R. v. McCullough

R. v. McCullough Collection Decisions of the Court of Appeal Date 1998-07-14 Docket numbers C20850, C22114 Judges McMurtry, Roy; Labrosse, Jean-Marc; Abella, Rosalie Silberman Subject Criminal Decision Content DATE: 19980714 DOCKETS: C20850 and C22114 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. DENIS RUSSELL McCULLOUGH (Appellant) and PAUL BENNETT (Intervener) AND RE: HER MAJESTY THE QUEEN (Respondent) v. PAUL BENNETT (Appellant) BEFORE: McMURTRY C.J.O., LABROSSE and ABELLA JJ.A. COUNSEL: Paul Burstein, for the appellant McCullough and representing Melvyn Green, counsel for the appellant Bennett Milan Rupic, for the respondent HEARD: July 9, 1998 ENDORSEMENT I THE McCULLOUGH APPEAL [1] The appellant McCullough (the "appellant") appeals his conviction by a court composed of Soubliere J. and a jury on the following counts: 1) escape from lawful custody (s.145(1)); 2) forcible confinement (s.279(2)); 3) possession of a weapon for the purpose of committing an indictable offence (s. 87); 4) sexual assault with a weapon (s. 272(a)); and 5) uttering a death threat (s. 264.1(1)(a)). Following his conviction, a dangerous offender hearing was held and the appellant was declared a dangerous offender and sentenced to detention in a penitentiary for an indeterminate period of time. [2] The appellant raises the following grounds of appeal: a) Constitutionality of ss. 16(2) and (3) of the Criminal Code (the"Code"); b) Instruction regarding the requisite mens rea of the five offences charged; c) Incorrect definition of insanity; d) Instruction to find the appellant guilty; e) Failure to review the evidence during the final instructions to the jury and failure to put the theory to the defence to the jury; f) Method of charging the jury; g) Failure of the trial judge to recuse himself from the dangerous offender hearing on the ground of reasonable apprehension of bias. The appellant relies on all the grounds of appeal, although he did not address them all during oral argument. [3] In 1980, the appellant was found not guilty by reason of insanity after a trial in which he was charged with attempted murder and two counts of kidnapping (offences that bear similarity to the present offences). He was subsequently detained in various mental health facilities under Lieutenant- Governor's Warrants. The appellant is presently fifty-six years old. [4] On June 6, 1992, the appellant allegedly kidnapped a sixteen year old woman and, as a result, he was charged and convicted of the offences herein. [5] At trial, it was not disputed that the appellant had committed the said offences. The major part of the evidence consisted of psychiatric evidence called by the Crown and the defence on the issues of mental disorder and the declaration that he was a dangerous offender. [6] We will deal with the grounds of appeal in the same order as listed above. a) Constitutionality of ss. 16(2) and (3) of the Code [7] In a pre-trial motion, the defence argued that ss. 16(2) and (3) of the Code (presumption of sanity and onus of proof) violate the appellant's Charter rights since he was still the subject of a Lieutenant-Governor's Warrant at the time of the commission of the offences. The trial judge ruled that s. 16(2) and (3) were constitutional. [8] In our view, the trial judge was correct in dismissing the constitutional challenge to s. 16 of the Code. The decision of the Supreme Court of Canada in R. v. Chaulk (1990), 62 C.C.C. (3d) 193 provides a complete answer on this issue. We see nothing in Chaulk that would lead us to believe that it was intended to apply in limited circumstances only. As was the case in Chaulk, while s. 16 infringes s. 11(d) of the Charter, it is justified under s. 1. The analysis made by Chief Justice Lamer is also applicable to the present case. Chaulk is binding on this court. We see no merit to this argument. b) Instruction on the requisite mens rea of the five offences charge [9] No real issue was raised at trial as to the appellant's "general intent" with respect to his actions. Defence counsel specifically acknowledged that the real issue was insanity and, unless the appellant was found insane, he was guilty on counts 1, 2 and 4. The defence's alternative position was that if the appellant was not insane, then his mental condition would raise a doubt as to the specific intent required under counts 3 and 5. No objection was raised with respect to the final charge lacking an instruction on "general intent". We see no error on the part of the trial judge on this issue. c) Incorrect definition of insanity [10] In his opening remarks to the jury, the trial judge, as part of the insanity instructions, told the jury that "wrong" meant "a criminal act or legally wrong". This was in error. [11] On this issue, it is important to note that the trial judge instructed the jury that his opening remarks were subject to correction. More importantly, the error respecting the meaning of "wrong" was immediately corrected in the next paragraph of the trial judge's opening remarks and the correct meaning of "wrong" was again given to the jury immediately prior to the testimony of the psychiatrists. Moreover, after the error was brought to his attention, the trial judge specifically brought to the attention of the jury that he had made this error and again gave the jury the correct meaning of "wrong." [12] When the charge to the jury is considered as a whole, we are of the view that the trial judge provided the jury with adequate instruction on insanity. d) Instruction to find the appellant guilty [13] The appellant submits that the trial judge's instructions amounted to instructions that they should find the appellant guilty. Unless the appellant was found to be insane, there was no question that he was guilty, subject to the issue of specific intent referred to above. We see no merit in this submission. e) Failure to review the evidence during the final instruction and failure to put the theory of the defence to the jury [14] Looking at the charge as a whole, the trial judge adequately reviewed the evidence with respect to the issues that had been raised. He also adequately summarized the position of the defence, simple as it was, that the appellant was not criminally responsible on account of mental disorder or, in the alternative, the appellant did not have the specific intent for counts 3 and 5 on account of his mental disorder. No objection was raised with respect to this issue. f) Method of charging the jury [15] This was a very short trial in which the issues were exceedingly simple. The trial judge gave the jury a split charge, however, he instructed the jury to consider his charge as a whole. He instructed the jury during the course of the trial on the specific issues as they arose, and the final charge essentially dealt with the real issue in the case, namely, insanity. His final charge was quite brief — approximately eleven pages of transcripts. As he had given the jury copies of the earlier parts of his charge, he also offered to give copies of his final charge. The jury did not request it. [16] In the circumstances of this case, we do not think that the manner in which the charge was given amounted to misdirection of the jury on any essential requirement of a proper charge. The trial judge provided sufficient assistance to the jury to enable it to perform its duties. g) Failure of the trial judge to recuse himself from the dangerous offender hearing on the ground of reasonable apprehension of bias [17] A trial judge is entitled to make reasonable criticism respecting the conduct of counsel and witnesses who appear in court. The trial judge's inquiries of the conduct of a witness and the appellant's counsel were neither unreasonable nor otherwise improper. He was concerned that certain events had caused considerable inconvenience, expense and loss of court time. He expressed his concerns in a reasonable manner. The criticism voiced by the trial judge was not misplaced and it cannot be said to support an apprehension of bias. In its proper context, it did not demonstrate "a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind perfectly open to conviction." See R. v. Bertram, [1989] O.J. No. 2123 as cited in R.D.S. v. The Queen (1997), 118 C.C.C. (3d) 353 (S.C.C.). [18] For these reasons, the appeal of the appellant McCullough is dismissed. II THE BENNETT APPEAL [19] The appellant Bennett, who was counsel for the appellant McCullough at trial, appeals the order of the trial judge holding him personally responsible for witness fees and expenses incurred by the Crown on the sentencing hearing. Bennett was also an intervenor in the McCullough appeal, however, on consent of the all parties, he did not appear or participate in the hearing. [20] With respect to the appeal of the appellant Bennett, the Crown concedes that Bennett has a right of appeal against the costs order made against him pursuant to s. 6(1)(b) of the Courts of Justice Act. The Crown further concedes that, in the circumstances, there was not a proper basis to order costs against this appellant. Although, as stated above, the criticism of the trial judge was not misplaced, we agree with the Crown that, taken as a whole, this appellant's conduct did not justify the costs order. His conduct, while in the nature of a mistake or an error of judgment, cannot be described as being in the nature of contempt or abuse of process. [21] Accordingly, this appellant's appeal is allowed and the costs order made against him is hereby set aside.