuk v. Heard (1963), 45 W.W.R.(N.S.) 257 (Alta. S.C.), refd to. [para. 71].

Gould v. Yukon Order of Pioneers, Dawson Lodge No. 1 et al., [1996] 1 S.C.R. 571; 194 N.R. 81; 72 B.C.A.C. 1; 119 W.A.C. 1, refd to. [para. 71].

R. v. Chartrand (J.), [1994] 2 S.C.R. 864; 170 N.R. 161; 74 O.A.C. 257; 91 C.C.C.(3d) 396, refd to. [para. 71].

Reference Re Goods and Services Tax, [1992] 2 S.C.R. 445; 138 N.R. 247; 127 A.R. 161; 20 W.A.C. 161, refd to. [para. 71].

R. v. Deruelle, [1992] 2 S.C.R. 663; 139 N.R. 56; 114 N.S.R.(2d) 1; 313 A.P.R. 1, refd to. [para. 71].

Thomson v. Canada (Minister of Agriculture), [1992] 1 S.C.R. 385; 133 N.R. 345; 89 D.L.R.(4th) 218, refd to. [para. 71].

Waldick et al. v. Malcolm et al., [1991] 2 S.C.R. 456; 125 N.R. 372; 47 O.A.C. 241, refd to. [para. 71].

Mitchell and Milton Management Ltd. v. Peguis Indian Band et al., [1990] 2 S.C.R. 85; 110 N.R. 241; 67 Man.R.(2d) 81, refd to. [para. 71].

Canadian Imperial Bank of Commerce v. 64576 Manitoba Ltd., [1990] 5 W.W.R. 419; 67 Man.R.(2d) 172 (Q.B.), affd. [1991] 2 W.W.R. 323; 70 Man.R.(2d) 41 (C.A.), refd to. [para. 71].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81; 69 D.L.R.(4th) 489, refd to. [para. 71].

Rawluk v. Rawluk, [1990] 1 S.C.R. 70; 103 N.R. 321; 38 O.A.C. 81; 23 R.F.L.(3d) 337, refd to. [para. 71].

R. v. Thompson et al., [1990] 2 S.C.R. 1111; 114 N.R. 1; 59 C.C.C.(3d) 225, refd to. [para. 71].

Bell Canada v. Canadian Radio-Television and Telecommunications Commission, [1989] 1 S.C.R. 1722; 97 N.R. 15, refd to. [para. 71].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 683(1)(b), sect. 683(1)(d), sect. 686 (1)(a), sect. 686(1)(d), sect. 686(2), sect. 686(8) [para. 3]; sect. 695(1) [para. 35].

Authors and Works Noticed:

Driedger, Elmer A., The Construction of Statutes (3rd Ed. 1994), pp. 56, 248 [para. 70].

Lagarde, I., Droit pénal canadien (2nd Ed. 1974), vol. 2, p. 1685 [para. 49].

McKinnon, G.D., The Criminal Lawyers' Guide to Appellate Court Practice (1997), p. 93 [para. 49].

Counsel:

William F. Ehrcke, Q.C., and W.J. Scott Bell, for the appellant;

Manuel A. Azevedo and Albert C. Peeling, for the respondent.

Solicitors of Record:

Ministry of the Attorney General, Vancouver, B.C., for the appellant;

Azevedo & Peeling, Vancouver, B.C., for the respondent.

This appeal was heard on June 19, 1998, before Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.

On December 17, 1998, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Major, J. (Cory, Iacobucci and Binnie, JJ., concurring) - see paragraphs 1 to 36;

L'Heureux-Dubé, J. (Gonthier and Mc­Lachlin, JJ., concurring), dissenting in part - see paragraphs 37 to 64;

Lamer, C.J.C., and Bastarache, J., dis­senting - see paragraphs 65 to 76.