COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dahr, 2012 ONCA 433

DATE: 20120622

DOCKET: C52825

Gillese, Epstein and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Dahr

Appellant

Brian H. Greenspan and Jill D. Makepeace, for the appellant

David Lepofsky, for the respondent

Heard: May 25, 2012

On appeal from the convictions entered on November 20, 2009 and the sentence imposed on January 25, 2010 by Justice Dougald R. McDermid of the Superior Court of Justice, sitting with a jury.

Gillese J.A.:

[1] Following a trial by jury, Jason Dahr (the "appellant") was convicted of second degree murder for the killing of his father, Wayne Dahr. He was also convicted of theft under $5,000. He was sentenced to life imprisonment without eligibility for parole for 15 years. In addition, a lifetime weapons prohibition was imposed.

[2] He appeals conviction and sentence.

Overview

[3] In April 2008, Wayne Dahr travelled from his home in Halifax to London, Ontario, to help his daughter who was suffering greatly from throat cancer. He also wanted to help the appellant who was experiencing emotional and financial problems resulting from his loss of employment, the end of his marriage and drug use. The appellant had a crack cocaine addiction.

[4] On April 29, 2008, Wayne Dahr took his daughter to the hospital for a particularly painful procedure. That evening, he returned to his daughter's apartment where he was living while staying in London. The appellant went to the apartment. An argument about the appellant's personal situation took place and the appellant stabbed his father with a scuba knife. He stabbed his father at least 50 times in his head, neck, shoulders, arms and abdomen. Many of the victim's wounds were of a defensive nature. Blood was found in the kitchen, hallway and bedroom and on the front and bedroom doors, consistent with a continuing event from the kitchen to the bedroom. The appellant had minor injuries.

[5] After the killing, the appellant slept at his sister's apartment. He stole money from the deceased's pants pockets. He also took the deceased's rental car. He stole the morphine his sister had for the pain from her cancer. He stole clothes to change into, got some drugs and hid from the police. When he was apprehended, he lied to the police.

[6] At trial, there was no dispute that the appellant caused his father's death by stabbing. The issues were whether the appellant acted in self-defence, was provoked or had the requisite mental element for murder.

[7] The appellant submits that the rolled up instruction in the jury charge was deficient in that it failed to provide the jury with an appreciation of the relationship between the appellant's cumulative circumstances and his state of mind. Specifically, the appellant submits that the instruction was deficient because it did not leave the jury with a clear understanding that even if the defences of self-defence and provocation failed, that was not the end of the relevance of the factual foundation for those defences. The facts that gave the defences an air of reality had also to be considered when deciding whether the mental element for murder had been proven beyond a reasonable doubt.

[8] In terms of sentence, the appellant submits that the trial judge erred in treating his lack of remorse and insight as an aggravating factor and that the period of parole ineligibility is harsh and excessive.

[9] The court found it unnecessary to hear from the Crown on the sentence appeal.

[10] For the reasons that follow, I would dismiss both the conviction and the sentence appeal.

The Conviction Appeal

[11] The purpose of rolled up instructions is to ensure that jurors do not compartmentalise the evidence and consider specific items of evidence only in relation to specific defences, rather than applying the cumulative effect of the evidence as a whole to the issue of intent and the specific defences raised: see R. v. Cudjoe, 2009 ONCA 543, 251 O.A.C. 163, at paras. 104 and 109; R. v. Flores, 2011 ONCA 155, 269 C.C.C. (3d) 194 (Ont. C.A.), at paras. 73-76.

[12] The charge in the present case fulfilled this purpose.

[13] The trial judge gave the rolled up instruction three times. One example of the instruction can be found at pp. 682-84 of the transcript:

Crown counsel must prove beyond a reasonable doubt, that Jason Dahr had a state of mind required for murder. Second degree murder is not committed if Jason Dahr lacked a state of mind for murder. Drugs, such as crack cocaine, have an intoxicating effect on those who use them. Intoxication that causes a person to cast off restraint and to act in a manner in which he would not act if sober, is no excuse for committing an offence, if he had the state of mind required to commit the offence. An intoxicated state of mind is, nonetheless, a state of mind. In deciding whether Jason Dahr had either state of mind required to make the unlawful killing of Wayne Dahr murder, you must consider the evidence of Jason Dahr's consumption of drugs, his fragile mental condition, his anger, his fear and any provocation he suffered at the hands of Wayne Dahr. I will review the issue of provocation with you shortly.

You should consider this evidence, not just by itself on the particular issue to which it relates, but all together and along with any other evidence that might suggest that Jason Dahr acted instinctively in the sudden excitement of the moment, without thinking about the consequences of what he did and without either state of mind necessary to make the unlawful killing of Wayne Dahr murder. This evidence does not necessarily mean that Jason Dahr did not have either mental state necessary to make the unlawful killing of Wayn Dahr murder. The fact that Jason Dahr may have consumed drugs and been mentally fragile, angry, fearful of his father, and was provoked or acted instinctly [sic], is not necessarily inconsistent with either state of mind required to make unlawful killing, murder. As a matter of fact, evidence of some of these state or conditions, may actually give rise to one or other of the states of mind required to make an unlawful killing murder.

You must consider the effect of all this evidence, the sum total of it, along with any other evidence that seems or tends to show Jason Dahr's state of mind, when you are deciding whether Crown counsel has proven beyond a reasonable doubt that Jason Dahr's unlawful killing of Wayne Dahr was murder. I emphasize, that to determine Jason Dahr's state of mind, what he meant to do, you should consider all the evidence.

[14] In his instruction on mens rea, the trial judge repeatedly stressed that the jury was to consider all of the evidence in deciding if the appellant had the requisite intent. As part of the circumstances to consider in deciding intent, the trial judge directed the jurors to the provocation issue and to the totality of the following circumstances, alone or in combination: the appellant's job loss, depressed and fragile state, two suicide attempts, withdrawal from prescribed medications that he had not renewed, crack cocaine high, anger at the deceased's remarks about his situation, and fear of the deceased from past fights. As part of his summary of the defence theory, the trial judge recited again that in deciding if the appellant had murder mens rea the jurors should take into account the loss of the appellant's job and marriage, his depressed and fragile state, two suicide attempts, withdrawal from prescribed medication, crack high, anger at the deceased's remarks, fear of the deceased from prior fights, the deceased's provoking him, and his frenzy when stabbing the deceased.

[15] As this court noted in Flores, at para. 76, "[a]n integral part of any rolled up instruction is a description, whether by content or specific detail, of the evidence to which the instruction relates." There can be no doubt that the trial judge gave such a description, both by content and specific detail.

[16] Further, it can be seen that the instruction brought home to the jury that in deciding whether the prosecution had proven either state of mind essential for an unlawful killing to be murder, they were to consider all the evidence that shed light on the appellant's state of mind at the time of the killing, even if they rejected the specific defences to which that evidence also related.

[17] During deliberations, the jury asked the trial judge to reread that part of the charge that dealt with provocation. The appellant complains that in responding to the question, the trial judge did not reiterate the need to consider all of the facts underlying the defence of provocation even if that defence failed. While it was open to the trial judge to again reiterate that point, in light of the thorough and complete handling of the matter in the charge itself, in my view it was not an error to fail to repeat it.

[18] I might add that I accept the Crown's contention that the instruction benefitted the appellant by including mental health to the list of evidence to be considered. There was no evidence that the appellant's mental health or failure to take his prescribed medication, either alone or in combination with unspecified marijuana or crack consumption, could or did diminish his capacity to form murder mens rea. The defence led no expert evidence on these matters.

[19] The trial judge gave counsel ample opportunity for input on the charge. He circulated draft instructions, held a pre-charge conference and invited feedback. He solicited objections after the charge. Apart from one objection that is not pressed on appeal, the two-person defence team was content with the charge. The defence made no objection as to how the trial judge explained the exculpatory evidence.

[20] This was an overwhelming Crown case. The process by which the trial judge solicited input on the charge was exemplary. So, too, was the charge itself. I would dismiss the appeal.

The Sentence Appeal

[21] The appellant challenges the sentence on two grounds. He submits that: (1) the trial judge erred in treating his lack of remorse and insight as an aggravating factor on sentence; and (2) the period of parole ineligibility is harsh and excessive.

[22] I do not accept this submission.

[23] In his reasons for sentence, the trial judge stated that he needed to take into account the character of the offender, the nature of the offence, the circumstances surrounding the commission of the offence, and the jury recommendations made pursuant to s. 745.2 of the Criminal Code, R.S.C. 1985, c. C-46. He then gave the appellant's date of birth and said that "with respect to his character", he had the benefit of a pre-sentence report. He quoted the following from page 8 of the pre-sentence report:

The offender expressed no insight regarding his offending behaviour, nor did he express any remorse for the persons harmed by his actions. The offender does not take responsibility for the current offence and showed no remorse for his criminal actions focussing only on the impact his incarceration has had on himself.

[24] Later in his reasons, the sentencing judge dealt with the defence submission that the appellant showed remorse by offering an apology. He noted that on the one occasion that the appellant had apologized for the killing he had added the proviso that it was the only time that he would apologize. Further, when asked whether there was anything he wished to say before he was sentenced, the appellant declined to make any statement. The sentencing judge said that he did not believe the appellant was truly sorry for having killed his father or for the profound impact his father's death had on his sister. He then described the situation as tragic and commented that "unfortunately, the offender seems to have almost no insight into his situation and no regard for other people, choosing to see himself as a victim."

[25] The sentencing judge correctly listed the factors he had to take into account when deciding the main issue on sentencing, which was the length of parole ineligibility to be imposed. One of those factors was the offender's character. His observations about the appellant's character were relevant to the issue of character and are supported on the record. The sentencing judge did not state that the appellant's lack of remorse and insight were aggravating factors and, as I have explained, there is no suggestion in his reasons that he treated them as such.

[26] In arguing that the 15-year period of parole ineligibility is harsh and excessive, the appellant relies on R. v. Reid (2003), 2003 14779 (ON CA), 65 O.R. (3d) 723 (C.A.). In Reid, the accused was convicted of second degree murder for killing a man by striking him over the head with a hammer and then stabbing him 20 times. He was sentenced to life imprisonment and a 15-year period of parole ineligibility.

[27] On appeal, this court reduced the period of parole ineligibility to 12 years. Moldaver J.A., speaking for the court, held that despite the brutality of the crime, 15 years was too harsh. He found that the sentencing judge had failed to give adequate consideration to the appellant's personal circumstances and his prospects for rehabilitation. Indeed, the sentencing judge had described the appellant as having no redeeming features. The evidence showed that: the appellant had been gainfully employed for most of his adult life; he had no prior record for violence; a number of character letters attested to his prior good character; and, his family was supportive.

[28] I accept that the murder in Reid was brutal, just as it was in the present case, although the degree of violence in the present case eclipses that in Reid. I accept also that the offender in Reid and the appellant were both in their 30s at the time of the offences. There the similarities between the two cases end.

[29] The differences between the two cases are significant. Unlike in Reid, the sentencing judge in this case did not fail to take into account any relevant facts. Furthermore, the appellant's character differs considerably from that of the offender in Reid. The evidence in Reid showed a person of good character. The appellant, as the sentencing judge justifiably found, has no insight into his conduct and no remorse for those harmed by it. He offered no explanation for having killed his father apart from saying that he had "pissed" him off and he was having a bad day.

[30] In addition, the appellant's conduct following the killing distinguishes it from Reid. The appellant killed his father while the two of them were in his sister's apartment. One stab penetrated the skull, injuring the brain. Others penetrated the skull through the soft tissue around the eye. Another penetrated a cheek bone and yet another penetrated bone and went through the roof of his mouth. The most significant injuries were in the neck area with the right carotid artery completely severed. I mention these few aspects of the brutality of the killing to place in context the appellant's conduct afterwards. The appellant left the victim's body on his sister's bed, thereby creating the potential for his sister to find it when she came from the hospital after arduous cancer treatments. After the killing, he stole money from the deceased's pockets and the morphine that his sister had in her apartment due to her cancer. He took the deceased's rental car and fled. He sold the knife he had used to stab his father without telling the purchaser that it was material evidence in a murder. He hid from the police and, when apprehended a few days later, lied to them about a number of aspects of the offence. The offender's conduct after the killing in Reidstands in stark contrast to that of the appellant in the current case. In Reid, the offender called the police and an ambulance after the killing.

[31] There is no basis on which to disturb the sentence; the 15-year period of parole ineligibility is fit, not harsh or excessive.

DISPOSITION

[32] Accordingly, I would dismiss the conviction appeal, grant leave to appeal sentence and dismiss the sentence appeal.

Released: June 22, 2012 ("E.E.G.")

"E.E. Gillese J.A."

"I agree G.J. Epstein J.A."

"I agree Ducharme J.A."