2013 QCCA 1916, 2013 QCCA 1916

Unofficial English Translation R. c. Turcotte 2013 QCCA 1916 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004980-114 (700-01-083996-093) DATE: November 13, 2013 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. FRANÇOIS DOYON, J.A. JACQUES DUFRESNE, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

GUY TURCOTTE RESPONDENT – Accused JUDGMENT [ 1 ] The respondent Guy Turcotte was charged with two counts of first degree murder for having caused the deaths of his two children. [ 2 ] The trial began on April 12, 2011, and on July 5, the jury rendered a verdict of not criminally responsible on account of mental disorder. [ 3 ] The prosecution is appealing the verdict. It asserts that the trial judge (the Honourable Mr.

Justice Marc David, of the Superior Court, District of Terrebonne) has erred in law, mainly with respect to the issue of self-induced methanol intoxication in conjunction with a mental disorder. [ 4 ] The Court respectfully finds that the appeal should be allowed. Here is why. BACKGROUND [ 5 ] At the outset of the trial, the respondent admitted to causing the death of the two victims by means of an unlawful act. An acquittal, therefore, was not one of the possible outcomes, and the judge stated as much to the jury. Thus, the only issue was the state of mind of the respondent at the time of the events.

The evidence showed that he knew of the effects of methanol intoxication, making it impossible to characterize his intoxication as involuntary in the legal sense of the word, despite the fact that he describes it as [ translation ] "morally involuntary" in his memorandum of appeal. [ 6 ] The evidence supports the following reconstruction of events: [ 7 ] On the morning of February 21, 2009, two police officers followed up on a call placed to 911 after the respondent had expressed his suicidal thoughts to his mother.

When they entered the respondent's home, the officers discovered the inert bodies of two children, a boy and a girl. They also found the respondent, who had hidden under the bed upon their arrival. [ 8 ] This tragedy took place one month after the respondent and Isabelle Gaston, the children's mother, had separated. [ 9 ] The respondent, a cardiologist, and Gaston, an emergency room doctor, had met some ten years earlier in medical school. They wed in 2003, and their children were born in 2003 and 2005. [ 10 ] The relationship was a rocky one and they considered separating in 2007.

Although they ended up staying together, they fought frequently and even met with a life coach.

[ 11 ] Although the relationship was turbulent and marked by conflict, there were good times still and the fact that the respondent was a good father has been acknowledged. At trial, Gaston said that [ translation ] "he was not a bad father", on the contrary. His love for his children is not at issue here. [ 12 ] In 2007, Gaston met Martin Huot, who would become her personal trainer. Huot was then in a relationship with Patricia Giroux. The two couples started spending time together and became friends. [ 13 ] In mid-January of 2009, Giroux discovered that her de facto spouse and Gaston were having an affair.

She found a letter and emails that left no room for doubt. She told the respondent, who kept a copy of this correspondence. [ 14 ] On January 17, 2009, the respondent took a trip to Mexico with his family. During this trip, Gaston realized that the respondent had discovered the affair. Their discussions broke down and they decided to separate. Two days after coming home from their trip, the respondent left the family residence.

Gaston and the children stayed in the house and the parents agreed to share custody. [ 15 ] Conversations during the separation were often acrimonious. [ 16 ] On February 8, the respondent found out that the children had been to the Carnaval de Québec with their mother and Huot. The Carnaval had special meaning to him since he had lived in Quebec City for many years. [ translation ] "A hammer to the head would have hurt less", he said in his testimony.

He added: [ translation ] "I could not accept that Martin spent time with my children ... as if I was being replaced". [ 17 ] The next day, a former neighbour told him that the day he left, Huot had spent the night in the family residence and that he had been there almost every night for the last two weeks. This news [ translation ] "made him flip", he said. [ 18 ] On February 10, he went to the family residence to fetch his son's sweater. He found Huot in the kitchen. He told him off: [ translation ] "You stole my wife. You betrayed me, you were my friend".

He then punched him in the face before leaving the house. [ 19 ] On February 17, Giroux sent the respondent new emails between Huot and Gaston. The respondent testified that he did not feel strong enough to read them and that he [ translation ] "sent them to the spam folder", although he did not delete them. [ 20 ] On February 20, he woke up early. He was afraid that Gaston, who was on call, had left the children with Huot. He drove by his old house and did not see Gaston's car parked there. Huot's car was there, however. He stopped and went into the house, where, to his surprise, he found Gaston.

According to him, she ordered him to leave and told him: [ translation ] "... you are going to stop controlling my life ... now, if I want to, I can change the children's names, ... I can get custody, I can move anywhere in Quebec". It then dawned on him that he had made a [ translation ] "monumental error". He states that he was shaken to the core at the idea of losing his children, who were all that he had left. [ 21 ] That day, while he was at work, he exchanged a few emails with Gaston. He then went to pick up the children at daycare and school. [ 22 ] He went to the video store.

On his way, he telephoned Gaston. She told him that she had had the locks changed on the house. He was angry and [ translation ] "took it as an attack", since, in addition to wanting to take away his role as a father, she was [ translation ] "taking away the keys to the house". From her words, he inferred that she had consulted a lawyer and that was why, before ending the conversation, he told her, [ translation ] "If you want war, you are going to get it". According to his testimony, he intended this to mean that he could do the same. [ 23 ] He fed the children, who then wanted to watch a movie.

After clearing the table and washing the dishes, he went to join them in the living room. Feeling dejected, he began to cry. The children consoled him. He put them to bed so that they would be well rested the next day. [ 24 ] He then sat down to read the emails he had set aside a few days earlier. This hurt and disheartened him. He wanted to end his life and searched the Internet for ways to commit suicide. From that moment, the respondent's testimony is vague and imprecise. Instead, we have "flashes", images, and partial memories of the events.

Here are a few of these memories, drawn from the appellant's memorandum, with which the respondent agrees: [ translation ] - He is in the basement, looking for ethylene glycol, a component of antifreeze, but does not find any. - He is at the foot of the stairs. He has a knife in his hands and is sharpening it. He wants to stab himself while holding the knife with both hands but remembers an incident Gaston related to him: a man was brought into the emergency room after being stabbed in the chest, but it did not kill him. He is afraid of failing and does not have the strength to act. - He is sitting on his bed.

He has a glass in his hand and a windshield washer fluid container: [translation] "I drank windshield washer fluid and then threw back my drink, then I took more, and threw back another drink, and that's it". He drinks so much that he feels [translation] "full", and is unable to go to bed because of this. He understands that he is going to die and does not want his children to find his body. To avoid this, he decides that he will [translation] "bring them with him". - He is standing in his son's room. He has a knife in his hands and stabs his son. His son cries out "no" and moves away.

He realizes that he is hurting him. He panics and [translation] "stabs him more". He has a similar memory with respect to his daughter. - He sees himself in the bathroom. He drinks windshield washer fluid. He has blood on his hands. He has hurt his children and looks for the knife to [translation] "stab himself in the heart", but cannot find it.

- He is in the stairwell, dizzy, and falls backwards. - Kneeling next to the bath, he is speaking to his mother on the telephone, telling her: [translation] "I love you, I love you". [ 25 ] He could not place the events in chronological order. [ 26 ] When he woke the next day, it was daylight. He heard the police and decided to hide under the bed. He does not remember that day.

All that he remembers is waking up in the intensive care unit of the hospital. [ 27 ] Other evidence sheds more light on the events that occurred on the evening of February 20. [ 28 ] We know that the respondent used his laptop computer between 6:20 p.m. and 8:09 p.m. Around 8:30 p.m., he left a message to his real estate agent to let him know that he could not make their appointment to see a property he was planning to buy. Around 8:30 p.m., he called the children's babysitter to let her know that his plans had changed and that he would not need her the next day.

At 8:35 p.m., he called his mother back, as she had tried to reach him earlier, and spoke with her for nearly one hour. His mother testified that she was under the impression that he was inebriated. He was incoherent and made disturbing remarks. [ 29 ] It is worth noting that the evidence tends to show that the respondent started drinking windshield washer fluid before stabbing the victims. [ 30 ] Moreover, some of the events that occurred after the death of the victims were also put in evidence. [ 31 ] For example, the respondent made several statements during his arrest and subsequent hospitalization.

He cried out ceaselessly that he had killed his children and that he was a criminal.

He indicated that the events had taken place around 8:00 p.m., while his son had been asleep in his bed. [ 32 ] Bay way of other examples: in the days and weeks following his admittance to the Philippe-Pinel Psychiatric Institute, the respondent made a list of objects to be retrieved from his residence; he asked his family to pick up the tickets that he had bought during the holidays for a family outing to a show and a gift card for a spa day that he had given to Gaston; he telephoned his financial planner to remove Gaston's name from his will and from his life-insurance policy; finally, he telephoned the children's babysitter, apologized for the pain he had caused her, and told her it was not the first time he had thought of doing what he did. [ 33 ] Gaston testified that the respondent telephoned her on May 17, 2009, while he was at the Pinel Institute, and told her that he had not died because he was too angry with her and did not want her to benefit from the insurance or from his will. [ 34 ] In November of 2009, he attempted suicide once more. [ 35 ] Several experts testified at trial.

Here is a

summary of their respective opinions. [ 36 ] The psychiatrists who testified for the defence and the Crown all agree on one thing: at the time of the events, the respondent was suffering from an adjustment disorder with anxiety and depressed mood – what used to be called reactive or situational depression.

This is when a person is unable to adjust to various stress factors and the resulting suffering is much greater than what might normally be expected. [ 37 ] Although classified as a disorder in the DSM-IV ( Diagnostic and Statistical Manual of Mental Disorders , published by the American Psychiatric Association), its severity and actual impact on the person's mental health must be determined by an expert exercising clinical judgment.

The psychiatrists who were heard fail to agree on those two points. [ 38 ] Psychiatrist for the defence Dominique Bourget explained that on February 20, 2009, the respondent was displaying the symptoms of a major mental illness.

She described a five-stage process: 1. the extreme emotional charge experienced in the weeks leading up to the tragedy; 2. the progressive appearance of clinical signs of depression; 3. an acute suicidal impulse; 4. the acting out (intoxication); 5. the fatal outcome of the suicidal acts (the homicides). [ 39 ] The emotional charge became too much to bear, and the respondent was entirely consumed by and obsessed with his suicidal thoughts. He suffered from evolving depression, and he took action. To commit suicide, he drank windshield washer fluid.

We note that windshield washer fluid contains methanol, or methyl alcohol, a type of alcohol used as anti-freeze. [ 40 ] Believing that he would die, wanting to protect his children from suffering because of his death and from the shock of discovering his body, he decided to take them with him and committed the acts with which he was charged. The actions [ translation ] "were motivated by, among other things, an extremely disturbed judgment ...".

Even though it might be argued that the respondent had a certain awareness of the nature of his actions, he acted for irrational reasons that psychiatrist Bourget characterized as inconceivable. She concluded that [ translation ] "his ability to judge and reason logically was deeply disturbed because of his altered consciousness" and that he [ translation ] "was no longer clinically capable of appreciating the nature and consequences of his acts when he acted".

In her view, the fact that he remembers some of the events does not in any way affect this conclusion. [ 41 ] Specifically with respect to the consumption of methanol in the windshield washer fluid, she wrote:

[ translation ] The information available suggests that when Mr. Turcotte attacked his own children so brutally as to cause their deaths, not only was he in the grips of a depressive psychiatric pathology and a suicidal state of mind, he was also intoxicated as a result of ingesting methanol .

The condition in which the victims were found underscores the aberrance and unnaturalness of the behaviour of a man described as a loving and attentive father to his children . [Emphasis in the original.] In the circumstances, this behaviour can only be explained by a clinical picture combining depression, suicidal intent, and intoxication . ... [Emphasis added.] [ 42 ] Psychiatrist Roch Hugo Bouchard testified for the defence as well and is also of the opinion that the respondent was incapable of appreciating the nature of his actions or of knowing that they were wrong.

He added a biological aspect to the analysis: he found that the respondent's behaviour suggested a serotonin deficit, which [ translation ] "causes neurons to function improperly and consequently causes disorganized thinking and distorted reality". He identified acute emotional trauma characterized by a feeling of overwhelming despair and severe distress as one of the causes of serotonin deficit.

He added that this [ translation ] "disorder may be transitory", but that it is [ translation ] "not contingent solely on willpower". [ 43 ] He further noted that the symptoms of depression observed in the present case were extremely intense. In his view, the suicide attempt and the filicide constituted a single event, the result of one course of action. They resulted from the same mental disorder that leads to murder-suicides. Several contextual elements are therefore at issue.

None are sufficient in themselves to explain the tragedy, but each is necessary. [ 44 ] With respect to the methanol, he explained: [ translation ] The methanol intoxication added to the chaos in his head and contributed to actions that are irreconcilable with his personal values. The testimony of Guy Turcotte specifically with respect to the reasons for his methanol intoxication already points to the reasonable hypothesis that he was incapable of judgment.

This was followed by an overall deficit in his cognitive functions resulting from a confused state caused by the intoxication. [Emphasis added.] [ 45 ] In rebuttal, the Crown’s psychiatrist, Sylvain Faucher , did not question the diagnosis of adjustment disorder. He did challenge its impact on the respondent's judgment. He conceded that the respondent had developed a significant emotional charge during the hours and even weeks leading up to the events, but stated that it never reached the intensity of a psychotic state.

An adjustment disorder does not alter judgment to the point of preventing people from understanding their actions, appreciating their nature or knowing whether they are wrong. Furthermore, the suicidal crisis did not cause the respondent to disregard his environment or the consequences of his acts. [ 46 ] In his expert report, he wrote: [ translation ] “... there are telephone conversations foreshadowing what was to come and a verbal will indicating a mix of negative feelings, some of which resulted directly from the relationship with his ex-spouse ...” .

It is a [ translation ] ”tragedy resulting from a massive release of pressure emanating from the accused's unconscious ...”, but which did not prevent him from appreciating the nature and consequences of his actions. In short, a desperate act by a person who did not have the adequate means to deal with the stress factors, but nonetheless a deliberate act expressing his resentment. [ 47 ] Finally, psychiatrist Faucher was of the opinion that even the methanol intoxication did not disturb the respondent’s mind to the point of lessening his liability.

He wrote: [ translation ] Furthermore, in my opinion, the methanol intoxication, despite its potential impact, has not created a state of confusion in Mr. Turcotte or significantly disturbed his judgment. [ 48 ] It should be noted that two more doctors ( Talbot and Barnabé ) agreed with the diagnosis of adjustment disorder. [ 49 ] Finally, it is worth mentioning that methanol is a central nervous system depressant.

Experts Anne-Marie Faucher and Louis Léonard agree that methanol ingestion produces a first stage of intoxication with symptoms similar to those of ethanol (or ethyl alcohol, the alcohol usually consumed), but to a lesser degree.

Unlike ethanol, however, methanol is not eliminated by the human body but transformed into formaldehyde and then formic acid, a highly toxic substance, the accumulation of which leads to a second stage of intoxication, which may cause amnesia and confusion and significantly alter brain function. [ 50 ] Considering the respondent's blurred memories, the likelihood that there was significant vomiting, and the uncertainty respecting the exact strength of methanol, expert Léonard stated that it was difficult to correctly estimate the respondent’s blood alcohol level at the time of his actions.

He placed it at anywhere between 113 and 216 mg of alcohol per 100 ml of blood. Depending on the level retained, the respondent could have been in a state of intoxication akin to that caused by consuming one to two bottles of wine or five to ten bottles of beer in one hour. This level of consumption would impact both judgment and memory. [ 51 ] Finally, expert Léonard concluded, on the basis of methanol's high toxicity and the significant amount consumed by the respondent, that it was likely that he would have died if police had not intervened on February 21. GROUNDS OF APPEAL

[ 52 ] The appellant raises three issues respecting the trial judge's decision to submit the defence of mental disorder and the contents of the jury charge. 1. Did the trial judge err in law by raising the possibility of a verdict of not criminally responsible on account of mental disorder? 2. In his instructions to the jury, did the trial judge insufficiently and inadequately instruct the jury on the notion of mental disorder within the meaning of

section 16 Cr. C .? 3. In his instructions to the jury, did the trial judge fail in his duty to review the essential elements of the evidence and to make the connection between the evidence that was relevant to the defence of mental disorder and the law applicable in "not criminally responsible" matters? [ 53 ] It is clear that the prosecution’s appeal, being limited to questions of law, does not concern the reasonableness of the verdict, but only the decision to submit the defence of mental disorder to the jury and the instructions in this respect.

Consequently, the appellant must convince the Court first, that there was an error of law committed by submitting this defence to the jury or when the instructions were given, and second, that this error may have influenced the verdict. [ 54 ] The appellant contends that the effects of methanol intoxication made the defence of mental disorder inadmissible. Were it admissible, however, the judge should at the very least have explained to the jury that the defence of mental disorder had to be considered without taking into account the effects of the self-induced intoxication, which he failed to do.

The appellant adds that the trial judge also erred in law by failing to summarize the expert evidence and to indicate how the defence of mental disorder related to this evidence. [ 55 ] The respondent submits that the defence of mental disorder had to be put to the jury once the diagnosis of adjustment disorder with anxiety and depressive mood had been made, considering the clinical judgment of the experts concerning the respondent's mental condition. He adds that the instructions to the jury were correct and that, in any event, the methanol intoxication formed part of the same mental disorder.

Alternatively, he contends that were the Court to allow the appeal, it should order a new trial solely on a charge of manslaughter. [ 56 ] We shall now consider the grounds of appeal. The second and third questions will be analyzed jointly. SHOULD the defence of mental disorder have been submitted to the jury? [ 57 ] The appellant points out that the respondent's mental condition was the result of a combination of factors: the adjustment disorder, the suicidal crisis, and the methanol intoxication.

Given the importance of the effects of the self-induced intoxication, which is inseparable from the adjustment disorder and suicidal crisis in explaining the respondent's actions, the appellant argues that the defence of mental disorder lacked an air of reality, [1] rendering it inadmissible. Thus, there remains only the issue of self-induced intoxication, which cannot result in a verdict of not criminally responsible on account of mental disorder.

Nor can it be ground for an outright acquittal, since it would only reduce the murder charges to manslaughter. [ 58 ] Yet, at trial, the appellant argued the opposite: it conceded that the defence of mental disorder had to be submitted to the jury, and it minimized the degree of intoxication by arguing that it was not sufficiently severe to negate the specific intent to kill. [ 59 ] To justify this about-face, the appellant explains that it committed an error at trial, but adds that this error does not carry any consequences because it was an admission in law, which does not bind the trial judge, who is duty bound to apply the law correctly. [ 60 ] For a defence to be submitted to the jury, it must have an air of reality.

It is a question of law; therefore, even when a party concedes the issue, the judge must apply the law correctly. A concession of the nature may, however, lead a judge to limit his or her instructions to avoid needlessly confusing the minds of the jurors, particularly where the admission is to effect that a defence has an air of reality. It is assuredly one of the reasons that led the judge to limit his instructions on the matter here. The impact of the prosecution's admission is therefore not negligible.

On the other hand, the prosecution cannot have it both ways and, realizing the failure of its strategy at trial, make an about-face and renege on the position it took previously. [ 61 ] Furthermore, it is far from obvious that we are dealing here with an admission of law. In making this admission, the prosecution had to also concede that there was evidence of a mental disorder. In other words, even if one concludes that the admission (that there was an air of reality) was an admission of law, the underlying reasoning also required an admission on the scope of the evidence.

While it is accurate to state that the air of reality test [2] is overall a question of law, the prosecution's concession in this case inevitably implied an admission on the facts (sufficient evidence of mental disorder), or at the very least, on a mixed question of law and fact, that the prosecution may not repudiate merely because it believes it made a mistake. Moreover, such repudiation does not fall under prosecutorial discretion, as defined by the Supreme Court in R. v.

Nixon , 2011 SCC 34 , [2011] 2 S.C.R. 566 . [ 62 ] The prosecution has therefore made an admission and has failed to show a cause for its repudiation, especially since it was correct at trial in that the evidence did require that the defence of mental disorder be submitted to the jury. Here is why. [ 63 ]

Section 16 Cr. C. sets out the following:

(1) La responsabilité criminelled'une personne n'est pas engagée àl'égard d'un acte ou d'une omission desa part survenu alors qu'elle étaitatteinte de troubles mentaux qui larendait incapable de juger de la natureet 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 avoirété atteint de troubles mentaux denature à ne pas engager saresponsabilité criminelle sous lerégime du paragraphe (1); cetteprésomption peut toutefois êtrerenversée, la preuve des troublesmentaux se faisant par prépondérancedes probabilités. (3) La

partie qui entend démontrer quel'accusé était affecté de troublesmentaux de nature à ne pas engager saresponsabilité criminelle a la charge dele prouver. 16.

(1) No person is criminallyresponsible for

an act committed or anomission made while suffering from amental disorder that rendered the personincapable of appreciating the nature andthe quality of the act or omission or ofknowing that it was wrong.

(2) Every person is presumed not tosuffer from a mental disorder so as to beexempt from criminal responsibility byvirtue of subsection (1), until the contraryis proved on the balance of probabilities.

(3) The burden of proof that an accusedwas suffering from a mental disorder soas to be exempt from criminalresponsibility is on the party that raisesthe issue. [64]

Section 2 Cr. C. adds the following: 2. Les définitions qui suivents’appliquent à la présente loi. « troubles mentaux » : Toutemaladie mentale. 2. In this Act, “mental disorder” means a disease of themind. [65] The accused is therefore presumed to be of sound mind, but this presumption can be rebutted. The judge must first determinein law whether the mental condition alleged by the defence is included in the notion of mental disorder within the meaning of sections 2and 16 Cr. C. and then determine whether this condition satisfies the applicable legal test. In R. v.

Stone, (SCC), [1999]2 S.C.R. 290, Bastarache J. explains: 197 Taken alone, the question of what mental conditions are included in the term “disease of the mind” is a question of law. However,the trial judge must also determine whether the condition the accused claims to have suffered from satisfies the legal test for disease ofthe mind.

This involves an assessment of the particular evidence in the case rather than a general principle of law and is thus a questionof mixed law and fact. ... [66] In addition, before submitting a defence of mental disorder to a jury, the judge must ensure in the first place that there isevidence supporting the existence of the alleged mental condition and, in the second place, that there is evidence that the mentalcondition caused the incapacity to appreciate the nature and the quality of the act or omission or to know that it was wrong.

In makingthis double determination, which is an issue of law, the judge is required to apply the air of reality test and ensure that there is a factualbasis for each element of the defence, like for any other defence, as the Chief Justice of Canada pointed out in R. v. Pappas, 2013 SCC56: [27] ... The question is whether a properly instructed jury acting reasonably could be left in a state of reasonable doubt as to the presenceof each of the elements of the defence of provocation.

There must be an evidential foundation for both the objective and subjectiveelements of the defence. ... [67] When analyzing the air of reality test, the judge must assess the overall evidence, even if this assessment is limited (R. v.Pappas at para. 26 and R v. Cairney, 2013 SCC 55 at para. 21). [68] Even when in doubt, the judge will leave it up to the jury to determine whether the evidence in question is sufficientlypersuasive on a balance of probabilities, as set out in R v. Cairney: 22 If this air of reality test is met, the judge should leave the defence to the jury.

While judges must ensure that there is an evidentialfoundation for the defence, they should resolve any doubts as to whether the air of reality threshold is met in favour of leaving thedefence to the jury. [69] In this case, did the judge correctly conclude that the respondent's mental condition met the legal test of mental disorder? [70] Here is how Bastarache J. describes the starting point of this analysis in R. v. Stone, supra: 199 ... The foregoing lends itself to a rule that trial judges start from the proposition that the condition the accused claims to havesuffered from is a disease of the mind.

They must then determine whether the evidence in the particular case takes the condition out ofthe disease of the mind category. This approach is consistent with this Court’s decision in Rabey, supra.

[ 71 ] The concept of mental disorder (or disease of the mind) is broad, as is its scope. It remains subject to change. In fact, LeBel J. points this out in R. v. Bouchard-Lebrun , 2011 SCC 58 , [2011] 3 S.C.R. 575: 59 The line of authority based on Cooper clearly confirms that the scope of the legal concept of “mental disorder” is very broad. In Cooper , Dickson J. stated that the “disease of the mind” concept includes “any illness, disorder or abnormal condition which impairs the human mind and its functioning” (p. 1159).

In Rabey , Dickson J. explained that “the concept is broad, embracing mental disorders of organic and functional origin, whether curable or incurable, temporary or not, recurring or non-recurring” (p. 533). 60 ... It is thus flexible enough to apply to any mental condition that, according to medical science in its current or future state, is indicative of a disorder that impairs the human mind or its functioning, and the recognition of which is compatible with the policy considerations that underlie the defence provided for in s. 16 Cr.

C. [ 72 ] In this case, the respondent’s adjustment disorder is to be understood in accordance with this view of the law. Of course, mental disorder within the meaning of

section 16 Cr. C. remains a legal concept – although one dependant on medical science – particularly in explaining the respondent's mental condition. [ 73 ] For the appellant, the respondent's mental state resulted from the combination of his disturbed mental condition and his significant intoxication, which rules out any possibility of a mental disorder in the legal sense. In other words, the appellant contends that where intoxication is self-induced and contributes significantly to the accused's incapacity, there can be no defence of mental disorder. Let us examine the issue. [ 74 ] The Court must take into account the public order considerations underlying the

section 16 Cr. C. defence, which allow the judge to "determine whether the evidence in the particular case takes the condition out of the disease of the mind category", as Bastarache J. writes in Stone . [ 75 ] In both Stone and Bouchard-Lebrun , the Supreme Court identifies three analytical factors or tools that are likely to assist a judge performing an overall analysis:

(1) The internal cause factor. Is the cause or trigger for the accused's mental condition internal or external? The higher the chance that a normal person might develop such a condition when placed in the accused's situation, the more the Courts will consider that the alleged disorder was triggered by an external factor, not an internal one or one that is personal to the accused, so that this condition will be difficult to reconcile with the concept of disease of the mind within the meaning of

section 16 Cr. C. In other words, the judge must consider whether a normal person, placed in the same circumstances as the accused would be likely to fall into a similar mental condition. If the answer is positive, the accused's mental condition will move away from the notion of disease of the mind and move toward that of a person who is not suffering from a mental disorder.

(2) The continuing danger factor. This factor stems from the necessity of ensuring the safety of the public by evaluating the risk of a similar event recurring. The greater the risk, and the greater the chance that there will be a recurrence independently of the exercise of the will of the accused, the more his mental condition can be likened to mental disorder.

(3) Policy concerns. Did the accused's mental condition require a particular treatment and did it constitute a threat to others? In the negative, the courts will more easily come to the conclusion that the accused was not suffering from a mental disorder at the time of the events. [ 76 ] Before going any further, it is important point out that the issue in Stone revolved around a psychotic episode caused by a psychological shock, whereas Bouchard-Lebrun dealt with a psychosis that was exclusively toxic.

As LeBel J. points out in Bouchard- Lebrun , it is therefore necessary to adjust relevant factors to the specific circumstances at hand and to conduct a case by case analysis: 77 Although the courts can seek assistance from the existing case law, it would be preferable for them to engage in an individualized analysis that takes account of the specific circumstances of each case.

This means that the courts should determine on a case-by-case basis, applying the “more holistic approach” from Stone , whether the mental condition of each accused is included in or excluded from the definition of “disease of the mind” proposed by Dickson J. in Cooper This approach is consistent with the line of authority based on Rabey , in which this Court endorsed Martin J.A.’s opinion that “[p]articular transient mental disturbances may not . . . be capable of being properly categorized in relation to whether they constitute ‘disease of the mind’ on the basis of a generalized statement and must be decided on a case-by-case basis” (pp. 519-20). [ 77 ] The present case presents unique circumstances that set it apart from the case law.

As LeBel J. writes in Bouchard-Lebrun : 88 In light of the case law, it is plausible to expect that the courts will have to perform this legal characterization exercise in circumstances much more difficult than the ones in the case at bar. One example would be a case in which the mental condition of the accused indicates an underlying mental disorder but the evidence also shows that the toxic psychosis was triggered by the consumption of drugs of a nature and in a quantity that could have produced the same condition in a normal person.

In such circumstances, the courts should be especially meticulous in applying the “more holistic approach” from Stone . [ 78 ] Thus, the analysis must proceed in meticulous fashion in the present case. [ 79 ] The trial judge did not have the benefit of the teachings of Bouchard-Lebrun when he decided to submit the defence of mental disorder to the jury. In any event, it had no impact in the receivability of that defence. [ 80 ] As LeBel J. points out in the excerpt quoted above, intoxication does not necessarily render the defence of mental disorder inadmissible.

It can, however, result in its exclusion, depending on the effect the intoxication has on the accused's mental state. In fact, LeBel J.’s statement in paragraph 37 of Bouchard-Lebrun that "the application of s. 16 Cr. C. and that of s. 33.1 Cr. C. are mutually exclusive" does not mean that the mere fact of intoxication brings the analysis to an end. Rather, it means that the source of the disease of the mind must be identified to determine which of the two,

section 16 or

section 33.1 Cr. C. (rules specific to self-induced

intoxication), should be applied. [ 81 ] LeBel J. emphasized the importance of determining the source of the mental condition: 38 This general principle does not seem particularly contentious. If the accused was intoxicated and in a psychotic condition at the material time, the problem the court faces is to identify a specific source for his or her mental condition, namely self-induced intoxication or a disease of the mind, and determine whether it falls within the scope of s. 33.1 or s. 16 Cr. C.

This appears to be all the more difficult to do in cases in which the mental health of the accused was already precarious prior to the incident in question, even if his or her problems had not yet been diagnosed at the time, and in which the psychosis emerged while the accused was highly intoxicated.

Yet this identification of the source of the psychosis plays a key role, since it will ultimately determine whether the accused will be held criminally responsible for his or her actions. [ 82 ] There is evidence that the respondent's mental condition rendered him incapable of appreciating the nature and quality of his actions or of knowing that they were wrong. The source of this mental condition must then be identified: was it the mental disorder or the intoxication, or a combination of the two? The answer will determine whether the respondent may be held criminally responsible for his actions, since

section 16 Cr. C. requires that the cause of the incapacity be a mental disorder. [ 83 ] The Court is of the view that the evidence allowed the trial judge to find that the defence of mental disorder met the air of reality test, which meant that it should be submitted to the jury. [ 84 ] While intoxication may have contributed to making the respondent incapable of appreciating the nature and consequences of his actions or of knowing that they were wrong, the testimony of the psychiatrists for the defence do not allow one to conclude he would not have been so incapacitated were it not for the intoxication.

In other words, at the stage of the air of reality test, the evidence indicated that the source of Respondent’s incapacity was a disease of the mind independant of the intoxication. [ 85 ] Thus, at that point in the analysis, the evidence supported a finding that the respondent was suffering from a severe disease of the mind at the time of the events. As a result of this disease, the events previously described led him into an acute suicidal crisis that in his mind left no room for any other alternative.

To kill himself, he ingested a large quantity of windshield washer fluid containing methanol, which caused him to be intoxicated to a degree that is difficult to determine. According to counsel for the respondent, this sequence of events [ translation ] "shows that the absorption of methanol was neither the source nor the trigger for the respondent's mental state, although it was a contributive trigger to the mental state in question". [ 86 ] This theory that the intoxication was not the trigger for the respondent’s mental state, although it was a contributing factor, is not without merit.

The fact that intoxication was the means chosen by the respondent to end his life does not rule out the possibility that the primary trigger was psychological shock coupled with adjustment disorder with anxiety and depressive mood. The ingestion of windshield washer fluid would then be part of the mental disorder, as it would not result from the exercise of free will. [ 87 ] In this respect, the respondent cites the testimonies of Dr. Bourget and Dr.

Bouchard, who indicated that the mental state and its consequent obsession with suicide largely predated the intoxication, making it possible to argue that the true source of his mental condition was the disease of the mind. As soon as the suicidal crisis arose, he was no longer conscious of his environment. He could no longer reason. The ingestion of a toxic product would only worsen the state the respondent was already in, although it would not be its source. [ 88 ] The respondent also refers to the testimony of Dr.

Bouchard, who opined that at the time of the suicidal crisis, the respondent was incapable of exercising self-control.

He even described the respondent as a man who [ translation ] "was on autopilot", and as a result, the respondent argues, his ingestion of windshield washer fluid involved no moral responsibility. [ 89 ] The Court finds that had the trial judge specifically analyzed the three factors set out in Bouchard-Lebrun , he would still have concluded that the respondent's mental condition was a mental disorder within the legal meaning of that term and that the defence had to be submitted to the jury. [ 90 ] Thus, with respect to the internal cause factor, the [ translation ] "psychological shock" as well as the mental condition described by the respondent, corroborated by Dr.

Bourget and Dr. Bouchard, would result from an internal cause. A normal person, placed in the same circumstances, would not be likely to develop an adjustment disorder as acute, nor to become suicidal to such a degree, nor to develop the mental condition described above. Obviously, the intoxication might constitute an external cause.

When the air of reality of the defence of mental disorder was determined, however, the evidence indicated that there was an internal cause, especially since all the experts agreed that the respondent had an adjustment disorder and none of them contended that intoxication alone could fully explain his mental condition at the time of the events.

This first factor therefore indubitably tends to indicate an internal cause and points to the existence of a mental disorder. [ 91 ] As for the continuing danger factor, even though there may be no evidence of a risk of recurring violence, Bastarache J. explained in Stone that this is not always a determinant factor: 212 ... This theory holds that any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind. In other words, the likelihood of recurrence of violence is a factor to be considered in the disease of the mind inquiry.

This approach must be qualified to recognize that while a continuing danger suggests a disease of the mind, a finding of no continuing danger does not preclude a finding of a disease of the mind. ... [ 92 ] Finally, with respect to public safety and policy concerns, once again, the analysis must be adapted to each individual case. In this respect, it is appropriate to quote the following paragraph from Bouchard-Lebrun : 75 In Stone , Bastarache J. also stated that “a holistic approach to disease of the mind must also permit trial judges to consider other policy concerns which underlie this inquiry” (para. 218).

The main policy consideration continues to be the need to protect society from the accused through the special procedure set out in

Part XX.1 of the Criminal Code . Thus, if the circumstances of a case suggest that a

pre-existing condition of the accused does not require any particular treatment and is not a threat to others, the court should more easily hold that the accused was not suffering from a disease of the mind at the time of the alleged events. [ 93 ] It cannot be asserted that the respondent did not represent a threat to others.

The adjustment disorder was not artificially created and was a disease of the mind that, in light of its severity, could have required intervention. [ 94 ] In short, in this case, where the first factor is so very present and the third tends to indicate the presence of a mental disorder, the second factor could not, in and of itself, justify ruling out the defence. Therefore, the judge could, as he did, taking into consideration all of the evidence, find that the defence of mental disorder was admissible because it met the test of an air of reality.

APPROPRIATENESS OF THE CHARGE [ 95 ] Once the air of reality test was satisfied, the trial judge had to submit the defence to the jury and explain, inter alia , the reasoning behind it, its elements, and the burden of proof.

The Court is of the opinion that the trial judge erred, in his explanation of the defence, by failing to draw the jury's attention to the issue of intoxication and its effects. [ 96 ] In Bouchard-Lebrun , LeBel J. stressed the importance of making a clear distinction between the mental disorder and the intoxication when both concepts are at play: 69 When confronted with a difficult fact situation involving a state of toxic psychosis that emerged while the accused was intoxicated, a court should start from the general principle that temporary psychosis is covered by the exclusion from Cooper .

This principle is not absolute, however: the accused can rebut the presumption provided for in s. 16(2) Cr. C. by showing that, at the material time, he or she was suffering from a disease of the mind that was unrelated to the intoxication-related symptoms . ... [Emphasis added.] [ 97 ] It was the respondent's burden to demonstrate that he suffered from an incapacitating disease of the mind, unrelated to the intoxication-related symptoms, and it was the jury's task to rule thereon. The judge did not draw the jurors' attention to this distinction.

As a result, it was possible for them to have concluded that the effects of the intoxication were part or constitutive of the mental disorder and that, when these effects were taken together with the other circumstances, a verdict of not criminally responsible on account of mental disorder was possible without considering whether the intoxication, rather than the mental disorder, might have been the actual cause of the incapacity.

Thus, there is a real risk that the jury found the respondent not criminally responsible based on the effects of the intoxication as opposed to those of the mental disorder. [ 98 ] It was necessary for the jury to consider all relevant elements and answer the following question: Was the mental disorder, or the intoxication, or a combination of both, the source of the respondent's incapacity? If it was the intoxication, it goes without saying that the defence of mental disorder must fail.

If it was a combination of both, the jury must examine the role which each played and determine the scope of the contribution of each to decide, for example, whether the effects of the intoxication were such that it was the actual source of the respondent's incapacity or whether, on the contrary, the mental disorder alone could have caused this incapacity. We stress that this question arises where the evidence indicates that the idea of taking the children with him in death came to respondent after the intoxication, which clearly indicates that the intoxication played a significant

part in the respondent's homicidal conduct. [ 99 ] It is appropriate, at this stage, to review the evidence regarding the contributory role played by the intoxication, remembering that the three experts (Bourget, Bouchard, and Faucher) took the intoxication into account when determining the respondent's incapacity. [ 100 ] Psychiatrist Bourget found that the respondent’s mind was perturbed by a combination of factors, one of which was intoxication. The respondent's conduct can thus only be explained by the combination of a deep depression, a suicidal crisis and methanol intoxication.

She explained: [ translation ] And what I am saying is that in these circumstances, in the circumstances that we know, this type of behaviour may in my view be explained only by a clinical picture that combines the depression, the suicidal intent and the intoxication. And in my view, the judgment, his judgment at the time of the events, was severely disturbed, his logic was defective and that prevented him from being aware, from being fully aware of the acts that he was about to commit. ...

What I am saying in the paragraph just a little earlier in my report, is that in the circumstances that we know of, Turcotte's behaviour, the behaviour that was truly aberrant, violent, and such as we know it to have been toward his children, was behaviour that can only be explained by the clinical picture that I described earlier, which combined his depressive state, his suicidal intent and his intoxication . ...

But in my view, the intoxication itself was merely another element to be added to the clinical picture that we already have and, indeed, Turcotte's state of consciousness when committing his acts was all the more disturbed with the addition of all these various factors. ... Therefore, we know that on a psychiatric level there is already something going on with him, his brain has already stopped registering reality, there has been a disconnect. So the substance obviously is not going to help, if anything, it will only exacerbate or worsen the state he is already in.

And that is why I say “added to,” because the exact contribution of the intoxication is very difficult to... with respect to the entire pathology affecting his brain, it is difficult to state precisely that well, it contributed two percent (2%), five percent (5%), or ten percent (10%). He already has a brain that is not working, and an intoxicating agent is added to that which could create confusion, obviously things can only get worse from there .

That being said, the intoxication could have played a role in that it was the way he chose to commit suicide, and from there, having decided to commit suicide, seeing himself dead, that was when he suddenly thought of his children and thought to take them with him. ...

Obviously, in that case, what complicates the picture and what has caused me to qualify the disassociation, for example, is that there are elements that will become...that are exterior, organic elements, if you will, or the ingestion of a substance that exacerbated his condition or caused even more confusion . But it is important to understand that all this doesn't happen in an instant, all at once, it was the progression of the clinical state. [Emphasis added.] [ 101 ] In short, the intoxication is part of the clinical picture and the expert drew her conclusions on the basis of that picture.

Although she was unable to quantify the exact contribution of the intoxication, she accepted it as a factor that had a disturbing effect on the respondent's judgment. [ 102 ] Her report is to the same effect: [ translation ] The short term effects of methanol ingestion consist mainly of digestive problems (nausea, epigastric pain, vomiting), central nervous system disorders (headaches, vestibular neuronitis, vertigo, asthenia, lack of coordination) and more or less severe consciousness disorders (sleepiness, restlessness, delirium leading to coma and at times convulsions).

The effects on the central nervous system are similar to alcohol intoxication. Also, there are ocular problems that may progress to complete blindness and potentially fatal acute metabolic disorders. It is clear that, even by itself, methanol intoxication is likely to cause a disruption of judgment and altered consciousness. ... The information available suggests that when Mr. Turcotte attacked his own children so brutally as to cause their deaths , not only was he in the grips of a depressive psychiatric pathology and a suicidal state of mind, he was also intoxicated as the result of ingesting methanol .

The condition in which the victims were found underscores the aberrant nature of the behaviour of a man described as a loving and attentive father to his children . In the circumstances, that behaviour can only be explained by a clinical picture combining depression, suicidal intent, and intoxication.

In our view, his judgment was very severely disturbed and his logic defective, by that very fact preventing him from being fully aware of the acts he was about to commit. [Emphasis in original.] [ 103 ] Psychiatrist Bouchard also testified on the significant effects of the methanol intoxication on the respondent's behaviour: [ translation ] But what I do know is that, in my hypothesis, he wanted to commit suicide and taking ethanol (sic) complicated a suicidal crisis and broadened the suicide into a murder-suicide with this absurd idea of violence, his children. ...

Well that is to say, what I mean is, that it's impossible that it had no effect, it is a poison, it is toxic, and I know that poison, that toxic substance causes, with respect to the brain, significant disorganization in people who are not suicidal, but who present with an acute brain disorder following the intoxication . ... [Emphasis added.] [ 104 ] He answered the following question in the affirmative: [ translation ] Q. So, you are taking it for granted that the intoxication induced a confused state in Mr.

Turcotte, is that it, before he acted? [ 105 ] His report is to the same effect: [ translation ] With respect to Mr. Guy Turcotte, the suicidal raptus would not let him delay. It was an unreasonable impulse. He drank methanol quickly to end it all as fast as possible. The intoxication and its effects converged with the other factors of the suicidal crisis and led to an absurd and violent disorganization causing the violent death of his children . ... The methanol intoxication added to the chaos in his head and contributed to actions that are irreconcilable with his personal values.

The testimony of Guy Turcotte specifically with respect to the reasons for his methanol intoxication already points to the reasonable hypothesis that he was incapable of judgment. This was followed by an overall deficit in his cognitive functions resulting from his confused state caused by the intoxication. I accept that it is reasonable to think that acting on his suicidal ideation preceded the homicidal actions. ... Several contextual elements contributed to this tragedy.

None was sufficient by itself, but each was necessary . ... [Emphasis added.] [ 106 ] Psychiatrist Faucher added that [ translation ] "an adjustment disorder is not sufficient to conclude that an individual is unable to appreciate the nature of the actions that he commits or to appreciate whether they are right or wrong. There must be more. There must be one or more additional aspects”. No such aspect was present in this case since, in his view, the intoxication by itself could not have disturbed his judgment to such a degree. [ 107 ] We will now see how the trial judge addressed this topic in his charge.

[ 108 ] But first, let it be noted that, when a psychotic condition is due exclusively to self-induced intoxication, the defence of mental disorder is not admissible ( R. v. Bouchard-Lebrun , supra ). The issue becomes more subtle when the disturbed mental condition occurs in the context of a disease of the mind coupled with intoxication. It is then up to the defence to show that it was the disease of the mind that caused the accused's incapacity, as opposed to the intoxication.

The jury must therefore determine the source of the mental condition and make the appropriate distinctions in order to determine whether the defence has met its burden. [ 109 ] The judge did not explain this essential selection to the jury. The intoxication was instead described as an aspect of the mental disorder, or so the instructions would suggest. The judge did this in summarizing the theory of the defence: [ translation ] The evidence adduced by Defendant in support of the defence of not criminally responsible has shown that Mr.

Turcotte suffered from an acute adjustment disorder with anxiety and depressive mood. The combination and evolution of this major depressive portrait, together with the intense emotional charge in the previous weeks, the suicidal ruptus and crystallization of the intent to commit suicide, the methanol intoxication, the passage to action and the final outcome depict a diseased mind, incapable of rational judgment.

As acknowledged by for both the prosecution and defence witnesses, these tragic events were completely unforeseeable and a verdict of not criminally responsible is the only proper outcome in the circumstances of this trial. [ 110 ] The trial judge, obviously, cannot be faulted for expressing himself in this manner as he was presenting the defence's position. The mental disorder was an indivisible whole and the intoxication was one part of that whole, the sign of diseased mind.

It was not a factor contributing to the respondent's incapacity, but a demonstration of that incapacity. [ 111 ] The judge should not have let the jury deliberate, however, without pointing out the distinction between the effects of the mental disorder and those of the intoxication.

It is impossible to know what the jury's verdict would have been had it conducted this additional analysis, but the judge should, at the very least, have asked it to consider the issue, which he failed to do. [ 112 ] Even though the judge first reminded the jury that, in law, the defence of mental disorder excludes self-induced intoxication, he then went on to discuss the respondent's case and mentioned only mental disorders, among which adjustment disorder with anxiety and depressive mood, without making any mention the suicidal crisis or the intoxication, which were nevertheless essential factors leading to the conclusions drawn by the experts: [ translation ] A mental disorder within the legal meaning of the term is a disease of the mind.

It includes any sickness, any disorder or any abnormal state that affects human reason and its functioning, excluding, however, self-induced states as the result of alcohol or drugs or transitory mental states such as hysteria or concussion. As a question of law, the disease of the mind described by the psychiatrists Bourget, Bouchard and Faucher, that is, an adjustment disorder with anxious and depressive moods, meets the legal definition of mental disorder set out under the Criminal Code .

As a question of fact, this should raise a significant red flag for you, which falls within your exclusive jurisdiction, you must assess and decide whether the defence has established on a balance of probabilities that Guy Turcotte was suffering from this mental disorder when he killed his children. On this question you should not have any great difficulties concluding on a balance of probabilities that this disorder existed at the time of the events. The prosecution does not contest the existence of a mental disorder.

Furthermore, all the expert psychiatrists are of the opinion that Guy Turcotte was suffering from an adjustment disorder at the time of the offence. However, this decision is entirely yours to make. I would suggest that what is basically at stake for the defence is your answer to the following question: Did this mental disorder render Guy Turcotte incapable of appreciating the nature and quality of his actions or of knowing that his actions were wrong? The parties and experts debated and disagreed on this question of fact.

If Guy Turcotte has not convinced you, on a balance of probabilities, that when he stabbed his children he was suffering from a mental disorder, you will not have to consider the alternative question of determining the impact of this mental disorder on Guy Turcotte, but you must then continue your deliberations to decide of which crime Guy Turcotte is guilty, murder in the first degree, in the second degree, or manslaughter.

However, if Guy Turcotte has established on a balance of probabilities that he was suffering from a mental disorder when he stabbed his children, then you must decide whether Guy Turcotte has established on a balance of probabilities that his disease rendered him incapable of appreciating the nature and quality of his actions or of knowing that these actions were wrong.

Guy Turcotte does not have to establish both types of incapacity, one of the two will be enough to find him not criminally responsible. [Emphasis added.] [ 113 ] As a result of this instruction, the jury was invited to conclude that the respondent was not criminally responsible if he successfully proved that [ translation ] "this mental disorder" rendered him incapable of appreciating the nature and quality of his actions or of knowing that his actions were wrong.

The problem is that the expression [ translation ] "this mental disorder" used in the instructions refers only to the adjustment disorder described above, whereas the experts all argued that it was necessary to take into account not only the adjustment disorder but also the suicidal crisis and the intoxication to understand the respondent's mental condition. [ 114 ] The judge decided not to summarize the testimony of the experts on this specific question, limiting himself to repeating to the jury that their reports had been filed and that their differences of opinion did not concern the existence of a mental disorder but only the incapacity resulting from this mental disorder.

That being the case, he did not stress the importance the experts placed on the intoxication, in their opinion, nor on the effect of that intoxication on the respondent's incapacity. He did not spell out what distinctions had to be made regarding the cause of the respondent's mental condition. [ 115 ] In sum, the jury was not instructed on an important question that it had to decide, to wit, whether it was the mental disorder or the intoxication that rendered the respondent incapable of rational judgment.

[ 116 ] Only later did the judge draw the jury's attention to the combined effects of intoxication and the mental disorder, when explaining the issue of the self-induced intoxication and the prosecution's burden of proving specific intent to kill. It should be noted, however, that the judge only gave this instruction because, at that stage of the analysis, the jury would already have concluded that the defence in

section 16 Cr. C. did not apply. Consequently, the jury could not have understood from this instruction that, in analysing the defence of mental disorder, they had first to consider the intoxication and its effects in combination with the effects of a disease of the mind. [ 117 ] Finally, we must be mindful of the fact that the instructions to the jury must be taken as a whole, without unduly segregating certain excerpts.

In this case, taken as a whole, the instructions did not allow the jury to understand the necessity of distinguishing the effects of the methanol intoxication from those of the disease of the mind in order to determine the real cause of the respondent's mental condition and incapacity. [ 118 ] To summarize, self-induced intoxication does not, in and of itself, rule out the defence of mental disorder, except when, as in Bouchard-Lebrun , it is the single cause of the psychosis. The defence of mental disorder must not, however, turn into another form of self-induced intoxication.

Consequently, the jury must understand that, if it finds that there was a mental disorder, it must continue its analysis and ensure that the source of the accused's incapacity was truly the mental disorder, in spite of the intoxication.

In this sense, as previously stated, the instructions must address the degree to which the self-induced intoxication contributed to the incapacity, so that the greater the effects of the intoxication, the less likely the acceptance, by the jury, of a defence of mental disorder. [ 119 ] That being said, there remains the appellant's submission according to which, in deciding whether the respondent suffered from a mental disorder, the jury had to consider the three factors set out in Stone (internal cause, continuing danger, and policy concerns).

This argument must fail for two reasons. [ 120 ] First, these factors are described by Bastarache J. in the context of an analysis to determine whether the mental condition alleged by the accused is a disease of the mind. In other words, these factors serve to determine whether the alleged mental state meets the legal criteria in order to constitute a mental disorder and whether the defence should be submitted to the jury. That is a preliminary determination that belongs to the judge. The role of the jury is then to determine whether the accused truly suffered from a mental disorder.

The three operating factors will have been reviewed during the judge's assessment and need not be re-examined by the jury. [ 121 ] Second, from a practical point of view, it would be counter-productive to ask the jury to repeat an analysis whose basic objective is to determine whether the mental condition argued by the defence can be legally characterized as a mental disorder.

That conclusion being reached, the purpose of the law is satisfied if the jury focuses on whether, on a balance of probabilities, the evidence shows that at the time of the events, the accused suffered from a mental disorder already characterized as such by the judge in the legal sense. Thus, everyone has a role to play: the judge decides whether the alleged condition may be characterized as a mental disorder within the meaning of the law, and the jury decides whether it has been established on a balance of probabilities.

If the appellant's submission were accepted, jurors would be required to deliberate on questions that have already been decided by the judge, and their deliberations would consequently be pointlessly protracted. PRECLUSION [ 122 ] According to the respondent, if the Court allows the appeal, it should order a new trial but only on charges of manslaughter.

He submits: [ translation ] Indeed, even if we were to admit that the intoxication prevented a defence of not criminally responsible from being offered or accepted in this case , the fact nevertheless remains that the jury found, on a balance of probabilities and as a question of fact, that the respondent was incapable of appreciating the nature or quality of his actions or of knowing that they were wrong. Whether the source of this incapacity was a disease of the mind or the intoxication does not in any way call into question the factual conclusion reached by the jury.

As absolute master of the facts, the jury clearly concluded that the respondent did not have the requisite mens rea to commit any criminal offence. This conclusion precludes the respondent from being re-tried for murder. [Emphasis added.] [ 123 ] However, neither hypothesis proposed above has merit.

As explained, (1) intoxication does not prevent a defence of mental disorder from being submitted and (2) the evidence here supported accepting this defence, on the condition, however, that the instructions led the jury to properly analyze the issue from the angle already described. [ 124 ] Be that as it may, no one knows why the jury concluded as it did, and it cannot be asserted that the jury [ translation ] "clearly concluded that the respondent did not have the requisite mens rea to commit any criminal offence".

It is impossible to know how the jury would have found had it been instructed to make the requisite analysis in this case. What we do know, however, is that it did not make distinctions that were necessary, since the analysis suggested by the judge was incomplete. It is impossible to assert that its conclusion with respect to mens rea was that submitted by the respondent. Here is why. [ 125 ] As he was required to do, the trial judge clearly explained to the jury that, if it came to a verdict of not criminally responsible on account of mental disorder, it did not have to go any further in its deliberations.

This is how he expressed himself: [ translation ] If Guy Turcotte has established that when he stabbed his children to death it was more likely than not that he was suffering from a mental disorder that rendered him incapable of knowing or being aware that what he was doing was morally reprehensible according to recognized societal values, you must find Guy Turcotte not criminally responsible on account of mental disorder. Your deliberations will then be at an end.

[ 126 ] In other words, in accepting the defence of mental disorder, the jury did not have to examine the effects of the intoxication and the mental disorder on the requisite mens rea . Therefore, it cannot be said that it decided this issue in favour of the respondent. [ 127 ] Finally, it cannot be said either that had the jury rejected the defence of mental disorder, it would necessarily follow that it ruled out a conviction for murder due to an absence of mens rea . The analysis would have been different, and the result might also have been different.

CLOSING REMARK [ 128 ] The trial judge had a very difficult role to play in this case. The prosecution was not always helpful by sometimes presenting confusing arguments. Nevertheless, the fact remains that, on one major point, his instructions were lacking, and this is bound to have had a significant impact on the verdict. The latter may have been different.

It is likely, moreover, that had the trial judge had the benefit of the Supreme Court’s judgment in Bouchard-Lebrun , he would have approached the issue of mental disorder accompanied by intoxication differently. [ 129 ] FOR THESE REASONS , the Court: [ 130 ] ALLOWS the appeal; [ 131 ] SETS ASIDE the verdict of not criminally responsible on account of mental disorder; [ 132 ] ORDERS a new trial on two charges of first degree murder. NICOLE DUVAL HESLER, C.J.Q. FRANÇOIS DOYON, J.A. JACQUES DUFRESNE, J.A.

Mtre Michel Pennou Office of the Director of Public Prosecutions For the Appellant Mtre Pierre Poupart Poupart, Dadour, Touma & Assoc. Mtre Ronald Prégent Shadley Battista L.L.P. For the respondent Date of hearing: September 30, 2013