COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) v. SHERWIN CLAYTON ALEXANDER (Appellant)
BEFORE:
DOHERTY, SHARPE and SIMMONS JJ.A.
COUNSEL:
John Erickson
for the appellant
Chris Webb
for the respondent
HEARD:
October 19, 2001
On appeal from the sentence imposed by Justice Eugene G. Ewaschuk, sitting with a jury, dated December 21, 1995.
E N D O R S E M E N T
1The appellant was charged with murder and convicted of manslaughter by a jury.
2The trial judge misapprehended the evidence when he said there was “no evidence” that the appellant did not know the gun was loaded when it discharged. There was evidence from a Crown witness, an accomplice which, if believed, could support the conclusion that the appellant believed the gun was not loaded.
3Given the misapprehension of the evidence, we are not bound by the trial judge’s finding of fact that the appellant knew the gun was loaded when it discharged. We cannot say on this record beyond a reasonable doubt that the appellant knew the gun was loaded. Such a finding would run against the grain of the verdict, although it would not necessarily be legally inconsistent with the verdict. We approach the question of sentence on the basis that whatever the appellant’s exact state of mind, short of that required for murder, he deliberately committed a very dangerous act against a helpless victim in the course of an armed robbery. That act led directly to the victim’s death.
4In view of the gravity of the offence, the young age of the appellant and the lengthy pre-trial custody, we are satisfied that a sentence of 12 years is an appropriate sentence. The sentence imposed at trial of 15 1/2 years will be varied to 12 years.
5There is no need to deal with the appeal from the robbery sentence as that sentence is less than 12 years and was made concurrent to the sentence on the manslaughter charge. That sentence will not be varied.
6We have examined the fresh evidence tendered by the appellant. In our view, it is not relevant to the issues raised on the appeal and we have not considered it in determining the appropriate sentence.
7Leave to appeal is granted and the sentence is varied to 12 years on the manslaughter charge.
“Doherty J.A.”
“Robert J. Sharpe J.A.”
“Janet Simmons J.A.”