R. v. Bowen and Kay, (1990) 111 A.R. 146 (CA)

• Judge: Lieberman, Kerans and Côté, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 10, 1990
• Citations: (1990), 111 A.R. 146 (CA)

R. v. Bowen (1990), 111 A.R. 146 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Andrew Harold Kay (appellant) and The Attorney General of Canada (intervenor)

(Appeal No. 10673)

Indexed As: R. v. Bowen and Kay

Alberta Court of Appeal

Lieberman, Kerans and Côté, JJ.A.

October 10, 1990.

Summary:

Bowen and Kay were charged with the first degree murder of a police officer. During the trial Bowen's plea of guilty to manslaughter was accepted by the court and a conviction was entered. Kay claimed the Crown failed to prove he was the murderer. Kay also submitted that s. 214(4)(a) of the Criminal Code, which made it first degree murder to kill a police officer in the execution of his duty and subjected the murderer to life imprisonment without eligibility for parole for 25 years, violated ss. 7, 9, 12 and 15 of the Charter of Rights and Freedoms.

The Alberta Court of Queen's Bench, in a judgment reported 91 A.R. 264, found the accused guilty of first degree murder. The court held that the circumstantial evidence, taken as a whole, proved beyond a reasonable doubt that Kay was the killer. The court stated that the Crown failed to prove Kay planned and deliberated the killing (s. 214(2)), but that the crime was first degree murder under s. 214(4)(a). The court held that s. 214(4)(a) did not violate Kay's Charter rights. Kay appealed.

The Alberta Court of Appeal dismissed the appeal.

Civil Rights - Topic 3603

Detention and imprisonment - Arbitrary detention - What constitutes - Section 214(4) of the Criminal Code made the murder of a police officer first degree murder - Sections 218(1) and 669(a) combined to mandate life imprisonment without eligibility for parole for 25 years - Section 672 did allow for a review before a jury after 15 years - The Alberta Court of Appeal affirmed that the punishment provisions did not constitute arbitrary detention or imprisonment under s. 12 of the Charter of Rights and Freedoms.

Civil Rights - Topic 3833

Cruel and unusual treatment or punishment - What constitutes - Parole ineligibility - Section 214(4) of the Criminal Code made the murder of a police officer acting in the execution of his duty first degree murder, whether or not it was planned and deliberate - Sections 218(1) and 669(a) combined to mandate a sentence of life imprisonment without eligibility for parole for 25 years - The accused claimed the punishment provisions constituted cruel and unusual treatment or punishment under s. 12 of the Charter, because the sentence was grossly disproportionate where an unplanned murder of a police officer (e.g. in a moment of panic) attracted the same sentence as the planned murder of a non-police officer - The Alberta Court of Appeal affirmed that the sections did not violate s. 12.

Civil Rights - Topic 5652

Equality and protection of the law - Particular cases - Minimum sentences - Section 214(4) of the Criminal Code made the murder of a police officer acting in the execution of his duty first degree murder, whether or not it was planned and deliberate - Sections 218(1) and 669(a) combined to mandate a sentence of life imprisonment without eligibility for parole for 25 years - The Alberta Court of Appeal affirmed that the mandatory punishment did not violate equality rights under s. 15(1) of the Charter of Rights and Freedoms.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice - Section 214(4) of the Criminal Code made the murder of a police officer acting in the execution of his duty first-degree murder, whether or not it was planned and deliberate - Sections 218(1) and 669(a) combined to mandate a sentence of life imprisonment without eligibility for parole for 25 years - Section 672 did allow for a review before a jury after 15 years - The Alberta Court of Appeal affirmed that ss. 218(1) and 669(a) did not violate s. 7 of the Charter; the deprivation of liberty was not contrary to the principles of fundamental justice.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - [See Civil Rights - Topic 8344].

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Principles of fundamental justice - [See Civil Rights - Topic 8344].

Cases Noticed:

R. v. Greffe (1990), 107 N.R. 1; 107 A.R. 1; 73 Alta. L.R.(2d) 97 (S.C.C.), refd to. [para. 7].

R. v. Martineau (1990), 112 N.R. 83 (S.C.C.), refd to. [para. 17].

R. v. Collins (1989), 32 O.A.C. 296; 48 C.C.C.(3d) 343 (C.A.), refd to. [para. 17].

R. v. Lefebvre (1989), 71 C.R.(3d) 213 (Qué. C.A.), refd to. [para. 17].

R. v. Luxton (1990), 112 N.R. 193 (S.C.C.), refd to. [para. 29].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321; 58 C.R.(3d) 193, refd to. [para. 32].

R. v. Cairns (1989), 51 C.C.C.(3d) 90 (B.C.C.A.), refd to. [para. 35].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 23 C.C.C.(3d) 289, refd to [para. 43].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115; 69 C.R.(3d) 97, refd to. [para. 45].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 27 B.L.R. 297; 33 Alta. L.R.(2d) 193; 9 C.R.R. 355; 11 D.L.R.(4th) 641; [1984] 6 W.W.R. 577; 41 C.R.(3d) 97; 84 D.T.C. 6467; 14 C.C.C.(3d) 97, refd to. [para. 45].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1, refd to. [para. 52].

R. v. Konechny (1984), 10 C.C.C.(3d) 233 (B.C.C.A.), refd to. [para. 53].

R. v. Smith (1984), 11 C.C.C.(3d) 411 (B.C.C.A.), refd to. [para. 53].

Wolff (Rudolph) & Co. Ltd. and Noranda Inc. v. Canada, [1990] 1 S.C.R. 695; 106 N.R. 1, refd to. [para. 54].

R. v. Miller and Cockriell, [1977] 2 S.C.R. 680; 11 N.R. 386; 31 C.C.C.(2d) 177, refd to. [para. 56].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 43]; sect. 9 [para. 51]; sect. 12 [para. 32]; sect. 15 [para. 54].

Criminal Code, R.S.C. 1970, c. C-34, sect. 214(4), sect. 669(a), sect. 672 [para. 1].

Criminal Code, R.S.C. 1985, c. C-46, sect. 231(4), sect. 742(a), sect. 745 [para. 1].

Authors and Works Noticed:

Canada, Fourth Report of Her Majesty's Commissioners on Criminal Law (1839), generally [para. 12].

Hansard, May 1961, vol. 5, p. 5914, col. 1 [para. 15].

Counsel:

P.W.L. Martin, Q.C., for the respondent;

Noel C. O'Brien, for the appellant;

Bruce A. McFarlane, Q.C., and Donna Tomljanovic, for the intervenor.

This appeal was heard before Lieberman, Kerans and Côté, JJ.A., of the Alberta Court of Appeal.

On October 10, 1990, Côté, J.A., delivered the following judgment for the Court of Appeal:</P>

I. Introduction