DATE: 20011018
DOCKET: C29219
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) v. DAVID MALCOLM WARRINER (Appellant)
BEFORE:
DOHERTY, SHARPE and SIMMONS JJ.A.
COUNSEL:
Felicity Hawthorn
for the appellant
Howard Leibovich
for the respondent
HEARD:
October 16, 2001
RELEASED ORALLY:
October 16, 2001
On appeal from the conviction imposed by Justice Thomas J. Lally on May 29, 1996 and the sentence dated December 15, 1997.
E N D O R S E M E N T
1. [1] The trial judge’s ruling on the “Corbett” application is entitled to deference. His reasons for excluding some, but not all of the appellant’s prior convictions for sexual offences reveal no error in principle. The excluded prior convictions for anal intercourse carried a particularly strong risk of impermissible propensity reasoning. We would not give effect to this ground of appeal.
2. [2] Counsel submits that the trial judge should have put the “defence” of intoxication to the jury. The availability of that defence was governed by Daviault v. The Queen (1994), 1994 CanLII 61 (SCC), 93 C.C.C. (3d) 21 at 68-69 (S.C.C.). There was no evidence from an expert or otherwise as to the effect of alcohol consumption on the appellant’s mental processes. The appellant had the onus of demonstrating on the balance of probabilities that he was in a state of extreme intoxication akin to automatism or insanity. There was no basis in the evidence for such a finding. The trial judge properly did not put the “defence” of intoxication to the jury.
1. [3] It was agreed that the appellant met the criteria for a finding that he was a dangerous offender. Under the legislation as it applied to the appellant, the trial judge had a discretion to impose a definite or indeterminate sentence. That decision turned on the evidence of the treatability of the appellant. That evidence came from two psychiatrists. The trial judge found that the expert evidence offered little, if any, hope for the appellant’s treatment and he consequently imposed an indeterminate sentence. We can find no error in his assessment of the evidence. Indeed, in our view, any other finding on this evidence would have been unreasonable. The appeal is dismissed.
“Doherty J.A.”
“Robert J. Sharpe J.A.”
“Janet Simmons J.A.”