DATE: 20020219 DOCKET: C28199

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. JOHN WILLIAM WINNING (Appellant)

BEFORE:

McMURTRY C.J.O., CATZMAN AND ABELLA JJ.A.

COUNSEL:

Marie Henein

For the appellant

John Finley

For the respondent

HEARD:

FEBRUARY 11, 2002

On appeal from the conviction and sentence arising from the trial before Justice David Crane, sitting with a jury.

E N D O R S E M E N T

[1] The appellant was charged with first-degree murder and convicted by a jury of second-degree murder on June 27, 1997.

[2] In our view, the jury was sufficiently instructed in relation to the manner in which they should approach the evidence in their consideration of the issues of planning and deliberation and intent. We are further of the view that the verdict was not an unreasonable one.

[3] Accordingly, the appeal against convictions is dismissed.

[4] Immediately following the verdict of the jury, Crane J. stated that the appropriate parole ineligibility period would be ten years. However, at the request of the Crown, Crane J. adjourned the hearing of the decision on parole ineligibility in order to allow evidence and submissions from the Crown. Crane J. did not, in fact, call upon the Crown for submissions and, on August 29, 1997, ruled that the parole ineligibility period would be 15 years.

[5] With respect to the period of parole ineligibility, we are of the opinion that the trial judge made an error in over-emphasizing the dangerousness of the appellant without adequately considering the appellant’s personal circumstances.

[6] The appellant did not have a criminal record and there was no evidence before the court that the appellant’s incredibly dangerous, bizarre and tragic behaviour at the time of the murder was in any way characteristic of his general behaviour. The appellant had not acted in a violent fashion in the 20 years following the violent death of his mother, which appears to have had a role to play in this murder of an almost total stranger.

[7] While the victim impact statements reflected the enormous tragedy to the victim’s family, the evidence also revealed the tragic background of the appellant. While we agree with Crown counsel that something unexpectedly “set the appellant off”, it is highly unlikely that a similar combination of circumstances will recur.

[8] The Crown psychiatrist Dr. A. McDonald stated in evidence that the appellant’s consumption of alcohol in combination with the long-standing emotional sequelae from having witnessed his mother’s death, as well as being the victim of his alcoholic father, had led, in his opinion, to an explosive and tragic outcome which was not in character for the appellant.

[9] In our view, a parole ineligibility period of 12 years would be appropriate. Leave to appeal sentence is therefore granted and the parole ineligibility period is reduced to 12 years.

“R. Roy McMurtry C.J.O.”

“M. A. Catzman J.A.”

“R. S. Abella J.A.”