Anthony De Marco
Toronto Criminal Lawyer

Schedule Your Consultation


R. V. J.M.

Charge: Second Degree Murder

The client, J.M., was charged with the murder of his 8 year old son.

It was agreed at the commencement of the client’s trial that he had, in fact, killed his 8 year old son with a knife. The issue during the proceeding was whether the client was criminally responsible for the death of the deceased.

One of the most significant decisions made during this proceeding was to convince the Crown to seek the consent of the Attorney General of Ontario to have the matter proceed before a Judge of the Superior Court of Justice sitting without a jury. Often, as in this case, a Judge sitting without a jury is much better equipped to decide an application for an order that an accused person is not criminally responsible on account of mental disorder for a serious violent offence. The Attorney General agreed to have the client’s trial proceed before a Judge sitting without a jury.

The murder occurred while the client’s wife was out of the country. The client was left to take care of the deceased and his older brother who was approximately 10 years old.

On the day of the murder, the deceased and his older brother were out with their paternal grandparents. When the grandparents returned the children to the client’s apartment, the client’s mother realized that he was acting strangely. She went downstairs to get her husband. Although the client had a history of suffering from a mental disorder, the client’s parents thought that the client was upset since he had not heard from his wife. After the client spoke to his wife, and after he confirmed to his parents that he was taking his medication for his mental illness, his parents left his apartment. Within one-half hour of his parents leaving his apartment, the client began to choke the deceased in the presence of his oldest son. The client then retrieved a knife and killed the deceased.

At the client’s trial, a defence forensic psychiatrist testified that the client suffered from a disease of the mind and had experienced a psychotic episode which deprived him of the capacity to appreciate the nature and quality of his act and which deprived him of the capacity to know that the act of killing the deceased was morally wrong.

A forensic psychiatrist who testified on behalf of the Crown expressed the opinion that the totality of the evidence did “not point to an unequivocal position on the issue of criminal responsibility”.

The trial Judge found that the evidence indicated that the client was “experiencing both delusions and visual hallucinations that were instrumental in dictating his actions” at the time of the murder.

The trial Judge concluded that the client “lacked the capacity to appreciate the quality of his actions” and that “he also thought he was morally justified in doing what he did, hence he did not know that his conduct was morally wrong”.

The client was found not guilty for reason of mental disorder. He was remanded to a psychiatric facility until he was found fit for release. The client was released from custody by order of a psychiatric review board one year after the completion of his trial.

This was a tremendous victory for the client. A finding of guilt for second degree murder would have meant that the client would have been automatically sentenced to life in prison without the possibility of parole for a period of 10 to 25 years. A person who receives a life sentence and is released on parole will remain on parole for the rest of his or her life. A breach of parole will result in the person having to return to prison to complete the remainder of his or her life sentence.