More v. The Queen2
Gerald Nemiroff *
Prior to 1961 the Canadian Criminal Code did not distinguish
between capital and non-capital murder. Every conviction for murder
as defined in sections 201 and 202 carried with it the mandatory
death penalty. In an attempt to limit the conditions under which
the death penalty could be imposed, the Legislature introduced
s.202A 2 defining capital murder,3 which in part reads,
“(2) Murder is capital murder, in respect of any person, where
(a) it is planned and deliberate on the part of such person…
(3) All murder other than capital murder is non-capital murder.”
Section 206 describes the penalty for capital murder which is death.
Non-capital murder, on the other hand, is punishable by life
imprisonment.
Thus, in order to bring about a conviction for capital murder,
the Crown must prove beyond reasonable doubt,
a) that the accused murdered within the meaning of s.201 or
202, and
b) that the murder was planned and deliberate on the part of
such person, or that any of the other conditions in s.202A
were satisfied.4
The importance of the More case lies in the Supreme Court’s
interpretation of the words “planned and deliberate” in s.202A.
In view of this section, can an accused charged with capital murder
raise as a defence impairment of mental capacity short of legal
insanity ?
Of the Junior Board of Editors, McGill Law Journal; second year law student.
1 (1964) 41 C.R. 98; [1963] S.C.R. 522.
2S.C. (1960-61), ch. 44, s. 1.
3 Just as the frequent use of the Royal Prerogative extending executive clemen-
cy to convicted murderers prior to 1961 resulted in the enactment of a statute
(namely s. 202A) limiting the conditions under which the death penalty could
be imposed, it appears that the repeated exercise of the Prerogative (the Crown
has commuted all death sentences since April 1963 to life imprisonment) will
lead to an amendment to the Canadian Criminal Code abolishing capital punish-
ment entirely.
4 This author shall not deal with the latter ingredients of s. 202A.
No. 2″j
CASE AND COMMENT
The accused, More, had experienced severe financial difficulties
and was being pressured by his creditors. Realizing that his wife
was a very nervous person and that her knowledge of his serious
financial problems would “upset her happiness”, More thought it
would be best to kill his wife and then commit suicide. On September
27, 1962, he shot and killed his wife and seriously wounded himself
in an attempt at suicide. Consequently, More was charged with
capital murder contrary to s.201 and s.202A of the Canadian Criminal
Code, the Crown claiming that More meant to cause the death of
his wife (s.201 (a) (i)) and moreover, that the murder was planned
and deliberate (s.202A (2)
(a)).
There is no doubt that the accused is guilty of murder under
s.201 (a) (i) as More certainly intended to kill his wife. Furthermore,
the fact that the appellant is asking that the Court (for reasons to be
discussed below) reduce the verdict from capital to non-capital
murder indicates an admission to the lesser charge. Was the murder
also “planned and deliberate” ? Certainly it was planned, i.e. arranged
beforehand, since More had purchased the rifle two days before the
murder and planned the killing of his wife. But, was the act
“deliberate” ?
Although a defence of insanity was not raised by the appellant,
More, two psychiatrists testified on his behalf at trial advising the
Court that in their expert opinion, the accused, at the time of the
shooting, was suffering from a depressive psychosis resulting in
“impairment of ability to decide even inconsequential things, inability
to make up a decision in a normal kind of way.” 5
In his charge to the jury, the trial judge advised them to give
little weight to the testimony of the experts. 6 The accused was
subsequently convicted of capital murder as charged.
The Manitoba Court of Appeal held that the trial judge had
misdirected the jury as to the weight to be given to the expert
evidence, but nevertheless dismissed the appeal under s.592 (b) (iii)
on the ground that no miscarriage of justice had occurred in the
misdirection to the jury.7 The accused appealed to the Supreme
Court of Canada, and in rendering its decision, the Court was faced
with the task of interpreting the meaning and scope of the word
“deliberate” in s.202A. This Court concluded, Fauteux J. and Tasche-
5 (1964) 41 C.R. 98 at p. 111.
6 The trial judge quoted Phipson on Evidence, 10th ed., para. 1286, Taylor on
Evidence, 12th ed., p. 59, both of whom point out that since the experts are
usually biased in favor of the side which calls them, their testimony should not
carry much weight.
7 43 W.W.R. 30.
176
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[Vol. 11
reau C.J. dissenting, that the word “deliberate” in s.202A does permit
the accused to plead impairment of mental capacity short of legal
insanity as a defence to a charge of capital murder, and hence ruled
that there had been a miscarriage of justice in the misdirection by
the trial judge as it was “virtually a withdrawal of the whole
defence.” 1 Consequently, the appeal was allowed and a new trial
ordered.
Cartwright J. (Abbott, Ritchie, and Hall JJ. concurring) points
out that the word “deliberate” as used in s.202A ……………………..
“cannot have simply the meaning ‘intentional’ because it
is only if the
accused’s act was intentional that he can be guilty of murder and the sub-
section is creating an additional ingredient to be proved as a condition of
an accused being convicted of capital murder…
… this question is one of fact and involves an inquiry as to the thinking
of the accused at the moment of acting…
… it was open to the jury to take the view that the act of the appellant
in pulling the trigger was impulsive rather than considered and therefore
was not deliberate.”9
The decision in More v. The Queen has been upheld in two sub-
sequent decisions by the Supreme Court. In The Queen v. Mitchell 10
the issue was whether drunkenness amounting to impairment of
mental processes could be allowed as a defence to a charge of capital
murder. Spence J. approved the More decision and stated that “the
jury should have available and should be directed to consider all the
circumstances including not only the evidence of the accused’s actions
but of his condition, his state of mind.., planning and deliberation
involve the exercise of mental processes.” 11 Similarly in McMartin
v. The Queen 12 the request that a new trial be ordered to permit
the defence to introduce new medical evidence indicating the mental
condition of the accused at the time of the murder was granted
by the Supreme Court, thus overrulling the British Columbia Court
of Appeal. 13 Here again, the Supreme Court applied the holding in
More v. The Queen, namely, that “deliberate” in s.202A permits a
defence of impairment of mental capacity short of insanity.
The decision in More v. The Queen established another milestone
in the field of criminal law in Canada. In permitting an accused
to introduce psychiatric evidence showing that at the time of the
8 Ibid., at p. 112 (Judson, J. for the majority).
9 Ibid., at pp. 108, 109.
10 [19641 S.C.R. 471.
11 Ibid., at pp. 475 and 477.
12 [1964] S.C.R. 484.
13 [1964] 41 C.R. 147.
No. 2″)
CASE AND COMMENT
homicidal act, he was suffering from some abnormality of mind thus
preventing him from making decisions in a normal kind of way
and therefore not being able to commit a deliberate act, the Supreme
Court of Canada has shown a much greater appreciation of psychiatric
and psychological theories than ever before. The Court, in effect, has
stated that what on the surface may appear to be a deliberate act
may in fact not be deliberate by virtue of an accused’s mental
deficiencies.
Notwithstanding the desirability of this position taken by the
Supreme Court, this author is inclined to believe that the Legislature,
in introducing s.202A, did not intend to allow any defence of mental
impairment short of insanity, and furthermore that such an inter-
pretation, in view of our present law, gives rise to contradictions and
other undesirable consequences.
It is respectfully submitted that s.202A does not refer to the
mental capacity of the accused and that this element is governed
uniquely by s.16 which permits an accused to raise insanity as a
defence. The only time the court can investigate into the mind of
an accused is where the accused raises insanity as a defence and
failure to introduce such a defence precludes any inquiry into the
mental condition of the accused.
Section 16 (4) states that… “Everyone shall, until the contrary
is proved, be presumed to be and have been sane,” and hence it is
for the defence to displace this presumption by introducing evidence
which meets the test of legal irresponsibility, as defined in s.16 (2)
and (3).
In the case at bar, however, the psychiatric evidence does
not go so far as to classify More as insane within the meaning of s.16
and thus the presumption that he is sane must prevail.
In attaching a mental element to “deliberate” in s.202A, a second
test of legal irresponsibility is introduced for which there is no
definition. 14 However inadequate the standard in s.16 may be, it at
least provides for a definition of legal insanity. In effect, it says
that if, in the opinion of psychiatrists, the mental state of an accused
satisfies the definition in s.16, then it can be said that this constitutes
14 Fauteux, J. (dissenting) states that such an interpretation cannot prevail
as it is “tantamount” to introducing in the Canadian Law the provisions of the
British Homicide Act 1957, 5 and 6 Elizabeth II, ch. 11, which the Canadian
Parliament could have easily adopted if they so desired (Ibid., at p. 106). It is
respectfully submitted that this statement is somewhat inaccurate as the English
Act reduces murder to manslauahter where an accused suffers from some abnor-
mality of mind whereas the majority’s position reduces capital to non-capital
murder where an accused suffers from some mental defeciency. Thus the Cana-
dian position remains more severe than that of the English.
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[Vol. 11
sufficient mental impairment to render an accused not responsible
for his acts. Without any such definition, what must the court ask
of the psychiatrist ? Must the court demand that the accused be
declared cranky ? bad tempered ? psychotic ? neurotic ? There is
no answer. There is no longer any criterion of responsibility to
enable the court to determine what constitutes sufficient mental
impairment to declare an accused incapable of deliberating. Can it
reasonably be said then, that by introducing the word “deliberate”
in s.202A, the Legislature intended to create such a vacuum in the
law ? With all due respect, this author maintains that all the
Legislature intended was to exclude from capital murder a murder
committed on the spur of the moment, and that the words “planned
and deliberate” refer only to a time element without any reference
to the mental condition of the accused. 15
Cartwright J. held that the defence raised had nothing to do
with s.16 but rather, proposed that the Crown failed to prove the
ingredients of the offence charged, namely that the murder was
(“the subsection is creating an additional ingredient
“deliberate”.
to be proved… ” 16). Such a contention, argues Mr. Justice Fauteux,
gives rise to highly undesirable consequences. The British Homicide
Act reduces murder to manslaughter where the defence can show
that the accused suffered from some degree of mental impairment.
If the decision in More v. The Queen is left to stand, it would mean
that the Crown has to prove beyond a reasonable doubt the accused’s
capacity to plan and deliberate. In other words, if an accused pleads
insanity as a defence the burden of proof rests with’the defence, but
if no such defence is put forth, then the Crown has the burden of
proving that the accused was capable of deliberating. This
is
tantamount to saying that on the one hand s.16 (4) presumes every
(a) presumes every person
person to be sane whereas s.202A (2)
accused of capital murder to be mentally impaired until the Crown
proves otherwise ! If the Legislature had intended to tax the Crown
so heavily, it surely would have been more explicit and clear.11
The majority’s position leads to further difficulties. Once an
accused has been declared insane according to s.16, he is placed in
a mental institution for care. However, an accused, who may well
15Ibid., at p. 105; the view set forth by Fauteux, J. (dissenting) with which
this author agrees.
16 Ibid., at p. 108.
17 Ibid., at p. 107 –
“It is in the last degree improbable that the Legislature
would overthrow fundamental principles or depart from the general system of
law without expressing its intention with irresistible clearness.” (Maxwell on
Interpretation of Statutes, 9th ed., pp. 85 et seq.)
No. 2]
CASE AND COMMENT
come under the terms of being insane legally (s.16), may prefer
to plead mental deficiency short of insanity in the hope of receiving
a fixed sentence on a non-capital murder conviction, rather than
being “put away” in some mental institution. This can be a peril
to society especially if the sentence is shortened by parole.
Furthermore, it seems unreasonable that the Legislature intended
to permit a defence of mental incapacity short of legal insanity to
charges of capital murder without extending such a defence to all
It is certainly inconsistent to say that while an
criminal charges.
accused may be suffering from some mental disorder which would
relieve him from a charge of capital murder, such disorder would
not, under the same conditions, relieve him from a charge of non-
capital murder or rape etc. An accused’s mental condition must be
given the same considerations independent of the crime. To maintain
otherwise leads to obvious contradiction.
That “deliberate” does not refer to the mental condition of the
accused, is supported by a statement made by Justice Minister Davey
Fulton in 1961 to a question raised in the House of Commons…
“Finally, I suggest that ‘deliberate’ has no direct bearing on the question
of mental capacity, which remains as it is now.”18
With all due respect, this author submits that the Supreme Court
has wrongly interpreted the meaning of “deliberate” in s.202A (2)
(a) of the Canadian Criminal Code. The growing recognition of
psychology and psychiatry will inevitably lead to drastic alterations
of the criminal law. It appears, however, that the Supreme Court
of Canada is one step ahead of the Legislature.
1L (1960-61) 5 H.C. Debates, at p. 5448.
