DATE: 20060828

DOCKET: C34143

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – CHARLES CLAYTON ROY (Applicant/Appellant)

BEFORE:

GOUDGE, SHARPE AND BLAIR JJ.A.

COUNSEL:

Christopher Hicks and Catriona Verner

for the appellant

Philip Perlmutter

for the respondent

HEARD & ENDORSED:

August 24, 2006

On appeal from the sentence imposed by Justice H. W. Edmondstone of the Ontario Court of Justice dated April 29, 1994.

A P P E A L B O O K E N D O R S E M E N T

[1] Despite Mr. Perlmutter’s able and forthright argument we cannot read this record or the trial judge’s findings as sustaining the conclusion that after the thorough inquiry into the ultimate LTO question contemplated by the Supreme Court of Canada the result would necessarily have been the same. Neither doctor was examined on the LTO issue, nor can their answers to the questions that were posed be taken as necessarily the answers they would have given to the LTO question. Nor does the judge effectively decide that question. It was simply not a matter addressed below. This is not one of those rare cases where a new hearing is unnecessary. The appeal must be allowed.