Court File and Parties

Citation: R. v. O'Donnell, 2010 ONCA 375 Date: 2010-05-21 Docket: M38123 and M38113

Court of Appeal for Ontario Moldaver, LaForme and Rouleau JJ.A.

Between: Her Majesty the Queen (Respondent) and Frederick O’Donnell (Applicant)

Counsel: Jill R. Presser, amicus curiae, for the applicant Holly Loubert, for the respondent

Heard and released orally: May 14, 2010

Endorsement

[1] We would dismiss the application to reopen the appeals for several reasons, the primary one being that we are not persuaded that the interests of justice warrant such relief. Beyond that, we are of the view that the proposed appeals have little potential merit. We see no basis for concluding that the trial judge did not understand the meaning of the word “appreciate” in s. 16 of the Criminal Code. In finding that the applicant did not appreciate the nature and quality of his acts, the trial judge relied on the opinion of two psychiatrists over that of a third psychiatrist who felt that the applicant did appreciate the nature and quality of his acts. It was clearly open to the trial judge to accept the opinions of the two psychiatrists who supported the applicant’s position at trial and the applicant has not presented any evidence or arguments which would cause us to doubt the integrity of the trial judge’s findings.

[2] Secondly, the applicant was fully informed of the implications of abandoning his appeals by Mr. Davies who appeared before this court as amicus and who provided advice and assistance to the applicant. Nothing in the record leaves us concerned that the applicant did not understand the ramifications of his decision. The fact that he has now had a change of heart is consistent with his history of ambivalence and his otherwise impulsive behaviour that prevents him from making firm decisions and sticking to them. (See the disposition of the Ontario Review Board dated March 3, 2010 at pp. 6 and 7.)

[3] In short, if we were to grant the applicant the relief he seeks, we are concerned that he would at some future time decide again to abandon his appeals and we would be back to square one. That this is a real possibility is more than mere speculation. If the applicant were to succeed on the proposed appeals, he knows that the Crown will be seeking to have him declared a dangerous offender and sentenced to an indeterminate period of incarceration. While the prospect of such a daunting disposition might not present a problem for the applicant today, it could easily do so tomorrow.

[4] In the end, this is not a case in which the interests of justice warrant the relief sought. Accordingly, the application to reopen the appeals which were dismissed as abandoned by this court on April 3, 2009, is dismissed.

Signed: “M. J. Moldaver J.A.” “H. S. LaForme J.A.” “Paul Rouleau J.A.”