COURT OF APPEAL FOR ONTARIO
WEILER, GILLESE and LAFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
JACK PHARR
Appellant
Brian F. McAllister and Catriona Verner for the appellant
Howard Leibovich for the respondent
Heard: July 24, 2007
On appeal from the conviction entered May 19, 2005 and the sentence imposed August 29, 2005 by Justice Robert J. Abbey of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
1The appellant appeals his conviction for second degree murder for which he received a sentence of life imprisonment with a 15 year period of parole ineligibility. He also seeks leave to appeal from sentence and, if leave is granted, appeals the period of parole ineligibility.
2The appellant raises three grounds of appeal in relation to his conviction. He argues that the trial judge erred in: (1) not allowing the defence to introduce evidence of the deceased’s propensity for violence; (2) in instructing the jury that the appellant’s after–the-fact conduct was relevant to determining whether the appellant had the requisite intent for murder; and (3) his charge on self-defence under s. 34(2).
3We called on the Crown to respond only to the second ground of appeal. While each issue is discussed below, we begin by noting that this was an overwhelming case for the Crown. An extremely compelling piece of evidence at trial was that the shooting of the victim was captured on a black and white surveillance camera that took photos every 0 to 3 seconds. In addition, seven witnesses testified for the prosecution while the appellant neither testified nor called any defence witnesses. The issues at trial were whether the appellant acted in self-defence and, in the alternative, whether he had the requisite intent for murder.
Conviction Appeal
(1) Did the trial judge err in not allowing the defence to introduce evidence of the deceased’s propensity for violence?
4Five weeks before the murder, the deceased’s brother had been involved in an altercation. Apparently the deceased had acted as a peacemaker during the incident but had also attempted to kick the victim when he was already on the ground. The defence sought to introduce this evidence to show the deceased’s propensity for violence.
5After considering the proposed evidence heard on the voir dire – which consisted only of that of the victim in the incident - the trial judge ruled the evidence inadmissible. He concluded that the probative value on the issue of whether it tended to show the probability that the deceased was the aggressor in this case was minimal and was outweighed by its prejudice.
6The trial judge explained that the proposed evidence consisted of a single incident in which the level of violence by the deceased was unknown and that it took place as part of an incident in which the deceased had also attempted to act as a peacemaker.
7The trial judge’s ruling, read as a whole, demonstrates that he applied the relevant legal principles correctly and assessed the evidence through a weighing of probative value against any prejudice. His decision was properly arrived at and is entitled to deference. In any event, given the nature and quality of the proposed evidence; we see no error in his decision.
(2) Did the trial judge err in instructing the jury that the after–the-fact conduct was relevant to determining whether the appellant had the requisite intent for murder?
8The appellant contends that the trial judge erred in his charge to the jury on after-the-fact conduct because he instructed the jury that the conduct could assist them in assessing whether the appellant had the requisite intent for murder. The appellant concedes that this evidence was relevant to the issues of intoxication and self-defence.
9The trial judge correctly charged the jury that they could consider the appellant’s after-the–fact conduct on the issue of self-defence. His instructions to the jury on this issue were that they could consider the after-the-fact evidence to decide the appellant’s state of mind; that is, whether his conduct was consistent with having acted in self-defence or, among other things, whether he had committed a crime. There is nothing in this part of the charge that speaks to the issue of the requisite intent necessary for murder.
10In light of the evidence of intoxication, the evidence was also relevant to whether the appellant had the capacity to form the intent for murder. When charging the jury on the issue of intoxication, the trial judge’s instructions included the following:
As I said when I mentioned that evidence earlier, from that evidence you may reach certain factual conclusions pertaining to the conduct of the accused after the shooting. Just as what you find the accused did after the shooting may help you decide whether the accused acted in self-defence, so it may also help you in deciding whether the accused had a state of mind required for murder and, particularly in this case, the extent to which the state of mind of the accused was affected as a result of consumption of alcohol or drugs. This evidence of the conduct of the accused after the shooting may help you in that regard or it may not. [Emphasis added.]
11The appellant points to the words “state of mind” in this passage and elsewhere as support for his argument that the trial judge instructed the jury to consider the after-the-fact conduct for the purpose of deciding whether the appellant had the mens rea for murder.
12We disagree. When the charge to the jury is read as a whole, it is clear that in the above-quoted part of the charge, the trial judge was linking his instruction on intoxication with the instruction he had given on self-defense. That is, he was instructing the jury that just as after-the-fact conduct was relevant to a determination on the issue of self-defence, it was relevant also to the issue of intoxication. When the trial judge uses the words “state of mind”, the jury would have understood that they were to consider whether he was impaired because of intoxication. It was not intended as an instruction that the jury consider this evidence for the purpose of determining whether the appellant had committed murder or manslaughter. Moreover, while the trial judge’s shorthand phrase was unfortunate, from the reference to his prior instructions on self-defence, it would have been clear to the jury that the references to “state of mind” were specifically linked to the issues of self-defence and intoxication.
13The appellant shot the victim three times, including once in the head and once in the stomach. We accept the Crown’s submissions that, in the circumstances, the only logical basis on which the jury could find the appellant guilty of manslaughter, but not murder, was if they had a reasonable doubt with respect to provocation, accident or intoxication. Once the Crown had negated those defences, the only appropriate verdict was murder.
14We would also note that the trial judge canvassed and provided counsel with a copy of his proposed charge in connection with the after-the-fact conduct. Defence counsel agreed with the proposed charge.
15Accordingly, in the circumstances we see nothing in the trial judge’s instructions on after-the-fact conduct that constitutes reversible error.
(3) Did the trial judge err in his charge on self-defence under s. 34(2)?
16The essence of this ground of appeal is that the Crown’s closing address left the jury with the impression that retreat was a necessary component of self-defence. We disagree.
17The appellant made no claim at trial that he feared that the group, acting together, would kill or seriously injure him. Indeed, there was no air of reality to this claim. The Crown’s impugned comments to the jury, when the closing arguments are read as a whole, are directed at the degree of the threat to the appellant and not to retreat being a necessary component of self-defence. This did not require further instruction by the trial judge.
Sentence Appeal
18The core of the appellant’s submissions on sentence is that the trial judge failed to place sufficient emphasis on the appellant’s youth. We disagree and again find no error on the part of the trial judge in imposing a fifteen year period of parole ineligibility.
19The trial judge found that “despite his youth”, at the time of this murder the appellant had a previous weapons conviction, a weapons prohibition and probation order, and a deportation order. In the face of this, the appellant was in possession of a loaded weapon. It is with this background that he viewed the appellant’s prospects for rehabilitation as “less than fair”. He was entitled to reach this conclusion.
20In addition the trial judge considered that this was a senseless killing that could have been avoided and he considered that the appellant had nine institutional charges and expressed no real remorse. Moreover, the jury suggested that a period of seventeen years parole ineligibility was warranted, which the trial judge carefully considered.
21In our view this was a properly considered sentence, which is fit in all the circumstances.
Disposition
22Therefore, we dismiss the appeal against conviction and, while leave to appeal the sentence is granted, the appeal is dismissed.
“K. M. Weiler J.A.”
“E. E. Gillese J.A.”
“H. S. LaForme J.A.”
