COURT OF APPEAL FOR ONTARIO
Moldaver, Cronk and Lang JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Frank Shepherd
Appellant
Misha Feldmann, for the appellant
Alexander Hrybinsky, for the respondent
Heard and released orally: February 1, 2011
On appeal from the finding of not criminally responsible on February 4, 2009, by Justice Deborah K. Livingstone of the Ontario Court of Justice.
ENDORSEMENT
Endorsement
1The appellant raises two grounds of appeal.
Onus of Proof
2First, he argues that, instead of requiring the Crown to prove that the appellant was not criminally responsible, the trial judge reversed the onus and required the appellant to prove that he was criminally responsible. However, the trial judge’s reasons demonstrate that she was alive to the proper onus on the Crown, which had been the subject of discussion with counsel during submissions. In her reasons, the trial judge explained that the issue “is whether [the appellant] was not criminally responsible on account of mental disorder”. She considered the Crown’s expert evidence in support of that issue. In addition, the trial judge specifically addressed the Crown’s position that it had proven the appellant’s NCR status, not just on the required proof of balance of probabilities, but also on the standard of proof beyond a reasonable doubt. In support of his argument, the appellant points to the trial judge’s later reliance on his own evidence and her observation that the appellant did not “demonstrate” that he understood the nature and quality of his acts or their wrongfulness. However, the trial judge’s comments cannot be taken out of context. A fair reading of the reasons as a whole shows that the trial judge was merely observing that the appellant’s own evidence gave further support to the expert’s opinion. Further, the trial judge concluded her reasons by stating that she was “satisfied” of the appellant’s NCR status. We would not give effect to this ground of appeal.
Adequacy of Reasons
3Second, the appellant argues that the trial judge’s reasons were inadequate. We do not agree. The reasons fulfilled their required function and reviewed the aspects of the unchallenged expert evidence upon which the trial judge relied. They also discuss Mr. Shepherd’s presentation and his own evidence regarding his perceptions of the events. In our view, it was open to the trial judge to conclude on the basis of the evidence that the Crown had established that the appellant did not appreciate the nature and quality of his acts and did not know that his acts were wrong.
Disposition
4Accordingly, the appeal is dismissed.
“M.J. Moldaver J.A.”
“E.A. Cronk J.A.”
“S.E. Lang J.A.”