COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Goudreau, 2019 ONCA 964

DATE: 20191206

DOCKET: C63594

Benotto, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rene Goudreau

Appellant

Samantha Robinson, for the appellant

Leslie Paine, for the respondent

Heard: October 28, 2019

On appeal from the conviction entered on January 28, 2016
    by Justice Patrick Smith of the Superior Court of Justice, sitting with a jury.

Brown J.A.:

I.        OVERVIEW

[1]

On November 27, 2012, Lucie Goudreau died in a fire in the Ottawa
    apartment that she shared with her son, the appellant, Rene Goudreau. Ms.
    Goudreau suffered from multiple sclerosis, was confined to a wheelchair, and
    could not move between her bed to the wheelchair without assistance. The fire
    started in her bedroom. She was found charred in her bed.

[2]

The appellant was charged with the first degree murder of his mother.
    The thrust of his defence at trial was that the fire had started by accident.
    Following a trial by judge and jury, on October 28, 2015 the jury returned a
    verdict that the appellant was guilty of first degree murder. The parties refer
    to this as the verdict rendered after the first stage of the trial.

[3]

The second stage of the trial involved the jurys consideration of
    whether the appellant was not criminally responsible on account of a mental
    disorder (NCR). The trial adjourned for almost three months while the defence
    sought and obtained an order for a psychiatric assessment pursuant to
Criminal
    Code
s. 672.11: 2015 ONSC 6758. In the result, the same jury rejected the
    appellants NCR defence. On January 28, 2016, the jury repeated its earlier
    verdict that the appellant was guilty of first degree murder.

[4]

The appellant does not appeal any aspect of the first stage of the
    trial, including the jurys October 28, 2015 verdict. The appellant seeks to
    set aside the jurys rejection of his NCR defence at the second stage of the
    trial. The appellant contends the jurys verdict is tainted by a legally
    erroneous answer that the trial judge gave to a question posed by the jury. He
    asks this court to direct a new second stage trial to consider whether he is
    not criminally responsible by reason of a mental disorder for the killing of
    his mother.

[5]

For the reasons set out below, I would allow the appeal, set aside the
    jurys verdict of January 28, 2016, and direct a new second stage trial on the
    issue of whether the appellant was not criminally responsible by reason of a
    mental disorder for causing the death of his mother.

II.       THE EVENTS SURROUNDING THE FIRE

[6]

Ms. Goudreau had lived in the ground-floor apartment for many years.
    Prior to his death in 2010, Ms. Goudreaus husband had cared for his wife as
    her illness progressed. Following her husbands death, Ms. Goudreaus son, the
    appellant, moved into the apartment. Ms. Goudreau depended upon him for her
    care, including being moved in and out of her bed.

[7]

The appellant had a lengthy history of mental illness dating back to
    2001. In 2008, he was found NCR in respect of an assault on his father and
    remained under the jurisdiction of the Ontario Review Board until his absolute
    discharge in June 2010. In March 2010, the appellant had moved in with his
    mother.

[8]

At around 2:30 a.m. on November 27, 2012, the neighbour who lived in the
    apartment immediately above Ms. Goudreaus heard crackling and a womans voice
    coming from outside his window. He looked out, saw the screen pop out of the
    Goudreau apartments window, and an orange flash. (The screen turned out to be
    from the window of Ms. Goudreaus bedroom and was located above her bed.) The
    neighbour called 911.

[9]

When the fire crews arrived at the scene, they found the door to Ms.
    Goudreaus apartment locked. They pried it open, but then had to force the door
    open because a lounge chair was blocking the door. They found Ms. Goudreau
    lying in her bed, dead, and badly charred.

[10]

It
    was determined that the fire had started in Ms. Goudreaus bedroom. At the
    time, there was no battery in the apartments smoke detector, although it had
    been tested and found operative earlier in the year. A search of the apartment
    found little in the way of contents and nearly empty kitchen cupboards.

[11]

At
    the time of the fire, the appellant was observed in the vestibule outside the
    buildings main lobby. He was standing near the windows, from which point he
    had a clear line of sight to the apartment and the activity of the first
    responders. Two boys who had come down in response to the fire alarm heard the
    appellant, mumbling to himself, saying I need this money, She doesnt
    understand me, and I did it because I had to. The security camera in the
    lobby recorded the appellant drawing symbols, including a dollar sign, on the
    condensation of the lobby windows.

[12]

The
    appellant was arrested later that morning. The police did not observe any injuries
    or burns on the appellant nor did he smell of smoke.

[13]

After
    the appellant was charged with first degree murder, he was assessed and found
    unfit to stand trial. After a period of treatment, he was re-assessed and found
    fit to stand trial: 2015 ONSC 6758, at para. 9.

III.      THE TRIAL

A.

The First Stage: The
    Appellants Liability for First Degree Murder

[14]

At
    the first stage of the trial, the Crown led evidence about: Ms. Goudreaus
    medical condition; her living circumstances; her need for assistance;
    observations made by first responders and others about the fire; and evidence
    from the Fire Marshall and an expert about possible causes of the fire.

[15]

The
    Crown also led evidence that between January 2011 and August 2012 the appellant
    took out four policies of insurance on his mothers life. The benefits payable
    in the event of Ms. Goudreaus accidental death amounted to $562,750. The
    appellant was named as the sole beneficiary of each policy.

[16]

The
    defence elected not to call any evidence.

[17]

On
    October 28, 2015, the jury returned a verdict of guilty of first degree murder.

B.

The Second Stage: The
    Appellants NCR Defence

[18]

Before
    the jury was discharged, the appellant brought an application for an assessment
    of his mental condition pursuant to
Criminal Code
ss. 672.11(b) and
    672.12(1): 2015 ONSC 6758, at para. 6. The defence asked the court to order an
    assessment, retain jurisdiction over the matter, excuse the jury until the
    assessment had been completed, and then hear evidence and charge the jury on
    the s. 16(1) defence: at para. 11. The trial judge granted the order; he was
    satisfied that there were reasonable grounds to believe that an assessment was
    necessary to determine whether the accused was, at the time of the commission
    of the offence, suffering from a mental disorder so as to be exempt from
    criminal responsibility by virtue of s. 16(1) of the
Criminal Code
: at
    para. 32.

[19]

The
    appellant was assessed by Dr. Bradley Booth, a forensic psychiatrist.

[20]

The
    trial resumed for its second stage on January 19, 2016. Dr. Booth was the only
    witness called by the defence. Dr. Booth opined that at the time of the offence
    the appellant was suffering from a mental disorder  bipolar disorder type 1
    and exhibited manic and psychotic symptoms. Dr. Booth was quite confident the
    appellant was not faking illness to avoid prosecution. However, Dr. Booth was unable
    to answer definitely whether or not [the appellant] knew the nature and
    quality of his actions in killing his mother, or regarding the wrongfulness. Instead,
    he provided the jury with lists of on the one hand and on the other hand
    factors that they should consider when determining whether the appellant was
    NCR.

[21]

The
    Crown called witnesses to illustrate the appellants capacity for organized
    thinking and planning in the period before the fire: the appellant had passed a
    road test for his drivers licence in April 2012; he renewed his health card in
    October 2012; and he had unremarkable interactions with his mothers dentist
    when he took her in for appointments in July, September and October 2012.

[22]

During
    the course of pre-charge discussions, the parties agreed that the jury could
    refer to all the exhibits marked in the first stage of the trial.

C.

The Jury Questions and the
    Trial Judges Answers

[23]

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?

[24]

Counsel
    and the trial judge agreed that the answer to the first question should have
    two parts. The trial judge provided the jury with the following answer:

What is the difference between unfit for trial and not
    criminally responsible? They are not the same; they are two separate things.

The second part of the question: does unfit imply not
    responsible? And you may want to write this down: Unfitness does not
    necessarily imply not criminally responsible. I will say that again: Unfitness
    does not necessarily imply not criminally responsible.

[25]

The
    parties took quite different positions about the appropriate answer to the
    second question.

[26]

Defence
    counsel maintained that the jury should be told that if the appellant was found
    not criminally responsible, he was absolutely not eligible for an insurance
    payout: [H]es been convicted of the act. There is no basis for redemption.
    Defence counsel expressed the concern that the jury was sitting back there,
    you know, not going to NCR him because they think hes going to get the money.
    He noted that the polices were in evidence, so the jury could look at them as
    they probably state that any illegal acts would void the policies, just like
    impaired driving.

[27]

Crown
    counsel initially took the position that the jury should be told that it was
    not a matter which concerned them. On further reflection, Crown counsel thought
    the jurys question might be relevant to intention: [T]hey could be wondering:
    Did he know, when he got these policies out, that if he was found NCR, would he
    get the money anyway?

[28]

At
    that point in the discussion, the trial judge suggested that he could tell the
    jury that: the question was beyond the scope of what they should be
    deliberating on; the insurance policies contained all the contractual
    provisions; and the policies were in evidence.

[29]

However,
    defence counsel maintained his initial position: My answer is no, that the
    terms of the policy void coverage. [...] Thats all. Crown counsel suggested
    that the question might not be beyond the scope of the NCR decision in terms of
    the appellants 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.

[30]

The
    trial judge expressed the view that [t]he question of eligibility is beyond
    the scope of their deliberations. They shouldnt even be considering that.

[31]

Crown
    counsel demurred, taking the position that this was a matter contained in the
    policies of insurance. Defence counsel maintained his initial position. The
    trial judge concluded the discussions by stating:

Well, I think that [the Crowns position is] a safer bet,
    otherwise Im making assumptions that may not be true or read anything into it
    that may not be true or giving them more. Theyll go back to the insurance
    polices if they want to, and clearly the policies are going to say what they
    say. We all know that we cant kill somebody and collect the proceeds of
    insurance, but Im not going to say that.

[32]

The
    trial judge provided the jury with the following answer to its second question:

The policies of insurance that were taken out by [the
    appellant] were filed as exhibits in the trial. You have those with you. The
    policies of insurance contain the contractual terms for payout between [the
    appellant] and the insurance companies, and that is the only way that I can
    fairly answer that question.

IV.      THE ISSUE FRAMED

[33]

The
    appellant submits that the trial judges answer to the jurys second question
    was legally flawed as it permitted the jury to take into account an irrelevant
    consideration in its decision concerning his NCR defence  namely, whether he
    would be enriched financially if found NCR in respect of the killing of his
    mother. The appellant argues that any insurance payout was a collateral consequence
    of an NCR verdict that had no bearing on the jurys deliberations and, as a
    result, should have garnered the strongest possible caution from the trial
    judge regarding the misuse of such information. By pointing the jury towards
    the insurance policies, the trial judge potentially encouraged them to focus on
    this irrelevant consideration.

[34]

The
    Crown disagrees. Although it concedes that the jurys question might suggest
    that it was improperly considering the financial consequences of an NCR
    verdict, the far more likely reason for the question was its consideration of
    whether the appellant was malingering or feigning being NCR at the time he
    murdered his mother. The question posed was relevant to that issue, as well as
    to the appellants state of mind at the time of the offence because it
    concerned whether he was acting on a plan that had been months in the making.

[35]

The
    Crown further submits that by directing the jury to the contractual terms of
    the insurance policies, the trial judges answer was simple, correct, and
    responsive. It provided the jury with the information necessary to conclude
    that the appellant would not receive any payout under the policies because his
    mother did not die by accidental means. By pointing the jury to the insurance
    policies and the information contained in them, the trial judges answer
    foreclosed any danger that the jury would reject the NCR defence in order to
    prevent the appellant from profiting from the murder of his mother.

V.       GOVERNING PRINCIPLES

[36]

A
    summary of the general principles regarding answers to jury questions can be
    found in
R. v. Grandine
, 2017 ONCA 718, 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 jurys reasoning, identifying an issue on which the jury requires
    direction:
R. v. W.D.S.
[,] [1994] 3 S.C.R. 521, at paras.
14 - 18
;
R. v. M.T.
,
2012 ONCA 511
,
    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. Naglik
, [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. Stubbs
,
2013 ONCA 514
,
    300 C.C.C. (3d) 181, at para.
95
. [Emphasis added.]

[37]

A
    trial judge must answer a jurys question in a complete and reasonably detailed
    manner:
R. v. Desveaux
(1986), 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.,
R. v.
    Poirier
(2000), 146 C.C.C. (3d) 436 (Ont. C.A.), at para. 23.

[38]

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:
R. v. Alkhouri
(2000),
    135 O.A.C. 113 (C.A.), at para. 8;
R. v. Miljevic
, 2010 ABCA 115, 482
    A.R. 115, at paras. 4-5, affd 2011 SCC 8, [2011] 1 S.C.R. 203.

VI.      THE PRINCIPLES APPLIED

A.

Did the Jurys Second Question Seek
    Irrelevant Information?

[39]

On
    its face, the jurys second question sought information that was not relevant
    to the issue it was tasked to decide: Did the appellants mental condition at
    the time he committed the offence fall within the criteria of
Criminal Code
s. 16(1)? The question clearly indicated that the jury was mulling over the
    financial consequences to the appellant of an NCR verdict:
If found NCR
, is the accused
eligible
for insurance payout? (emphasis added). Yet, the financial consequences of an
    NCR verdict were not relevant to the jurys consideration of the issue before
    them. In his charge, the trial judge had expressly instructed the jury not to
    consider the consequences of its verdict.

[40]

The
    Crown agrees that it would be improper for the jury to take into account the
    consequences of an NCR verdict as part of its deliberations. However, the Crown
    contends that the question could be interpreted as relating to the issue of the
    appellants criminal responsibility in two ways.

[41]

First,
    the Crown submits that the question sought information relevant to the
    appellants mental state at the time of the fire as it concerned whether he was
    acting on a plan that had been many months in the making. Certainly, Dr. Booth
    had testified that the existence of a rational motive for the appellants
    behaviour, such as a plan to obtain a financial benefit, was a factor that the
    trier of fact should take into account in determining whether or not the
    appellant was NCR at the time of the fire. On the issue of planning, Dr. Booth
    wrote in his report that:

The evidence supporting that [the appellant] appreciated the
    nature and quality of his actions and that he knew the wrongfulness of his
    actions includes:

a) [The appellant] appears to have planned to do harm to his
    mother in advance, based on buying multiple insurance policies and clarifying
    specifics of the policy around accidental death when he was well.

c) [The appellant] spoke immediately after the offence of
    getting a monetary benefit from his mothers death.

[42]

As
    well, in his closing Crown counsel had submitted that the appellants
    acquisition of the insurance policies was part of a plan to kill his mother,
    which he knew was wrong.

[43]

However,
    I am not persuaded by the Crowns submission on this point. While the
    appellants purchase of four insurance policies in the 22 months before his
    mothers death could be relevant to his mental condition at the time of the
    fire as evidence of his execution of a thought-out plan, that was not the
    question the jury asked. The jury did not ask whether there was any evidence
    that, at the time of the offence, the appellant believed he would obtain a payout
    under the policies even if he was found NCR. Instead, the jurys question
    plainly focused on the consequences of an NCR verdict: would the appellant
    receive a financial payout if the jury rendered an NCR verdict? That
    consequence was irrelevant to the issue of the appellants mental condition at
    the time of the offence and therefore inappropriate for the jury to consider.

[44]

The second way in which the Crown contends the question could relate to
    the issue of the appellants criminal responsibility concerns the issue of
    whether the appellant was malingering or feigning the NCR defence.

[45]

I
    am not persuaded that this is a plausible interpretation of the question.
    Whether the appellant was faking a mental disorder was an issue on which the
    jury heard evidence. Dr. Booth opined that it appeared unlikely that the
    appellant purchased the insurance with evil intent and was now faking illness
    to avoid prosecution. However, in closing submissions the Crown did not attempt
    to make a link between the purchase of the insurance policies and the issue of whether
    the appellant was feigning an NCR defence.

[46]

The
    jurys question was clear and unambiguous. It sought information about the
    consequences of an NCR verdict. Such information was irrelevant to its task,
    and the trial judge had charged the jurors earlier in the day not to consider
    the consequences of their verdict. The answer to the question should have
    repeated that earlier instruction. By failing to do so, the trial judge fell
    into legal error.

[47]

Although
    not strictly necessary given that conclusion, for the sake of completeness I
    shall comment briefly on an alternative submission advanced by the Crown
    regarding the jurys question. The Crown contends that even if the question
    signalled the jury was considering an improper collateral consequence, the
    answer provided the jury with correct information: namely, that once the jury
    read the policies, it would discover that since Ms. Goudreau did not die by
    accidental means, there would be no payout to the appellant under the policies.
    According to the Crown, by directing the jury to that information, the answer
    foreclosed any danger that it would reject the NCR defence in order to prevent
    the appellant from profiting from the killing of his mother.

[48]

As
    I have found, the trial judge erred by failing to instruct the jury that it
    could not consider the financial consequences of its verdict. However, were an
    answer to the question relevant in other circumstances, the answer given was
    substantively misleading, incomplete, and incorrect. A proper answer would have
    been far more extensive. It would have to: (i) instruct the jury on the legal
    principles concerning the interpretation of both the coverage and exclusion
    clauses of life insurance policies, including the principles concerning
    accidental benefit clauses set out in
Co-operators Life Insurance Co. v.
    Gibbens
, 2009 SCC 59, [2009] 3 S.C.R. 605, at paras. 17 and 51; (ii) deal
    with the effect of the applicable contractual and statutory limitations
    periods; (iii) inform the jury that although, as recognized in
Oldfield v.
    Transamerica Life Insurance Co. of Canada
, 2002 SCC 22, [2002] 1 S.C.R.
    742, at para. 11, Canadian insurance law contains a rule of public policy that
    a criminal should not be permitted to profit from crime, this court held in
Dhingra
    v. Dhingra
that public policy does not prevent a person found NCR from
    taking under an insurance policy as such a person is not morally responsible
    for his act: 2012 ONCA 261, 109 O.R. (3d) 641, at paras. 22 and 24;  and yet,
    (iv) it remains open to the Attorney General to bring an application under the
Civil
    Remedies Act, 2001
, S.O. 2001, c. 28, for forfeiture of the insurance
    benefits as proceeds of unlawful activity:
Dhingra
, at para. 35;
Atty.-Gen.
    (Ont.) v. $51,000 CDN. (In Rem)
, 2013 ONSC 1321, at para. 33.

B.

Conclusion

[49]

The
    plain wording of the jurys question created a significant risk that the jury
    might use the answer in an irrelevant, improper, and therefore highly
    prejudicial way, by looking at the financial consequences of an NCR verdict as
    part of its consideration of the appellants mental condition at the time of
    the fire. The answer given to the second question failed to guard against that
    significant risk and, potentially, exacerbated that risk. Consequently, in
    answering the jurys second question, the trial judge committed legal error.

VII.     THE AVAILABILITY OF THE CURATIVE
    PROVISO

[50]

The
    Crown submits that in the event this court concludes that the answer to the
    jurys question is tainted by legal error, the curative proviso in
Criminal
    Code
s. 686(1)(b)(iii) should be applied. It submits that any error was a
    harmless one and that the verdict would necessarily have been the same had such
    an error not occurred:
R. v. Bevan
, [1993] 2 S.C.R. 599, at p. 616.

A.

Was the Error a Harmless One?

[51]

The
    Crown contends that the error was a harmless one because in the charge the jury
    had been instructed not to consider collateral consequences, not to speculate,
    and to base its conclusions only on evidence before them. These instructions
    would have prevented the jury from going down an inappropriate and speculative
    path.

[52]

I
    am not persuaded by this submission.

[53]

The
    law recognizes that a question from the jury often suggests that the jurors have
    forgotten the original instructions or remain confused on an issue. As a
    practical reality, they will look to the answer given to the question in their
    subsequent discussions. That is why the recharge must be correct and why a
    faultless original charge cannot as a rule rectify a significant mistake made
    on the recharge:
R. v. S. (W.D.)
, [1994] 3 S.C.R. 521, at p. 531; see
    also
R. v. Williams
, 2019 ONCA 846, at para. 39.

[54]

It
    is true that, in the charge, the trial judge instructed the jury that [i]n
    deciding whether [the appellant] is not criminally responsible on account of
    mental disorder, you must not consider the consequences of your verdict. However,
    that part of the charge made no mention of the issue of the appellants
    eligibility for insurance proceeds. Moreover, the answer actually given to the
    question implied, incorrectly, that the jury could take the financial
    consequences of its verdict into account. Accordingly, the general instructions
    were not an adequate substitute for clear instructions that the jury could not
    take into account in its deliberations the financial consequences to the
    appellant of an NCR verdict.

B.

The Effect of the Error on the Verdict

[55]

Nor
    am I persuaded that the verdict would necessarily have been the same had the
    error not occurred.

[56]

Although
    the Crown submits that the jurys finding of planning and deliberation in its
    first-stage verdict was based on powerful evidence, it acknowledges that
    additional evidence about the appellants mental condition at the time of the
    fire was led during the second stage of the trial.

[57]

As
    Dr. Booth noted in his report, this is not a black-and-white case. At trial,
    the Crown did not dispute his evidence that at the time of the offence it was
    highly likely that [the appellant] was suffering from a mental disorder,
    namely, bipolar disorder type 1, severe, manic with psychotic symptoms. Dr.
    Booth gave evidence that the appellant was unlikely to be faking illness to
    avoid prosecution. Dr. Booth also testified that there was very significant
    evidence that [the appellant] was extremely unwell at the time of the index
    offences. Although there was evidence that the appellant planned and thought
    about his actions prior to the fire, Dr. Booth testified that the appellant
    never actually appeared to act on them until he was in a manic and psychotic
    state.

[58]

Significantly,
    Dr. Booth was unable to answer definitively whether or not [the appellant]
    knew the nature and quality of his actions in killing his mother, or regarding
    the wrongfulness. That is to say, Dr. Booth was unable to offer an opinion as
    to whether
or not
the appellants mental condition
    met the criteria of
Criminal Code
s. 16(1). Instead, Dr. Booth
    outlined the evidence on both sides which hopefully will be of assistance to
    the court, leaving the weighing of these factors to the fact-finder. Amongst
    the evidence supporting a conclusion that [the appellant] did not appreciate
    the nature and quality of his actions and that he did not know the wrongfulness
    of his actions, Dr. Booth included the following:

a) [The appellants] mental state was very disrupted by mental
    illness at the time of the offences, making planned and deliberate behaviour
    difficult.

b) [The appellants] severely ill mental state at the time of
    the offences would make rational decision-making extremely difficult.

i) The presence of delusions would have distorted rational
    perception and thus interfered with rational decision making.

ii) The presence of auditory hallucinations would have also
    distorted rational perception and interfered with rational decision making.

iii) [The appellant] was very disorganized in his thinking
    and behaviour surrounding the time of the offences.

[59]

It
    is true that the Crown led an extensive body of evidence in support of its
    submission that the appellant was criminally responsible for his killing of his
    mother: his purchase of the life insurance policies and his phone calls to
    insurers about the meaning of accidental death; his treatment of his mother;
    statements he made before and at the time of the fire; the locked apartment;
    the missing smoke detector battery; obtaining his drivers licence, renewing
    his health card, and dealing normally with his mothers dentist in the months
    before the fire. However, Dr. Booth noted that in the police station videos
    taken shortly after the fire, the appellant showed signs of mental illness,
    including disorganized behaviour, talking to himself, drawing symbols, and
    displaying an agitated state.

[60]

Where
    the only expert psychiatric opinion in the record was not prepared to venture a
    view one way or the other on the central issue of whether the appellants
    mental condition at the time of the offence satisfied the criteria of
Criminal
    Code
s. 16(1), I do not regard the case as an overwhelming one within
    the meaning of the proviso jurisprudence. By telling the jury to look for the
    answer to its question in the language of the insurance policies, the answer
    clearly suggested, incorrectly, that the jury could consider the financial
    consequences of its verdict to the appellant. That incorrect suggestion could
    well have tipped the scale in favour of the jury finding that the appellant had
    not established a defence under
Criminal Code
s. 16(1) on the balance
    of probabilities. There is a reasonable possibility that the verdict would have
    been different without the error:
R. v. Charlebois
, 2000 SCC 3, [2000]
    2 S.C.R. 674, at paras. 10-11. Consequently, in the circumstances of this case,
    the proviso is not available to cure the legal error in the answer to the
    jurys second question.

VIII.    DISPOSITION

[61]

For the reasons set out above, I would allow the
    appeal and set aside the jurys verdict of January 28, 2016.
When this
    court orders a new trial pursuant to s. 686(2) of the
Criminal Code
,
    it has the power under s. 686(8) to limit the new trial to a choice between a
    verdict of NCR and a verdict of guilty:
R. v. Hartman
, 2015 ONCA 498, 326
    C.C.C. (3d) 263, at paras. 53-56. Pursuant to that power, I would direct a new
    second stage trial on the issue of whether the appellant was not criminally
    responsible by reason of a mental disorder for killing his mother.

Released: DB DEC 6 2019

David Brown J.A.

I agree. M.L. Benotto J.A.

I agree. David M. Paciocco J.A.