SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
ADAM KEHL
R E A S O N S F O R S E N T E N C E
DELIVERED BY THE HONOURABLE REGIONAL SENIOR JUSTICE M. FUERST
on November 22, 2019, at BARRIE, Ontario
APPEARANCES:
L. Jeanes M. MacDonald Counsel for the Crown
M. Eisen Counsel for Adam Kehl
FRIDAY, NOVEMBER 22, 2019
R E A S O N S F O R S E N T E N C E
FUERST R.S.J. (Orally):
Introduction
[1] In 2018, 31 year old Adam Kehl was living in British Columbia. In June of that year, he arranged to travel to Ontario to visit his family and friends for several weeks in the summer. With his parents' permission, he planned to stay at the Kehl family cottage in Gravenhurst. He invited a number of friends and family members to visit him at the cottage on the weekend of August 10th.
[2] Mr. Kehl had a history of suffering from depression and minor anxiety, which he managed with medication. He also used marijuana regularly. By January 2018, he was a heavy marijuana user, and smoked it daily.
The Circumstances of the Offence
[3] Mr. Kehl travelled to Ontario as planned in late July. He spent his time at the Kehl cottage with his immediate family. His mother was with him during the week, and the entire family was together on the weekends.
[4] During their time together, his parents and sister noticed a change in Mr. Kehl's behaviour. He claimed that his mother ignored his physical and mental health challenges as a youth and that she never listened to him. He accused his father of helping others over him. He berated his parents for not being there for him. He ranted at them, and complained to his sister about them. His mother described his behaviour towards her as, at times, aggressive. There were points when she was fearful of him.
[5] On Friday August 10th, Mr. Kehl's friends began to arrive for the weekend together. That evening, his sister noted that he was acting erratically. Others at the gathering also felt that he was acting oddly. He smoked marijuana throughout the evening of August 10th.
[6] Around midnight, he called his new girlfriend. She described him as seeming "almost, very manic."
[7] On Saturday morning August 11th, Mr. Kehl was in and out of the cottage. He was not participating in activities or socializing with his guests, which was unusual for him. He spoke with his girlfriend by phone. She thought he was "losing himself somewhat". She became concerned about both his mental health and his cannabis use.
[8] Mr. Kehl's friends saw him smoke two marijuana joints before lunch that day.
[9] During lunch, one of Mr. Kehl's friends showed him a photo of their time from high school. Some minutes later, Mr. Kehl stood up from the table and began yelling at that friend that he had to leave. Mr. Kehl shoved his friend, then grabbed him, punched him in the head, and threw him to the ground.
[10] Mr. Kehl went into a bunkie that was close by. He came back out, carrying a large knife. His father, 66-year-old John Kehl, ran over to intervene.
[11] When John Kehl approached Mr. Kehl, Mr. Kehl began stabbing John repeatedly in the upper back and torso. He then flipped John's body over and continued to stab John's upper torso and head. Mr. Kehl then decapitated his father with the knife.
[12] The guests who witnessed the altercation fled, running into the surrounding cottage and bunkie. They barricaded themselves inside and called 911.
[13] The guests at the Kehl cottage and neighbours across the bay reported hearing Adam Kehl yell various things. Some described him howling like an animal.
[14] The neighbours saw Mr. Kehl pick up his father's head and run along the shoreline, throwing the head and something else (believed to be the knife) into the lake. He then ran down to the dock and jumped into the water. He swam around while yelling that he loved his girlfriend, and "I'm free". One of the neighbours described him as "wide-eyed and crazed".
[15] Mr. Kehl returned to the shore and sat beside his father's body.
[16] When the police arrived, they found him, rocking back and forth, crouched over his father's body. Some witnesses observed him biting the body. He seemed oblivious to the police presence. He did not respond to police commands. As a result, he was shot with two rubber bullets. Police had to taser him to apprehend him, as he was resistant during the arrest.
[17] Police officers described him as speaking gibberish, yelling random words and non-sensical phrases, referring to himself as the devil, and apologizing to his father for throwing his head in the lake.
[18] Mr. Kehl was taken to the Bracebridge OPP Detachment where, after speaking with counsel, he gave a statement to police. He confirmed that he was aware of what he had done to his father. He indicated that he didn't want to cause harm to anybody, that he didn't mean to do it, and that he didn't know what came over him. He also confirmed that he smoked marijuana that day, including a joint right before the incident.
[19] When he was booked into the jail, he told correctional officers that he had killed and decapitated his father. He said that he couldn't control himself, and that he was out of his body, like a caged animal.
[20] From the time that Mr. Kehl was detained at the jail, to the present time, he has not experienced any further psychotic episodes.
[21] A post-mortem was conducted on the body of John Kehl. The cause of death was stabbing and beheading. There were too many stab wounds for the pathologist to identify them individually.
[22] A psychiatrist who assessed Mr. Kehl at the request of the defence opined that he was experiencing psychotic symptoms at the time of the offence.
[23] A second psychiatric assessment of Mr. Kehl was ordered by the Court. The assessment was done by Dr. Van Impe, a forensic psychiatrist. Dr. Van Impe concluded that Mr. Kehl has a history of cannabis-induced disorder, and that he met the criteria for cannabis use disorder at the time of the offence. Dr. Van Impe's opinion was that Mr. Kehl was experiencing a cannabis-induced psychosis at the time he killed and decapitated his father, and that that psychotic state was not caused by a major mental disorder, but was instead caused by Mr. Kehl's self-induced intoxication by cannabis.
[24] Dr. Van Impe therefore did not support a defence of not criminally responsible on account of mental disorder, nor does the defence raise this defence.
[25] Equally, based on the opinions of both psychiatrists, the Crown acknowledges that it would be unable to prove that when Mr. Kehl killed his father, he had the requisite mens rea for murder.
[26] The defence does not contend that Mr. Kehl lacked the minimal mental element required for a general intent offence. It is agreed by Crown and defence that Mr. Kehl committed a culpable homicide, specifically that he committed manslaughter, when he killed his father on August 11th, 2018.
The Victim Impact Information
[27] A Victim Impact Statement was submitted by Mr. Kehl's mother. She expresses her sorrow at the loss of her husband, whom she describes as her life-long partner, friend and soul mate. She struggles to understand what happened that day. She expresses her love for and forgiveness of her son, as she knows it was not truly him who acted that day. She asks for leniency in the sentence imposed on him.
[28] Mr. Kehl's sister provided a Victim Impact Statement in which she writes that the loss of her father at the hands of her brother has been devastating and shocking. Her brother's actions do not match the kind and helpful person he always was, and she has struggled to find an explanation for what happened. She hopes that her brother gets the help that he needs.
[29] A friend of Mr. Kehl's who was at the cottage that day also filed a Victim Impact Statement. She describes experiencing ongoing anxiety and stress because of the incident.
The Circumstances of Mr. Kehl
[30] Mr. Kehl is now 32 years old. He has no prior criminal record. He attended Brock University. He is trained as a Red Seal carpenter. Aside from his use of marijuana, which was still illegal at the relevant time, he has led a pro-social lifestyle. The violent and irrational behaviour that brought him before the court was very much out of character for him.
[31] In the courtroom today, Mr. Kehl apologized profusely to his mother, sister, extended family members, and those who were present that day. He expressed his love and respect for his father. He said that he feels horrible about what he did, and wishes more than anything that he could change it.
[32] Mr. Kehl has been in custody since his arrest, a total of 469 days.
The Positions of the Parties
[33] Crown and defence counsel jointly submit that Mr. Kehl should be sentenced to 5 years in jail, less his time in pre-sentence custody calculated on a one and a half to one basis as 704 days. Crown counsel also seeks a DNA order, a s. 109 firearms prohibition order for life, and a s. 743.21 non-communication order, none of which are opposed by the defence.
The Principles of Sentencing
[34] The objectives of sentencing are set out in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.
[35] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.
[36] In every case, the determination of a fit sentence is a fact-specific exercise. As the Supreme Court of Canada put it in R. v. Ferguson, 2008 SCC 6, at para. 15, "The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction". The facts of the offence, the circumstances of the accused, and his or her moral blameworthiness are all considerations.
The Offence of Manslaughter
[37] Under s. 236 of the Criminal Code, the maximum sentence for manslaughter is one of life imprisonment. A diversity of circumstances will found a conviction for manslaughter, and so there is wide variation in the range of sentence. At one end of the manslaughter spectrum, the circumstances may approximate an unintentional and almost accidental killing, while there will be those approaching murder at the opposite extremity, particularly where a firearm is used: see R. v. Carrière (2002), 2002 CanLII 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.), at para. 10.
[38] The principles of denunciation and deterrence are not always paramount in manslaughter cases, nor is the goal of rehabilitation always subordinate to those objectives: see R. v. Jiwa, 2012 ONCA 532. In this case, Mr. Kehl's rehabilitation is a factor in determining the appropriate sentence, given his age and lack of any previous involvement with the criminal justice system.
Analysis
[39] Mr. Kehl's plea of guilty to manslaughter was made and accepted on the basis that the Crown cannot prove beyond a reasonable doubt the specific intent required for murder, in light of the psychiatric assessments of his state of mind at the time of the killing of his father. Nonetheless, the way in which Mr. Kehl took his father's life was horrifying, and unusually brutal. This is a significant aggravating factor that elevates his moral blameworthiness.
[40] There are other aggravating factors. There was an element of breach of trust to the offence, given the parent-child relationship. Several people were forced to witness, without warning, the horrific events. Mr. Kehl's mother was present at the time, as were several of Mr. Kehl' s friends and cottage neighbours. The panic and fear experienced by those unsuspecting bystanders is reflected in one of the Victim Impact Statements. The immense impact of the loss of a husband and father in such a shocking way at the hands of a son and brother is expressed in the Victim Impact Statements of the family members.
[41] It must also be acknowledged that it was Mr. Kehl's use of marijuana, an illegal substance at the time, which put the tragic chain of events in motion. His use of that drug was long-standing, and it is apparent that by July 2018 he was a substance abuser. There is no evidence before me that he ever took any steps to address the problem. It is important that others in the community appreciate the fact that use and abuse of cannabis, just like that of alcohol, has the potential to cause erratic and extreme behaviour by users.
[42] In mitigation, it is very significant that Mr. Kehl pleaded guilty and did so at an early opportunity. It would have been profoundly distressing for his family members and friends to have to testify, but because he waived the preliminary hearing they were spared that ordeal. His guilty plea is an expression of remorse and willingness to accept responsibility for his actions. But above and beyond his plea, he expressed remorse in his remarks in the courtroom, which I accept were sincere and heartfelt. He must live with the fact that he took the life of his father, who by all accounts was a loving parent and spouse and a respected member of the community. He must live with the fact that he devastated the lives of his mother and sister in particular. This is a huge burden to bear.
[43] It is further mitigating that Mr. Kehl is a first offender with no history of violent behaviour. There is some history of mental health issues. Notwithstanding his actions, his mother and his sister love and support him. This is important, because it speaks to his rehabilitative prospects once he is released from jail.
Conclusion
[44] In all the circumstances of this most tragic offence and those of Mr. Kehl, I accept the joint submission put to me by Crown and defence counsel.
[45] Mr. Kehl, please stand.
[46] I sentence you to 5 years in jail, less credit of 469 days of pre-sentence custody calculated at one and a half to one as 23 months and 14 days. This leaves a sentence to be served of 3 years and 16 days.
[47] I impose a DNA order, a s. 109(2)(a) order for 10 years, and a s. 109(2)(b) order for life. There is a s. 743.21 non-communication order with respect to Erika Tschirhart and Todd Slayter.
CERTIFICATE OF TRANSCRIPT
EVIDENCE ACT, subsection 5(2)
I, Lynn Carrière, Authorized Court Transcriptionist, ACT ID 2366775200, certify that this document is a true and accurate transcription, produced to the best of my skills and ability, of the recording of R. v. Adam Kehl in the Superior Court of Justice held at 75 Mulcaster Street, Barrie, Ontario, taken from Recording No. 3811_01_20191122_091201__20_FUERSTM, which has been certified in Form 1 by Alexandra Logozzo.
December 17, 2019 Date Lynn Carrière
Transcript Ordered: December 13, 2019
Transcript Completed: December 17, 2019
Approved by Fuerst R.S.J.: February 13, 2020
Ordering Party Notified: February 18, 2020