DATE: 20020311 DOCKET: C29370

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) and CECIL SCOTT (Appellant)

BEFORE: ABELLA, GOUDGE AND SIMMONS JJ.A.

COUNSEL: Timothy E. Breen For the appellant

Susan M. Chapman For the respondent

HEARD: March 6, 2002

On appeal from the conviction by Justice John G.J. O’Driscoll, dated February 5, 1998, and on appeal from the sentence imposed by Justice John G.J. O’Driscoll, dated February 23, 1998.

ENDORSEMENT

Released Orally: March 6, 2002

[1] In our view the trial judge properly laid out the law relating to the s. 16 defence. He did not limit the legal scope of that defence to the presence of psychosis. In capsulizing the factual issue for the jury, he simply posed for the jury a question arising from the competing expert witnesses. Central to the defence expert opinion that the appellant was not criminally responsible, was that the depressive disorder had reached a psychotic level. The Crown expert said it had not.

[2] The charge focused this debate for the jury and it did not turn on the source of the voices heard by the appellant. Thus, in our view, the trial judge did not err in concluding his summary of the expert evidence by posing this question for the jury. Rather the question was a helpful way to address the jury’s mind to the factual task it was required to discharge. This ground of appeal fails.

[3] Nor did the charge run afoul of R. v. Oommen (1994), 1994 101 (SCC), 91 C.C.C. (3d) 8 (S.C.C.). It properly focused on the ability of this appellant to know that this act was legally and morally wrong in the circumstances as required by R. v. Chaulk (1990), 1990 34 (SCC), 62 C.C.C. (3d) 193 (S.C.C.). In this case nothing more was required. See R. v. Olah (1997), 1997 3023 (ON CA), 115 C.C.C. (3d) 389 (Ont.C.A.). Thus this ground of appeal also fails.

[4] Finally, in our view the potential dangerousness of the appellant is not fixed, but is directly linked to the course of his illness. Thus the question of parole ineligibility is more appropriately left to the relevant correctional authorities. We also note that only eight jurors made a recommendation on this score and then only for ten years.

[5] We would therefore grant leave to appeal sentence and reduce the period of parole ineligibility to ten years. The appeal is otherwise dismissed.

"R.S. Abella J.A."

"S.T. Goudge J.A."

"Janet Simmons J.A."