DATE: 20050418

DOCKET: C37179

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – LINDA WAGMAN (Appellant)

BEFORE:

FELDMAN, CRONK and JURIANSZ JJ.A.

COUNSEL:

Stephen F. Gehl

for the appellant

Jamie Klukach

for the respondent

HEARD & RELEASED ORALLY:

April 14, 2005

On appeal from the conviction entered on October 4, 2000 by Justice Paul G. Philp of the Superior Court of Justice, sitting with a jury, and from the sentence imposed on December 21, 2000.

E N D O R S E M E N T

[1] We are satisfied that the fresh evidence in this case, filed on behalf of both parties, establishes to the requisite standard of proof that the appellant was not criminally responsible by reason of mental disorder at the time of the offence and that the appropriate order, as submitted by both the appellant and the Crown and as supported by the victim’s family, is to quash the conviction and to substitute a verdict of not criminally responsible on account of mental disorder, pursuant to this court’s authority under s. 686(1)(d) of the Criminal Code.

[2] There is no need, on this record, to order a new trial. We are persuaded, given the fresh evidence adduced by the parties, that at any new trial, it is virtually inevitable that the appellant would be found not criminally responsible on account of mental disorder: see R. v. Ta, 2002 44898 (ON CA), [2002] O.J. No. 1453 (C.A.).

[3] We also note that the appellant’s counsel informed us that the appellant desires this result, believes that it is in her best interests, and understands the clinical and legal significance of the relief sought.

[4] In addition, pursuant to s. 672.46(2) of the Code, and at the request of counsel for both parties, the appellant shall remain detained at Grand Valley Institution in Kitchener pending the conduct of a hearing by the Review Board under s. 672.47(1) of the Code.

[5] Finally, we wish to thank counsel for their responsible, thorough and very helpful assistance to the court in this matter.

“K. Feldman J.A.”

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”