Court of Appeal for Ontario

Date: 2001-07-17 Docket: C35706

Re: Her Majesty the Queen (Respondent) v. Daniel Rozon (Appellant)

Before: Doherty, Rosenberg and Moldaver JJ.A.

Counsel: John Norris for the appellant Gillian Roberts for the respondent

Heard: July 13, 2001 Orally Released: July 13, 2001

On appeal from the conviction imposed by Justice Robert Fournier dated November 15, 2000.

Endorsement

[1] The appellant was charged with a number of property offences and possession of an imitation weapon. The facts surrounding the charges were somewhat bizarre. The appellant was tried on those offences in November 2000. He contended that while he had committed the acts, he suffered from a mental disorder and was not criminally responsible for his acts. A psychiatrist who had assessed the appellant opined that he suffered from a mental disorder and was not criminally responsible on account of that mental disorder. Quite understandably, the trial judge made a finding that the appellant was not criminally responsible and directed that he be transferred to a hospital pending a disposition hearing before the Review Board.

[2] The Review Board held that hearing in February 2001. At the hearing, it was common ground that the appellant had feigned his mental disorder at trial and in fact did not suffer from any mental disorder. The doctor who had assessed the appellant at the hospital testified that he was virtually 100 per cent certain that he did not suffer from any mental disorder that would render him not criminally responsible for his acts. Counsel for the appellant at the Review Board did not challenge this evidence.

[3] The proceedings before the Review Board have been filed on consent as fresh evidence on this appeal.

[4] We agree with the joint position taken by counsel for the appellant and Crown. The fresh evidence necessitates the quashing of the finding of not criminally responsible and the ordering of a new trial. This order applies to all counts in all informations for which a finding of not criminally responsible was made.

"Doherty J.A."

"M. Rosenberg J.A."

"M.J. Moldaver J.A."