2010 QCCA 2413, 2010 QCCA 2413

Unofficial English Translation R. c. Dufour 2010 QCCA 2413 COURT OF APPEAL CANADA PROVINCE OF QUEBEC QUEBEC CITY REGISTRY No.: 200-10-002328-099 (160-01-000236-075) DATE: December 21, 2010 CORAM: THE HONOURABLE ANDRÉ BROSSARD, J.A. FRANÇOIS PELLETIER, J.A. ANDRÉ ROCHON, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v. STÉPHAN DUFOUR RESPONDENT - Accused JUDGMENT [ 1 ] THE COURT ; - On appeal from a judgment of the Superior Court, District of Alma, rendered on December 12, 2008 by a jury presided by the Honourable Jacques J.

Lévesque J.S.C. that acquitted the accused; [ 2 ] Having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Pelletier J.A., with which Brossard and Rochon JJ.A. concur: [ 4 ] DISMISSES the appeal. ANDRÉ BROSSARD J.A. FRANÇOIS PELLETIER J.A. ANDRÉ ROCHON J.A. Mtre Denis Dionne Criminal and Penal Prosecuting Attorney For the appellant Mtre Michel Boudreault and Mtre Pascale F. Tremblay Boudreault, Tourangeau For the respondent Hearing date: April 15, 2010 REASONS OF PELLETIER J.A. [ 5 ] A jury acquitted the respondent Stéphan Dufour of the following offence:

[ translation ] On or around September 8, 2006, at Alma, district of Alma, did aid or abet Chantal Maltais in committing suicide, thereby committing an offence under paragraph (

b) of

section 241 of the Criminal Code [ Cr. C .]. [ 6 ] In the Crown’s opinion, a new trial must be ordered. The prosecution argues that the judge let the jury consider a defence that is not recognized by law. The Crown also claims that the judge erred in his instructions to the jury by limiting the commission of the offence solely to the time when the device used by Chantal Maltais to commit suicide was set up. [ 7 ] Before considering these two grounds of appeal, I believe it is necessary to review the salient facts of this sad story that gave rise to the charge.

The facts [ 8 ] Stéphan, the respondent, was 30 years old at the time of the relevant events. He suffers from a mild mental disability. According to psychologist Hubert Van Gijseghem, the expert for the defence whose report was filed at trial, [ translation ] “he is extremely vulnerable to pressure put on him, particularly if it is done in a disapproving (and, especially, aggressive) manner”. [1] [ 9 ] Stéphan was very close to his uncle Chantal and, as of 2000, visited him daily, sometimes even several times a day. [ 10 ] Chantal had poliomyelitis, an incurable disease that limited his general physical capacity.

He was suicidal and repeatedly asked his family members to help him commit suicide. He had apparently tried to commit suicide twice. [ 11 ] In 2005, his health deteriorated considerably and he became ill-tempered. He was aggressive towards his family members when they refused to give him the help he requested. Stéphan was one of the persons who felt this pressure from him. [ 12 ] Around September 7, 2006, at the repeated insistence of his uncle, Stéphan set up a device whose chief component was a choke collar for dogs. A rope linked the collar to a closet pole.

The two choke collar rings were held together by a small pin, so that pressure inside the collar would suffice to move the pin and activate the noose system. [ 13 ] When he returned home, Stéphan told his mother, Nicole Maltais, what he had done. She reassured him by telling him that Chantal would not commit suicide. [ 14 ] Stéphan subsequently returned to his uncle’s home with his mother to help him with his personal hygiene needs. He also visited him another time to bring him a Mr. Freeze ice pop. [ 15 ] On Saturday, September 9, 2006, Stéphan knocked on his uncle’s door.

Since there was no answer, he entered and observed that the bed was empty. He then went to get his mother and, with his mother and another uncle, went to Chantal’s home. Stéphan found Chantal dead by strangulation; the device had done its job. A few salient facts of the trial [ 16 ] With regard to setting up the device, Stéphan stated at trial that he could no longer stand being harassed, that he gave in, but that he didn’t want to do it: [ translation ] “I loved him very much, I couldn’t take it anymore, I felt like I was in prison. ... I didn’t want him [Chantal] to do it”.

Not wanting him to commit suicide, he had asked his uncle to reconsider and urged him not to carry out his plan. [ 17 ] In his report, [2] psychologist Van Gijseghem gave the following opinion: [ translation ] The combination of a Dependent Personality Disorder, Mental Deficiency, and extreme suggestibility makes it unlikely and even hardly possible that Mr. Dufour could have resisted his uncle’s request. [Reproduced in full] [ 18 ] At trial, the Crown objected to the admissibility of Mr. Van Gijseghem’s report and testimony.

According to counsel for the prosecution, the psychologist’s testimony served only to corroborate the testimony of the accused and to introduce inadmissible evidence of good character. Moreover, as it was used to support a defence that is not recognized by law, [3] it should not be admitted into evidence. [ 19 ] On December 8, 2008, Lévesque J. dismissed the objection in a written ruling. The relevant passages are worth reproducing here: [ translation ] [13] The intention of helping the victim with his plan, whether or not it was carried out, is the key issue here. [14] Mr.

Van Gijseghem’s expert report states, in defence of the accused, that the accused was unable to resist the demands placed on him. The report would enable the jurors to assess the personal situation of the accused regarding the circumstances entered into evidence, so that they could determine whether he intended to help his uncle commit suicide, his state of mind when he acted, and whether he did what he wanted to do.

THE NEED TO HELP THE TRIERS OF FACT [15] The accused’s physiognomy and his behaviour at trial, the way he answered questions, his understanding of the questions, hisrepeated hesitations, and the answers given by the other witnesses who described him, especially his mother, Ms. Nicole Maltais, at thevery least raise questions about the circumstances revealed by the evidence and in particular the fact that, between September 7 and 9,2006, even though the accused was worried he did not see fit to dismantle the device the victim used to hang himself. [16] Thus, Mr.

Van Gijseghem’s report helped enlighten the jurors, enabling them to analyze this particular circumstance, theaccused’s personality, to determine his state of mind, to see if he acted in accordance with his own wishes, and to decide whether thecommon sense deduction that a sober person of sound mind desires the natural consequences of his acts applies here. ... [19] It seems to me that this report, by exposing the personality traits of the accused and his intellectual limitations, can only, if it isbelieved by the jurors, cause them to consider whether the prosecution was able to prove beyond a reasonable doubt the general intentrequired for this offence.

Analysis [20]

Section 241 of the Criminal Code provides that: Every one who (

a) counsels a person to commit suicide, (

b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. [21] The issue of intent is key in the first ground of appeal raised by the Crown. It is also relevant to the second ground of appeal. [22] With respect to the first ground, the prosecution would like us to find that the trial judge erred in directing the jurors toconsider a nonexistent defence. [23] First, it should be noted that all parties agree that the defence is not based on

section 16 of the Criminal Code, which providesfor the exoneration of a person suffering from a mental disorder: 16.

(1) No person is criminally responsible for

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

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection(1), until the contrary is proved on the balance of probabilities. 3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on theparty that raises the issue. [24] It is also agreed that Stéphan was not in a state akin to automatism or insanity which would cause him to act like anautomaton.[4] Rather, the defence argues absence of mens rea, an essential element of criminal liability. [25] The prosecution counters that the offence of assisted suicide set out in

section 241 Cr. C. is one of general intent and notspecific intent. The Crown argues that in the case of a general intent offence, the degree of mens rea required for the offence to becommitted is minimal. Therefore, a person in a highly intoxicated state can be found guilty of an offence in this category but can escapecriminal liability if it is a crime requiring specific intent. [26] The Crown cites R. v.

Bernard,[5] in which McIntyre J., writing for the majority of the Supreme Court, explains in detail theorigin and characteristics of this distinction: A distinction has long been recognized in the criminal law between offences which require the proof of a specific intent and those whichrequire only the proof of a general intent. This distinction forms the basis of the defence of drunkenness and it must be understood andkept in mind in approaching this case. In R. v. George, (SCC), [1960] S.C.R. 871, Fauteux J. said, at p. 877: In considering the question of mens rea, a distinction is to be made between (

i) intention as applied to acts considered in relation to theirpurposes and (ii) intention as applied to acts considered apart from their purposes. A general intent attending the commission of

an act is,in some cases, the only intent required to constitute the crime while, in others, there must be, in addition to that general intent, a specificintent attending the purpose for the commission of the act. This statement makes the distinction clear. The general intent offence is one in which the only intent involved relates solely to theperformance of the act in question with no further ulterior intent or purpose. The minimal intent to apply force in the offence of commonassault affords an example.

A specific intent offence is one which involves the performance of the actus reus, coupled with an intent orpurpose going beyond the mere performance of the questioned act. Striking a blow or administering poison with the intent to kill, orassault with intent to maim or wound, are examples of such offences. [27] The prosecution argues that the moral duress invoked by Stéphan is not a legally recognized defence, as it can apply only tooffences requiring specific intent. Such offences, as the excerpt from the reasons of McIntyre J. shows, are those where the requisite

mens rea must achieve the foreseeable consequences of the incriminating act. The Crown maintains that, in the present case, which concerns an offence of general intent, the respondent committed the offence simply by setting up the device, even though he did not intend for his uncle to use it. [ 28 ] I cannot accept the prosecution’s arguments. [ 29 ] It should be noted that, on appeal, counsel for the parties acknowledged that the trial judge had ruled on the distinction during a pre-trial conference. He then rejected the arguments of the defence and determined that it was a general intent offence.

The hearing thus unfolded against this backdrop, although the jury does not appear to have received specific instructions regarding the distinction between a general intent offence and a specific intent offence. [ 30 ] At the hearing before our Court, the defence took up the issue again, arguing that it was in fact an offence requiring specific intent. I agree with this argument. [ 31 ] First, it should be noted that the concepts of aiding, advising or abetting, which are key elements of the offence under

section 241 Cr. C. , seem to refer to an element of intent without which the offence could not exist. I see here a certain analogy with sections 21 and 22 Cr. C. , which refer to aiding and abetting as defining characteristics of persons considered parties to an offence. As a general rule, mens rea is required in such cases. [6] [ 32 ] That said, there are few precedents concerning

section 241 Cr. C . I note two that appear relevant. They lead to the conclusion that the offence of assisted suicide is one of specific intent. [ 33 ] In R. v. Loomes , [7] the Ontario Court of Appeal was asked to rule on the appeal from a guilty verdict rendered by a jury on two counts, one of assisted suicide, as in the present case, the other of dangerous use of firearms. [ 34 ] On the first count, the accused invoked the defence of intoxication.

The judgment reveals that the Court appeared to believe that such a defence is admissible: 4 The principal defence which arose on the evidence was the issue of drunkenness. The defence was that the accused, by reason of his heavy drinking, did not believe that his wife intended to commit suicide, that she was bluffing, and that he did not intend to assist her in committing suicide. 5 This defence, in our opinion, was never clearly put to the jury by the learned trial judge.

In his charge to the jury, the trial judge appears to have instructed the jury that the principal issue which they were called upon to decide and which would determine the guilt or innocence of the accused was whether the wife of the accused intended in fact to commit suicide. 6 With respect, he erred in so doing.

The defence in this case was not dependent upon the determination of whether the wife intended to commit suicide but rather whether the accused believed that she intended to commit suicide. 7 In dealing with the issue of drunkenness as it related to the charge of aiding the wife of the accused to commit suicide, the trial judge instructed the jury as follows: "The definition of drunkenness is that you have no capacity at all, and I tell you that is the law in drunkenness; that you cannot form the capacity, the intent, form the intent; you don't have that capacity due to alcohol, so much alcohol that you cannot form the intent." (emphasis added) 8 We are of the opinion that this instruction to the jury was a misdirection.

At no place in his address to the jury did the learned trial judge clearly instruct the jury as to the intent which was requisite to constitute the offence, nor did he relate the evidence of drinking to that intent. We are also of the opinion that he erred in failing to instruct the jury as to the burden of proof on the issue of drunkenness, having regard to the evidence of drinking which was before them. [ 35 ] Since R. v. Beard in 1920, [8] it has been accepted that such a defence is admissible only in the case of specific intent offences. McIntire J. clearly states this in R. v.

Bernard : [9] 63 The present law relating to the drunkenness defence has developed in this Court from the application of principles set out in Director of Public Prosecutions v. Beard , [1920] A.C. 479 (H.L.) , discussed and adapted in other United Kingdom cases, including Attorney General for Northern Ireland v. Gallagher , [1961] 3 All E.R. 299 (H.L.) , Bratty v. Attorney General for Northern Ireland , [1961] 3 All E.R. 523 (H.L.) , and Director of Public Prosecutions v. Majewski , supra . In this Court, the matter has been dealt with in R. v. George , supra , and other cases, but particularly in Leary v.

The Queen , supra , where Pigeon J., speaking for the majority of the Court, said, at p. 57, that rape is a crime of general intention as distinguished from specific intention, a crime therefore "in which the defence of drunkenness can have no application". This may be said to have confirmed the law as it stands in Canada on this question and the appellant's principal attack in this Court is upon that decision. It is not necessary for the purposes of this judgment to review in detail the authorities in this Court on the question. It will be sufficient to summarize their effect in the following terms.

Drunkenness in a general sense is not a true defence to a criminal act. Where, however, in a case which involves a crime of specific intent, the accused is so affected by intoxication that he lacks the capacity to form the specific intent required to commit the crime charged it may apply. The defence, however, has no application in offences of general intent. [ 36 ] The second judgment is that rendered by the Supreme Court in Rodriguez v.

British Columbia (Attorney General) . [10] [ 37 ] Explaining the distinctions between palliative care and assisted suicide, Sopinka J., writing for the majority, made the following remarks: [11]

172 The fact that doctors may deliver palliative care to terminally ill patients without fear of sanction, it is argued, attenuates to an evengreater degree any legitimate distinction which can be drawn between assisted suicide and what are currently acceptable forms ofmedical treatment. The administration of drugs designed for pain control in dosages which the physician knows will hasten deathconstitutes active contribution to death by any standard.

However, the distinction drawn here is one based upon intention — in the caseof palliative care the intention is to ease pain, which has the effect of hastening death, while in the case of assisted suicide, the intentionis undeniably to cause death. The Law Reform Commission, although it recommended the continued criminal prohibition of botheuthanasia and assisted suicide, stated, at p. 70 of the Working Paper, that a doctor should never refuse palliative care to a terminally illperson only because it may hasten death.

In my view, distinctions based upon intent are important, and in fact form the basis of ourcriminal law. While factually the distinction may, at times, be difficult to draw, legally it is clear.

The fact that in some cases, the thirdparty will, under the guise of palliative care, commit euthanasia or assist in suicide and go unsanctioned due to the difficulty of proofcannot be said to render the existence of the prohibition fundamentally unjust. [Emphasis added] [38] These remarks seem irreconcilable with the Crown’s submission that the offence of assisted suicide is one of general intent. [39] I find, therefore, that the prosecution must establish mens rea to seek a conviction on a charge laid under

section 241 Cr. C. [40] The defence specifically sought to attack the mens rea element by arguing that Stéphan Dufour never wanted to help Chantalcommit suicide. First, because of his intellectual disability, he could not cope with the moral pressure he felt to commit

an act that couldfacilitate suicide. Second, because he loved his uncle very much, he never wanted him to go through with his plan to take his own life,and he urged Chantal not to use the device. [41] In R. v. Leblanc,[12] our Court recognized a mental disorder defence when the accused was charged with offences requiringspecific intent: [translation] For more than 20 years, case law has consistently recognized the principle that evidence of mental illness that does not meet the criteriaof subsection 16.2 Cr. C. may nevertheless justify a reduced verdict of manslaughter for someone charged with murder.

The relevantjudgments are R. v. Blackmore (1967), (NS CA), 1 C.R.N.S. 286, C.A.N.E.; R. v. Baltzer (1974), (NS CA), 27 C.C.C. (2d) 118, C.A.N.E.; R. v. Hilton (1977), (ON CA), 34 C.C.C. (2d) 206, C.A. Ont.; R. v. Bring(1976) (ON CA), 34 C.C.C. (2d) 200, C.A. Ont.; A. v. Wright, (1979), 1979 ALTASCAD 187 , 11 C.R. (3d)257; R. v. Rabey (1977), (ON CA), 37 C.C.C. (2d) 461, 486, C.A. Ont. (upheld by the Supreme Court, (S.C.C.), (1980) 2 S.C.R. 513, p. 521); and four judgments of our Court, where the issue was decided unequivocally: R. v. Meloche(1975), (QC CA), 34 C.C.C. (2d) 184; Lechasseur v.

A. (1977), (QC CA), 38 C.C.C. (2d) 319; A.v. Fournier (1982), (QC CA), 30 C.R. (3d) 346 and, more recently, Allard v. A. reflex, (1990), 57 C.C.C. (3d) 397,401. … Essentially, we may learn from these judgments that in murder cases, evidence of a mental abnormality not covered by the legaldefinition of

section 16 may lead to a finding that the specific intent to kill is nevertheless undermined, which would reduce the charge tomanslaughter. In 1977, the Supreme Court of Canada, in MacDonald, recognized that medical evidence could be used not to establish an insanitydefence but solely to deny specific intent. … All the judgments I have cited lead to the conclusion that the subject’s mental condition can be raised not only in the case of an insanitydefence.

The question as to whether the accused had the capacity to form criminal intent (relevant to the insanity defence) differs fromthe question as to whether there actually was criminal intent, which is still in dispute. [42] Our Court reiterated this position in Laflamme v. R.:[13] [translation] It was a defence based on the absence of criminal intent.

Current case law appears to accept that, in the case of specific intent offences,evidence that a person with a mental disorder that is not severe enough for an insanity defence may nevertheless mitigate penal liabilityinsofar as the disorder prevents the formation of the requisite specific intent. [43] In addition to these authorities, it should be pointed out that, in the case of assisted suicide, as opposed to murder, there is noincluded offence requiring only general intent. Thus, when a charge is laid under

section 241 Cr. C., an absence of mens rea results in anacquittal and not simply a mitigation of criminal liability. [44] I am therefore of the opinion that, although the trial judge may have stated without the jury present that the offence undersection 241 Cr. C. was one of general intent, he acted properly in admitting into evidence Mr. Van Gijseghem’s expert report andtestimony. He also instructed the jury on the issue of mens rea in a manner consistent with the characteristics of a crime requiringspecific intent. [45] We know that the prosecution’s burden is particularly heavy when it seeks to have an acquittal overturned. The remarks of

Fish J. in R. v. Graveline[14] are applicable here, mutadis mutandis: 14 It has been long established, however, that an appeal by the Attorney General cannot succeed on an abstract or purely hypotheticalpossibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of theCrown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought,in the concrete reality of the case at hand, to have had a material bearing on the acquittal.

The Attorney General is not required, however,to persuade us that the verdict would necessarily have been different. 15 This burden on the Crown, unchanged for more than half a century (see Cullen v. The King, (SCC), [1949] S.C.R.658), was explained this way by Sopinka J., for the majority, in R. v. Morin, (SCC), [1988] 2 S.C.R. 345: I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty.

Anaccused who has been [page 615] acquitted once should not be sent back to be tried again unless it appears that the error at the first trialwas such that there is a reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent test wouldrequire an appellate court to predict with certainty what happened in the jury room.

That it cannot do. [p. 374] [46] Lastly, it should be noted that, in his statement of the case to the jury, counsel for the prosecution conceded that Stéphan didnot intend to help cause Chantal’s death: [translation] So, it is clear that this is a special concept, and I’m telling you right now that I, the evidence will never show that the accused wanted hisuncle Chantal to die. On the contrary, he tried to dissuade him from doing it morally, ... (four or five inaudible words). And he neverwanted to cause that death either. What’s more, he didn’t want his uncle to use the device to commit suicide, to use it.

His sole intention,in response to the pressure from his uncle, was to reluctantly provide him with the means to commit suicide if and when he decided to doso. [47] I find therefore that the first ground of appeal does not justify setting aside the acquittal. [48] With regard to the second ground of appeal, the Crown argues that the judge should not have limited the commission of theoffence to the time when the device was set up.

The prosecution maintains that Stéphan had many opportunities to dismantle it. [49] This argument does not convince me. [50] Setting up the device, whether or not suicide ensues as set out in the Code, is the act targeted here as being one of theconstituent elements of the offence. Assuming for the sake of argument that there was criminal intent, I deduce that the removal by theaccused of the device he set up would not allow him to avoid conviction based on the commission of the initial act.

In other words, theCrown’s argument would make assisted suicide a continuing offence or, at least, an offence whose commission should be multiplied bythe number of opportunities to dismantle the device. I am not prepared to interpret the legislator’s intention as such. [51] Second, even accepting such an

interpretation, I cannot see how extending the time of commission of the offence couldstrengthen the prosecution’s proof of mens rea. This issue was addressed by expert Van Gijseghem in these terms: [translation] You know, my opinion is this: Mr. Dufour was completely under the influence of his uncle, and at some point, he had no choice but tocarry out his uncle’s order. In the days that were… that followed, and even if he materially and physically had the opportunity to untiethe knot, in my opinion his uncle’s hold on him was still such that he could not allow himself, that Mr.

Dufour could not allow himself toundo the execution or cancel the execution of the order given. [52] I find therefore that the second ground of appeal, like the first, does not justify setting aside the acquittal. [53] For these reasons, I would dismiss the appeal. FRANÇOIS PELLETIER, J.A.