r v. DENIS PATRY, 2015 QCCA 1933

Unofficial English Translation Autorité des marchés financiers v. Patry 2015 QCCA 1933 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005472-137 (500-36-005705-119) – (500-61-255499-098) DATE: NOVEMBER 20, 2015 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. JACQUES J. LEVESQUE, J.A. JEAN-FRANÇOIS ÉMOND, J.A. AUTORITÉ DES MARCHÉS FINANCIERS APPELLANT – Prosecutor v. DENIS PATRY RESPONDENT - Defendant and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on July 10, 2013, by the Superior Court, District of Montreal (the Honourable Mr.

Justice Claude Champagne), dismissing the appeal from the judgment of the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Judge Claude Millette), rendered on January 24, 2011, which had found the respondent not responsible on account of mental disorder. [ 2 ] For the reasons of Doyon, J.A., with which Levesque and Émond, JJ.A., agree, the Court: [ 3 ] ALLOWS the motion for leave to appeal in respect of the second ground of appeal; [ 4 ] ALLOWS the appeal; [ 5 ] OVERTURNS the judgment of the Superior Court; [ 6 ] ALLOWS the appeal from the judgment of the Court of Quebec; [ 7 ] OVERTURNS the judgment of the Court of Quebec; [ 8 ] CONVICTS the respondent on counts 1 to 81 and 84 to 89; [ 9 ] RETURNS the file to the Court for Quebec for sentencing.

FRANÇOIS DOYON, J.A. JACQUES J. LEVESQUE, J.A. JEAN-FRANÇOIS ÉMOND, J.A.

Mtre Annie Fortin Mtre Marianna Ferraro Mtre Julie Garneau Autorité des marchés financiers For the appellant Mtre Francis Le Borgne Raby Dubé Le Borgne For the respondent Mtre Julien Bernard (absent) Bernard, Roy (Justice-Québec) Direction générale des aff. jur. et légis.

Date of hearing: Taken under advisement: JANUARY 20, 2015 APRIL 2, 2015 REASONS OF DOYON, J.A. [ 10 ] The issue in appeal is the admissibility of the defence of mental disorder for a strict liability offence, its limits, and the nature of evidence required. [ 11 ] It is in this context that the appellant seeks an appeal from the judgment of the Superior Court, which refused to intervene to set aside a judgment of the Court of Quebec declaring the respondent not responsible on account of mental disorder. [ 12 ] For the reasons below, I believe the appeal should be allowed.

I - BACKGROUND [ 13 ] The appellant brought 89 charges against the respondent, divided into three groups. The first group (counts 1 to 81) concerns false or misleading information in respect of securities transactions. All the charges are worded in the same way and refer to either March 31 or June 30, 2005. Only the names of the 81 victims and the amounts concerned are different.

Here is an example: [ translation ] In or around Montreal, in the judicial district of Montreal, on or about June 30, 2005, did aid, by act or omission, Les conseillers en valeurs Planiges inc., to provide false and misleading information in respect of a securities transaction, by affirming, in a statement of the securities composing the portfolio of [name of the victim], that the value of the security [ translation ] “Administrative Fund” as at June 30, 2005, was [ $ ], whereas this was not the case, thereby committing the offence set pit in section 197(1) of the Securities Act , c.V-1.1 (the “ SA ”), with reference to

section 208 of the S.A. and thereby making himself liable to the penalty set out in sections 204 and 208.1 of the SA . [ 14 ] The second group (counts 82-83) concerns a sale of shares in violation of the Securities Act [1] [the “ SA ”] and engaging in the business of trading in securities without being duly registered therefor with the Commission des valeurs mobilières du Québec. These two offences were committed on March 2, 1999. [ 15 ] The third group (counts 84-89) concerns non-fulfilment of an undertaking given by the respondent to the appellant, on six occasions between March 29 and May 25, 2005.

These charges, for which only the dates and amounts vary, are drafted as follows: [ translation ] In or around Montreal, in the judicial district of Montreal, on or about [ date ], did aid, by act or omission, ZENITH Management and Research Corporation, to fail to fulfil an undertaking with the Autorité des marchés financiers on March 11, 2005, namely by aiding it to bill financial research fees to the ZENITH Stable Value Growth Fund in the amount of [ $ ] and by aiding ZENITH Management and Research Corporation to withdraw funds belonging to the ZENITH Stable Value Growth Fund to pay such financial research fees, thereby committing the offence set out in section 195(2) of the Securities Act , RSQ, c.

V-1.1 (the “ SA ”), with reference to

section 208 of the S.A. and thereby making himself liable to the penalty set out in

section 202 of the SA . [ 16 ] The respondent was declared not responsible on account of mental disorder for the offences referred to in the first and third groups of counts. As for the second group, as these had to do with acts committed in 1999 and the psychiatric evidence covered only the period from 2003 to 2006, the judge of the Court of Quebec convicted him.

[ 17 ] The appeal brought before the Superior Court by the appellant concerning the counts in groups 1 and 3 was dismissed. It was given leave to appeal this decision before our Court. [ 18 ] At trial, the respondent admitted the material elements of the offences. The only matter in dispute was the mental disorder defence. [ 19 ] As the facts are therefore not in dispute, a brief

summary will suffice. [ 20 ] Concerning the first group of counts, the respondent was President and Director of Les conseillers en valeurs Planiges inc. (“ Planiges ”), a firm that had offered investment consultant services since 1982, when it was founded. Between 1991 and 1995, the value of the portfolios managed by the firm declined substantially. In February 1996, the respondent persuaded the vast majority of his clients to transfer their money, until that time held by Desjardins Trust, acting as securities custodian, into an account held by Planiges at Royal Bank of Canada.

Some $10,000,000 was transferred as a result. [ 21 ] Over the following months, some clients asked to be repaid, and were given some $7,000,000. Therefore, about $3,000,000 was left in the account. [ 22 ] At some point during the 2000’s, the quarterly statements of account sent to clients and prepared by Planiges according to the respondent’s instructions contained falsified values. The respondent was trying to use this scheme to hide the fact that, because of his use of the funds to perform futures or options transactions as well as to finance the operations of Planiges , the cash had evaporated.

In reality, nothing was left in June 2005, whereas the quarterly statements showed substantial amounts, resulting in the filing of the counts in group 1. [ 23 ] As for the third group, two other entities were involved, namely Zenith Management and Research Corporation (“ Zenith Corporation ”), which acted as trustee and manager of the Zenith Stable Value Growth Fund (“ Zenith Fund” ). For reasons it is not necessary to go into further, an undertaking was made with the appellant on March 11, 2005, by these two companies, as well as by Planiges and the respondent.

According to this undertaking, Zenith Fund was not to be billed financial research fees. And yet, this is what happened, since on six occasions, Zenith Corporation billed Zenith Fund for this reason by the order and with the approval of the respondent. Zenith Fund paid Zenith Corporation accordingly, which accounts for the six counts in group 3.

II - THE COURT OF QUEBEC JUDGMENT [ 24 ] As we know, the respondent presented a defence of mental disorder. [ 25 ] According to the judge of the Court of Quebec, the respondent’s testimony revealed the existence of a serious illness that had compelled him to behave rashly in both his personal and professional life. The judge stressed that the respondent admitted the actions with which he was charged, while testifying that, obsessed as he was with his goal of recouping the money lost by his clients, his legal obligations were not a concern for him.

Using the same expression as the respondent, the judge wrote that his legal obligations and his undertaking with the appellant were not [ translation ] “on his radar”. [ 26 ] Two psychiatrists testified: Dr. Larouche, the attending physician, and another expert witness, Dr. Turcotte. According to the judge, their testimony, which he accepted, confirmed that the respondent has long suffered from a serious [ translation ] “bipolar disease” requiring heavy medication. [ 27 ] Dr. Larouche has been treating the respondent since September 2003. In his opinion, the disease has affected his patient’s judgment.

Although someone who is bipolar is aware of his environment, the disease alters and disturbs that person’s judgment. [ 28 ] Dr. Turcotte, for his part, gave his clinical opinion based on a meeting with the respondent, but above all based on the respondent’s medical file. He testified that the respondent was in a depressive phase from 2003 to 2006, a period that was interspersed with short manic episodes. The respondent also briefly verged on psychosis several times. The expert noted an improvement starting at the end of 2005.

As for the actions that were the subject of the charges, the expert maintained that the respondent’s judgment was altered: he understood what he was doing, he was aware that his actions were illegal ([ translation ] “doing something that was not right”), but he was convinced that his actions would enable him to restore his clients’ financial health. In other words, in his disturbed mind, the end justified the means, especially since, in his opinion, there was no doubt he could turn the situation around. Dr.

Turcotte compared this behaviour to that of a compulsive gambler who firmly believes that he is going to win, even while knowing that his conduct is partly irrational. [ 29 ] Moving on to the analysis of the arguments, the judge recalled that, pursuant to

article 60 of the Code of Penal Procedure (“ C.P.P.” ), the defences and the justifications and excuses recognized in criminal matters are adapted as required in regulatory penal matters. The mental disorder defence is therefore applicable. [ 30 ]

Section 16 Cr. C. requires that the mental disorder “rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong” at the time of the events. The judge emphasized that, according to the respondent, it was the first branch that should be applied (“incapable of appreciating”).

Consequently, the disease must impair the “ability to perceive the consequences, impact, and results of a physical act.” [ 31 ] Applying this rule to the facts of the case, the judge emphasized that the respondent [ translation ] “was aware of the physical aspect of his acts”, that he knew he was sending his clients [ translation ] “false quarterly reports” and that he [ translation ] “consciously violated” the undertaking. However, mere knowledge of the acts carried out is not sufficient to attract penal liability; the consequences must also be perceived.

The judge, however, found that, on account of his bipolar disorder, he could not do so. Like a compulsive gambler, he was convinced that his manoeuvres would lead to success. The fact that he was certain that his conduct, however irrational, would enable him to recoup the money lost shows that he had a mistaken understanding of the consequences of his acts. An incident in which he handed out huge sums of money to street people without concern for his own financial capacity, with the aim of [ translation ]

“helping the poor”, is, for the judge, particularly revealing. [32] He therefore held that the defence had discharged its burden of showing that the respondent was incapable of appreciating thenature and quality of his acts, and more specifically of perceiving their consequences. These are the acts alleged in counts 1 to 81 and 84to 89. Since the acts covered in counts 82-83 (group 2) took place in 1999 and the evidence presented by the psychiatrists covers only theperiod from 2003 to 2006, the respondent was convicted on these two counts.

III - THE SUPERIOR COURT JUDGMENT [33] The appellant raised two issues before the Superior Court: Did the Court of Quebec judge err in law in the application ofsection 16 Cr. C. and did he commit a palpable and overriding error in his

interpretation of the evidence? [34] The Superior Court judge was in agreement with the appellant that the offences set out in sections 195(2) and 197 S.A. should bequalified as strict liability offences. He added that a form of mens rea was nonetheless present, namely that of negligence.

It thereforefollowed that [translation] “it was up to the prosecution to prove an ’objective’ mens rea that meets the modified objective test”. [35] The judge pointed out that: [translation] [19] Moreover, an individual accused of a strict liability offence has the option of arguing reasonable error of fact as a defence, whichmeans analyzing whether the accused’s subjective belief is consistent with that of a reasonable person in the same circumstances. Mensrea has a role to play in the present case.

That is why the Court is of the opinion that the appellant is mistaken when it says that there isno consideration of mens rea for strict liability offences. Strict liability is not completely devoid of mens rea. It exists in an objectiveform and there is also an intentional element to a limited extent. [36] In this regard, according to the judge, by enacting

article 60 C.P.P., the Quebec legislature wanted the mental disorder defence toapply to strict liability offences, which cannot become absolute liability offences when the time comes to apply this defence.

In addition,the appellant was mistaken [translation] “when it said that there is no consideration of mens rea for strict liability offences”.Consequently, taking into account the concept of negligence, the Court of Quebec judge did not err when he accepted the mentaldisorder defence on the ground that the respondent was incapable of appreciating the nature and quality of his acts. [37] Regarding the second ground of appeal, the judge stated that he could not intervene unless there was a palpable and overridingerror of fact, failure to take an applicable legal principle into account, or an unreasonable verdict. [38] In the present case, in spite of the shortcomings in the defence evidence raised by the appellant, particularly the testimony of Dr.Turcotte, the judge was of the opinion that no palpable and overriding error had been shown.

He therefore dismissed the appeal. IV - THE ARGUMENTS OF THE PARTIES [39] At issue in this appeal is, on the one hand, whether the mental disorder defence applies to strict liability regulatory offences andif so, under what conditions, and, on the other, whether the Court of Quebec judge, by finding the respondent not penally responsible forthis reason, rendered a verdict that cannot be supported by the evidence.

These are the two grounds argued by the appellant. [40] The parties were also asked by the Court to express their viewpoints in writing on the concept of “aid”, as it appears insection 208 SA, and on its impact in terms of the admissibility of the defence of mental disorder.

They filed their memoranda in writingon February 20 and April 2, 2015, respectively, which explains why the matter was taken under advisement only as of the latter date,even though the hearing was held on January 20, 2015. [41] The appellant worded its two grounds of appeal in the following manner: [translation] 1) Did the Superior Court judge sitting in appeal err in law by finding that s. 16 Cr.

C. should be applied in its entirety to the strictliability offences in sections 195(1) and 197 SA? 2) Did the Superior Court judge sitting in appeal err in law by finding that the verdict of not criminally responsible on account of mentaldisorder rendered by the trial judge was reasonable? [42] Let us note that my colleague, St-Pierre J., sitting as a single judge, did not authorize this second ground of appeal.

She preferredto refer this question to the Court, as it was impossible, without having access to the entire case, to determine whether it was actually aquestion of law, especially since it was presented before the Superior Court as a question of mixed fact and law. [43] To the two questions raised by the appellant, we must add that raised by the Court in the following terms: [translation] What is the impact, if any, of the concept of aid as a mode of criminal participation on the issue of mental disorder? Is the judgment inLa Souveraine v.

AMF, 2013 SCC 63 , [2013] 3 SCR 756, of interest, particularly paragraphs 44 and 47? Should this Courtaddress this issue? [44] I will deal with this last question after the first one raised by the appellant.

V – THE APPLICATION OF

SECTION 16 Cr. C. 1) The viewpoint of the appellant [45] Although the appellant acknowledges that the defence in

section 16 Cr. C. applies generally to regulatory offences, it argues thatthis provision must be adapted for strict liability offences and that it therefore cannot be applied indiscriminately in its entirety.According to the appellant, it cannot be transposed, aside from being “adapted as required” as provided in

article 60 C.P.P.: 60. Les moyens de défense ainsi que lesjustifications et excuses reconnus en matièrepénale ou, compte tenu des adaptationsnécessaires, en matière criminelles'appliquent sous réserve des règles prévuesdans le présent code ou dans une autre loi. 60. The defenses and the justifications andexcuses recognized in penal matters or,adapted as required, in criminal matters applysubject to the rules provided in this Code or inany other Act. [46] To be “adapted as required”, the wording of

section 16 Cr. C. must be taken into consideration: 16.

(1) La responsabilité criminelle d’unepersonne n’est pas engagée à l’égard d’unacte ou d’une omission de S.A. part survenualors qu’elle était atteinte de troublesmentaux qui la rendaient incapable de jugerde la nature et de la qualité de l’acte ou del’omission, ou de savoir que l’acte oul’omission était mauvais.

(2) Chacun est présumé ne pas avoir étéatteint de troubles mentaux de nature à ne pasengager S.A. responsabilité criminelle sous lerégime du paragraphe (1); cette présomptionpeut toutefois être renversée, la preuve destroubles mentaux se faisant parprépondérance des probabilités. 16.

(1) No person is criminally responsiblefor

an act committed or an omission madewhile suffering from a mental disorder thatrendered the person incapable of appreciatingthe nature and quality of the act or omissionor of knowing that it was wrong.

(2) Every person is presumed not to sufferfrom a mental disorder so as to be exemptfrom criminal responsibility by virtue ofsubsection (1), until the contrary is proved onthe balance of probabilities. [47]

Section 16 Cr. C. has two branches. The first has to do with the capacity to appreciate the nature and quality of

an act, and thesecond, the capacity to know that the act was wrong. According to the appellant, a distinction should be made between the two aspectsof the first branch, namely (1) incapacity to appreciate the nature of the act (its physical characteristics) and (2) incapacity to appreciateits quality (its physical consequences). [48] This is an important distinction, since only the second aspect has a bearing on subjective mens rea, which is not the case for thefirst aspect. Since strict liability offences do not have a mens rea component, incapacity to appreciate the quality of the act does notapply to them.

That, however, is what the Court of Quebec judge did.

The Superior Court therefore should have allowed the appeal, andit committed an error of law itself by importing the concept of mens rea to strict liability offences. [49] In sum, to adapt the mental disorder defence to strict liability regulatory offences, this defence should be limited only to thosecases in which the voluntary aspect of the actus reus is denied, and not mens rea, such that only “appreciating the nature of the act” maybe relevant. [50] The appellant is therefore of the view that only the voluntary aspect of the actus reus can be disputed by a defence of mentaldisorder, as, for example, in what is called mental disorder automatism. [51] As for being incapable of knowing that the act was wrong (the second branch of

section 16), this is applicable, since it is not themens rea that is in question but an excuse because of the incapacity to distinguish right from wrong: R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303 at 1324. [52] To summarize, to make the adaptations as required, the appellant wants to dissect

section 16 Cr. C. and retain only two of thethree parts, namely incapacity to appreciate the nature of the act and incapacity to know that the act was wrong, and it rejects the optionof raising incapacity to appreciate the quality of the act. 2) The viewpoint of the respondent [53] For the respondent, the compartmentalization argued by the appellant goes against the teachings of the Supreme Court,particularly in Chaulk. The Supreme Court has never sought to create two regimes through the

interpretation of the first branch ofsection 16 Cr. C. On the contrary, the Supreme Court has combined the capacity to appreciate the nature of

an act and the capacity toappreciate the quality of

an act into a single test: the ability to “perceive the consequences, impact, and results of a physical act.” [54] The appellant is therefore on the wrong track by wanting to limit the mental disorder defence to the capacity to appreciate thenature of

an act or to know that it is wrong.

[55] In short, adapting as required cannot lead to the result sought by the appellant. [56] Furthermore, the respondent argues that strict liability, which exempts the prosecution from having to prove the element of intentand requires the defence to show reasonable diligence or reasonable error of fact, nevertheless remains an offence that takes thedefendant’s intent and state of mind into consideration. For instance, when he argues a reasonable error of fact, the defendant mustdemonstrate that he himself believed, on reasonable grounds, in a mistaken set of facts.

Consequently, the defendant’s state of mindremains relevant, in spite of the concept of objective negligence. [57] Furthermore, because of the characteristics of the offences concerned, the penalties specified in the S.A. (heavy fines andimprisonment) and the related stigma, he argues that these are quasi-criminal offences that require the full application of

section 16Cr. C. The Superior Court judgment must be understood in this context; it only noted the seriousness of the offences and the need to treatthem as such, without mistakenly importing a concept of subjective mens rea. 3) Is

section 16 Cr. C. applicable? [58] The parties agree that the offences concerned, which are regulatory, are strict liability offences. I share their opinion, as well asthat of the Superior Court judge. They are certainly not absolute liability offences. The wording of the offence does not indicate thelegislature’s intent to move away from the rule whereby this type of offence is presumed to be a strict liability offence.

Moreover,beyond the issue of aid in the commission of an offence, to which I will return, we cannot speak any longer of mens rea offences. [59] Since these are strict liability offences, proving actus reus (the material elements of the offence) has the effect of compelling thedefendant to deny the presumed intent (or the moral aspect), either by demonstrating his reasonable diligence or by establishing theexistence of an error of fact based on reasonable grounds that explains his conduct. [60] It is, moreover, the Code of Penal Procedure that governs the procedure applicable in such matters and which also provides forthe admissibility of certain evidence, for both the prosecution and the defence.

Thus, as we have seen,

article 60 C.P.P. dictates that thedefences, justifications and excuses admissible in criminal matters apply under certain conditions to Quebec penal offences, whichobviously include strict liability offences. [61] The defence of mental disorder is of course a defence – or an excuse, as the case may be – that is recognized in criminal law.This defence, however, must still be relevant to a strict liability offence and able to counter a branch of the offence. [62] I find, and we encourage the parties to do the same, that

section 16 Cr. C. is applicable to strict liability offences. Even thoughmens rea, in the subjective meaning given to it by case law, is not actually at issue in this type of offence and the burden, in terms ofintent, is on the defendant, the fact remains that the seriousness and consequences of this offence, as in the present case (heavy fines,imprisonment, stigma, impact on the defendant’s professional life, etc.), weigh in favour of applying a rule that protects an individualwhose “mental condition has brought about a skewed frame of reference”: R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303 at1323.

In this context, any strict liability offence requires at least autonomy and free will as the essential basis for attributing penalresponsibility: R. v. Bouchard-Lebrun, 2011 SCC 58 , [2011] 3 S.C.R. 575 at para. 46. [63] Admittedly, evidence of mental disorder is quite often used to deny mens rea. This does not exclude the possibility, however, thatthis defence may instead be used to deny the voluntary aspect of the actus reus or constitute an excuse shielding the accused from aconviction. This is noted by Lamer C.J. in Chaulk, at 1323 to 1325: …All of these examples have one thing in common however.

Each is based on an underlying claim that the accused has no capacity forcriminal intent because his or her mental condition has brought about a skewed frame of reference.

When a person claims insanity, he orshe may well be denying the existence of mens rea in the particular case or putting forward an excuse which would preclude criminalliability in the particular case; but he is also making a more basic claim which goes beyond mens rea or actus reus in the particular case-- he is claiming that he does not fit within the normal assumptions of our criminal law model because he does not have the capacity forcriminal intent. … … Given the wording of the "first branch" of s. 16(2), this is true in the vast majority of cases.

A claim of insanity under the "firstbranch" will be manifested as a denial of mens rea in the particular case.

It is possible, however, that such a claim could also manifestitself as a denial of voluntary actus reus in the particular case. … …Thus, while a claim of insanity under the "second branch" is based on the same basic denial of criminal capacity upon which a claimunder the "first branch" is based, it is manifested not as a denial of actus reus or mens rea, but rather as a claim to be excused for whatwould otherwise be criminal behaviour. [Emphasis added.] [64] In sum, the scope of the mental disorder defence cannot be limited solely to mens rea offences or even to the voluntary aspect ofactus reus: it may also constitute an excuse, in the broader sense given by Lamer C.J. in Chaulk, and its relevance therefore largelyexceeds the issue of mens rea alone. [65] Professor Hugues Parent is also of the opinion that this defence is admissible.

That is what he has written in his work Laculpabilité: [translation] If reasonable diligence and reasonable error of fact can be argued against a strict liability offence (culpability), then what of factorswhich, beyond their impact on the diligence of the accused, affect the individual’s capacity to answer for his acts under penal law(responsibility)? On this point, the case law is increasingly unanimous: strict liability is basically a penal offence and like all penal

offences, it requires in this regard a minimum of intelligence and freedom. This principle, which has been recognized on many occasions,has been accepted in, inter alia, cases involving minors, mental disorders and automatism. …[2] [66] For his part, LeBel J., in R. v. Bouchard-Lebrun, supra, emphasizes the importance of voluntariness, rationality and free will tobe held penally responsible, both physically (para. 49) and morally (para. 51): 45 According to a traditional fundamental principle of the common law, criminal responsibility can result only from the commissionof a voluntary act.

This important principle is based on a recognition that it would be unfair in a democratic society to impose theconsequences and stigma of criminal responsibility on an accused who did not voluntarily commit

an act that constitutes a criminaloffence. 46 For

an act to be considered voluntary in the criminal law, it must be the product of the accused person’s free will. … 49 This essential basis for attributing criminal responsibility thus gives rise to a presumption that each individual can distinguish rightfrom wrong. The criminal law relies on a presumption that every person is an autonomous and rational being whose acts and omissionscan attract liability. This presumption is not absolute, however: it can be rebutted by proving that the accused did not at the material timehave the level of autonomy or rationality required to attract criminal liability.

Thus, criminal responsibility will not be imposed if theaccused gives an excuse for his or her act that is accepted in our society, in which there is “a fundamental conviction that criminalresponsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right and wrong” (R.v. Chaulk, (SCC), [1990] 3 S.C.R. 1303, at p. 1397).

In Ruzic, the Court recognized the existence of a principle offundamental justice that “only voluntary conduct — behaviour that is the product of a free will and controlled body, unhindered byexternal constraints — should attract the penalty and stigma of criminal liability” (para. 47). 50 Insanity is an exception to the general criminal law principle that an accused is deemed to be autonomous and rational. A personsuffering from a mental disorder within the meaning of s. 16 Cr. C. is not considered to be capable of appreciating the nature of his or heracts or understanding that they are inherently wrong.

This is why Lamer C.J. stated in Chaulk that the insanity provisions of theCriminal Code “operate, at the most fundamental level, as an exemption from criminal liability which is predicated on an incapacity forcriminal intent” (p. 1321 (emphasis deleted)). 51 The logic of Ruzic is that it can also be said that an insane person is incapable of morally voluntary conduct. The person’s actionsare not actually the product of his or her free will. It is therefore consistent with the principles of fundamental justice for a person whosemental condition at the relevant time is covered by s. 16 Cr.

C. not to be criminally responsible under Canadian law. Convicting a personwho acted involuntarily would undermine the foundations of the criminal law and the integrity of the judicial system. [Emphasis added.] [67] Strict liability offences, like mens rea offences, require the defendant to act voluntarily, both physically and morally, and requirehis behaviour to be the result of the exercise of free will. This is what I would characterize as a minimal requirement before being able tohold a defendant penally responsible. The mental disorder defence, however, makes it possible to deny its existence.

It must therefore beconcluded that the defence is admissible. [68] This was also the finding of Paulin Cloutier J. in Ville de l’Ancienne-Lorette v. Lachance, [2000] J.Q. 7581 (M.C.), a caseinvolving an offence under the Highway Safety Code (a prohibited U-turn), who found the defendant not responsible on account ofmental disorder due to a [translation] “mentally disorganized state that did not permit her to appreciate her acts or perceive theirconsequences.” [69] In R. v.

Ferron, [1999] J.Q. 6751 (C.M.), Jacques Ouellet J. rejected the defence of mental disorder but recognized that it wasapplicable to the offence of failing to yield the right of way while driving a motor vehicle, in violation of the Highway Safety Code. [70] In R. v. P.R.L., 2013 ONCJ 322, Quon J. of the Ontario Court of Justice also recognized that the mental disorder defence can beraised against a strict liability offence, in that case a prohibited lane change and speeding.

Considering the admissibility of the defence,Quon J. wrote the following before finding that it was applicable mainly because of the possibility of contesting the voluntary aspect ofthe actus reus: 85 However, since the defendant has not been charged with committing criminal offences, but regulatory offences then the issue iswhether the mental disorder or automatism defences necessarily apply to all regulatory offences, especially since regulatory offences arecomprised of all three category of offences established by the Supreme Court of Canada in R. v. Sault Ste.

Marie, (SCC), [1978] 2 S.C.R. 1299, of mens rea, strict liability and absolute liability, and it is not clear whether the mental disorder orautomatism defences would apply to strict liability and absolute liability offences, considering that the prosecution is not legally requiredto prove any mental element or mens rea in order to get a conviction for strict liability and absolute liability offences. 86 On the other hand, similar to criminal offences, the mental disorder and automatism defences should logically apply to regulatoryoffences that are of the mens rea category, although the special verdict of "not criminally responsible on account of mental disorder",which is not a verdict of acquittal and which requires the accused person for a criminal offence to be detained usually in an institutionuntil they are determined to be no longer a danger to the public, would not be an appropriate outcome for the regulatory sphere. 87 And, despite there being some bemusement about the applicability of the mental disorder and automatism defences to regulatory orpublic welfare offences, especially for strict and absolute liability offences, there has been comment and belief in academic writing thatsuch defences should logically be available in the regulatory sphere for strict and absolute liability offences.

One such commentary isfound in the textbook, Criminal Law 5ed. (2012) (Toronto, Canada: Irwin Law Inc., 2012), at p. 222, in which Professor Kent Roachreasons that defences of automatism, mental disorder, or extreme intoxication could possibly apply to an absolute liability offence,because the nature of these defences would indicate that the accused acted in an involuntary manner that is inconsistent with proof of theactus reus [emphasis is mine below]:

A defence of honest or even reasonable mistake of fact will not be a defence to an absolute liability offence. Thus, an accused's subjectivereliance on a faulty speedometer would not be a valid defence even if the reliance was reasonable.

The defences of automatism, mentaldisorder, or extreme intoxication might possibly apply to an absolute liability offence, because they would indicate that the accusedacted in an involuntary manner that is inconsistent with proof of the actus reus ... 88 Additionally, in the leading treatise on regulatory offences in Canada, Libman on Regulatory Offences in Canada (Salt SpringIsland, B.C.: Earlscourt Legal Press Inc., 2002), Justice Libman at p. 5-28 (in update 8 — November 2006) had also commented thatsuch defences as insanity, automatism, or duress are available even for offences of absolute liability [emphasis is mine below]: The term absolute liability is commonly used to describe offences in which it is not open to an accused to avoid criminal liability on theground that he or she acted under a reasonable mistake of fact which, if the facts had been as the accused believed them to be, wouldhave made his or her act innocent.

Even in offences of absolute liability, however, other defences such as insanity, automatism or duressare available. 89 However, Justice Libman in his textbook at p. 6-11 (in update 8 — November 2006) also commented that strict liability offencesdo involve a necessary mental element or a mental process connected to the actus reus or prohibited act, but that they do not require theprosecution or Crown to prove mens rea [emphasis is mine below]: In R. v.

Cooke, the court rejected the argument that the offence of careless driving could no longer be construed as an offence of strictliability, given the decision of the Supreme Court of Canada in R. v. Hundal, (SCC), [1993] 1 S.C.R. 867. The courtheld that while Hundal, a dangerous driving case, provides clarification in understanding the nature of the mental element for drivingoffences, Highway Traffic Act offences are not crimes, and thus should not be categorized as part of those offences requiring proofof mens rea.

Strict liability offences "do involve a necessary mental element or a mental process connected to the actus reus orprohibited act", but they do not require the Crown to prove mens rea. 90 Moreover, in R. v. Daviault (1994), (SCC), 93 C.C.C. (3d) 21 at 25 (S.C.C.), at paras. 7, 8, 9, and 11, Cory J.indicated that the mental aspect involved in willed or voluntary conduct may overlap to some extent in both the concept of mens rea andactus reus.

He also provided an example of why a person could not be found guilty of committing a prohibited act if the person had notbeen consciously aware of committing the act, since the mental element involved in committing a willed voluntary act and the mentalelement of intending to commit the act would be absent. … [Excerpts underlined in the judgment.] [71] The judge nonetheless dismissed the defence which, as in the present case, was based on the defendant’s bipolar mood disorder. [72] At least one other municipal court judge has found this defence admissible, even though it did not lead to the result sought by thedefendant: Robert Beauséjour J. in Joliette (Ville de) v.

Paquin-Bergeron, 2010 QCCM 252. [73] Finally, particularly when automatism on account of mental disorder is argued, superior courts shown themselves to be open toadmitting this defence against strict liability offences because it denies the voluntary nature of the actus reus: R. v. Metro News Ltd. (ON CA), [1986] O.J. 826 (Ont. C.A.). [74] Under the circumstances, I do not see why the defence of mental disorder defence under

section 6 Cr. ., would not be admissiblein strict liability offence cases, either as a defence (in the traditional meaning) or an excuse (in the additional meaning given byLamer C.J. in Chaulk). As there is no statute prohibiting this defence, a possibility considered in

article 60 C.P.P., we must conclude thatit is applicable, especially since its raison d’être and objectives are entirely compatible with the principles underlying strict liabilityoffences. [75] Furthermore, I consider that the comments made by Dickson J. in R. v.

Sault Ste-Marie, (SCC), [1978] 2 S.C.R.1299, concerning public welfare offences and required intent (“there is a generally held revulsion against punishment of the morallyinnocent”) can be transposed to the mental disorder defence when raised against a strict liability offence. [76] Professor Parent also writes: [translation] As this passage from Stephen illustrates, the insanity defence operates prior to penal responsibility, as a cause that extinguishes the crimein its basic principle.

Penal responsibility, we have said, is based on the existence of a voluntary act [from a moral point of view].However, a voluntary act [in a moral sense] presupposes choice, which itself implies the concept of rational judgment. Insanity,therefore, by destroying the faculty of rational judgment and thus the ability to make a rational choice as to whether

an act is right orwrong, eclipses the voluntary act at the source of the penal responsibility.

Such a conceptualization is consistent, in our opinion, with thegeneral principles of penal responsibility, particularly the idea that persons who are insane do not meet certain basic premises of ourpenal law system: namely, that the accused is an autonomous and rational being, capable of appreciating the nature and quality of the actor omission and of knowing that it was wrong.[3] [Emphasis added.] [77] This conceptualization of the mental disorder defence makes it applicable to strict liability offences, which refer to an objectivestandard, because the standard of reasonableness cannot be imposed on a person who does not have autonomy or a reasoning faculty. [78] A person with an incapacitating mental disorder is unable to act as a diligent person would.

To be acquitted, however, thedefendant must show that he acted as a diligent person or as the result of a reasonable mistake. The defence is therefore admissible, sinceit explains why the defendant cannot show this or why he cannot be held responsible as a reasonable person could be.

[79] In sum, for either mens rea offences or strict liability offences, a mental disorder establishes that the defendant does not meetcertain basic precepts of criminal law, which leads to being not penally responsible. [80] In the words of the author Eugene Ewaschuck:[4] “An insane person, within the definition of s.16 of the Criminal Code, lacksthe capacity, like an infant under 12 years of age… to commit a crime.” An infant, however, cannot be penally responsible for either amens rea offence or a strict liability offence. [81] There is therefore no reason, either at law or as a matter of judicial policy, that prevents people with a mental disorder fromarguing their mental state to establish the absence of penal responsibility for a strict liability offence. 4) Are adaptations required? [82] I reiterate:

article 60 C.P.P. states that defences and excuses at criminal law are admissible, “adapted as required/compte tenu desadaptations nécessaires”. What should the required adaptations be in the present case? [83] The conditions of the mental disorder defence are defined in

section 16 Cr. C.I Its consequences (verdict of not criminallyresponsible on account of mental disorder) and the rules of evidence and procedure that apply, however, are described in

Part XX.1Cr. C. Let us take a closer look. [84] The wording of

section 16 Cr. C., which establishes the existence of two separate forms of incapacity (appreciating the natureand quality of

an act/knowing that it was wrong), has led the courts to speak of the first and second branches of the mental disorderdefence: see, inter alia, R. v. Abbey, (SCC), [1982] 2 S.C.R. 24, and R. v. Chaulk, supra. We are aware that this is thecontext in which the appellant argues that adaptations are required. [85] According to the appellant, when addressing the capacity to appreciate the quality of the act, the judges of the Court of Quebecand the Superior Court have unduly incorporated a concept of mens rea into the strict liability offence.

I do not share its opinion. [86] Like the respondent, I believe that the first branch constitutes a whole. The appellant considers that the first branch contains twocriteria that should be split up for analytical purposes. This is not the case, however. The incapacity to appreciate the nature of the actand the incapacity to appreciate its quality must be shown together, not one or the other. As Lamer C.J. points out in R. v.

Landry, (SCC), [1991] 1 S.C.R. 99, at page 109, this in fact means that the accused was incapable of appreciating the physicalconsequences of his acts. [87] Deciding to split the first branch as the appellant wishes would have two negative effects. [88] First of all, it would contradict the express intent of the legislature.

I do not think that a defence, when adapted as required,should be distorted to the point of chopping off one of its basic elements and through the surgical elimination of an important aspect. [89] Second, by eliminating this aspect of the defence, which constitutes one of its requirements, it would be made admissible in aseries of situations in which it normally would not be. The first branch consists of two cumulative criteria, and the effect of excluding thesecond would permit the defence without the need to prove it.

In other words, it would become even more accessible than it is atpresent. [90] Furthermore, the exercise the appellant is asking us to perform strikes me as artificial. Realistically speaking, how can twoaspects of the defence be accepted while one is rejected, when it is the result of case law and legislation going back more than a century,which have striven, to the extent possible, to bring into focus an issue as difficult and delicate as mental disorder?

I do not see how thatwould be possible. [91] In addition, the distinction made by the appellant does not, in my opinion, take into account the overall nature of the issue. Forinstance, its proposal runs counter to the comments of LeBel J. in Bouchard-Lebrun, which, I recall, emphasize that voluntariness,rationality and free will are relevant to the mental disorder defence, both physically and morally, and underlie every aspect of thedefence.

In this sense, voluntariness, rationality and free will cannot be limited to the issue of appreciating the nature of the act; theyapply just as much to the issue of appreciating its quality, and consequently the two issues cannot be separated as the appellant wouldlike. [92] The appellant also contradicts the comments of Lamer C.J., in Chaulk, which liken the defence to an excuse, at least in its secondbranch. This excuse goes far beyond strict questions of mens rea and intent, and it is certainly possible for the first branch ofsection 16 Cr.

C. to constitute a type of excuse in certain cases as well, because of the absence of free will. [93] In fact, the very concept of mental disorder does not lend itself to the distinctions argued by the appellant and the splitting of thefirst branch of

section 16 Cr. C. that it proposes. [94] Moreover, it is inaccurate to say that strict liability offences do not take the defendant’s state of mind into account at all. Thus,the defence is able to counter the presumption of intent by asserting an error of fact based on reasonable grounds. To do so, however, itmust show that the defendant believed subjectively but mistakenly, on reasonable grounds, in a factual situation that, had it existed,would have exculpated him: R. v. Sault Ste-Marie, supra at 1326.

Consequently, even if this aspect of the defence (belief andknowledge), which is related to subjective mens rea, does not have to be proved by the prosecution, it may nonetheless be validly raisedby the defence. In this context, the defence of mental disorder, which involves the defendant’s state of mind, like a reasonable error offact, must be admissible in its entirety and not in a limited way. [95] The concept of diligence, although objective, may also be understood to have a more subjective component when it comes tomental disorder.

Indeed, in penal negligence offences, while the defendant’s personal characteristics are not relevant, they may becomeso if they establish his incapacity “to appreciate the risk involved in one’s conduct”: R. v. Creighton, (SCC), [1993] 3

S.C.R. 3 at 66. Such incapacity to appreciate risk may be associated with the physical consequences of the act. Consequently, even for a strict liability offence, when the concept of negligence is at issue, characteristics specific to the defendant, such as his mental health, may be relevant to call into question his capacity to appreciate the consequences of the act.

This principle, which in certain cases requires the defendant’s personal characteristics to be taken into consideration, therefore also tends to prove the admissibility of the defence in strict liability offences. [ 96 ] In sum, whether for the first branch or the second, the defence of mental disorder is relevant to the demonstration of the absence of moral responsibility that is required by a strict liability offence, by denying the possibility of acting like a reasonable person. [ 97 ] All this does not mean, however, that no adaptation is required. I will now return to

Part XX.1 Cr. C. 5) What adaptations should be required? [ 98 ] According to

Part XX.1 Cr. C., the mental disorder defence does not lead to acquittal. Instead, it results in a verdict of not criminally responsible on account of mental disorder:

section 672.34 Cr. C. This is an important distinction because, unlike in the case of an acquittal, which ends the proceedings, the accused may be subject to various orders and then to the decisions of the Review Board, whose powers in Quebec are exercised by the Tribunal administratif du Québec. [ 99 ] The Code of Penal Procedure , for its part, does not provide for such a verdict. Indeed, according to

article 219, the judge may acquit the defendant, convict him or dismiss the proceedings. There is therefore an important difference between the two regimes, which I will come back to. [ 100 ] Moreover, there is another aspect of

Part XX.1 Cr. C. that merits attention: the legal proceedings following the verdict of not responsible and the presentation of evidence. [ 101 ] Thus, a court that has rendered a verdict of not criminally responsible may hold a disposition hearing in respect of the accused: that he or she be discharged absolutely or subject to conditions, or detained in custody in a hospital:

section 672.45(1) Cr. C. If the court does not do so, then the Review Board shall:

section 672.47(1) Cr. C. In the present case, the Court of Quebec judge considered that he had to make a disposition and, convinced that the respondent was not dangerous, discharged him absolutely. [ 102 ] The Code of Penal Procedure does not specifically address these issues. [ 103 ] It must therefore be determined, on one hand, whether the verdict of not responsible on account of mental disorder can be rendered under the Code of Penal Procedure and, on the other, whether the other provisions of

Part XX.1 Cr. C. apply, either in whole or in part. [ 104 ] I note that

article 60 C.P.P. sets out the principle that defences and excuses in criminal matters are admissible. The provision however, adds the following: “adapted as required”. Can incorporating

Part XX.1 Cr. C. in its entirety into the Code of Penal Procedure be considered as a consequence of the reference to criminal matters or even adapted as required? [ 105 ] I will approach the question in two steps: first, the verdict and its effects, and then the rules of evidence and procedure. [ 106 ] Before going any further, however, the historical aspects merit discussion. [ 107 ]

Article 60 C.P.P. was enacted on December 17, 1987, and came into force on October 1, 1990.

Since the external reference method (reference to a provision of another legislative text or a common law principle) is used, it may be asked whether the reference is [ translation ] “ambulatory and dynamic or is it static?”: Pierre-André Côté, Interpetation of Legislation. [5] In other words, is the reference limited to the law or common law principles as they existed in 1987 or 1990, or as they exist today, with the changes that have occurred since then? [ 108 ] Professor Côté notes, in para. 301 of his work, that while traditionally the tendency was to consider references to be closed, or non-ambulatory, this

interpretation no longer reflects current legislative practices. This does not answer the question as to whether, in 1987 or 1990, the Quebec legislature intended subsequent amendments to apply. To answer this question, we must proceed with a [ translation ] “case-by-case analysis of the legislator’s intention”, taking into consideration all the factors, including the objective of the reference, reference to an enactment by a different author, the wording of the provision, and its nature and purpose:

Interpretation of Legislation in Canada , supra note 5 at 87–88 and 89–90. [ 109 ] I repeat:

Article 60 C.P.P. refers to defences and justifications “in criminal matters”, while specifying that they must be “adapted as required”. [ 110 ] The criminal law (or “criminal matters”) is in a constant state of flux, whether in the form of statutes or common law rules. The reference to “criminal matters” alone favours a dynamic

interpretation because, as Professor Côté also states, if reference is made to a text or principle [ translation ] “which states the general law …the very nature of the reference indicates that it should be deemed ambulatory; to do otherwise would deprive the passive enactment of its general-law character”: at 89–90. In addition, the Honourable Herbert Marx, the Quebec Minister of Justice at the time, when answering questions from the Members of the Assembly, stated that common law rules were incorporated into the Code of Penal Procedure through

article 60. [6] [ 111 ] The use of the expression “adapted as required” gives rise to the same line of reasoning, although the scope must be determined there as well.

[112] In this context, there can only be one conclusion: the reference in

article 60 C.P.P. is a dynamic reference and subsequentamendments to “criminal matters” apply. [113] How does this reference apply now? What is its scope? To which criminal law provisions did the Quebec legislature intend torefer in 1987 or 1990? In this regard, even though subsequent amendments apply, we still need to know to which provisions

article 60C.P.P. refers us to determine the subsequent amendments that must be applied. [114]

Part XX.1 Cr. C. came into force only on February 4, 1992. Hence, art. 60 C.P.P. could not, in 1987 or 1990, refer specifically tothis Part.

Part XX.1 could be applied only as a subsequent legislative amendment but only if it were an amendment to a provision towhich art. 60 C.P.P. referred. [115] Prior to 1992, the mental disorder provisions in the Criminal Code were quite limited. They referred to insanity and acquittal byreason of insanity: sections 16 and 542 Cr. C.

Section 16 Cr. C. contained a definition of insanity similar to that of mental disorder in thecurrent

section 16: “…incapable of appreciating the nature and quality of

an act or omission or of knowing that

an act or omission iswrong/…incapable de juger la nature et la qualité d'un acte ou d'une omission, ou de savoir qu'un acte ou une omission est mauvais”.The accused could appeal even if there was an “acquittal” (section 603(2)(

b) Cr. C.). Moreover, by reason of such acquittal, the specialplea of autrefois acquit was necessarily admissible. Based on the principles of

interpretation described earlier, it seems clear to me thatthe Quebec legislature intended to refer to these provisions by enacting

article 60 C.P.P.. [116] The consequences of a verdict of acquittal by reason of insanity before 1992 were drastic to say the least: the accused could notbe released and had to be held “in strict custody” until the Lieutenant Governor’s pleasure was known: subsections 542(2) and 545(1)Cr. C. In short, an undetermined period of detention at the will of the state alone. The entire regime now known as

Part XX.1 Cr. C.consisted of a few sections, and little attention was paid to the individual rights of the accused suffering from insanity. Small wonder thatthe provision was struck down by the Supreme Court in R. v. Swain, (SCC), [1991] 1 S.C.R. 933. [117] In considering the nature of the reference provided in

article 60 C.P.P., its objectives and its context, I am convinced that theQuebec legislature did not want a defendant to be automatically held in strict custody at the Lieutenant Governor’s pleasure onceacquitted of a provincial offence by reason of insanity. The result would have been absurd, as provincial offences are generally not of anature to require such detention. [118] In

summary, to determine whether

Part XX.1 Cr. C. applies in whole or in part, we must determine whether, upon its enactment,article 60 C.P.P. referred necessarily to the concept of insanity, the verdict of acquittal by reason of insanity, the possibility for theaccused (or the defendant) to institute an appeal, and the right to enter a special plea of autrefois acquit. It could not refer to otherprovisions that are now found in

Part XX.1 Cr. C., however, because they did not exist. The question then becomes whether this Partshould nonetheless apply in whole or in part, as an amendment subsequent to the coming into force of

article 60 C.P.P.. In this context,this provision could not logically refer to the serious consequences of a verdict of acquittal by reason of insanity with regard to the rightsof defendants charged solely with the commission of a provincial offence. If the legislature did not want the Criminal Code to apply inthat respect, it might not want subsequent amendments to apply either. [119] Consequently, the verdict (or judgment) of not responsible on account of mental disorder referred to in

section 672.34 Cr. C. mustbe upheld. Given that

article 60 C.P.P. referred to an acquittal on account of mental disorder, it seems to me self-evident that the conceptof not responsible on account of mental disorder, which is its successor, should apply according to the theory of the ambulatory nature ofthe reference in question. [120] In my opinion, it would be harmful to maintain an absolute acquittal, as provided in

article 219 C.P.P.. [121] First, the idea of a verdict of not responsible in the case of provincial offences is an accepted in the judicial reality. Certain judgeshave not hesitated to render such a verdict. This was true, for example, with regard to the Court of Quebec judge in the present case. Itwas also the case in Ville de l’Ancienne-Lorette v. Lachance, supra. [122] It should be noted, however, that the authors Nouraie and St-Jacques are in favour of an absolute acquittal.

They write: [translation] We therefore consider that if a mental disorder automatism defence for a penal offence were accepted by a judge, a verdict of acquittalwould also be required…. Otherwise, the result would often be disproportionate. It is hard to imagjne, for instance, that a person would be kept in a psychiatrichospital if he or she were liable to no more than a fine of a few hundred dollars.

Furthermore, other processes are provided by the statutewhere persons represent a danger to themselves or others.…[7] [Emphasis added.] [123] Therefore, these authors are in favour of a verdict of acquittal because of the disproportionate impact of a verdict of notresponsible, in particular possible committal to an institution. Given the current state of affairs, however, the remainder of

Part XX.1Cr. C. should not be applied in provincial matters, which is likely to eliminate the fears of the two authors. [124] Next, a verdict of not responsible more closely reflects reality than a simple acquittal. After all, the defendant has committed an

offence, even though he is not penally responsible, with the result that an absolute acquittal would not reflect the reality of the situation.

Distorting the truth because of the lack of specific provisions in the Code of Penal Procedure for a verdict of not penally responsible on account of mental disorder would be unjustified, especially since the legislature refers to adapting as required, thereby authorizing the courts to import this type of verdict, or judgment, into Quebec penal law. [ 125 ] In this context, I fail to see why the Quebec legislature would have agreed to incorporate this defence without including the associated verdict in criminal law, as it would leave a gap that would be difficult to explain. [ 126 ] The same applies to the effects of such a verdict, namely the possibility of pleading autrefois acquit (section 672.35 Cr.

C. ) or instituting an appeal, as provided, for example, in subsection 675(3) and paragraph 676(1)(

a) Cr. C. [ 127 ] That is why the verdict of not penally responsible on account of mental disorder is a required adaptation. Without it, the verdict loses its meaning and completely fails to reflect the finding made by the court. I would also like to point out that the qualifier “penally” is nothing more than a figure of speech. It is used to ensure the generally recognized distinction between federal criminal law and provincial penal law. [ 128 ] In contrast, as I stated earlier, I feel that the remainder of

Part XX.1 Cr. C. regulating evidence and procedure should be excluded. 6) Remainder of

Part XX.1 Cr. C. [ 129 ] It is true that this part of the Criminal Code , which forms a type of “code of procedure” for verdicts of not criminally responsible on account of mental disorder (obviously I do not dwell here on the provisions concerning fitness to stand trial), is closely related to the verdict itself. Therefore, both society and the accused are protected by the process developed in this Part, despite the verdict of not responsible.

It should however be pointed out that this Part was designed in the context of criminal offences, bearing in mind that the accused could pose a significant threat to public safety because of, inter alia , the violence of his or her behaviour and the danger he or she represents. [ 130 ] I have already stated that I am of the view that these provisions are not included in the applicable amendments according to the theory of the ambulatory nature of the reference because there is no reference to the analogous provisions in force prior to 1992. [ 131 ] I would add that the danger presented by a defendant in provincial penal law is different from and generally less significant than the threat posed to society by an accused who has committed a criminal offence, particularly a violent one, while suffering from a mental disorder.

This is also what is suggested by Quon J. in P.R.L ., supra : 86 On the other hand, similar to criminal offences, the mental disorder and automatism defences should logically apply to regulatory offences that are of the mens rea category, although the special verdict of "not criminally responsible by reason of mental disorder", which is not a verdict of acquittal and which requires the accused person for a criminal offence to be detained usually in an institution until they are determined to be no longer a danger to the public, would not be an appropriate outcome for the regulatory sphere. [Emphasis added.] [ 132 ] I do not claim that this Part of the Criminal Code could never be applied.

On the other hand, the law as it is, and more specifically the Act respecting administrative justice (CQLR, c. J-3), makes its application impracticable, in my opinion. For the purposes of the application of

Part XX.1 Cr. C., a “Review Board” must be set up or designated under paragraph 672.54(

c) Cr. C.:

section 672.1 Cr. C. In Quebec, the Review Board is designated under the Act respecting administrative justice . Pursuant to

section 19 of that Act , and

section 2.1 of

Schedule 1, the social affairs division of the Administrative Tribunal of Quebec is designated “as a Review Board within the meaning of sections 672.38 and following ” of the Criminal Code to deal with “dispositions concerning any accused in respect of whom a verdict of not criminally responsible has been rendered” .

In other words, the Quebec legislature has specified that the jurisdiction of the Administrative Tribunal as a Review Board shall be limited to the Criminal Code , or, at the very least, it did not specifically granted it the jurisdiction to handle verdicts of not penally responsible rendered in respect of provincial offences. [ 133 ] Under the circumstances, there is no need to create in Quebec law, to be adapted as required, as strict, complex and costly a scheme as that adopted by Parliament in a very different context, unless the Quebec legislature has decided to do so and specifically set up or designated a Review Board.

Furthermore, still in the context of Quebec law, there is already a legislative regime to provide protection to the public, at least in part, in

article 27 C.C.Q. in particular, the first paragraph of which stipulates that:

27. S'il a des motifs sérieux de croire qu'unepersonne représente un danger pour elle-mêmeou pour autrui en raison de son état mental, letribunal peut, à la demande d'un médecin ou d'unintéressé, ordonner qu'elle soit, malgré l'absencede consentement, gardée provisoirement dans unétablissement de santé ou de services sociauxpour y subir une évaluation psychiatrique. Letribunal peut aussi, s'il y a lieu, autoriser toutautre examen médical rendu nécessaire par lescirconstances.

Si la demande est refusée, elle nepeut être présentée à nouveau que si d'autres faitssont allégués. 1991, c. 64, a. 27; 1997, c. 75, a. 30. 27. Where the court has serious reasons tobelieve that a person is a danger to himself or toothers owing to his mental state, it may, on theapplication of a physician or an interested personand notwithstanding the absence of consent,order that he be confined temporarily in a healthor social services institution for a psychiatricassessment. The court may also, whereappropriate, authorize any other medicalexamination that is necessary in thecircumstances.

The application, if refused, maynot be submitted again except where differentfacts are alleged. 1991, c. 64, a. 27; 1997, c. 75, s. 30. [134] This provision, however, is not entirely satisfactory in cases of not penally responsible. Indeed, one might wonder what wouldhappen if, for compelling reasons at the time of judgment, it appears that a defendant still suffers from a mental disorder and could be adanger to himself or herself, or to others. Could an interested person, within the meaning of

article 27, submit an application to the judge,if that judge is also a Judge of the Court of Quebec (article 36.2, paragraph 1 C.P.P.)? On what basis? What would happen before a judgeof a municipal court other than that of Montreal, Quebec City or Laval, or if there was no urgent situation (article 36.2, paragraph 2C.P.P.)? Could Crown counsel be an interested person? In short, there are numerous questions the courts may need to answer. [135] It seems to me that it would be advisable for the legislature to clarify its intent with regard to providing protection for bothdefendants and the public.

Depending on the circumstances, possibilities might include a notice to a regulatory body (for instance theSAAQ, when an offence has been committed under the Highway Safety Code) or a professional order in the event of an offence by amember of the Order. The possibilities are endless, but it would be a matter for the legislature to decide. [136] In short, I think that the application of the defence of mental disorder ends when the verdict of not responsible and the procedureunder

Part XX.1 Cr. C. does not require compliance, except, at the risk of repeating myself, in respect of sections 672.34 and 674.35Cr. C. If the Quebec legislature so wishes, it can always make all or part of

Part XX.1 Cr. C. applicable or pass other legislation, whichit has in fact already done by way of sections 20 to 22 of the Act respecting the protection of persons whose mental state presents adanger to themselves or to others, CQLR c. P-38.001. VI – IMPACT OF LA SOUVERAINE v. AMF [137] As stated earlier, the Court considered the possible impact of the decision rendered by the Supreme Court in La Souveraine v.AMF, 2013 SCC 63 , [2013] 3 S.C.R. 756, because of the use of the words “did aid” in the counts. This concept of aid flowsfrom

section 208 SA, and the following three paragraphs of La Souveraine are particularly relevant: 44 In the recent case of Demers v. Autorité des marchés financiers, 2013 QCCA 323, the Quebec Court of Appeal considered aprovision that establishes a mode of participation in the commission of an offence rather than an independent offence, namely s. 208 ofthe Securities Act, R.S.Q., c. V-1.1 (“SA”), which reads as follows: 208. Every person who, by act or omission, aids a person in the commission of an offence is guilty of the offence as if he had committedit himself. He is liable to the penalties provided in

section 202, 204 or 204.1 according to the nature of the offence. The same rule applies to a person who, by incitation, counsel or order induces a person to commit an offence. 45 In light of its decision in the case at bar, the Court of Appeal could have held in Demers that s. 208 of the SA establishes a strictliability offence. That conclusion would have been based on the fact that, like s. 482 of the ADFPS and unlike s. 21(1)(

b) of theCriminal Code, s. 208 of the SA does not require proof of a specific mens rea. 46 But the Court of Appeal rejected that argument and held that it did not have to rule on the nature of the offence provided for ins. 208 of the SA. Because the evidence in the record was sufficient to establish beyond a reasonable doubt that the person in question hadthe specific intent “[to aid] a person in the commission of an offence” within the meaning of that provision, a conviction waswarranted.

The Court of Appeal nonetheless took the time to note that an important distinction had to be drawn between the offenceprovided for in s. 208 of the SA and the one at issue in the instant case (Demers, at paras. 54-56): [translation] Unlike

section 482 [ADFPS],

section 208 SA provides for a mode of participation rather than an independent offence. In this sense,section 208 SA is more similar to section 21(1)(

b) Cr. C. than to the provision at issue in La Souveraine. It should be noted that according to

section 208 SA, an accomplice is guilty of the offence committed by the principal offender “as if hehad committed it himself/comme s’il l’avait commise lui-même”.

Section 482 [ADFPS], on the other hand, provides that an insurer thatacts in the contemplated manner is guilty of “an offence/une infraction” that is distinct from the one committed by the principaloffender. Thus,

section 208 is merely a mode of participation . . . and not a separate “offence”.

It should also be noted that the [ADFPS] includes a provision —

section 491 [ADFPS] — that is practically identical to

section 208 SA. Like

section 208 SA, it defines a mode of participation which renders an accomplice guilty of the same offence as the principal offender“as if the person had committed it himself/comme s’il l’avait commise lui-même”. This section, which parallels

section 208 SA, was notraised in La Souveraine as a basis for the insurer’s liability. The differences between

section 208 SA and

section 482 [ADFPS] sufficefor me to conclude that this Court’s decision in La Souveraine cannot serve as a precedent in the case at bar. 47 In sum, s. 482 of the ADFPS, which creates a separate offence, differs from ss. 208 of the SA and 491 of the ADFPS, which createmodes of participation more similar to those established in s. 21(1)(

b) of the Criminal Code (see also the reasons of the Court of Appeal,at paras. 41-44, per Dalphond J.A., dissenting but not on this issue). It follows that the offence provided for in s. 482 of the ADFPS neednot be subject to the common law rule that proof of mens rea continues to be required for party liability offences. [138] One might therefore legitimately ask the following question: By enacting a penal mode of participation rather than anindependent offence, is

section 208 S.A. more similar to section 21(1)(

b) Cr. C. and does it consequently require proof of the mens reaof knowledge and specific intent to aid? Such a conclusion would obviously be determinative with regard to whether the mental disorderdefence applies. [139] The question is definitely interesting. It has been asked before a complete analysis of the situation has been carried out, however,and therefore before the ruling on admissibility of the defence against strict liability offences. In other words, it need not be answeredbecause the defence is admissible in any case. I note, however, that Champoux J. of the Court of Quebec has emphasized the differencebetween paragraph 21(1)(

b) Cr. C. and

section 208 SA, in that the latter, unlike the former, does not stipulate that the accused has to havedone or omitted to do something for the purpose of aiding the principal offender (AMF v. Chaussé, 2015 QCCQ 7527 at para. 40). Thisdifference is indeed significant. Although that judgment concerned

section 491 of the Act respecting the distribution of financialproducts and services, CQLR, c. D-9.2, the similarity between ss. 208 and 491 explains this remark of Champoux J. VII – WAS THE VERDICT OF NOT RESPONSIBLE BASED ON AN ERROR OF LAW? [140] Under

article 291 C.P.P., this appeal can be allowed only if the appellant demonstrates an error of law. Needless to say, the error,if any, must be sufficiently significant to justify the Court’s intervention (article 313 and

article 286, para. 2 C.P.P.). [141] I note that the error of law must be that of the Superior Court judge because this appeal concerns the Superior Court judgment andnot that of the Court of Quebec. [142] There is another noteworthy feature. On appeal to the Superior Court, the prosecution is not limited to questions of law.

Art. 286C.P.P. states that the Superior Court judge shall grant an appeal “if he is satisfied by the appellant that the judgment rendered in firstinstance is unreasonable, considering the evidence, that an error in law has been made or that justice has not been rendered/s'il estconvaincu par l'appelant que le judgment rendu en première instance est déraisonnable eu égard à la preuve, qu'une erreur de droit a étécommise ou que justice n'a pas été rendue”.

This rule applies to both parties, with the result that the prosecution can appeal on questionsof fact. [143] While the prosecution, in a criminal law appeal before the Court of Appeal (subsection 676(1) Cr. C.), is limited to questions oflaw (and it is clear that an unreasonable verdict is not a question of law when raised by the prosecution: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381), the same is not true in penal law in an appeal before the Superior Court.

In other words, unlike in thecriminal law, the prosecution can institute an initial appeal in penal law by invoking a palpable and overriding error of fact or theunreasonableness of a judgment of acquittal, albeit within the limits and with the difficulties recognized in the case law: in particular, R.v. Schuldt, (SCC), [1985] 2 S.C.R. 592 and R. Biniaris, supra at para. 33. This was the second argument raised by theappellant.

The first criticized the judge of the Court of Quebec for having [translation] “erred in law with respect to the criteria applicableto the defence” of mental disorder. [144] Accordingly, if the judge of the Court of Quebec had erred in identifying the factors to be taken into consideration with regard toa mental disorder defence, there would be an error in law because he would have appreciated the evidence by basing himself on thewrong legal principles: R. v. J.M.H., 2011 SCC 45 , [2011] 3 S.C.R. 197 at para. 29). The appeal should therefore be allowedunless such error was inconsequential.

In the present case, it would obviously have been determinative. [145] Furthermore, since the burden of establishing the defence of mental disorder was on the respondent, it was one of those rare caseswhere, to paraphrase R. v. J.M.H., supra at para. 30, it can be “said as a matter of law that there is no evidence on which the court canconvict” the defendant not responsible, given that the presumption of innocence is not to be rebutted with regard to this question.

Hence asecond error in law can be argued here. [146] For this reason, I would allow the motion for leave to appeal with regard to the second ground of appeal raised by the appellant,which I referred to earlier.

In the context of the entire record, this is definitely a question of law to be debated. [147] Now let us return to the errors of law. [148] The Court of Quebec judge found that the respondent [translation] “was incapable of appreciating the physical consequences ofhis acts” at the time he committed the acts in question, between March and June 2005. [149] Let us look more closely at exactly how he reached this conclusion. [150] First he cited an excerpt from R. v.

Cooper, (SCC), [1980] 1 S.C.R. 1149, in which Dickson J. wrote: With respect, I accept the view that the first branch of the test, in employing the word “appreciates”, imports an additional requirement tomere knowledge of the physical quality of the act. The requirement, unique to Canada, is that of perception, an ability to perceive the

consequences, impact, and results of a physical act. An accused may be aware of the physical character of his action (i.e., in choking) without necessarily having the capacity to appreciate that, in nature and quality, that act will result in the death of a human being. [ 151 ] In fact, for the first branch of

section 16 Cr. C. , mere knowledge is not enough. It is necessary to be able to appreciate and understand the physical consequences of one’s acts. Dickson J. gave an example of choking.

The accused might have known that he was choking his victim without necessarily understanding that this would result in the victim’s death. [ 152 ] To be exempt from responsibility, therefore, it is necessary not only to ask whether the accused had knowledge but especially whether he was capable of appreciating, of analyzing the physical aspects of his actions, their physical nature and their physical consequences, and of measuring and foreseeing the consequences. [ 153 ] I would add that the passage cited from Cooper by the Court of Quebec judge also contained the following sentence at the end of the excerpt: This is simply a restatement, specific to the defence of insanity, of the principle that mens rea, or intention as to the consequences of an act, is a requisite element in the commission of a crime. [ 154 ] These two excerpts indicate that the capacity to analyze must be sought in relation to the physical consequences of

an act (for example, a death), and not with regard to a motive or a worthy objective. I am of the opinion that this was one of the errors committed by the judge of the Court of Quebec, in accepting this factor. Here is why. [ 155 ] The judge explained his finding as follows: [ translation ] [24] In the present case, it cannot be denied that Mr. P., by his own admission, was aware of the physical aspect of his acts in the sense that, from 2003 to 2006, he knew that he was using sums ranging between $700,000 and $1,000,000 that belonged to his clients to perform futures or options transactions.

He was also aware of using between $2,000,000 and $2,300,000 of their funds to finance the operations of Planiges and of sending them false quarterly reports . Lastly, he knowingly violated the undertaking signed on March 11, 2005, regarding the Autorité des marchés financiers. Although he was aware of the physical quality of his actions, however, was he able to perceive their consequences ? [25] Dr. Larouche, the attending physician of Mr. P., affirmed that his patient’s judgment was [ translation ] "deficient". He gave an example of episodes driving at very high speeds, as related by

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