Court of Appeal for Ontario

Citation: R. v. Jensen, 2012 ONCA 878

Date: 2012-12-13

Docket: C56198

Before: Simmons and Hoy JJ.A. and Speyer J. (ad hoc)

Between

Her Majesty the Queen

Respondent

and

Mark Jensen

Applicant/Appellant

Counsel:

Daniel F. Moore and Graham D. Jenner, for the appellant

Matthew Asma, for the respondent

Heard and released orally: December 3, 2012

On appeal from the decision of the Summary Convictions Appeal Court dated June 13, 2012 by Justice Robert G.S. Del Frate of the Superior Court of Justice, allowing the appeal and quashing the acquittal entered on September 22, 2010 by Justice Lawrence Klein of the Ontario Court of Justice.

ENDORSEMENT

[1] Leave to appeal is denied.

[2] The trial judge rejected the appellant’s defence of non-insane automatism because the appellant failed to lead expert evidence capable of supporting that defence as required by R. v Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290. Further, there was no evidence at trial capable of establishing that the appellant was tricked into consuming alcohol or that he did not know that the substance he was consuming was alcohol.

[3] In the absence of such evidence and in the face of the presumption created by R. v. King, 1962 CanLII 16 (SCC), [1962] S.C.R. 746, it was simply not open to the trial judge to entertain a doubt about whether the appellant’s conduct in consuming alcohol was voluntary: see R. v. King, 1982 CanLII 2234 (ON CA), [1982] 38 O.R. (2d) 346, at para. 10.

[4] In the circumstances, this case does not raise an issue of sufficient merit or importance to warrant granting leave to appeal.

“Janet Simmons J.A.”

“Alexandra Hoy J.A.”

“C.M. Speyer J. (ad hoc)”