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
[1] While the appellant raised a number of grounds of appeal, we
only called upon Crown counsel to respond to the following:
- Unreasonable verdict
[2] In 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.
- Second degree murder
[3] While 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.
- The answers to the questions from the jury
[4] The 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.
- Consequences of the verdict
[5] The consequences of a not criminally responsible verdict
were explained to the jury in terms that are consistent with the
authorities.
[6] In 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.
- The sentence
[7] The 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.
[8] Accordingly, the appeal from conviction and sentence is
dismissed.
(signed) "John Laskin J.A."
(signed) "M. Rosenberg J.A."
(signed) "K. Feldman J.A."