Questions by a Jury and their Relevance to the issues in the Context of a Not-Criminally Responsible by reason of a Mental Disorder Defence (NCR-MD), 403-585-1960

Published On: Dec 12,2019

Questions by a Jury and their Relevance to the issues in the Context of a Not-Criminally Responsible by reason of a Mental Disorder Defence.
Questions by a Jury and their Relevance to the issues in the Context of a Not-Criminally Responsible by reason of a Mental Disorder Defence.

Questions by a jury maybe minefields.  Queries by jurors were considered in the context of defence not criminally responsible by reason of a mental disorder (“NCR-MD) was considered recently by the Court of Appeal in Regina v. Goudreau, 2019 ONCA 694.

Before the verdict is entered, the accused may elect to lead evidence relating to the defence of insanity.  In other words, the accused has the option of waiting to determine whether the trier of fact finds that the Crown has proven all of the essential elements of the offence, including the mental element, mens rea, beyond a reasonable doubt.  The accused may then lead evidence that the accused was not criminally responsible due to mental disorder (“NCR-MD”).  The burden of proof would be on the accused to prove this defence on the balance of probabilities. The Crown may only raise the issue of the mental capacity of the accused after it has proven its case beyond a reasonable doubt.  If the Crown or the defence prove that the accused was suffering from a mental disorder that rendered the accused incapable of appreciating the nature and quality of the act or omission, or of knowing that it was wrong, the verdict of guilty would not be entered.  Rather, the verdict would be not criminally responsible due to mental disorder.


In this case, there were two (2) stages in the trial before the Court, namely the issues raised on the trial proper contesting First Degree murder; and the NCR-MD defence that was raised before the jury was discharged pursuant to pursuant to Criminal Code ss. 672.11(b) and 672.12(1).  The following facts in this case were relevant to the NCR-MD defence posited by defence counsel. The accused was charged with first degree murder following the death of his mother in a fire at their shared apartment. He was convicted of that offence following a jury trial. The trial was then adjourned to permit the completion of a medical assessment.  The NCR-MD defence was rejected by the jury. An appeal was filed on the basis of the trial judge’s response  to a jury question at the NCR stage, tainted the verdict. The jury sent the trial judge a question asking if the accused would be eligible for an insurance payout. They asked:


About two hours after the completion of the charge, the jury asked two questions:

(i)   “What is the difference between ‘unfit for trial’ versus ‘not criminally responsible’? i.e. does unfit imply not responsible?” and

(ii)  “If found NCR, is the accused eligible for insurance payout?”


Defence counsel maintained his initial position: “My answer is no, that the terms of the policy void coverage. […] That’s all.” Crown counsel suggested that the question might not be beyond the scope of the NCR decision in terms of the appellant’s planning: “[W]hen he was planning this, did he understand that he would get the payout if he was NCR, then it is relevant to their determination on NCR.  After discussing it with counsel, the trial judge only told the jury that the insurance policies taken out by the accused were filed as exhibits at trial and that they contained the contractual terms for any payouts.


A summary of the general principles regarding answers to jury questions can be found in Regina v. Grandine2017 ONCA 718 (CanLII), 355 C.C.C. (3d) 120, at para. 62:


Jury questions indicate some jurors need help. They are having a problem with an issue in the case. A question usually concerns an important point in the jury’s reasoning, identifying an issue on which the jury requires direction: R. v. W.D.S.[,] 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at paras. 14 – 18R. v. M.T.2012 ONCA 511 (CanLII), 289 C.C.C. (3d) 115, at para. 114. Answers to jury questions are extremely important, carrying an influence far exceeding instructions given in the main charge. The practical reality is that such answers will be given special emphasis by jurors: R. v. Naglik1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122, at p. 139; W.D.S., at para. 16. Consequently, a trial judge must fully and properly answer a question asked by the jury: R. v. Stubbs2013 ONCA 514 (CanLII), 300 C.C.C. (3d) 181, at para. 95. [Emphasis added.]


A trial judge must answer a jury’s question in a complete and reasonably detailed manner: Regina v. Desveaux (1986), 1986 CanLII 153 (ON CA), 26 C.C.C. (3d) 88 (Ont. C.A.), at p. 93. In an appropriate case, an answer might need to include a limiting instruction about the use the jury can make of the answer: see e.g., Regina v. Poirier (2000), 2000 CanLII 3294 (ON CA), 146 C.C.C. (3d) 436 (Ont. C.A.), at para. 23.


However, where the question seeks information that is irrelevant to the issues for determination, the jury should be told so and the trial judge should decline to provide a substantive answer to the question: Regina v. Alkhouri (2000), 2000 CanLII 15739 (ON CA), 135 O.A.C. 113 (C.A.), at para. 8R. v. Miljevic2010 ABCA 115 (CanLII), 482 A.R. 115, at paras. 4-5, aff’d 2011 SCC 8 (CanLII), [2011] 1 S.C.R. 203


The court allowed the appeal and ordered a new trial on the issue of whether the accused was NCR. The Court rejected the Crown’s position that the jury question related to the accused’s mental state at the time of the fire. It was clear that the jury question focused on the consequences of an NCR finding. That is irrelevant to their deliberation. The question was also irrelevant to whether the accused was malingering or feigning being NCR at the time of the offence. The jury heard expert evidence on the possibility of feigning being NCR and the Crown did not link it to the insurance policies at trial. The trial judge should have instructed the jury that it could not consider the financial consequences of its verdict. The curative proviso could not be applied.


If you have been charged with a criminal offence, call Mr. J.S. Patel, Barrister at 403-585-1960 to schedule a consultation.