2012 QCCA 964, 2012 QCCA 964

Unofficial English Translation Mailhot c. R. 2012 QCCA 964 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004174-080 (500-01-014790-049) DATE: May 23, 2012 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. MARC BEAUREGARD, J.A. FRANÇOIS DOYON, J.A. JEAN-PHILIPPE MAILHOT APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Complainant JUDGMENT [ 1 ] The appellant appeals from the verdict rendered by a jury on June 30, 2008, District of Montreal (the Honourable Judge Jean- Guy Boilard) that convicted him of second degree murder. [ 2 ] For the reasons of the Beauregard, J.A., with which the Chief Justice agrees; [ 3 ] THE COURT: DISMISSES the appeal; [ 4 ] For his part, Doyon, J.A. would have allowed the appeal and ordered a new trial on the following question of law: In his

summary of the defence, the trial judge altered its essence and implicitly and erroneously led the jury to reject it by essentially giving an opinion on the verdict. NICOLE DUVAL HESLER, C.J.Q. MARC BEAUREGARD, J.A. FRANÇOIS DOYON, J.A. Mtre Christian Desrosiers DESROSIERS JONCAS MASSICOTTE For the appellant Mtre Carole LeBeuf CRIMINAL AND PENAL PROSECUTOR For the respondent Date of hearing: November 29, 2011

REASONS OF BEAUREGARD, J.A. [ 5 ] The appellant appeals from the verdict rendered by a jury on July 2, 2008, District of Montreal (the Honourable Judge Jean- Guy Boilard) that convicted him of second degree murder. [ 6 ] In the early morning of October 13, 2004, the appellant's wife died in his presence. By his own admission, he had just stabbed her 33 times. Only one of these knife wounds was potentially fatal, and was delivered [ translation ] "in the agonal phase".

A first wound, also potentially fatal, was delivered either by the wife herself, who allegedly wanted to commit suicide, or by the appellant. [ 7 ] Among other issues, the jury had to determine whether the evidence established beyond a reasonable doubt that it was the appellant who had delivered this first fatal wound or, if not, whether it was proved beyond a reasonable doubt that, by delivering the other 33 stab wounds, one of which was potentially fatal, the appellant had intentionally contributed significantly to the death of his wife.

If the jurors were individually of the opinion that one of these scenarios was proved, they could as a group convict the appellant of murder, so long as, in the second scenario, the appellant had not persuaded them that he was probably suffering from a mental disorder within the meaning of

section 16 of the Criminal Code ("

section 16 ") when he stabbed her 33 times. [ 8 ] After her death, the appellant took some costume jewelry from a case belonging to his wife, put it in a bag with the knife from which he had just washed the blood and, leaving the apartment he had shared with her, hid the bag in a vacant lot nearby. It is established that he wanted to make it appear as though the murder had been committed by a robber. [ 9 ] At 4:35 a.m., back at the apartment, the appellant dialled 911.

Although his body and clothes were spattered with blood and his story was in no way credible, he told the dispatcher that upon arriving home, he had found his wife [ translation ] "full of holes". He was panicking. [ 10 ] Immediately afterwards, when he spoke to an operator at the police department, he told a second ridiculous lie, saying that his wife had been attacked by an intruder while he had been out taking a walk.

Again, the appellant was panicking. [ 11 ] When the operator asked, [ translation ] "Was she suicidal?" He answered, [ translation ] "No, not anymore." He added, [ translation ] "My wife is dead, call someone." [ 12 ] The police officers arrived at the scene at 4:39 a.m. Again, the appellant was panicking. He was short of breath, hiccupping, talking to himself, and crying. According to one of the officers, he had a fit when it was confirmed that his wife was dead. [ 13 ] The pathologist found that the (suicide or homicide) victim had been stabbed 34 times.

One of the knife wounds was delivered to her throat and was potentially fatal (death would have occurred within three minutes). It could have been delivered by the victim herself or by someone else. She had another potentially fatal wound to her heart. The appellant admitted that this was one of the 33 that he delivered.

The throat wound was delivered before the one to the heart, which was delivered as the victim was dying from the throat wound. [ 14 ] The appellant testified before the jury as follows. [ 15 ] The victim, who was suicidal, cut her own throat in front of him, after which, to alleviate her suffering and in a dissociative state (he was like a robot watching himself from outside his own body), he stabbed her 33 more times.

He states (it is a little vague) that the victim was no longer moving when he began stabbing her, but his testimony in this respect gives pause when it is compared to his prior out-of-court statements. In one of these statements, he is reported to have stated that the victim was still moving as he was stabbing her, and on both that occasion and another, he apparently stated that he wanted to spare his wife the agony that he was watching her suffer.

He told the jury that he did not know whether his wife was still alive when he stabbed her 33 times, but he wanted to alleviate her suffering in the event that she was. [ 16 ] A few hours earlier, the victim had told the appellant that she wanted to commit suicide. The appellant tried to dissuade her from this grisly plan, but because he was unable to, he told her that he would also kill himself at the same time.

But after his wife died, he could not do it: he was afraid of dying and his arm would not obey his brain. [ 17 ] Some time after she told him that she wanted to kill herself but before she did anything about it, the victim asked him to give her a glass of cider and to put two or three antidepressants in it. The side effect of these pills was sleepiness. The appellant agreed and did so. She wanted to know whether she should use that method to commit suicide, but she did not like the effect of the potion.

This was the medication that the couple had bought a few hours earlier at the pharmacy, on the victim's suggestion, to counteract the appellant's insomnia, which had been worrying the victim.

In the afternoon of October 12, taking advantage of some rare free time, the appellant and his wife had taken a bus from Laval to a clinic on St-Denis Street in Montreal, where they waited a few hours for a prescription for antidepressants, after which they purchased the medication at a pharmacy before returning home around 9:00 p.m. [ 18 ] The couple did not sleep between their meal, which they had at a little after 9:00 p.m., and the death, which occurred around 4:00 a.m.

During the evening, the victim allegedly chatted online for forty minutes with the appellant's best friend, but the appellant did not realize this. The couple then entertained themselves for quite a while by playing an online game, and then between 3:00 a.m. and 3:40 a.m., they had sexual intercourse. Around 4:00 a.m., when the victim slit her own throat, she was sitting in front of her computer and had just listened to some music. [ 19 ] After they had sexual intercourse, the victim asked the appellant to bring her a knife, which she said she was going to use to kill herself.

[ 20 ] The appellant brought her the knife. [ 21 ] The appellant told the jury that he had invented the robbery scenario and lied to the dispatcher and the operator because he wanted to hide the fact that his wife had committed suicide. He did not say that it was because he felt a certain amount of guilt for having helped his wife kill herself or for stabbing her 33 times. [ 22 ] According to counsel for the appellant and counsel for the respondent before the jury, there was no evidence of a motive on the appellant's part to kill his wife, and the judge himself agreed.

As a matter of fact, in their view, there was evidence of a lack of a motive. Nevertheless, this point was open to debate, and the jury could reasonably have found otherwise. [ 23 ] A woman living in the apartment above the couple stated that she heard noise and moaning, some of which she believed was a woman's. According to the appellant, this can be explained by the fact that the sexual intercourse that the couple had that night was intense.

According to the neighbour, however, this was the first time she had heard that kind of noise from the couple since they had moved in two months earlier. [ 24 ] According to an expert in the field, the sperm found in the victim's vagina during the autopsy no longer had flagella, which may be an indication that the last time the appellant and his wife had had sexual intercourse was twelve or more hours before the death (although the expert concedes that there could be another explanation). [ 25 ] The appellant explains that he was the source of the additional noise and moaning that the neighbour heard not long before the police arrived.

When he returned to the apartment after hiding the knife and the jewelry, the horror that had taken place sank in as he realized that his wife, with whom he was very much in love and had married only two months earlier, was dead. He says that he wailed and beat his fist against the wall violently. [ 26 ] One month after the incident, the appellant gave his cell mate more or less the same version that he gave to the jury, namely, that his wife had slit her own throat and that he subsequently stabbed her so that she would not suffer.

But, unlike what he eventually told the jury (that is, that his wife was not moving at the time), the cell mate, in his own words, reported that he told him the following: [ translation ] "she was moving and suffering a lot and so he tried to finish her off as quickly as possible with the knife". On that occasion, the appellant did not try to hide the fact that his wife had committed suicide.

The appellant also allegedly told his cell mate that [ translation ] “he couldn't feel his fingers anymore; he was a different person and he couldn’t believe she was dead; his wife had an unpredictable personality and he never knew how she was going to feel when he got back from work". [ 27 ] According to his best friend, some time after the incident the appellant said that he saw that his wife was in the process of committing suicide when he returned home: [ translation ] "He said that he lost control of his senses" and he allegedly [ translation ] "finished her off". [ translation ] "He wasn't really aware of what was happening anymore; he could remember but at the time, he wasn't thinking". (We must be careful here and not accept this testimony as anything other than the friend's imprecise memory).

The witness added that the appellant told him that, as the victim was dying, she wrote “I love you” on the parquet floor, in a pool of her own blood. The appellant admitted to the jury that this is what he had told his friend but he added that he was not certain whether it had in fact happened.

His testimony is unclear in this respect. [ 28 ] The pathologist stated that the victim had superficial cuts on her right hand that could be consistent with her defending herself. [ 29 ] In paragraph 23 of its factum, the respondent correctly summarized a part of the pathologist's testimony: [ translation ] Upon completing the autopsy, Dr. Bourgault concluded that the death was caused by a "secondary hemmhoragic and cardiogenic shock from the passage through the body of a pointed, sharp instrument 34 times, injuring the heart and the large blood vessels on the right side of the neck".

The blood infiltration caused by the wounds at the back of the neck (wounds 6 and 7) and the placement of the wounds on her back that the victim could not have delivered herself suggest they preceded those on the abdomen. [ 30 ] A psychiatrist called by the appellant told the jury that there is a mental disorder known as "dissociation" and that such a disorder may occur when a person witnesses a situation like the one described by the appellant.

He added that, according to the appellant's testimony – which as an expert he must assume is proved to be true – when the witness observed his wife's act, he went into a partial dissociative state and, later on, a total dissociative state.

But he conceded that it was possible that the appellant was not in a dissociative state when he delivered the first ten stab wounds, which the appellant told him he remembered. (At trial, the appellant referred to stabbing her seven or eight times.) The psychiatrist added that the victim's mental health was perhaps not unrelated to the aggression that the appellant displayed when he stabbed her with the knife.

In this regard, the appellant himself had previously told the jury that [ translation ] "there was accumulated stress" due to fact that he never knew [ translation ] "how she was going to be when I got home". [ 31 ] The evidence tending to establish that the victim was still suicidal at the time of the incident is contradicted by other evidence tending to demonstrate that, since her arrival in Canada and her marriage to the appellant a few weeks beforehand, the victim was no longer self-mutilating and no longer seemed to have suicidal thoughts.

There is also other evidence showing that the victim gave no suggestion that she was depressed in the hours leading up to the incident. On the contrary, she allegedly expressed a great deal of enthusiasm about the new life in front of her. This evidence is corroborated by the answer the appellant gave to the police department operator stating that his wife was no longer suicidal: [ translation ] "No, not anymore". - 0 – A. REASONABLENESS OF THE VERDICT

[ 32 ] In addition to the grounds alleging that the judge made a number of errors in his charge to the jury, the appellant submits before this Court that the verdict is unreasonable in that it found that the appellant caused the victim's death in one way or another, that the appellant was not suffering from a mental disorder (the temporary dissociation referred to above) at the time of the incident, and that in any event he intended to kill her. [ 33 ] Obviously the Court must not consider what it would have decided had it been in the jury's place.

Rather, it must consider whether, based on the evidence that was before it and in the proper light shed by the law, it was reasonable for the jury to find that the appellant had not proved on a balance of probabilities that when he delivered the 33 stab wounds he was suffering from a mental disorder within the meaning of

section 16 and that it had been proved beyond a reasonable doubt that the appellant had intentionally caused the victim's death. [ 34 ] To find that the appellant was in a dissociative state when he delivered the 33 stab wounds, it is necessary, as the psychiatrist conceded, to believe what the appellant said to his cell mate, his close friend, and the jury when describing his state of mind after he had, according to him, witnessed his wife's act. [ 35 ] Indeed, it was open to the jury either to believe or not to believe the appellant, to assess the probative value of his version, and to decide whether he had met his burden of proof regarding the mental disorder.

Thus, despite the evidence in favour of the appellant's submission (the unusual nature of the incident, his statements to the dispatcher and the operator, his actions in front of the police officers, and his description to his cell mate of how he felt as he was stabbing her, the frenzy with which he stabbed her, and the ridiculousness of his attempts to cover up his actions), I cannot find that the jury's decision on this ground is unreasonable. [ 36 ] The jury's implicit finding that the appellant acted intentionally is also not unreasonable. [ 37 ] This is obvious if the appellant is the one who cut the victim's throat. [ 38 ] It is also obvious if we find that the appellant, although not suffering from a mental disorder and whatever his state of mind, imagined that his wife was still alive and wanted to alleviate her pain by stabbing her in the vital organs. [ 39 ] The jury's implicit finding that the victim was alive before the appellant stabbed her is also not unreasonable. [ 40 ] This is obvious if it was the appellant who delivered the fatal wound to the throat. [ 41 ] If the jurors were not persuaded that the appellant was the one who delivered this first wound, they could still reasonably conclude beyond any reasonable doubt that the victim was not yet dead when the appellant stabbed her in the heart.

In this respect, the jury could have based themselves on the following: (1) the opinion and statement of the pathologist that the victim was [ translation ] "in the agonal phase" when she was stabbed in the heart and that the marks on her right hand could indicate that she tried to defend herself; (2) the testimony of the neighbour, which is not without relevance on this point; and (3) the statement the appellant allegedly made to his cell mate or the one he made to his best friend.

Finally, even though the fact that the appellant himself believed that he had to stab the victim those additional times to alleviate her suffering does not necessarily establish that she was still alive when he stabbed her in the heart, it is a piece of evidence that the jury could add to the others to reach its conclusion. [ 42 ] If it was reasonable for the jury to conclude that the victim was stabbed in the heart while she was still alive, was it also reasonable for it to find beyond a reasonable doubt that the stab wound to the heart had contributed significantly to the victim's death? [ 43 ] In the event that one or more jurors did not consider it proved that the appellant had delivered the first stab wound to the throat, they could reasonably find that the knife to the heart hastened the victim's death as the appellant had wanted, and that in this way he contributed significantly to the victim's death. [ 44 ] Since the jurors were told that they could find the appellant guilty: (1) of delivering the first stab wound, or merely (2) of hastening her death after the first stab wound was delivered by the victim herself, it must be determined whether the jury or some jurors could reasonably be convinced beyond a reasonable doubt that the appellant is the one who delivered the first wound. [ 45 ] This question is more difficult than the preceding ones. [ 46 ] At the time of the incident, the appellant was alone with his wife.

Consequently, aside from his testimony and his out-of-court versions, there is no direct evidence of what happened. [ 47 ] Normally, when a person affirms something, that person is to be believed unless there are reasons not to.

In this case, such reasons exist, and it cannot be said that the jury acted unreasonably in not giving credence to the appellant's version. [ 48 ] But, regardless of the fact that it gave no credence to the appellant's version, was it reasonable for the jury not to entertain a reasonable doubt as to the veracity of this version and not to entertain a reasonable doubt as to the appellant's guilt for having delivered the first wound? [ 49 ] As I have already mentioned, in contradiction to the evidence tending to show that the appellant's wife had been and in fact still was suicidal, there was also evidence tending to show that, since her arrival in Canada and the couple's marriage, the victim no longer showed signs of these morbid tendencies and that she seemed happy and enthusiastic about life.

It should be recalled that during the appellant's telephone conversation with the police station operator immediately after the event, he stated that the victim [ translation ] "was no longer suicidal". Indeed, what evidence could have better informed the jury on this issue than this statement by the appellant himself? [ 50 ] On the other hand, there is evidence from the appellant himself that the victim was not entirely happy with the fact that the appellant had little time to devote to her and that this caused him stress to the point where the jury could reasonably find that this stress

was not unrelated to what transpired. In short, it is not at all a given that the appellant had no motive to get rid of his wife.

Moreover, the evidence of a lack of apparent motive is not evidence of an absolute lack of motive. [ 51 ] The jury could also base itself on the fact that there are ways to commit suicide that cause less pain than stabbing oneself in the throat. [ 52 ] The jury could also base itself on the fact that one of the victim's hands bore wounds that, while superficial, could have been received in self-defence. [ 53 ] If the appellant's attempt to cover up the incident and his lies in this respect can be attributed to his desire to hide the fact that his wife had committed suicide, the jurors could doubt the appellant's credibility in this respect, interpret the cover-up and lies differently, and add the evidence in this respect to the other evidence, on condition that the appellant's subsequent behaviour had some weight to prove that the appellant had a guilty conscience for having stabbed the victim in the throat, rather than for having stabbed her the other 33 times. [ 54 ] The jury could also base itself on the fact that, in addition to the fatal wound to the neck, there were four other wounds on the victim's face and the front of her neck, as well as three other wounds on the back of her body, including two on the back of the neck.

This irrefutable evidence does not square with the appellant's version concerning the wounds he remembers delivering (to the front of the victim's body) and the reason he delivered them. [ 55 ] The jury could also take into account the fact that the appellant was lying when he did not recall the wounds delivered to the head and back of the neck. [ 56 ] The jury could also base itself on the fact that the appellant seems to have lied when, contrary to what he had said before, he stated rather unconvincingly to the jury that his wife was no longer moving when he began to stab her. [ 57 ] The jury could also base itself on the testimony of the neighbour and find that the appellant had lied when explaining the noise and moaning that she heard. [ 58 ] The jury could also find that the desire to prevent the victim from suffering by stabbing her an additional 33 times with a knife is not very easy to believe. [ 59 ] While none of the individual pieces of evidence could, on its own, lead to a conviction that the appellant is the one who cut her throat, the same is not true when all of the evidence is taken together as a whole. [ 60 ] If, after rejecting the

section 16 defence and after having considered all the evidence (of both the prosecution and the defence), the jury entertained no reasonable doubt as to the lack of veracity of the appellant's version whereby his wife committed suicide or was no longer alive when he wanted to stop her suffering, the only possible conclusion was that the victim did not commit suicide and that it was the appellant who killed her intentionally. In this case, it cannot be said that, if the appellant's testimony is rejected, the other evidence does not reasonably support a finding that he killed his wife.

If he had not testified, he quickly would have been found guilty. Moreover, even if the jury did not believe most of the appellant's version, it could infer elements from his testimony that suggested guilt. [ 61 ] It is possible that a different jury could have accepted the

section 16 defence or entertained a reasonable doubt as to whether the appellant had delivered the first wound, as to whether the victim was still alive when he stabbed her, or as to whether stabbing her in the heart contributed significantly to the victim's death, but it cannot be said that the evidence, seen in the light shed by the law, did not justify the jury finding as it did. B.

THE CAUSAL LINK [ 62 ] The appellant submits that the judge improperly directed the jury on the issue of the need for a causal link between the acts committed by the appellant and the death of his wife for there to have been a murder. [ 63 ] The link is obvious if the appellant is the one who delivered the first fatal wound to the throat. [ 64 ] But since the jury or some of the jurors may have found that there was no proof beyond a reasonable doubt that the appellant delivered the first wound but that there was such proof that, together with the throat wound, the other wounds caused the victim's death, the issue of whether the judge correctly instructed the jury on the issue of causation is relevant. [ 65 ] Obviously, death may occur after one or many acts without this act or these acts being the cause of death: there is a difference between a death that occurs "after"

an act (" post ") and one that takes place "because" of

an act (" propter "). [ 66 ] On the other hand, one of several acts that together constitute the cause of death does not stop being one of the causes of death even if it is found that death would have taken place without this act or even if the act is not the most important of those causes. [ 67 ] But for the purposes of section 222(5) of the Criminal Code , the act must be a significant contributing cause of death. [1] [ 68 ] This is in substance what the judge said to the jury, although, as the appellant submits, he used the word " significative " in French [ translation : significant, meaningful] whereas the term in French is " appréciable " [ translation : significant, considerable, noticeable].

The appellant argues that the term used does not render the notion that the contribution must be " appréciable " [ translation : considerable].

[69] The appellant does not persuade me that the jury could have been induced into error by the use of the words "causecontributoire significative" used by the judge instead of the words "cause contributive appréciable". [70] The judge did not err in saying that, in law,

an act may be a cause of death even though it does nothing more than hasten thearrival of death, and he did not induce the jury into error by saying this. [71] Incidentally,

an act that breaks the causal link between

an act and its effect is, logically, a new act ("novus actus interveniens")committed after the first act, not before it. C. HASTENING DEATH [72] Away from the jury, counsel and the judge discussed the application of

section 226 of the Criminal Code (“section 226”).Citing the English version of the provision, counsel for the appellant proposed that the provision applies only where the victim wasafflicted by an illness or a disorder, not where there was an injury inflicted by the victim himself or herself. Counsel for the prosecutionalso doubted the strict applicability of the provision. As for the judge, he had no doubt. [73] But subsequently, persuaded that the common law[2] recognized the general principle of which

section 226 was merely oneapplication, the judge did not mention the specific wording of

section 226 to the jury. Instead, as I have just pointed out, he stated andreiterated that if the appellant's actions hastened the victim's death, there was a causal relationship between the appellant's acts and thedeath. [74] As I have already stated this instruction was correct, and the judge was not required to read the text of

section 226, which wouldhave added nothing useful. [75] Within this ground, counsel for the appellant submits that, in any event, the judge did not tell the jury that the prosecution borethe burden of proving that the stab wounds inflicted by the appellant hastened the victim's death and, on the contrary, that hisinstructions suggested that the burden was on the appellant. In support of this submission, the appellant refers in his factum to astatement made by the judge: [translation] "the injury to the heart was likely to hasten the death".

In my opinion, by saying so, the judgewas merely stating the obvious (it is clear that a stab wound to the heart can hasten the death of a person who has already been stabbed inthe throat), and he did not state that the injury to the heart in fact hastened the death in this case. In any event, absent an error in readingon the part of counsel for the respondent and on my part, this statement was made away from the jury.

When the judge's instructions areread as a whole, it is clear that the jury knew that it could not convict the appellant for hastening the victim's death without beingconvinced of this fact beyond any reasonable doubt. See, inter alia, pages 101, 103 and 105 of the appellant's factum. D.

NECESSITY DEFENCE [76] Clearly, the judge had to consider the possibility that one of the jurors would not be persuaded that the appellant had cut hiswife's throat but would believe that the stab wounds the appellant delivered did contribute significantly to her death. [77] The judge also had to consider the possibility of such a juror finding the appellant's statement that he stabbed his wife becausehe wanted to end her suffering to be plausible. [78] That is what the judge did, but he refused to allow the jury to acquit the defendant on the basis of the fact that he acted out ofnecessity.

The judge relied on the Supreme Court judgment in R. v.

Latimer (No. 2), 2001 SCC 1 , [2001] 1 S.C.R. 3. [79] The appellant submits that the facts in Latimer were very different: in that case the victim was not in horrible pain and her deathwas not imminent, and consequently there was no need to act quickly. [80] The argument has weight, but it does not persuade me. [81] While it is accepted that doctors may stop dispensing care to an invalid who is dying and prescribe medications that will notcure the patient but will ease his or her pain, the law does not yet accept that doctors may cause death, even if they use means that aremore humane than those allegedly used by the appellant in this case.

As the law currently stands, it is not permitted to hasten the deathof a human being to relieve his or her pain, as one would a suffering animal.

I accept the respondent's submission that [translation] "Theharm inflicted by the appellant, [a voluntary homicide], is a serious transgression of the values of society that is much weightier than theharm that he sought to avoid, namely, the suffering of the victim [for less than three minutes] ". [82] In any event, I cannot imagine that a jury that had been properly instructed in law would have wanted to excuse the appellantfor wishing to ease his wife's pain by stabbing her 33 times, which did not alleviate her pain but rather caused her more.

The jury foundthat there was greater harm in stabbing her 33 times than allowing the dying victim to suffer. It is not without interest that, according tothe pathologist, the two stab wounds to the back of the neck were delivered before the wound to the heart. The jury no doubt took thisfact into account. E. AIDING SUICIDE [83] Counsel for the appellant asked the judge to tell the jury that, under

section 241 of the Criminal Code ("section 241"), aiding aperson to commit suicide is an indictable offence. [84] Agreeing with the arguments of counsel for the prosecution, the judge refused to do so on the grounds that this offence was notincluded in the offence of murder, that such an instruction could lead to some confusion in the minds of the jurors unless the judgeprovided long explanations, and that it could lead some jurors to avoid their duty to decide whether the accused was guilty of murder butkeep their conscience clear since they would believe that, even though the appellant was acquitted of murder, he could still be convicted

subsequently for aiding his wife to commit suicide. Thus, the instruction would have provoked disagreement among the jurors. [ 85 ] With respect, I am of the opinion that the grounds raised by counsel for the prosecution and the judge are without merit. The fact that the offence contemplated in

section 241 is not included in that of murder is not relevant. Moreover, if the jury has the right to be informed about a subject, it cannot be denied this right on the grounds that it might misuse it. I am of the opinion that, in principle, on relevant questions of law, the jury should know as much as would a judge sitting alone. In this case, however, there was no reason to tell the jury about the existence of

section 241 . [ 86 ] Counsel for the appellant asked the judge to tell the jury about the existence of

section 241 so that he could argue that his client lied after the incident because he wanted to hide the fact that he himself had committed an indictable offence by aiding his wife to commit suicide and to prevent the jury, who would otherwise remain unaware of the existence of the indictable offence of aiding suicide, from refusing to acquit him of murder because it believed that the accused's general conduct was blameworthy and that it should be sanctioned. [ 87 ] These two grounds have no merit.

The first because, in his testimony, the appellant did not give this reason for lying, and the argument therefore had no factual basis. It would have been different if the appellant had given this reason. The judge could not have prevented the appellant from providing this reason and would have had to discuss

section 241 . On the other hand, it is not realistic to believe that the circumstances of the case are such that some jurors would have convicted the appellant of murder even if they were not convinced of his guilt beyond a reasonable doubt merely because they did not agree with his behaviour and did not know that it might be sanctioned by the law. F.

INSTRUCTIONS ON THE POSITION OF THE DEFENCE [ 88 ] The appellant argues that the judge presiding a jury trial must, [ translation ] "save in rare cases where it would be pointless to do so, review the essential elements of the evidence and outline the defence's argument to the jury so that it may assess the value and impact of this evidence and how to apply the law to the facts observed". [ 89 ] He then submits that the judge did not perform this task correctly.

In his view, the instructions were neither complete nor balanced, and they even had the effect of discrediting the appellant's defence, particularly the defence of the mental disorder he alleges to have suffered. (

a) Causation [ 90 ] I am of the view that, on pages 101 to 105, 146 and 147 of the appellant’s factum, the judge correctly drew the jury's attention to the fact that it had to be convinced beyond any reasonable doubt that the appellant had delivered the first stab wound or that the victim was still alive when he stabbed her in the heart. Where the judge did err somewhat was in stating that the appellant had told the jury that the victim was still moving or that she was no longer moving when he stabbed her in the heart.

This is not what the appellant specifically told the jury (although as I have already stated, the appellant's testimony in this respect is rather vague), but rather what he told his cell mate. If we take into account all of the testimony of the appellant before the jury on this point, as well as the testimony of the cell mate and the appellant's friend, we may understand how the judge came to that conclusion. In any event, it is clear that the appellant did not say that the victim was already dead when he stabbed her in the heart.

Therefore, it was very much open to the jury to find that the victim was still alive when she was stabbed in the heart, whether she was still moving or had only stopped moving a few seconds earlier. If the judge had not made this statement, the verdict would not have been different. But it is curious that the judge refused to correct what he had somewhat erroneously stated. (

b) The judge treated the psychiatrist Morissette cavalierly [ 91 ] Upon reading the pages to which the appellant directs us in his factum, I do not find this to be the case. (

c) Summary of the testimony of the psychiatrist Morissette [ 92 ] The appellant faults the judge for summarizing the testimony of the psychiatrist Morissette in only twenty lines or so. [ 93 ] The respondent is correct to say that the psychiatrist had testified the day before the instructions were given, so what he had said was still very fresh in the jury's mind. Indeed, during his oral argument, counsel for the appellant himself said the same thing to support his reason for not analyzing the psychiatrist's testimony in detail. He nevertheless provided a good

summary. In addition, the psychiatrist's written expert report was given to the jury. Subsequently, during deliberations, the jury listened to the psychiatrist's testimony again, after having heard the parties' arguments on the subject. [ 94 ] In any event, the psychiatrist's testimony was very easy to understand: if the appellant is to be believed, he entered a partially dissociative state when he witnessed his wife's horrific act, and his dissociative state subsequently became total until, at a certain point, the appellant regained his senses when he saw yellow liquid seeping from the victim's body.

The psychiatrist explained that dissociation is a mental illness that prevents a person from thinking sensibly. See pages 114 and 115 of the appellant's factum. (

d) The judge destroyed the psychiatrist’s testimony in the mind of the jury [ 95 ] It is a fact that, on pages 117 and 118 of the appellant's factum, the judge, for all practical purposes, expressed his opinion, suggesting that the

section 16 defence was not plausible, although he denies it. It could be argued that, by using the term [ translation ] "plausible", the judge was favouring the appellant because the latter had the obligation to show not that his mental disorder was plausible but that it was probable. However, a reading of the pages makes it much clearer that this represented the judge’s opinion, not a way of assisting the jury in its consideration of the

section 16 defence. In Canada, judges have the power to give an opinion, so long as they inform the jury that it is not bound by it. [3] In this case, the judge very clearly stated this reservation. See page 46 of the appellant's factum.

[ 96 ] In my view, if a judge chooses to give an opinion on a matter that is not a pure question of law, it must be done in a manner that is fully transparent and not veiled. Above all, the judge must not suggest, after telling the jury that it is under no obligation to agree, that it would be nearly difficult to conclude otherwise. [ 97 ] Although the law still permits judges to give an opinion, it is discouraged in practice.

Cases where judges tell the jury not to feel bound by their opinion usually involve situations where the jury might be able to detect in the judge's remarks an opinion that the judge communicated involuntarily or unconsciously. While it happens that a judge might wish to express a clear opinion, in such cases the conclusion suggested is obvious. In this case, however, even though the conclusion suggested was indisputable, the judge took great care to repeat that the jury is not bound by his opinion. [ 98 ] In this case, on page 46 of the appellant’s factum, the judge gave the jury the classic instruction.

Then, when faced with an obvious fact, he gave his opinion, after which he hastened to add that the jury could disagree with him, even though it was superfluous to think that the jury might have a different view. See page 140 of the appellant’s factum. This was all very good. But the appellant is correct to find fault in the judge's statement of his opinion on one of the issues in dispute, his failure to repeat the guideline even though it would have been appropriate, and his suggestion that the answer to the question asked was rather obvious.

See pages 117 and 118 of the appellant’s factum. [ 99 ] When he suggested to the jury that the

section 16 defence was not plausible, the judge referred specifically to evidence that did not support the defence but did not refer to evidence that did. It is argued that the judge failed to review the appellant's testimony whereby he was no longer in a dissociative state when he attempted to cover up the situation (pages 117, 118, and 148 A.F.) and the judge relied on the intentional attempt to cover up to affirm that it was not plausible that the appellant was in a dissociative state at that moment or, consequently, when he stabbed his wife with the knife. This is a fact.

On this point, see the evidence referred to above tending to show the existence of a mental disorder in the appellant, which the judge set aside. The judge is not obliged to repeat the arguments of the parties. If he does repeat the argument of one, however, then he must do the same with respect to the other. (

e) The judge wished to convince the jury that the position of the defence was implausible [ 100 ] It was entirely correct for the judge to tell the jury that the notions of plausibility and implausibility are useful in determining whether a person is telling the truth.

These notions are also useful when an accused is not believed but there is a question as to whether he should be acquitted because his version raises a reasonable doubt as to guilt. [ 101 ] Thus, at page 165 of the appellant’s factum, the notion of plausibility is mentioned to remind the jury that if it does not believe the accused, it may nevertheless entertain a reasonable doubt as to his guilt. Therefore, the use of the word "plausible" is perfectly appropriate here, and it is to the appellant's advantage.

Subsequently, at pages 170 to 178 of the appellant’s factum, it is not clear whether the judge used the notion of plausibility to in fact express his opinion that the appellant's version was implausible. This is especially the case where the judge denigrated the test carried out by the police that shed some doubt on the veracity of the neighbour's testimony and, above all, when he suggested that it was ridiculous to think that, in the circumstances described by the appellant, the couple had sexual relations that night.

Thus, the judge entirely devalued the police test, gratuitously expressed his opinion that, given the circumstances of that night, it was not reasonable to believe that the couple had sexual relations, gave value to the neighbour's testimony, and thereby denigrated and destroyed the appellant's defence.

Although, as I have just stated, the question [ translation ] "Ask yourself whether such and such a fact is plausible" is appropriate when used to signal to the jury that the accused is entitled to the benefit of the doubt, this use is proscribed if the question can be interpreted as a veiled suggestion that it would be ridiculous for the jury to answer the question in favour of the accused.

This is all the more true if the answer to the question is determinative of guilt. [ 102 ] In reality, the appellant's criticism is that, under the guise of presenting the defence's argument to the jury, the judge did nothing more than demonstrate its implausibility. After the instructions, counsel for the appellant pointed this out to the judge. Indeed, this is the impression that a reading of the instructions gives to someone expecting the judge to begin a

section explaining to the jury the weak points of the prosecution's case and what is likely to raise a reasonable doubt as to the accused's guilt. [ 103 ] The judge did not in fact deal with the defence's argument in a special section, however, because he had already done so throughout his instructions. He told the jury that the only direct evidence came from the appellant, who was the only witness to what happened, that this evidence could justify an acquittal, and that the appellant was entitled to the benefit of a reasonable doubt as to his testimony. He dealt with

section 16 correctly. As a corollary, he stated that the Crown's case was only circumstantial and that the jury could not convict the appellant without being convinced of his guilt beyond a reasonable doubt and without being convinced on a balance of probabilities that he was not suffering from a mental disorder when he stabbed his wife 33 times.

All of this was repeated several times and was emphasized when the judge referred on two occasions to the alternatives available to the jury and the possible verdicts. [ 104 ] It should nevertheless be noted that, in a given case and despite the amount and weight of the Crown's evidence, if the judge wishes to point out evidence likely to raise a reasonable doubt in favour of the accused in a specific

section of his instructions to the jury and announces that he will do so, he should not, under the pretext of doing so, demonstrate that this evidence is not plausible and repeat the prosecution's case within this section. If he wishes to point out the weaknesses of the defence, he should do so in the

section where he comments on the prosecution's case or elsewhere in his instructions. [ 105 ] Although the judge always has the obligation to deal with the facts and outline the arguments of the parties, the task is not an easy one. If he does not wish to give his opinion, how can he appear impartial if the evidence is overwhelming and he is required to outline the defence's argument even though he does not believe it and thinks it is ridiculous?

How can he be entirely fair in questionable cases and not give either of the parties the impression that he has placed either too much or too little emphasis on any given point? If the judge has the power to give his opinion and he gives it, how can he, in the same breath, force himself to present evidence that does not support his opinion, and how can he not be obliged to argue the prosecution's case? In our humble opinion, the issue concerning the duty and the power of the judge to comment on the facts could benefit from review.

The judge could be limited to stating the law, subject to the option of directing the jury to acquit the accused in clear cases.

[ 106 ] With regard to grounds (

d) and (

e) of this section, I am of the opinion that: (1) in giving his opinion on the facts, the judge should not have omitted the testimony of the appellant whereby he was no longer in a dissociative state when he tried to cover up the event; (2) the judge should not have gratuitously shared his opinion that the couple did not have sexual intercourse on the night of the death; (3) it would have been desirable for the judge to give his opinion openly (rather than in a veiled fashion), subject to repeating, where truly appropriate, that the jury is under no obligation to share his opinion, which was not done; (4) the judge also should have referred to the evidence tending to demonstrate that his conclusions on the facts were not indisputable.

Nevertheless, since the judge has the power under the law as it stands to give his opinion on the facts, it is not appropriate to find that he erred in telling the jury what he thought. It is also not appropriate to find that a new trial is necessary because of the way the judge shared his opinion with the jury. Furthermore, I am convinced that the jurors did not feel bound because the judge did not repeat that they were free to have an opinion that differed from his own.

In short, I am of the view that, in the absence of the grounds for complaint referred to previously in this paragraph, the verdict would not have been different, and I cannot find that the trial was unfair. (

f) Presumption that the jury may draw an inference from the actions of a person, but that it is impossible to draw such an inference when the person suffers from a mental disorder or is not of completely sound mind [ 107 ] It is alleged that the judge failed to refer explicitly to the fact that the jury could not draw such an inference if it found that, even though the appellant was not suffering from a mental disorder when he stabbed the victim 33 times, he was also not in a normal state. [ 108 ] The judge did not refer to a normal person standard, but he used the term [ translation ] "normally".

It would be an insult to the jury to believe that the effect of this instruction was that the jury would have believed it possible to draw the inference referred to by the judge if it found that the appellant was in an abnormal state of mind when he stabbed the victim 33 times. In any event, the appellant himself stated that, of the 33 times he stabbed the victim, the first 7, 8 or 10 ten times were to ease her pain, thus to hasten her death in the event that she was still alive. The judge's imprecise instruction therefore had no impact on the verdict. (

g) Insufficient instructions regarding the criminal intent to kill given the evidence on the appellant's mental state, especially since the jury asked to listen to the testimony of the psychiatrist again and asked the judge to repeat his explanation of the notion of a balance of probabilities . [ 109 ] I am of the view that the judge's instructions in this respect were sufficient and correct. See pages150 and 151 of the appellant’s factum. (

h) The judge did not explain that, under

section 16, the mental disorder must be such that it affects the capacity to assess whether the act was right or wrong [ 110 ] This ground has no merit. The explanation was given, specifically in pages 107 to 110 of the appellant’s factum. G. ARGUMENT OF THE PROSECUTION [ 111 ] After trying to convince the jury that the evidence demonstrated that the appellant delivered not 33 but all 34 stab wounds, counsel for the respondent wished to be fair to the appellant.

To this end, he told the jury that there were four pieces of evidence that still baffled him: (1) the lack of evidence of motive; (2) the type of evening the appellant and his wife had spent; (3) the appellant's character; and (4) the characteristics of wound number 2. [ 112 ] As noted above, the judge also told the jury that there was evidence of a lack of a motive and explained the importance that this could have in the debate. [ 113 ] The judge did not reiterate the other three points mentioned by counsel for the respondent.

In truth, I do not see how the type of evening that the couple had, the appellant's character, and the characteristics of wound number 2 constituted evidence that the judge was obliged to point out and emphasize to the jury. Neither the judge nor the jury was required to share the point of view of counsel for the respondent regarding these three pieces of evidence. As long as the prosecution was upholding the charge and conceded nothing through [ translation ] "admissions", the evidence belonged to the jury, whose duty it was to assess it. H.

LACK OF MOTIVE [ 114 ] The appellant concedes that the judge suggested that the jurors take into account the evidence of a lack of motive in their assessment of the defence, but complains that he failed to repeat the evidence relating to this issue and to make a clear connection between the evidence of a lack of motive, the notion of the presumption of innocence, and that of a reasonable doubt. [ 115 ] This submission is clearly without merit.

The judge stated not only that there was a lack of evidence of a motive, but that there was in fact evidence of a lack of motive, and he specifically told the jury that they should take this into account. See pages 93 to 97 of the appellant’s factum. In reality, the instruction was more advantageous to the appellant than he had a right to. As I stated above, it is in no way proved that the appellant had no motive.

In this respect, see the testimony of the psychiatrist: [ translation ] During the last interviews with him, he also became aware that a certain amount of aggression had accumulated inside him given his spouse's psychological problems and the emotional weight that he had to bear, and that this psychological aggression became exteriorized through the stabbing. His aggression was not conscious before his spouse's action, but the aggression became exteriorized

afterwards, during the dissociative state. [ 116 ] In fact, we have seen that the appellant repeated in his testimony what the psychiatrist suggested. I have also noted that evidence of a lack of an apparent motive is not evidence of an absolute lack of motive. I. SUBSEQUENT BEHAVIOUR [ 117 ] The judge reminded the jury that, by his own admission, the appellant lied to the dispatcher during his 911 call and to the operator at the police station.

The judge explained to the jury that, where an accused lies and disguises one set of facts as another after an indictable offence, it may, depending on the circumstances, be inferred that the accused is the [ translation ] "perpetrator of the deed or actions alleged against him".

The judge took care to add, however, that before arriving at such a conclusion, the accused's explanation for his lie and conduct should be taken into account. [ 118 ] In this case, the appellant states that he lied and covered up the facts to prevent anyone from knowing that the victim had killed herself. [ 119 ] In the circumstances, the judge told the jury that if it had a reasonable doubt that the appellant was telling the truth when he gave this explanation, his subsequent behaviour obviously did not incriminate him. [ 120 ] On the other hand, if the jury entertained no reasonable doubts on this point, it could infer therefrom that the appellant: [ translation ] "is the perpetrator of the deed or actions alleged against him; realized that he committed the actions alleged against him; ... which indicates on his part a certain form of awareness of having done something reprehensible; ... circumstantial evidence of his commission of the deeds alleged against him; .... likely to indicate his involvement in the deeds alleged against him; ... he realized that he had done something reprehensible; ...unexplained behaviour can become circumstantial evidence likely to demonstrate his involvement in the deeds alleged against him". [ 121 ] There is no doubt that the evidence of the appellant's subsequent conduct was relevant and admissible to demonstrate the appellant's lack of credibility, his state of mind during the event, and his awareness that he had done something wrong.

But the appellant's subsequent behaviour had little relevance to whether he had stabbed the victim 34 rather than 33 times, or whether one of those 33 times he admits to having stabbed his wife was while she was still alive and whether this stab wound contributed significantly to her death. [ 122 ] Consequently, it would have been preferable for the judge to add that, if the jury was persuaded beyond a reasonable doubt that the explanation was false, it would have to determine whether the appellant's subsequent conduct was more consistent with the fact that the appellant himself is the one who had cut his wife's throat than with the fact that he stabbed her 33 times afterwards.

In the latter case, the jury would have to determine whether this conduct tended to establish that he knew that he had intentionally hastened the death of his wife or whether it tended only to establish that, regardless of what he knew about the law, he might have felt guilty. In short, the judge should have made the distinction between having a guilty conscience for having committed murder and having a guilty conscience for having stabbed his wife 33 times.

Even if the appellant did not give this explanation, the jury was free not to believe the appellant and infer this other plausible explanation from the facts. [ 123 ] It is true that the judge did not explicitly suggest that the jury could convict him for murder if the explanation did not raise a doubt in the mind of the jury, but he might as well have, for although he did not use the word [ translation ] "murder," he used the phrase [ translation ] "the deeds alleged against him".

And indeed, the only offence alleged against the appellant was murder. [ 124 ] If the jury had no doubt that the reason argued by the appellant was false, it could infer that the appellant was aware of having done something illegal (without knowing what), but not necessarily that he felt guilty for having intentionally caused the death of his wife through an illegal act. [ 125 ] The appellant's submission that the judge should have specifically told the jury that, regardless of his testimony, the appellant could have been lying to avoid prosecution for aiding someone to commit suicide or for having attempted murder is without merit.

This submission has no factual basis and is not plausible. [ 126 ] Even if the judge's instruction was defective for any reason, I am of the view that, had it been correct, the verdict would have been the same. If the jury, composed of 12 intelligent people, did not believe the appellant's explanation, it could not have been unaware that the appellant's subsequent conduct did not necessarily establish that the appellant felt guilty for stabbing the victim 34 times or for stabbing her 33 times while knowing that she was still alive. J. PLAUSIBILITY (See

section

F) K. INSTRUCTIONS AS TO REASONABLE DOUBT [ 127 ] The appellant concedes that an appellate court, when determining whether a judge's instructions to a jury were sufficient and correct, should not dwell on any one instruction but consider whether the instructions overall were appropriate.

He submits, however, that in the present case, due to various omissions or incorrect statements, the instructions on the notion of reasonable doubt could only have created confusion in the mind of the jurors. [ 128 ] The appellant makes the following submissions, and I shall consider each in turn. [ 129 ] The judge did not make the connection between the notion of reasonable doubt and that of the presumption of innocence. [ 130 ] I do not see this connection.

If there is a logical connection between the presumption of innocence and the fact that the burden of proof falls on the prosecution, the weight of that burden does not depend on the fact that the accused is presumed innocent.

[131] In any event, the instructions on pages 41, 42 and 43 of the appellant’s factum. are irreproachable with respect to these threenotions. See also pages 54 to 58, 84 to 86, 109, 144 to 147, 154 to 156, 160, 164 and 165. [132] Incidentally, judges should give juries correct instructions in light of the case law but without referring to the evolution of thiscase law and without indicating, for the edification of the appellate court, the reasons they are giving these specific instructions.

This isof no use and would only confuse the jury. - 0 - [133] The judge concluded [translation] "peremptorily" that, by stabbing the victim, the appellant committed unlawful acts, but hefailed to qualify this suggestion [translation] "with the problem of the causal link and the defence of mental disorder as to intent". [134] This is erroneous. The judge did indeed say that stabbing the victim was unlawful, but obviously this was subject to theappellant's grounds of defence. The jury could not have understood differently from this instruction.

Moreover, during oral argument,counsel for the appellant said the same thing to the jury.

See page 2258 of the appellant’s factum. - 0 - [135] The judge erroneously stated that, if the jury was convinced beyond any reasonable doubt that [translation] "it is the Crown'sargument that [had to] be accepted, that is, that the appellant stabbed the victim 34 times, it [was] murder" without saying that theprosecution's case [was] more nuanced and that the statement [translation] "[disregarded] all the evidence of mental disorder connectedwith criminal intent, which [remained] relevant". [136] Since no evidence has been adduced that the appellant was suffering from a mental disorder in the scenario where he was theone who delivered the first stab wound, it is clear that, if that is the case, he committed murder.

And, with regard to this possibility, theprosecution did not advance any more nuanced argument. - 0 - [137] By constantly comparing the argument of the defence with that of the prosecution, the judge invited the jury to choose betweenthe two versions or theories, which they could not lawfully do. [138] It is true that the judge often compared the two arguments, but he never suggested that the jury should or could simply choosebetween the hypothesis put forward by the respondent and the appellant's version.

On the contrary, the judge said –indeed, repeated –that if the jury was to accept the prosecution's case, they had to be convinced beyond any doubt that the appellant had stabbed the victim34 times or that, when he stabbed her in the heart, the appellant had intentionally caused the victim's death. He also stated that, on theother hand, if the jury was to accept the appellant's argument, it was sufficient that they entertain a reasonable doubt in his favour on thebasis of the evidence or the lack thereof.

Certainly, from a post-verdict perspective, it can be said that the jury chose the respondent'ssubmission over the appellant’s, but it cannot be said that the judge either consciously or unconsciously suggested that the jury shouldchoose the argument that they found was the most realistic, regardless of the burden of proof on the prosecution and the weight of thisburden. - 0 - [139] By stating [translation] "but the argument of the defence raises a reasonable doubt in your mind", the judge said that an accusedhas [translation] "the burden of 'raising' a reasonable doubt". [140] Instead of repeating to the jury that they must acquit the appellant if the evidence as a whole does not persuade them of his guiltbeyond any reasonable doubt or, in other words, that if on the evidence as a whole, they entertain a reasonable doubt as to guilt, the judgeused a shortcut which, in the context of the instructions as a whole, could not be interpreted as an instruction contradicting the numerousstatements by the judge that, except as to the defence of mental disorder, the burden of proof was on the respondent. - 0 - [141] The judge did not follow the teaching of the Supreme Court in R. v.

S. (W.D.), (SCC), [1994] 3 S.C.R. 521. Hedid not state that the appellant benefited from a reasonable doubt as to the veracity of his testimony (or did not emphasize this point), as toeach of the essential elements of the charge, and [translation] "as to the evidence as a whole". In this regard, the appellant alleges that thejudge erred by [translation] "[referring] to the prosecution's evidence first". [142] R. v. S.(W.D.) did not create a new legal rule.

It is obvious that, after all of the evidence is heard and assessed, an acquittal willquickly follow if the decision-maker believes the accused's version that he did not commit the crime. [143] It is also clear that, after all of the evidence is heard and assessed, an acquittal will also follow if the decision-maker does notbelieve the accused but, in light of all of the evidence, nevertheless entertains a reasonable doubt in favour of the accused’s version. [144] And finally, it is clear that if the decision-maker cannot reasonably imagine that the accused's version is true, a conviction willfollow only if the essential elements of the charge are proved. [145] The fundamental principle is that the decision-maker must be persuaded beyond any reasonable doubt.

The result is that it isimpossible to be persuaded to this extent (even if the victim is believed) if the possibility that the accused's version might be true remainsalive. That is why the decision-maker's task is not to choose between two versions and convict the appellant as soon as the victim isbelieved. [146] But, since it is necessary to determine the veracity or plausibility of the accused's version in light of all of the other evidence, it

is not necessary to consider the testimony of the victim before that of the accused. [147] In this case, the appellant does not argue that the judge breached the common-sense rule described in R. v. S.(W.D.).

As notedabove, it is obvious that if the jury did not entertain a reasonable doubt in favour of the appellant's version and was not persuaded on abalance of probabilities that the appellant was suffering from a mental disorder, the guilty verdict was a necessary consequence of theevidence adduced. - 0 - [148] By indicating to the jury that each party bore a different burden, the judge imposed a de facto burden on the appellant especiallywhen he repeated this directive along with each of the essential elements of the offence. [149] The appropriateness of using the word [translation] "burden" to describe the appellant's obligation can be a matter for discussion.Normally judges take such precautions to ensure that the jury understands that the burden of proof falls on the prosecution and not theaccused (save for exceptions such as that in

section 16) that they avoid referring to a burden on the accused even if, as in this case, theaccused does in practice bear an evidentiary burden. Here, if the appellant wished to avoid a murder conviction, he had to testify toexplain how his wife had died violently while he was alone with her. [150] In context, therefore, it was not erroneous to speak of a burden on the appellant, so long as the judge made it clear that theappellant was not required to persuade them of his innocence, which the judge did, not just once but several times.

It is thereforeunrealistic to believe that the jury convicted the appellant because when the judge stated that the appellant's burden was not the same asthe respondent's, he let the jury believe that the appellant had a persuasive burden. - 0 - [151] The judge incorrectly refused to correct the chart of possible verdicts prepared by the jury (exhibit J-4) on the grounds that thiswould constitute interference in the deliberations of the jury.

The judge refused, even though, according to the appellant, he had stated atthe beginning that he did not understand steps three and four of the chart and even though, again according to the appellant, the chart wasincorrect with respect to the first, sixth and seventh steps. [152] In his main charge, the judge outlined what the possible verdicts were in theory, based on what was open to the jury to concludeon the different issues before it.

During their deliberations, the jurors drew up a chart of what they believed to be the differentalternatives and possible verdicts that the judge had mentioned, and they asked the judge whether the chart corresponded to thesealternatives and verdicts. [153] The judge did not wish to respond to the question directly, but he repeated what he had said the day before regarding thealternatives and possible verdicts, then asked the jury whether his additional instructions enabled them to verify whether their chart wascorrect, to which the jury replied in the affirmative. [154] There is no ground to criticize the judge for the manner in which he answered the jury, especially since his original andadditional instructions on the issue of possible verdicts were beyond reproach.

The criticism is all the more unfounded since the jury'schart was correct. In this respect, and in particular, the appellant's submission whereby the

section 16 defence could apply if the juryfound that the appellant is the one who delivered the first knife wound is without merit, since there was a total lack of evidence that theappellant was in a dissociative state at that moment. - 0 - [155] The judge did not sufficiently recapitulate the appellant’s testimony concerning his mental state during the incident. [156] The appellant's testimony in this respect was well known: faced with his wife's horrific act, he suffered from first a partial andthen a total dissociative state.

In fact, counsel for the appellant himself told the jury that he was not going to elaborate on his client'stestimony: [translation] "I think that it is clear to you, especially with the psychiatrist's testimony". There was therefore no point inproviding a more elaborate

summary of what the appellant and the psychiatrist had said, since after the arguments of the parties on thesubject, it would have been a waste of time and wearying for everyone. See page 2350 of the appellant’s factum. - 0 - [157] The judge did not state that the notion of reasonable doubt [translation] "applies to the credibility of the other defencewitnesses". [158] This submission has no basis in law.

A jury may not convict an accused if, in light of all of the evidence adduced or a lack ofevidence, it entertains a reasonable doubt as to the guilt of the accused and consequently if, without believing the accused, it is unable toignore the possibility that his version might be true. In this sense, it may be said that the accused is entitled to a reasonable doubt as tothe veracity of his testimony.

But the notion of reasonable doubt is not a tool for the individual assessment of the credibility of each ofthe defence witnesses. - 0 - [159] Finally, the judge did not follow the teaching of the Supreme Court in R. v. Griffin, 2009 SCC 28 , [2009] 2 S.C.R. 42.According to the appellant, the judge should have instructed the jury in the manner set out in Hodge (1838), 1838 CanLII 1 (FOREP), 2Lewin 227; 168 E.R. 1136. [160] The approach in Hodge is based on common sense and benefits all parties when applied, but it is no longer mandatory for ajudge to use it formally.

L.

MENTAL DISORDER AND MANSLAUGHTER [161] The appellant states that the judge had the obligation to [translation] "direct the jury's attention to the consequences [of mentaldisorders] on the specific intent of murder". [162] The appellant then submits that the judge's instructions in this respect were incomplete and contradictory. [163] The submission is unfounded: what can be read on pages 150 and 151 of the appellant’s factum accurately represents what thejudge was required to say to the jury. [164] The judge did not have to indicate that a distinction needed to be drawn between the capacity to form intent and the existence ofintent. [165] Nor was the judge required to repeat the evidence relating to the appellant's state of mind. [166] On the other hand, it is not realistic to think that, having been told that the appellant bore the burden of proving that he wassuffering from a mental disorder, the jury could have concluded that he also bore the burden of proving that he did not have the intent tokill. [167] Nor was the jury misled by the judge's statement that, if it rejected the

section 16 defence, it had to [translation] “[go back to]culpable homicide". This can be understood as saying that if the jury was not convinced on a balance of probabilities that the appellantwas suffering from a mental disorder within the meaning of

section 16 at the time of the event, it had to return to its consideration ofwhether the appellant was guilty of manslaughter. This statement did not excuse the jury from considering the other arguments submittedby the appellant. M. INCLUDED VERDICTS [168] The appellant submits that the judge was wrong to tell the jury that it could convict him of attempted murder and not mentionthat he could be convicted of the offence under

section 241, aiding suicide.

(1) Aiding suicide [169] The appellant was not charged with this offence and it is not included in the offence of murder because suicide is not murder.

(2) Attempted murder [170] The judge told the jury that it could convict the appellant of attempted murder if: 1. it was not persuaded beyond any reasonable doubt that the appellant had slit his wife's throat; 2. it was persuaded beyond any reasonable doubt that, when he stabbed her the additional 33 times, the appellantintended for these stab wounds to contribute [translation] "significantly" to her death; 3. it was not persuaded beyond any reasonable doubt that, when he stabbed the victim, she was still alive or that, if shewas, the knife wounds contributed [translation] "significantly" to her death. [171] The appellant submits that under subsection 662(3) of the Criminal Code ("subsection 662(3)"), attempted murder is not anincluded offence in murder. [172] This submission is groundless. [173] Subsection 662(3) does not refer to attempted murder because it contemplates a situation in which murder takes place.Obviously, an accused cannot be convicted of attempted murder if he has in fact killed someone, whether or not it was voluntary.

Section662(3) therefore does not apply to a case such as the one before us, which contemplates the possibility that the accused did not commithomicide. [174] Accordingly, if subsection 662(3) does not apply, it is clear that attempted murder is an included offence in a murder charge. Infact, this principle is encoded in

section 660 of the Criminal Code. [175] I also share the judge's opinion that there may be attempted murder even where the person the accused tried to kill is alreadydead. In this respect, see

section 24 of the Criminal Code. [176] In fact, if the judge had not dealt with attempted murder, the appellant could have faulted him for the same reason he reproacheshim for failing to mention that he could be convicted of aiding suicide. N. UNANIMITY OF VERDICT [177] The judge told the jury that the verdict had to be unanimous. He did not say that one or more of the jurors could be indisagreement. On the other hand, he did not say that one or more of the jurors could not be in disagreement. [178] This instruction is in keeping with with the teaching of the Supreme Court in Harrison v.

R., (SCC), [1975] 2S.C.R. 95, which was not modified in R. v. Naglik, (SCC), [1993] 3 S.C.R. 122. Consequently, the Court cannot acceptthis ground of appeal, although I am of the humble opinion that it is desirable for the jury to be completely aware of its duties, powers,and rights, rather than being deprived of part of this information. Not telling the jury that one or more of the jurors may be indisagreement on the grounds that saying so would lead to too many disagreements is erroneous. If the situation is correctly explained to

the jury, there is no reason to worry that one or more of the jurors would abuse their right to disagree. On the other hand, if it werenecessary to choose between a disagreement and the risk of convicting an accused even though one or more of the jurors are not really inagreement with the verdict, the first risk is obviously preferable. O.

CONSEQUENCE OF A VERDICT OF NOT CRIMINALLY RESPONSIBLE ON ACCOUNT OF MENTAL DISORDER [179] The consequence of such a verdict is obviously of no logical interest with regard to the determination of whether the accused hasdemonstrated on a balance of probabilities that he was suffering from a mental disorder at the time of the indictable offence. [180] Nevertheless, in practice, a jury would obviously like to be aware of the consequences since it would not want to be responsiblefor allowing a dangerous psychopath to be at large. [181] Counsel for the appellant specifically requested that the judge mention this consequence to the jury, and the judge refused thisrequest. [182] In my opinion, as a general rule, such a statement should be made to prevent juries from being torn between their duty not toconvict a person suffering from a mental disorder at the time of the offence and their concern of having a dangerous person remain atlarge. [183] In this case, however, this caused no prejudice to the appellant.

This is not a case in which the mental disorder was such that itwould create a concern in the mind of the jury that the accused could commit other, similar acts if he were released. The psychiatrist didnot state that the appellant was suffering from a permanent and serious mental disorder. He simply suggested that, at the time of theincident, because of the horrifying nature of what he witnessed, the appellant entered a temporary dissociative state. Therefore, if thejudge had informed the jury of the consequences of a verdict based on

section 16, the verdict would not have been different. [184] For these reasons, I would dismiss the appeal. MARC BEAUREGARD, J.A. REASONS OF DOYON, J.A. [185] Broadly speaking, I am in agreement with Beauregard, J.A. I am unable, however, to share his opinion with regard to themanner in which the trial judge summarized and explained the defence's argument to the jury. [186] Certainly, the trial judge may express his opinion on a question of fact, on the condition, however, that it is made clear to thejury that it is simply advice and not direction: R. v.

Gunning, 2005 SCC 27 , [2005] 1 S.C.R. 627 at para. 27. [187] Some have interpreted Gunning as authorizing a trial judge to give an opinion in all cases, so long as the caution is included. I donot share this view. [188] This power is not absolute, and I find that it is subject to two requirements: (1) the judge may give an opinion when it iswarranted and (2) if the judge decides to do so, he must act fairly. Let us consider.

Was it warranted? [189] I recall that, in Gunning, Charron, J. stated: 27 It is perhaps trite but nonetheless fundamental law that on a jury trial, it is for the judge to decide all questions of law and todirect the jury accordingly; but the jury, who must take its direction on the law from the judge, is the sole arbiter on the facts. The judgealso has the duty, insofar as it is necessary, to assist the jury by reviewing the evidence as it relates to the issues in the case.

The judge isalso entitled to give an opinion on a question of fact and express it as strongly as the circumstances permit, so long as it is made clear tothe jury that the opinion is given as advice and not direction. ... 31 Hence, it is never the function of the judge in a jury trial to assess the evidence and make a determination that the Crown hasproven one or more of the essential elements of the offence and to direct the jury accordingly. It does not matter how obvious the judgemay believe the answer to be. Nor does it matter that the judge may be of the view that any other conclusion would be perverse.

The trialjudge may give an opinion on the matter when it is warranted, but never a direction. [Emphasis added.] [190] These points are not insignificant. The judge may give an opinion when it is warranted, by expressing a point of view so long asthe circumstances permit. In other words, the judge may express an opinion as strongly as the circumstances permit, but no more. [191] The right to a trial by jury, protected by paragraph 11(

f) of the Canadian Charter of Rights and Freedoms and, in this case, byparagraph 469(

a) and subsection 473(1) of the Criminal Code, requires that the credibility of witnesses, the value of evidence, and aboveall the guilt or innocence of the accused be decided by peers, not by a judge. The judge's opinion is neither determinative nor even

essential, even if its expression is warranted. [192] When is the judge warranted in giving an opinion on the facts? In Canada, the practice is that the judge may generally do so butmay not go so far as to express an opinion either directly or indirectly that will influence the jury on the verdict to be rendered. Anopinion on the facts must not be transformed into an opinion on the verdict. [193] In R. v. Lawes (2006), (ON CA), 206 C.C.C. (3d) 15 (Ont. C.A.), Rouleau, J.A. wrote: 20 Courts have long recognized that a trial judge is entitled to comment on the evidence while instr

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