R. v. LAWLOR, 2023 SCC 34, DECEMBER 15, 2023.

FACTS: The accused was convicted of murder.  An appeal to the Ontario Court was dismissed, with a dissent (2022 ONCA 645).  The accused appealed as of right to the Supreme Court of Canada.

HELD: The appeal was allowed and a new trial ordered (Kaiser J., dissenting).  In a brief oral judgment, the Court concluded that

Only two grounds of appeal are before this Court. The first is whether the trial judge erred in his instructions to the jury regarding the use of evidence as to the accused’s mental health and the requisite intent for first degree murder. The second relates to evidence of after-the-fact conduct.

A majority of this Court would allow the appeal on the ground relating to the requisite intent for murder and for first degree murder, but not on the ground relating to after-the-fact conduct. As to the first ground, we are in substantial agreement with the reasons of Justice Nordheimer. As to the second ground, we are in substantial agreement with the reasons of the Ontario Court of Appeal majority. We would add the following comment.

As has been stated on many occasions, and we repeat here, courts need to be mindful of evidence as to mental health where this is relevant to issues of criminal responsibility. This is especially so in instructing a jury, to assist them in the proper use of such evidence.

Accordingly, the appeal is allowed, the conviction is set aside and a new trial is ordered.

Kasirer J. — I would dismiss the appeal. I allow myself two observations.

First, I agree with my colleagues that courts need to be mindful of mental health evidence in criminal matters, including in instructions to the jury. As the majority in the Court of Appeal wrote, there is no question that evidence of mental health problems may be relevant to issues of intent and planning and deliberation, including in an assessment of the adequacy of a jury charge (see paras. 41 and 44-48).

Second, and with the utmost respect for other views, I conclude that the trial judge’s charge properly equipped the jury, in light of all the circumstances, to decide the case according to the exacting standard set forth in R. v. Abdullahi, 2023 SCC 19. In sum, in respect of both the mental health and the after-the-fact evidence, I see no reviewable errors in the jury charge and, on these points, I would adopt the majority reasons of van Rensburg J.A. as my own, without reserve.