R. v. Hirlemann, 2000 CanLII 2597 (ON CA)

COURT OF APPEAL FOR ONTARIO

DATE: 20000707

DOCKET: C24307

RE: HER MAJESTY THE QUEEN (Respondent)

v. EDUARDO HIRLEMANN (Applicant/Appellant)

BEFORE: LASKIN, ROSENBERG and FELDMAN JJ.A.

COUNSEL: George A. Wootten, Q.C. and Ken Chasse,

for the appellant

Lucy Cecchetto,

for the respondent

HEARD: June 29, 2000

On appeal from his conviction by His Honour Judge Thomas on March

7, 1996

E N D O R S E M E N T

1While the appellant raised a number of grounds of appeal, we

only called upon Crown counsel to respond to the following:

1. Unreasonable verdict

2In our view, there was evidence upon which the jury

could reject the defence of not criminally responsible and find

that the appellant had the requisite intent for murder. There

was expert and other evidence to cast doubt on the central

defence position that the appellant did not know that killing the

deceased was morally wrong.

2. Second degree murder

3While there was substantial evidence of planning and

deliberation, there was also a basis upon which the jury could

have found that the killing, while impulsive, was an intentional

act. For example, although the appellant had talked about

killing himself and his son for several years, he had not acted

upon those thoughts in the past and had sought help. On the day

of the actual killing the deceased was unexpectedly at home, the

appellant was particularly depressed at the time, and there was

evidence of alcohol consumption on that date.

3. The answers to the questions from the jury

4The trial judge fully and properly directed the jury on the

elements of the defence of not criminally responsible both in the

charge and in his answer to the first two questions from the

jury. As to the third question, the trial judge was entitled to

ask the jury to clarify the difficulty they were having. They

did so in a follow-up question that showed that their concern

only had to do with planning and deliberation. While the words

the trial judge used suggest that his tone may have been somewhat

abrupt, it is significant that trial counsel expressed no concern

and it is obvious from the manner in which the trial proceeded

that the jury was not deterred from seeking further assistance

from the trial judge.

4. Consequences of the verdict

5The consequences of a not criminally responsible verdict

were explained to the jury in terms that are consistent with the

authorities.

6In conclusion, we see no error by the trial judge either in

the charge to the jury or in his answers to the questions and we

are satisfied that the verdict is one which the jury could

reasonably find.

5. The sentence

7The appellant asked for a constitutional exemption from the

minimum sentence of life imprisonment without eligibility for

parole for ten years. We did not call upon Crown counsel to

respond to this ground and we are bound to say that even assuming

such a constitutional exemption were available, there are no

circumstances for such an exemption in this case.

8Accordingly, the appeal from conviction and sentence is

dismissed.

(signed) "John Laskin J.A."

(signed) "M. Rosenberg J.A."

(signed) "K. Feldman J.A."