R. v. Romeo [1991] 1 S.C.R. 86: Presumption of innocence - Accused presumed sane until contrary is proved - Insanity to be proved by accused on balance of probabilities

Present: Chief Justice Lamer and Wilson, La Forest, L'Heureux-Dubé, Sopinka, Cory and McLachlin JJ.

Constitutional law - Charter of Rights - Presumption of innocence - Accused presumed sane until contrary is proved - Insanity to be proved by accused on balance of probabilities - Whether s. 16(4) of Criminal Code infringes s. 11(d) of Canadian Charter of Rights and Freedoms - If so, whether s. 16(4) justifiable under s. 1 of Charter.

Criminal law - Evidence - Admissibility - Defence's theory that accused insane when he killed police officer - Crown adducing evidence that accused's departure from U.S. connected to a court order to provide hair and blood samples in relation with a murder in New York State to counter insanity defence - Whether evidence pertaining to New York homicide admissible.

Criminal law - Trial - Addresses to jury - Improper statements by Crown's counsel - Whether trial judge erred in failing to comment on Crown counsel's prejudicial remarks in his charge to the jury - If so, whether appeal should nonetheless be dismissed under s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46.

The accused was charged with first degree murder. At trial, he admitted killing a police officer in New Brunswick, but raised the defence of insanity. Following a voir dire, the Crown adduced evidence establishing that the accused was a suspect in a murder which had taken place in New York State, and that he had been ordered by the authorities to provide hair and blood samples. The trial judge held that while the evidence was highly prejudicial to the accused, it was relevant and probative to explain why the accused had left his parents' home five days prior to the shooting and countered the defence of insanity. During his address to the jury, Crown counsel made certain prejudicial remarks with respect to the expert testimony of a defence witness. The trial judge did not comment on these remarks in his charge. The jury rejected the defence of insanity and the accused was convicted. On appeal, the majority of the Court of Appeal concluded that the trial judge did not err in admitting the prejudicial evidence pertaining to the New York homicide, and that, while certain remarks made by Crown counsel during his address to the jury were "personal and slanted" and ought to have been the subject of comment by the trial judge so as to temper their effect, the trial judge's failure to do so did not in this case give rise to a miscarriage of justice.

Held (L'Heureux-Dubé J. dissenting): The appeal should be allowed and a new trial ordered.

(1) Presumption of Sanity/Presumption of Innocence
Per Lamer C.J. and Wilson, La Forest, Sopinka and Cory JJ.: In view of the majority judgment of this Court in Chaulk, s. 16(4) of the Criminal Code infringes s. 11(d) of the Canadian Charter of Rights and Freedoms but constitutes a reasonable limit under s. 1 of the Charter.

Per L'Heureux-Dubé and McLachlin JJ.: For the reasons given by McLachlin J. in Chaulk, the presumption of sanity in s. 16(4) of the Code, reflecting as it does the fundamental pre-condition of criminal responsibility and punishment, does not violate s. 11(d) of the Charter.

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