



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rosen, 2018 ONCA 246

DATE: 20180314

DOCKET: C58320

Juriansz, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Charles Alan Rosen

Appellant

Michael Lacy, for the appellant

Alexander Alvaro, for the respondent

Heard: January 31, 2018

On appeal from the conviction entered on September 31,
    2011, and the sentence imposed on November 24, 2011, by Justice James C. Kent
    of the Superior Court of Justice, sitting with a jury.

Watt J.A.:


[1]

After brief deliberations, a jury found the appellant guilty of second
    degree murder. The trial judge imposed the mandatory sentence of imprisonment
    for life and ordered that the appellant serve 17 years of that sentence without
    eligibility for parole.

[2]

The appellant appeals both conviction and sentence.

The background facts

[3]

After his release from jail in December 2008, the appellant moved in
    with the deceased in the deceaseds apartment. That year had been a difficult
    one for the appellant. His marriage had fallen apart. He lost his home. He
    became addicted to crack cocaine. He had no money. The deceased had served as
    the appellants surety the previous year. As the deceased told his friends, he
    was trying to help the appellant get through these myriad difficulties.

[4]

In late December 2008, the appellant disappeared. Around this time, the
    deceased learned that someone had been using his credit cards without his
    permission. The deceased told his friends and the police that he suspected the
    person who had done so was the appellant. His suspicions were accurate.

[5]

It was common ground at trial that in February 2009, after he had left
    the deceaseds apartment, the appellant cashed several cheques written on the
    deceaseds bank account. The deceaseds signature on the cheques had been
    forged. On several occasions prior to February 10, 2009 the appellant attempted
    to make purchases with the deceaseds credit cards. Many of these purchases were
    declined by the credit card issuers. Between 2:07 a.m. on February 10 and 12:59
    p.m. on February 11, 2009 the appellant did not attempt to use any of the
    deceaseds credit cards.

[6]

On February 10, 2009 the deceased met with the building manager of his
    apartment building who installed a fire alarm in the deceaseds apartment. The
    deceased agreed to provide the building manager with a set of keys for the new
    lock the deceased had installed on his apartment door.

[7]

The deceased did not provide the building manager with a new set of keys,
    nor did he keep an appointment scheduled for February 13, 2009 with a friend. No
    one saw the deceased alive after February 10, 2009.

[8]

On February 12, 2009 the appellant, posing as the deceased, called three
    financial institutions attempting to reactivate the deceaseds credit cards.
    One of the calls was made from the deceaseds apartment. By February 23, 2009
    all four of the deceaseds credit cards had been terminated. The appellant had
    made 83 successful purchases with a total value of more than $10,000, but
    several transactions had been declined.

[9]

Friends became concerned about the welfare of the deceased. On March 4,
    2009 two of them went to the deceaseds home in Dunnville. His car was in the
    driveway. The drivers seat was fully reclined and the interior, a mess  a
    state inconsistent with how the deceased typically maintained his vehicle. The
    appellant was slumped in the drivers seat. A hammer rested on the floor in
    front of the front passenger seat. A tube extended from the exhaust pipe
    through the trunk and into the passenger compartment of the car by means of a pass
    through in the rear seat.

[10]

Emergency
    assistance was called. The appellant, who appeared under the influence of
    drugs, identified himself as the deceased, provided a correct date of birth,
    and claimed to be the owner of the deceaseds home. The ruse failed. The
    appellant was arrested and searched. Among the items seized was one of the
    deceaseds credit cards and a key to the front door of the deceaseds
    apartment. In the deceaseds vehicle, police found the deceaseds wallet
    containing his identification and credit cards but no money.

[11]

Later
    that evening, police found the body of the deceased in a sleeping bag under a
    pile of items over three feet deep under a window overlooking the balcony of
    his apartment. The deceaseds head was covered with a hospital bag, a torn
    garbage bag, and a blood-soaked t-shirt. The appellants fingerprint impression
    was found on the garbage bag and on a letter on the kitchen counter in the deceaseds
    apartment. The hammer found with the appellant in the deceaseds vehicle could
    not be excluded as having caused damage to the t-shirt and the garbage bag
    covering the deceaseds head. The appellant could not be excluded as the source
    of DNA on the handle of the hammer. The deceased could also not be eliminated
    as the source of blood found on the hammer, which the Crown alleged was the
    murder weapon. In support of this theory, the Crown tendered evidence from a
    pathologist indicating that the deceased had suffered nine to ten lacerations
    to this head and multiple skull fractures. These injuries appeared to have been
    caused by a blunt object.

[12]

The
    appellant testified at trial. He denied killing the deceased, although he
    admitted having found his body when he went to the apartment on February 12,
    2009.

[13]

The
    appellant acknowledged having used the deceaseds credit cards, but claimed he
    did so as part of a scheme he and the deceased had put together to defraud the
    card issuers. Purchases would be made on each of the cards. The items purchased
    would be sold for cash and the cards reported stolen. The plan also involved
    forged cheques, which would be immediately cashed, and sale of the deceaseds
    car and television set which would then be reported stolen to collect insurance
    money. The plan did not work well.

[14]

On
    February 12, 2009 the appellant went to meet the deceased to discuss their
    fraudulent scheme. The entry door was unlocked, the apartment
    uncharacteristically messy. A 400 pound safe was missing. The appellant found
    the deceaseds body. After he found the body, the appellant knew the scam was
    over. He decided to commit suicide.  After his initial attempt failed, he
    returned to the deceaseds apartment and removed the hammer and a knife to
    ensure a tight attachment of the hose and effective transmission of the gas
    fumes to the passenger compartment of his vehicle.

the appeal from conviction

[15]

On
    the appeal from conviction, the appellant advanced three submissions
[1]
in oral argument. He argued that the trial judge erred:

i.

in failing to properly instruct the jury on the mental or fault element
    in murder, as well as that required for the included offence of manslaughter;

ii.

in failing to adequately caution the jury about reliance on various
ante-mortem
statements of the deceased admitted at trial; and

iii.

in failing to properly instruct the jury about evidence of
    post-offence conduct and, more generally, in connection with the evidence of
    discreditable conduct properly admitted at trial.

[16]

As
    I will briefly explain, I would not give effect to any of these grounds and, as
    a consequence, dismiss the appeal from conviction.

Ground #1: The Fault Element in Murder and Manslaughter

[17]

The
    appellant says that the trial judge failed to properly instruct the jury on the
    fault element in the offence charged, second degree murder, and the included
    offence of manslaughter. The error, according to the appellant, resulted from a
    combination of missteps.

[18]

To
    begin, the appellant contends, the structure of the charge was confusing and
    fraught with error.

[19]

The
    threshold issue for the jury to determine in this case was whether the Crown
    had proven beyond a reasonable doubt that the appellant was the person who
    killed the deceased. In the event, but only in the event that the jury was
    satisfied that the appellant had killed the deceased, would it become necessary
    for the jury to decide whether the killing, admittedly unlawful, was murder or
    manslaughter.

[20]

According
    to the appellant, the structure or order of the charge adopted by the trial
    judge, that is to say:

i.

unlawful killing;

ii.

state of mind; and

iii.

identity of the killer

required the jury to determine the state of mind of the
    deceaseds killer before they were satisfied that the killer was the appellant.
    This predisposed a verdict of guilty of second degree murder, before
    determination of the threshold issue of identity, especially when the trial
    judge:

i.

failed to review the essential features of the evidence and relate them
    to the fault element for second degree murder as defined in s. 229(a) of the
Criminal
    Code
; and

ii.

highlighted the appellants affirmative response to an improper
    question by the trial Crown, agreeing with the suggestion that the unlawful
    killing of the deceased was a murder plain and simple.

[21]

As
    I will explain, I would not give effect to this ground of appeal.

[22]

First,
    the parties are entitled to a properly instructed jury, not a perfectly
    instructed jury:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at pp. 320-321;
R. v. Daley,
2007 SCC 53, [2007] 3 S.C.R. 523, at para. 31. Substance
    controls, not form.

[23]

Second,
    the order in which the essential elements of an offence are left to the jury
    for their consideration is not mandatory. What counts is that the essential
    elements are conveyed to the jury in understandable language that coincides
    with the governing legal principles. In this way, the charge informs the
    decision-maker of what must be proven in connection with each essential element,
    and the consequences of the available findings on further deliberations and the
    jurys verdict.

[24]

On
    the other hand, where an accused denies participation in the conduct
    requirements of an offence, it makes good sense and accords with the prevailing
    practice in this province to instruct the jury to consider and determine the
    participation or identity issue first. If the case for the Crown fails on this
    issue in a prosecution for second degree murder, the jury need not consider
    whether the killing was unlawful or, if unlawful, whether its legal character
    is murder or manslaughter. If this structure is followed, the risk of confusion
    is minimized and the artificiality of which the appellant complains is avoided.

[25]

That
    said, I am not persuaded that in the circumstances of this case the order in
    which the trial judge presented the essential elements of second degree murder
    caused the appellant any prejudice. Counsel on both sides of the case expressly
    approved of the trial judges approach. Neither the unlawful character of the
    killing nor the state of mind of the killer were matters of great controversy
    at trial. The pathologists evidence regarding the cause of the deceaseds
    death was largely unchallenged, and the appellants defence rested on his claim
    that someone else had killed the deceased.

[26]

Third,
    trial counsel objected to neither the trial judges ordering of the elements of
    second-degree murder, nor his references to the evidence relating to the issue
    of the legal character of the unlawful killing as murder or manslaughter. While
    lack of objection to the jury instructions is not dispositive of their
    adequacy, it affords some evidence that counsel did not consider the references
    inadequate to ensure the jurys appreciation of the value and effect of the
    evidence:
R. v. B. (P.)
, 2015 ONCA 738, 127 O.R. (3d) 721, at para.
    186.

[27]

Finally,
    although I agree that the trial Crowns question soliciting the appellants
    agreement that multiple hammer blows to the head bespoke a murder plain and
    simple and the repetition of this response in the Crowns closing and in the
    charge to the jury should not have occurred, I am not satisfied that it caused
    the appellant any prejudice, for the reasons I have already outlined.

Ground #2: Jury Instruction on
ante-mortem
Statements

[28]

The
    second ground of appeal also focuses on an alleged deficit in the final jury
    instructions: the absence of guidance on how jurors should assess evidence of
    various
ante-mortem
statements of the deceased admitted under the
    principled exception to the hearsay rule.

[29]

Evidence
    of the
ante-mortem
statements of the deceased was admitted with the
    express consent of defence counsel (not Mr. Lacy). Both parties relied upon
    this evidence in support of their case, albeit for different purposes.

[30]

The
    evidence tended to show the nature of the relationship between the appellant
    and deceased. Among other things, it revealed:

i.

that the deceased tried to help the appellant get through a difficult
    time in his life after his release from jail in December, 2008;

ii.

that the deceased allowed the appellant to stay at his apartment and to
    take care of his home; and

iii.

that the deceased tried to keep the appellant away from crack cocaine.

[31]

The
ante-mortem
statements also disclosed:

i.

that the appellant had stolen and used the deceaseds credit cards,
    racking up several hundred dollars for jewellery purchases;

ii.

that the appellant had taken a bunch of stuff without the deceaseds
    permission;

iii.

that the deceased had evicted the appellant from his apartment, was
    finished or done with the appellant, and was advised to change or had
    considered changing the locks on the apartment to prevent the appellants
    re-entry; and

iv.

that the deceased had called the police and reported a credit card
    stolen.

[32]

In
    giving evidence in his own defence, the appellant recounted a lengthy series of
    conversations he had with the deceased, at least some of which were relied upon
    as evidence of their truth. As we have noted above, the defence position at
    trial was that the appellant and the deceased devised a plan which involved the
    appellant running up charges on the deceaseds credit cards by purchasing items
    that could later be resold for cash. The appellant relied upon
ante-mortem
statements
    by the deceased in support of this theory.

[33]

The
    appellant says that the trial judge erred by failing to caution the jury about
    the dangers associated with reliance on the deceaseds
ante-mortem
statements.
    They were hearsay, thus subject to the usual hearsay dangers. The deceased had
    a motive to implicate the appellant in the credit card, bank and insurance
    scam. In addition, much of the evidence was very general in nature and
    sometimes tended to reflect the recipients interpretation of what was said,
    rather than to faithfully recount the contents of the statement.

[34]

As
    some of the evidence of
ante-mortem
statements was being given at
    trial, the trial judge gave brief mid-trial instructions to the jury. He told
    the jury that the evidence was hearsay and added:

It may or may not be true, but we of course dont know that
    from this witnesss testimony.

[35]

Shortly
    thereafter the trial judge expanded somewhat on his earlier brief remarks:

Further to what I said earlier, the evidence of those witnesses
    may be taken as if Gary Donato [the deceased] himself was here saying those
    things. Its evidence you may consider in determining whether, if its
    necessary for you to determine it, whether Charles Rosen was a friend of Gary
    Donato and that Gary was helping out, and Gary told a particular witness, for
    example, that someone had taken his credit card and that he thought the person
    who had taken it was his friend, Charles. So again, thats evidence that you
    may take as if Gary Donato was here saying it, and you may consider the
    evidence in determining whether these matters have been established on the
    evidence.  I will have much more to say about how you assess evidence and weigh
    evidence in my Charge and direction to you at the conclusion of the trial, but
    just to assist you a bit, I hope to assist you a bit, at this point given that
    there are several witnesses of this type, I felt that a further explanation was
    in order.

[36]

In
    his charge, the trial judge instructed the jury in these terms:

Out-of-court statements that are admitted for the truth of the
    matter asserted are called hearsay, and they are not usually admitted as
    evidence. However, there are exceptions to this rule, and I have allowed some
    of those statements to be presented to you. For example, you heard some
    witnesses testify that Gary Donato told them that Charles Rosen had stolen his
    credit card. Normally, evidence like that would be inadmissible hearsay. But in
    this case, I have permitted that evidence to be admitted, and you may rely on
    it in making your decision. As I directed you at the time when this came up in
    the trial, its as if Gary Donato was here to give that evidence himself.
    Clearly that cant happen, so we rely on people that he spoke to and what he
    said to them.

[37]

Neither
    counsel objected to the charge. Neither sought a repetition of the mid-trial
    instructions or further instructions to explain to jurors how to assess the
    evidence of the deceaseds
ante-mortem
statements.

[38]

It
    is commonplace that there are at least four potential sources of error when a
    witness describes an event she claims to have observed:

i.

perception;

ii.

memory;

iii.

communication; and

iv.

sincerity.
[2]

In most cases, the trier of fact is able to consider
    these testimonial factors in deciding what weight, if any, to assign to the
    witness evidence because the witness is generally required to testify under
    three conditions:

i.

personal presence before the trier of fact;

ii.

under oath or its equivalent; and

iii.

subject to cross-examination.

[39]

The
    principal reason we exclude hearsay is the absence of a contemporaneous
    opportunity for cross-examination. For it is cross-examination that may best
    expose defects in perception and memory, as well as ambiguity in communication
    and want of sincerity:
Youvarajah
, at paras. 18-19. But in the classic
    hearsay paradigm, of which this case affords an example, the maker of the
    statement does not appear as a witness before the trier of fact, and thus is
    neither under oath or its equivalent, nor subject to cross-examination.

[40]

Where
    the maker of the statement offered in evidence  the declarant  is not a
    witness, it would be obvious to the jury that this evidence is different than
    the rest of the evidence admitted at trial. The maker of this statement did not
    appear at trial, was not under oath and was not cross-examined.

[41]

Despite
    the self-evident nature of these differences, a salutary practice prevails in
    this province to instruct jurors about how to approach their assessment of hearsay
    evidence, including alerting them to its shortcomings and the advisability of
    confirmatory evidence in assessing its reliability: see, for example,
R. v.
    A(S)
(1992), 76 C.C.C. (3d) 522 (Ont. C.A.), at pp. 527-529;
R. v.
    Chretien
, 2014 ONCA 403, 309 C.C.C. (3d) 418, at paras. 69-71.

[42]

In
    the circumstances of this case, I am not persuaded that the trial judges
    failure to include an express caution regarding the
ante-mortem
statements of the deceased amounted to prejudicial error. I have reached this
    conclusion for several reasons.

[43]

First,
    this is not a case, as are many, in which it was only the Crown who relied on
    these statements to prove the charges against the appellant. In such a case,
    omission of a limiting instruction, especially where the
ante-mortem
statements reflect extrinsic misconduct of a kind apt to foster propensity
    reasoning, may cause an accused significant prejudice. But that is not this
    case. Here, the appellant relied on the hearsay evidence, much of which he confirmed
    in his own testimony, to advance his defence in which he admitted participation
    in a fraudulent scheme, but denied responsibility for the death of the
    deceased.

[44]

Second,
    both parties were content that the evidence was properly admissible under the
    principled exception to the hearsay rule. There was no real controversy about
    the making of the statements, although the parties differed about the
    inferences the jury should draw from them. Defence counsel did not request an
    instruction of the kind now said to have been fatally neglected, nor object to
    its omission.

[45]

Third,
    to some extent at least, a caution of the nature now said to have prejudiced
    the appellant by its absence, would not necessarily have been beneficial to the
    position of the defence. After all, as i have already said, the defence relied
    on this evidence to support the position it advanced before the jury. A caution
    would have applied with equal vigour to the defence reliance on this evidence.

Ground #3: The Unbalanced Charge

[46]

The
    appellant contends that the trial judge erred by failing to provide a fair and
    balanced charge to the jury on four discrete aspects of the evidence adduced at
    trial:

i.

post-offence conduct and prior inconsistent statements;

ii.

motive;

iii.

other discreditable conduct; and

iv.

circumstantial evidence.

In addition, the appellant says that the trial judge
    failed to adequately and meaningfully relate the evidence to the elements of
    the offence and to the position of the defence.

[47]

As
    I will briefly explain, I am not convinced that any shortcomings in the charge
    were sufficiently serious to warrant our intervention.

[48]

First,
    evidence of post-offence conduct.

[49]

The
    principal complaint on this issue is that, apart from summarizing the evidence
    in this category, the trial judge failed to properly explain to the jury how it
    could be used to determine whether the Crown had proven its case beyond a
    reasonable doubt. What was lacking, according to the appellant, were
    explanations of the permitted use the jury could make of evidence of
    post-offence conduct, as well as its prohibited use, as for example, to
    determine the level of the appellants culpability.

[50]

Evidence
    of post-offence conduct is circumstantial evidence which is not subject to any
    special rule of admissibility. It simply cannot be suggested that evidence of
    anything done or said by an accused after an offence has been committed gives
    rise to special rules of admissibility or mandates special warnings to border
    its use by the trier of fact. It is for the jury to say, on the basis of the
    evidence as a whole, whether the post-offence conduct is related to the crime
    charged rather than to something else and, if so, how much weight, if any,
    should be assigned to it in the final determination of the adequacy of the case
    for the Crown:
R. v. White,
2011 SCC 13, [2011] 1 S.C.R. 433, at
    paras. 105 and 137.

[51]

In
    this case, the Crown did not argue that what the appellant said and did after
    the last sightings of the deceased were motivated by consciousness of guilt.
    Instead, the Crown submitted that the relevant conduct  use of the deceaseds
    identity, vehicle and financial instruments over a number of days  indicated
    that he had specific and unique knowledge that the deceased was dead. On the
    basis of this knowledge, the Crown asked the jury to infer that the appellant
    killed the deceased to gain access to his money. This was an appropriate
    inference to ask the jury to draw.

[52]

In
    my view, the trial judges instructions were responsive to the use the parties
    made of this evidence at trial. Instructively, counsel did not request a more
    fulsome or nuanced instruction and made no complaint of its omission.

[53]

Turning
    to the issue of motive. The trial judge briefly explained the relevance of
    evidence of motive to the demonstration of guilt. He pointed out the motive
    relied upon by the Crown and incorporated the denial of any motive on the
    appellants part in his discussion of the position of the defence. The trial
    judge was not required to put to the jury the appellants speculative opinion
    about why the deceased may have been killed by somebody else.

[54]

In
    connection with evidence of discreditable conduct and the need for an
    instruction enjoining propensity reasoning, neither party at trial, despite
    ample opportunity to do so, sought a prophylactic direction or complained of
    its absence. The trial Crown did not advance an argument that invoked or
    invited propensity reasoning on the basis of the evidence of which the
    appellant now complains. Nothing said or left unsaid by the trial judge invited
    the jury to pursue this route to verdict.

[55]

Nor
    should we lose sight of the obvious: much, if not most of the evidence of
    disreputable conduct came from the appellants own testimony and was an
    essential feature of the defence case. The appellant testified to using the
    deceaseds credit cards and cashing cheques bearing the forged signature of the
    deceased as part of a joint venture between the two men to remedy their
    financially-straitened circumstances. Each shared in the profits. Neither this
    evidence nor any other evidence about unrelated discreditable conduct was
    likely to invite propensity reasoning by jurors even in the absence of an
    instruction not to do so.

[56]

The
    appellant also faults the trial judge for having failed to adequately review
    the evidence supportive of the defence position and to relate it to that
    position so that the jury would appreciate its value and effect.

[57]

The
    appellant advanced his defence principally through his own testimony, admitting
    his participation in the fraudulent scheme with the deceased, but denying
    complicity in his death. The trial judge reviewed this evidence in detail and
    coupled it with a
W.(D.)
instruction. That he failed to make reference
    to other items of evidence said now to demonstrate the deceaseds deceitful
    nature  and thus render more likely that the fraudulent scheme was a joint
    venture rather than, as the Crown contended, the exclusive work of the
    appellant  does not reflect prejudicial error. Non-direction with respect to
    items of evidence is not, without more, misdirection. Non-direction on a matter
    of evidence only becomes misdirection where the non-direction relates to an
    item of evidence that is the foundation of the case:
R. v. Demeter
(1975), 25 C.C.C. (2d) 417 (Ont. C.A.), at pp. 436-437, affd on other grounds,
    [1978] 1 S.C.R. 538;
R. v. Stubbs
, 2013 ONCA 514, 300 C.C.C. (3d) 181,
    at para. 136. The items of evidence about which nothing was said fall well
    short of this standard.

[58]

Moreover,
    on this issue as well, the absence of any objection and of any request for
    further instruction tells heavily against the assertion made here that the
    charge was unbalanced and failed to ensure the jurys appreciation of the
    defence advanced.

[59]

For
    these reasons, I would dismiss the appeal from conviction.

the appeal from sentence

[60]

The
    appellant also appeals the period of parole ineligibility of 17 years fixed by
    the trial judge.

[61]

At
    trial, seven jurors made recommendations about parole ineligibility. Six jurors
    recommended 25 years. One juror recommended 15 years. The remaining five jurors
    made no recommendation.

[62]

The
    positions of the parties at trial differed significantly. The Crown sought a
    parole ineligibility period of 17 years. Defence counsel advocated for 12
    years.

[63]

In
    brief reasons, the trial judge identified the applicable range of parole ineligibility
    as between 12 and 18 years. It was his view that the predominance of
    aggravating factors over mitigating factors warranted a period of 17 years of
    parole ineligibility.

[64]

In
    this court, the parties relied on their written submissions on this issue.

[65]

The
    appellant says that the period of parole ineligibility is harsh and excessive.
    He points to three discrete errors which he submits warrant our intervention. He
    contends that the trial judge erred:

i.

by failing to provide adequate reasons to explain his conclusion about
    parole ineligibility;

ii.

by failing to give adequate weight to the sentencing objective of
    rehabilitation; and

iii.

by fixing a period of parole ineligibility that was outside the
    acceptable range of periods of parole ineligibility for similar offenders,
    offences and circumstances.

[66]

Despite
    the brevity of the trial judges reasons, we are satisfied that they are sufficient
    to permit meaningful appellate review.

[67]

I
    accept that the objectives and principles of sentencing set out in ss.
    718-718.2 of the
Criminal Code
may be applicable to decisions regarding
    parole ineligibility. Among those sentencing objectives is assisting in the rehabilitation
    of an offender under s. 718(d). But as is well known, not every sentencing
    objective in s. 718, or for that matter every sentencing principle in s. 718.2,
    is at play in every case. Nor if in play, must these principles ascend to a place
    of prominence in the sentencing decision.

[68]

The
    objective of rehabilitation has much to say in the determination of the nature
    and length of sentences to be imposed upon youthful and first offenders to
    ensure that a sentence of imprisonment is not so lengthy as to extinguish or
    substantially diminish any realistic rehabilitative prospects. But here we are
    not concerned with the nature or quantum of sentence to be imposed. The
Criminal
    Code
requires imposition of a sentence of imprisonment for life on
    conviction of second degree murder. Nor are we concerned with when the
    appellant will be conditionally released from custody. That decision is
    assigned to the parole board. Although in assessing the fitness of the period
    of parole ineligibility fixed by the trial judge, we must be mindful of the
    sentencing objective of assisting the appellants rehabilitation, we must also
    take into account that the mandatory sentence of imprisonment for life and the
    mandatory ten-year minimum period of parole ineligibility circumscribe the
    weight that can be accorded to the appellants prospects of rehabilitation:
R.
    v. McKnight
(1999), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 39.

[69]

i
    agree with the trial judge that the circumstances of this case warranted a
    substantial increase in the period of parole ineligibility. The murder involved
    a significant breach of trust. The deceased had provided the appellant with a
    place to live after the appellants release from jail in December, 2008. The
    deceased was trying to assist the appellant in getting his life back on track
    after the death of his father, the loss of his home and the dissolution of his
    marriage. Despite the succour he received from the deceased, the appellant
    bludgeoned his benefactor to death with a hammer in the deceaseds apartment.
    He continued his fraudulent use of the deceaseds credit cards after his
    demise, made repeated efforts to have the cards reinstated and used the deceaseds
    property and vehicle as his own.

[70]

In
    these circumstances I am satisfied that the period of parole ineligibility
    fixed by the trial judge is proportionate to the gravity of the appellants
    offence and his degree of responsibility for having committed it. We do not
    consider it as harsh or excessive or beyond the range of periods of parole
    ineligibility appropriate for offences of this nature.

conclusion

[71]

For
    these reasons, I would dismiss the appeal from conviction, grant leave to
    appeal sentence, but dismiss the appeal from sentence.

Released: RGJ Mar 14 2018

David
    Watt J.A.
I agree. R.G. Juriansz J.A.
I agree. B.W. Miller J.A.





[1]

In oral argument, the appellant abandoned two other grounds of
    appeal included in his factum.



[2]

R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2;
R. v.
    Youvarajah
, 2013 SCC 41, [2013] 2 S.C.R. 720, at paras. 18-19.


