





CITATION:
R. v. Shepherd, 2011 ONCA 92



DATE: 20110202



DOCKET: C50349



COURT OF APPEAL FOR ONTARIO



Moldaver, Cronk and Lang JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Frank Shepherd



Appellant



Misha

Feldmann
,
          for the appellant



Alexander
Hrybinsky
, for the
          respondent



Heard and released orally:
February 1, 2011



On appeal from the finding of not
          criminally responsible on February 4, 2009, by Justice Deborah K. Livingstone
          of the Ontario Court of Justice.



ENDORSEMENT



[1]

The appellant raises two grounds of appeal.

[2]

First, he argues that, instead of requiring the Crown
    to prove that the appellant was not criminally responsible, the trial judge
    reversed the onus and required the appellant to prove that he was criminally
    responsible.  However, the trial judges
    reasons demonstrate that she was alive to the proper onus on the Crown, which
    had been the subject of discussion with counsel during submissions.  In her reasons, the trial judge explained
    that the issue is whether [the appellant] was not criminally responsible on
    account of mental disorder.  She considered
    the Crowns expert evidence in support of that issue.  In addition, the trial judge specifically
    addressed the Crowns position that it had proven the appellants NCR status,
    not just on the required proof of balance of probabilities, but also on the
    standard of proof beyond a reasonable doubt.  In support of his argument, the appellant points to the trial judges later
    reliance on his own evidence and her observation that the appellant did not
    demonstrate that he understood the nature and quality of his acts or their
    wrongfulness.  However, the trial judges
    comments cannot be taken out of context.  A fair reading of the reasons as a whole shows that the trial judge was
    merely observing that the appellants own evidence gave further support to the
    experts opinion.  Further, the trial
    judge concluded her reasons by stating that she was satisfied of the
    appellants NCR status. We would not give effect to this ground of appeal.

[3]

Second, the appellant argues that the trial judges
    reasons were inadequate.  We do not
    agree. The reasons fulfilled their required function and reviewed the aspects
    of the unchallenged expert evidence upon which the trial judge relied.  They also discuss Mr. Shepherds presentation
    and his own evidence regarding his perceptions of the events.  In our view, it was open to the trial judge to
    conclude on the basis of the evidence that the Crown had established that the
    appellant did not appreciate the nature and quality of his acts and did not
    know that his acts were wrong.

[4]

Accordingly, the appeal is dismissed.

M.J. Moldaver J.A.

E.A. Cronk J.A.

S.E. Lang J.A.


