New murder trial ordered following judge’s inadequate instructions

The Quebec Court of Appeal ordered a new trial of a man convicted of killing three people because the trial judge provided inadequate instructions to the jury over the weight that should be given to post-offence conduct and because he failed to warn the jury that the testimony of the prosecution’s expert went beyond the bounds of his expertise.

The ruling, the second time in six years that the Quebec appeal court set aside a murder conviction and ordered a new trial because of testimony provided by psychiatrist Sylvain Faucher, highlights pervasive concerns about expert bias and examines the credence that should be given to post-offence conduct, according to criminal lawyers.

“Too often, experts for the prosecution or defense, usurp – voluntarily or not – their role while testifying before the court,” said Julien Grégoire, a Quebec City criminal lawyer. “The expert’s role is to shed light on technical or scientific elements that surpass general knowledge, and the judge must keep a check on experts who testify beyond their expertise, particularly before a jury. That error in and of itself was sufficient grounds for a new trial, along with its inherent delays and costs.”

Following a 2015 trial by jury, Justin John Bresaw was convicted on two counts of first degree murder and one charge of second degree murder. Bresaw admitted causing the deaths of the three victims but argued that he was not criminally responsible because of mental disorder. Bresaw argued before the appeal court that Quebec Superior Court Justice Richard Grenier failed to warn the jury that the expert’s testimony surpassed his expertise and failed to warn the jury about evidence relating to his post-offence conduct.

More than two decades after the Supreme Court of Canada issued its landmark ruling in R. v. Mohan, [1994] 2 SCR 9, 1994, that spelled out a four-part test for the admissibility of expert evidence, Quebec appeal court Chief Justice Nicole Duval Hesler underscored yet again the “delicate exercise” of admitting expert evidence. In Mohan, the SCC said that the admission of expert evidence hinges on its relevance, the necessity in assisting the trier of fact, the absence of any exclusionary rule and a properly qualified expert. Heeding guidance from yet another SCC ruling, R. v. Sekhon, [2014] 1 SCR 272, Justice Hesler underlined that it is not enough for a trial judge to simply consider the “necessity” requirement at the outset of an expert’s testimony. Instead, Justice Hesler reiterated that a trial judge must ensure that the expert’s testimony remains, throughout, within the proper boundaries of expert evidence. In the case at hand, Faucher “oscillated” between his expertise and inadmissible opinions that fell within the scope of the trier of facts, noted Justice Helser in her reasons in Bresaw c. R. 2017 QCCA 1255. Justices Louis Rochette and Yves-Marie Morissette concurred with the August 23rd decision.

“A specific instruction was clearly required here,” said Justice Hesler. “The trial judge even recognized it during the pre-trial conference. However, in his final instructions, he completely omitted to remind the jury of the importance to exclude inadmissible portions of this expert’s testimony. That omission was prejudicial and requires a new trial.”

According to Julie Bolduc, a Montreal criminal lawyer who successfully plead the Bresaw case, the ruling is “important” because illustrates the importance of experts who testify to “respect the established limits” throughout the trial in order to “avoid compromising the fairness of the trial.”

The trial judge’s failure to provide instructions to the jury over the significance of Bresaw’s post-offence conduct too was a detrimental error that required setting aside the guilty verdicts and a new trial, held Justice Morissette in his own reasons which focused mainly on the notion of post-offence conduct. Following guidance by the SCC in R. v. White, [2011] 1 SCR 433 Justice Morissette noted that evidence of post-offence conduct is not “subject to any specific rule,” but is a matter of relevance and probative value that must be assessed on a case-by-case basis. But sometimes, added Justice Morissette, post-conduct evidence can “engender a risk of confusion,” particularly when the accused confessed to engaging in some form of criminal conduct related to the crime for which he stands accused.

The trial judge “should have in this case clarified that the behaviour of the appellant after the offence did not have any pertinence to determine the degree of intent, and therefore his level of culpability,” said Justice Morissette. “The jury should have been cautioned about reaching a hasty conclusion over his intent, a conclusion that in this case could have led to confusion.”

The Bresaw case underscores the “thorny and delicate” question of post-offence conduct, said Grégoire.

“Human behaviour is susceptible to various factors,” said Grégoire. “If sometimes one can take into account post-offence conduct to assess all the evidence, it can be dangerous to assess only this element to conclude that a murder was committed rather than manslaughter.”

Bolduc added that the moment that an accused confessed to his participation in a crime, a trial judge must give clear instructions to the jury that post-offence conduct must not be used to determine the degree of intent. “That too is a reminder to judges,” added Bolduc.

This article originally appeared in The Lawyer’s Daily, published by LexisNexis Canada Inc.

New trial ordered in the notorious case of Guy Turcotte

When the Quebec Court of Appeal ordered a new trial in the notorious case of Guy Turcotte, the former cardiologist who was found not criminally responsible due to a mental disorder in the 2009 stabbing deaths of his two young children, it took the exceptional step of overturning a verdict largely based on a ruling that was not yet rendered by the nation’s highest court, note legal experts.

The Quebec Court of Appeal, relying on guidance provided by the Supreme Court of Canada in R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 SCR 575 issued five months after Turcotte’s murder trial, held that Quebec Superior Court Justice Marc David’s  instructions to the jury were “deficient, which necessarily had a major impact on the verdict.”

“It’s not without precedence but it is rare that an appeal court will overturn a verdict based on a SCC ruling that was not issued at the time when the lower court decision was rendered,” observed Stéphane Beaulac, a law professor at the Université de Montréal, adding that it is equally rare for an appeal court to overturn a verdict of not criminally responsible due to a mental disorder. “One cannot blame the judge of first instance. It’s unfair to reproach him for not having included case law that did not exist at the time he rendered his instructions.”

In the 2011 trial, the jury heard that Turcotte repeatedly stabbed his two children in their beds in the Laurentian town of Piedmont after drinking windshield washer fluid, which contains methanol, in a suicide attempt. But his lawyer had successfully argued that he was not criminally responsible due to a mental disorder in a controversial verdict that outraged Quebecers and prompted the federal government to introduce legislation designed to make it more difficult for those found not criminally responsible to gain their freedom.

The Crown appealed, and asked the court to reconsider whether the trial judge erred by opening the door to the verdict that Turcotte was not criminally responsible due to a mental disorder and whether the judge had properly instructed the jury over the notion of mental disorder under s.16 of the Criminal Code.

The appeal court found in R. c. Turcotte, 2013 QCCA 1916 that there was evidence that Turcotte’s mental condition left him incapable of judging the nature and quality of his acts or to realize that his acts were wrong. The evidence therefore allowed the trial judge to submit to the jury the defence that a person cannot be criminally responsible for an act committed while suffering from a mental disorder.

“What’s interesting about the ruling is that the while everybody loudly and clearly denounced the verdict that Turcotte was not criminally responsible due to a mental disorder, the Quebec Court of Appeal held that the trial judge was right to submit that line of defence to the jury, which means that at the new trial it will no doubt once again be submitted,” noted Mia Manocchio, a criminal lawyer based in Sherbrooke.

The appeal court, informed by Bouchard-Lebrun, however also held that an accused must show that he was suffering from a “disease of the mind”  that is unrelated to the to intoxication-related symptoms and “it is the responsibility of the jury to decide.” But the trial judge failed to draw attention to this distinction, which lead the jury to conclude that the effects of the intoxication (caused by drinking voluminous amounts of windshield washer fluid) was a part of or an essential factor of his mental disorder. That in turn prompted them to conclude that he was not criminally responsible due to a mental disorder, without considering the possibility that the true cause of his incapacity was the intoxication as opposed to his mental disorder.

“It was necessary for the jury to make the distinction and respond to the question: was it the mental disorder or the intoxication or even a combination of the two that was the source of his capacity?” said the panel of three judges in the 28-page ruling. “If it was intoxication, it goes without saying that the mental disorder defence cannot succeed. If it is a combination of the two, then the jury must examine the contributing role of each one and determine” what prompted the incapacity.

Juries will likely face a daunting challenge in making the distinction between the two lines of defence as it is a relatively complex issue, said Manocchio. “There’s no doubt that the more complicated the case, the more challenging it will be for the jury to make a well-considered decision that distinguishes between the defences,” added Manocchio.

The burden of proof lies with the accused to show that he was suffering from an incapacitating mental illness, distinct from the intoxication symptoms, noted Montreal criminal lawyer Robert La Haye. “By ordering a new trial and overturning the verdict of non-criminal responsibility, the ruling very clearly states that one cannot invoke voluntary intoxication as a defence to void the criminal character of the act,” said La Haye. “The accused must show by a preponderance of evidence that the mental disorder was exclusively the situation of an internal cause and not by intoxication.”

The repercussions for the accused are significant, said Manocchio. If the defense of voluntary intoxication in a first-degree murder case is successfully pleaded, then the accused will be acquitted of first and second-degree murder but will be found guilty of manslaughter. If on the other hand the accused is found to be not criminally responsible due to a mental disorder then the person is institutionalized, and has the possibility of gaining their freedom by submitting a request before a panel of the Tribunal administratif du Québec, a court of last resort.

Within days of the Quebec Court of Appeal ruling, Turcotte was charged on the same indictment that was filed against him in 2009, with the first-degree murders of his five-year old son Olivier and his three-year-old daughter Anne-Sophie.