R. v. Gomez, 2007 ONCA 696

CITATION: R. v. Gomez, 2007 ONCA 696

DATE: 20071012

DOCKET: C44780

COURT OF APPEAL FOR ONTARIO

MOLDAVER, FELDMAN and ARMSTRONG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

ROGER GOMEZ

Appellant

Christopher Hicks for the appellant

David Lepofsky and Daniel Guttman for the respondent

Heard and endorsed: October 10, 2007

On appeal from conviction entered by Justice Edward F. Then of the Superior Court of Justice dated February 25, 2005.

APPEAL BOOK ENDORSEMENT

[1] In our view, the trial judge made it clear to the jury that as a matter of law, if the jury believed or had a reasonable that the appellant did not have the requisite intent for murder by reason of mental disorder falling short of insanity, they could only convict him of manslaughter. The trial judge thoroughly reviewed with the jury the evidence that supported the appellant’s position and overall, his charge was fair and balanced. Indeed, defence counsel at trial raised no objections to the charge and quite properly referred to it as “fair”.

[2] While not determinative, the views expressed by trial counsel and the failure to object can be used as a barometer against which to measure the submission, raised for the first time on appeal, that the jury may have been left with the impression that they could convict of murder, even if they had a reasonable doubt about the appellant’s intent. We would not give effect to this ground.

[3] The appellant also submits that the trial judge erred in leaving the defence of insanity to the jury, over the objection of defence counsel and the Crown. We would not give effect to this submission. The appellant put his mental state in issue and indeed his own doctor raised the spectre of insanity. In the circumstances, given that there was an air of reality to the defence, the trial judge did not err in leaving it with the jury. In doing so, he made it clear that neither the defence nor Crown was supporting it and the evidence in relation to it was weak. Leaving the defence in this case occasioned no prejudice to the appellant.

[4] Accordingly, the appeal from conviction is dismissed.