COURT OF APPEAL FOR ONTARIO
MacPherson, Cronk and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Rian Dix
Appellant
Rian Dix, in person
Delmar Doucette, duty counsel
Alison Wheeler, for the respondent
Heard: April 22, 2009
On appeal from the conviction by Justice Alexander Sosna, sitting with a jury, on February 20, 2007, and from the sentence imposed on April 26, 2007.
1The appellant appeals both his conviction for second degree murder and that part of his sentence that fixed his parole eligibility at 12 years from the date of his arrest.
2The appellant stabbed Michael Thornhill on July 15, 2004. The victim died almost immediately. At trial, the appellant was prepared to plead guilty to manslaughter. The Crown rejected this offer. The trial proceeded and the appellant was convicted of second degree murder. He was sentenced to life imprisonment with no eligibility to apply for parole for 12 years from the date of his arrest.
A. Conviction Appeal
3In support of the appellant’s conviction appeal, duty counsel submits that the trial judge erred in three ways in his charge to the jury: first, in his instruction on intoxication; second, in his direction on R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742; and, third, by instructing the jury on the authority of R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, with respect to the temporal relationship between the wrongful act and the appellant’s intent to cause the wrongful act. We would not give effect to these submissions for the following reasons.
(1) Intoxication instruction
4In his initial instruction on intoxication, the trial judge told the jury:
If you believe, or have a reasonable doubt, that the consumption of alcohol and/or drugs affected [the appellant’s] ability to foresee the natural and probable consequences of his actions, then you must not rely upon the common sense inference that a sane and sober person intends the natural and probable consequences of his actions when you decide whether [the appellant] had the intent to kill Michael Thornhill.
5Defence counsel at trial objected to this instruction, arguing that if on the evidence of intoxication the jury formed a reasonable doubt as to whether the appellant was able to foresee the natural consequences of his conduct, then resort to the common sense presumption was impermissible since the jury’s doubt would necessitate a verdict of acquittal. Based on this objection, the trial judge acceded to the defence request that he recharge the jury on this issue. In his recharge, the trial judge said:
If, after consideration of all of the evidence, you are left with a reasonable doubt as to whether or not it is appropriate to draw the inference that [the appellant] intended the natural consequences of his actions, then you must not draw that inference.
6Before this court, duty counsel not only renews the claim asserted by defence counsel at trial that the original intoxication instruction was flawed, but also submits that the recharge failed to correct the deficiency identified in the original instruction. In our view, this argument fails.
7The defence theory at trial was that the appellant lacked the requisite intent for murder since he was intoxicated at the time of the fatal attack on the victim. He therefore sought to plead guilty to manslaughter. However, the Crown refused to accept that plea. In his charge to the jury, the trial judge reviewed the evidence that supported the appellant’s defence of intoxication. Then, when instructing the jury on intoxication, he specifically told the jury that the appellant’s actual intent was the central issue for its determination. The trial judge put it this way:
Please remember that the question for you to decide is, what did Rian Dix actually intend? You are not entitled to rely upon the common sense inference if, after consideration of all of the evidence, you are left with a reasonable doubt whether the intent to kill Michael Thornhill has been proven by the Crown beyond a reasonable doubt.
8The trial judge later added:
It is important that you understand that evidence of intoxication from alcohol and/or drugs may raise a reasonable doubt as to whether Rian Dix actually foresaw the consequences of his conduct.
9These instructions properly focused the jury’s attention on the critical issue at trial, namely, the appellant’s actual intent at the time of the incident in question. In light of these instructions, it cannot be said that the jury was in any doubt either about its task or about the evidence bearing on the appellant’s asserted intoxication defence.
(2) The W. (D.) instruction
10The trial judge did not provide a W.(D.) instruction in his initial charge to the jury. Defence counsel objected, however, to the absence of such an instruction, and Crown counsel agreed that one was appropriate. Accordingly, the trial judge recharged the jury and provided the standard W.(D.) instruction.
11The appellant contends that the W.(D.) instruction given in the recharge was deficient because the trial judge did not link it to the issue of intoxication. We disagree. In his W. (D.) instruction, the trial judge specifically referred the jury to the appellant’s statement to the police and told the jury that it could believe “all of it, some of it, or none of it.” The trial judge had already reviewed in great detail in his charge to the jury the appellant’s statement to the police, including the potentially exculpatory comments about how he was drunk and not thinking straight when he stabbed the victim.
(3) The Cooper instruction1
12In Cooper at p. 157, the Supreme Court of Canada referred to “the classic rule that at some point the actus reus and the mens rea or intent must coincide.” In light of this classic rule, the appellant contends that the trial judge erred in giving the jury the following instruction:
In considering the evidence you should know that the Crown does not have to prove this essential element of intent continued throughout the entire unlawful act that caused Michael Thornhill’s death.
13We disagree. In Cooper at p. 157, the court stated that “it is not always necessary, however, for the guilty act and the intent to be completely concurrent.” Moreover, on the facts in this case, there was really no issue about the relationship between the actus reus and the mens rea. Those facts are aptly captured in the following example set out in Cooper at pp. 157 – 158:
For example, if the accused … stabbed the victim in the chest with death ensuing a few minutes after the … stabbing, then it would be relatively easy to infer that the requisite intent or mens rea coincided with the wrongful act (actus reus) of … stabbing.”
14Accordingly, although the trial judge’s charge to the jury on this point can probably be characterized as superfluous, it was not incorrect.
B. Sentence Appeal
15At the sentence hearing, both the Crown and the defence agreed that the appropriate range for the period of parole ineligibility was 10 – 12 years. The Crown sought 12 years; the defence sought 10 years.
16The trial judge imposed a period of parole ineligibility of 12 years. In doing so, he carefully considered the circumstances relating to both the offence and the offender. He also reviewed two Ontario decisions upholding parole ineligibility periods of 12 years in circumstances very similar to those in this case: see R. v. McBride, [2005] O.J. No. 1043 (Sup. Ct.), and R. v. Arroyo, [2005] O.J. No. 1092 (C.A.). We do not see any error in his analysis and, in our view, a period of parole ineligibility of 12 years is not unfit in the circumstances of this case.
17The appeal is dismissed.
RELEASED: May 11, 2009 (“JCM”)
“J.C. MacPherson J.A.”
“E.A. Cronk J.A.”
“H.S. LaForme J.A.”
