SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 54/14

DATE: 20141127

RE: R. v. Michael Alexander

BEFORE: Trotter J.

COUNSEL:
Andrew Menchynski for the Appellant

Lori Hamilton for the Crown/Respondent

HEARD: November 20, 2014

ENDORSEMENT

[SUMMARY CONVICTION APPEAL]

[1] Mr. Alexander was charged with criminal harassment, assault causing bodily harm, utter a death threat and failing to comply with a recognizance. He entered pleas of guilty before the Honourable Justice Richard Schneider of the Ontario Court of Justice. The Crown then applied to have Mr. Alexander declared not criminally responsible (NCR) under s. 16 of the Criminal Code. After a hearing at which Mr. Alexander resisted the application, he was declared NCR.

[2] Mr. Alexander appeals from the NCR finding, arguing that the trial judge’s conclusion on this issue was unreasonable and based on a misapprehension of the evidence. I disagree with both submissions. There was an evidentiary basis to support the conclusions reached by the learned and very experienced trial judge, particularly in the report and evidence of Dr. Angus McDonald.

[3] Mr. Alexander also applies to adduce fresh evidence. He relies on a report of Dr. Scott Woodside, prepared shortly after the proceedings concluded before Schneider J. In this report, Dr. Woodside did not support a claim of NCR with respect to a number of offences. Of course, this report was not available to Schneider J. when he found Mr. Alexander NCR. The report is thorough and very helpful in shedding more light on Mr. Alexander’s circumstances.

[4] With her usual fairness, Ms. Hamilton for the Crown concedes that Dr. Woodside’s report should be admitted as fresh evidence and that a new trial should be ordered, but limited solely to the NCR issue. I accept this concession as reasonable. Had Dr. Woodside’s report been available to Schneider J., he may well have come to a different conclusion. The order restricting the scope of the new trial is authorized by s. 686(6) of the Criminal Code (see R. v. Ludecke (2008), 2008 ONCA 716, 93 O.R. (3d) 89 (C.A.)), made applicable to summary conviction appeals by s. 822(1).

[5] The appeal is allowed and a new trial is ordered, restricted to the issue of whether Mr. Alexander was NCR when he committed the offences set out in paragraph 1 above.

[6] I wish to thank both counsel for their excellent assistance on this appeal.

TROTTER J.

Date: November 27, 2014