COURT OF APPEAL FOR ONTARIO

DATE: 20001221

DOCKET: C30852

RE: HER MAJESTY THE QUEEN (Respondent)

v. THERESA ANNE GLAREMIN (Appellant)

BEFORE: LABROSSE, WEILER and FELDMAN JJ.A.

COUNSEL: Timothy E. Breen,

for the appellant

R. W. Hubbard,

for the respondent

HEARD: December 5 and 6, 2000

On appeal from her conviction by Justice Douglas J. Cunningham, sitting with a jury, on April 14, 1998 and from the sentence imposed on April 14, 1998

E N D O R S E M E N T

[1] The appellant was convicted of second degree murder by a court composed of a judge and jury. She was sentenced to life imprisonment with a parole ineligibility of twenty years. She appeals her conviction and the sentence imposed. For the reasons below we would dismiss the appeals.

[2] The trial of the appellant was conducted in two parts. In the first part, the issue was whether the appellant had murdered the victim. It was only after the appellant was convicted of second degree murder that she alleged that she was not criminally responsible by reason of mental disorder as she was suffering from Dissociative Identity Disorder (DID). The second part of the trial was to resolve the issue of criminal responsibility under s. 16 of the Criminal Code.

The second degree murder trial

[3] The Crown alleged that the victim had been murdered by kicks to the head. The appellant did not contest that the victim had been brutally killed. It was her position that she had not caused the death. In addition to circumstantial evidence, the evidence implicating the appellant included the following:

♦ The impression on the side of the victim’s head matched the appellant’s right boot;

♦ The appellant’s boot prints were found in blood near the head of the victim;

♦ DNA testing of the blood found on the appellant’s boots matched the victim’s blood profile; and

♦ Personal items of the victim were found in the appellant’s apartment, including one item which had bloodstains that matched the victim’s blood.

[4] The appellant did not call any evidence with respect to the murder issue in the first part of the trial.

[5] In his charge to the jury, the trial judge outlined the theory of the defence. He reviewed the evidence. He also reviewed the requisite intent for murder and the included offence of manslaughter. He left both verdicts with the jury.

[6] The trial judge also instructed the jury that intoxication was to be considered by them in deciding if the appellant had the requisite intent for murder. However, he did not relate this issue to the instruction that a person must intend the natural consequences of her act, as required by R. v. Robinson (1996), 1996 233 (SCC), 105 C.C.C. (3d) 97 (S.C.C.). In our view, there was insufficient evidence of intoxication to give an air of reality to require that instruction.

[7] The appellant’s experienced counsel made no objection to the trial judge’s charge nor to any of the clarifications made by the trial judge as a result of questions from the jury.

[8] Given the weight of the evidence and the fairness of the charge, the appeal with respect to the conviction for second degree murder is dismissed.

The criminal responsibility hearing

[9] The appellant testified on the issue of criminal responsibility. She denied killing the victim but conceded that if she did, she thought she was killing her third husband. Extensive psychiatric evidence was called including evidence relating to DID. Some of the evidence on DID was about the inherent weaknesses of this diagnosis. None of the expert evidence categorized someone with DID as acting involuntarily.

[10] In his charge to the jury, the trial judge reviewed the evidence relevant to the appellant’s condition and the conflicting psychiatric evidence. The trial judge left the jury with the alternative that the appellant was not criminally responsible because she was suffering from DID which rendered her incapable of appreciating the nature and quality of the act, within the meaning of s. 16.

[11] On appeal, it was submitted on behalf of the appellant that evidence of impaired consciousness at the time of the murder, given by some of the expert witnesses, could form the basis for a finding that the appellant acted involuntarily. Counsel further submitted, on the basis of R. v. Stone (1999), 1999 688 (SCC), 134 C.C.C. (3d) 353, that it was incumbent on the trial judge to bring home to the jury that a person acting involuntarily cannot, by definition, appreciate the nature and quality of her act within the meaning of s. 16.

[12] While such an approach would have been helpful, the trial judge was never requested to charge the jury in this manner and, in the circumstances of this case, including the state of the evidentiary record on this issue, we see no error.

[13] In the result, the appellant failed to satisfy the jury that she was not criminally responsible.

Sentence

[14] Finally, as to sentence, in light of the appellant’s criminal record, the recommendation of the jury, and the antecedents of the appellant, there is no basis upon which to interfere with the period of parole ineligibility imposed by the trial judge.

[15] Accordingly, the appeals against conviction and against sentence are dismissed.

(signed) “J M Labrosse J.A.”

(signed) “K M Weiler JA”

(signed) “K. Feldman J.A.”