R. v. Bowen and Kay, (1988) 91 A.R. 264 (QB)

• Judge: D.C. McDonald, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 24, 1988
• Citations: (1988), 91 A.R. 264 (QB)

R. v. Bowen (1988), 91 A.R. 264 (QB)

MLB headnote and full text

Her Majesty The Queen v. Linda Bowen and Andrew Kay

(Action No. 8701-0930-C6)

Indexed As: R. v. Bowen and Kay

Alberta Court of Queen's Bench

Judicial District of Calgary

D.C. McDonald, J.

November 24, 1988.

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 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.

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 - The Alberta Court of Queen's Bench held that the punishment provisions did not constitute arbitrary detention or imprisonment under s. 12 of the Charter of Rights and Freedoms - See paragraphs 94 to 100.

Civil Rights - Topic 3603

Detention and imprisonment - Arbitrary detention - What constitutes - The Alberta Court of Queen's Bench stated that "as between s. 9 and s. 12 the constitutional guarantee of protection against abuse of power by the state over its citizens in regard to the prescribed punishment for a particular offence or a particular status is exhaustively located in and defined by s. 12. Putting the point another way, when imprisonment arises from the imposition of punishment by a court, and that very punishment is legislatively prescribed, and the statutory procedures have been complied with ..., the 'compendious norm' that the words 'cruel and unusual' present in s. 12 are a synonym for what is 'arbitrary' as that word is used in s. 9" - See paragraph 98.

Civil Rights - Topic 3801

Cruel and unusual treatment or punishment - General - [See second Civil Rights - Topic 3603 above].

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 Queen's Bench held that s. 12 was not violated, because the punishment was not "grossly disproportionate to what would have been appropriate" and was not "so excessive as to outrage standards of decency" - The court stated that s. 12 was concerned with the "effect" of a punishment - See paragraphs 72 to 93.

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 Queen's Bench held that the mandatory punishment did not violate equality rights under s. 15(1) of the Charter of Rights and Freedoms - See paragraphs 131 to 140.

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 - An accused claimed the punishment provisions violated the principles of fundamental justice contrary to s. 7 of the Charter, because the principles of fundamental justice required "a rational system of sentencing based on individualization of the sentence" and "that the sentence be based upon the moral blameworthiness of the offender" - The Alberta Court of Queen's Bench rejected the challenge - The court stated that the punishment does not "shock the conscience of the court", was not "so unreasonable or extravagant as to bring the administration of justice into disrepute" and was not "totally disproportionate and therefore quite incompatible with any of the objectives of a penal system" - The court further stated that "s. 7 does not prevent Parliament from imposing mandatory fixed punishment for a particular offence which possesses a particular characteristic stated in general terms ..." - See paragraphs 101 to 125.

Civil Rights - Topic 8546

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

Civil Rights - Topic 8547

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

Criminal Law - Topic 1270

Murder - First degree murder - "Planned and deliberate" defined - Section 214(2) of the Criminal Code provided that murder was first-degree murder when it was planned and deliberate - The Alberta Court of Queen's Bench referred to the meanings of "planned and deliberate" - See paragraphs 59 to 68.

Criminal Law - Topic 5253

Evidence - Witnesses - Identification - Proof of - Kay was charged with the murder of a police officer - The main issue was identification - The Alberta Court of Queen's Bench held that the circumstantial evidence, taken as a whole, proved beyond a reasonable doubt that Kay was the killer.

Cases Noticed:

R. v. Morin (1988), 88 N.R. 161 (S.C.C.), refd to. [para. 15].

R. v. Shand (1971), 3 C.C.C.(2d) 8 (Man. C.A.), refd to. [para. 58].

R. v. Munro (1983), 8 C.C.C.(3d) 260 (Ont. C.A.), refd to. [para. 58].

R. v. Widdifield (1961), 6 Crim. L.Q. 152 (Ont. H.C.J.), consd. [para. 60].

R. v. Reynolds (1978), 44 C.C.C.(2d) 129 (Ont. C.A.), refd to. [para. 61].

R. v. Smith (1980), 1 Sask.R. 213; 51 C.C.C.(2d) 381 (C.A.), refd to. [para. 61].

R. v. Ruptash (1982), 36 A.R. 346; 68 C.C.C.(2d) 182 (C.A.), refd to. [para. 63].

R. v. Appleby (1940), 28 Cr. App. R. 1, refd to. [para. 79].

R. v. Smith (E.D.) (1987), 75 N.R. 321; 58 C.R.(3d) 193 (S.C.C.), consd. [para. 82].

R. v. Miller and Cockriell, [1977] 2 S.C.R. 680; 11 N.R. 386, refd to. [para. 84].

R. v. Hufsky (1988), 84 N.R. 365; 27 O.A.C. 103; 63 C.R.(3d) 14 (S.C.C.), dist. [para. 96].

R. v. Konechny (1984), 10 C.C.C.(3d) 233 (B.C.C.A.), refd to. [para. 97].

R. v. Lyons (1988), 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 98].

R. v. Smith (1984), 11 C.C.C.(3d) 411 (B.C.C.A.), refd to. [para. 99].

Roberts v. Louisiana (1977), 431 U.S. 633, refd to. [para. 103].

Woodson v. North Carolina (1976), 428 U.S. 280; 49 L. Ed. 2d 944; 96 S. Ct. 2978, refd to. [para. 104].

Roberts v. Louisiana (1977), 431 U.S. 633; 49 L. Ed. 2d 974; 96 S. Ct. 3001, refd to. [para. 104].

Sumner v. Shuman (1987), 97 L. Ed. 2d 56, refd to. [para. 104].

Lockett v. Ohio (1978), 438 U.S. 586, refd to. [para. 107].

Eddings v. Oklahoma (1982), 455 U.S. 108, refd to. [para. 107].

Hitchcock v. Dugger (1987), 95 L. Ed. 2d 347, refd to. [para. 107].

R. v. Droste (1984), 52 N.R. 176; 10 C.C.C.(3d) 404 (S.C.C.), refd to. [para. 114].

Reference re Section 94(2) of the Motor Vehicle Act (B.C.) (1986), 63 N.R. 266; 23 C.C.C.(3d) 284 (S.C.C.), refd to. [para. 114].

Cabre Exploration Ltd. v. Arndt and Alberta (1988), 87 A.R. 149; 60 Alta. L.R.(2d) 172 (C.A.), refd to. [para. 135].

Kask v. Shimuzu et al. (1986), 69 A.R. 343; 44 Alta. L.R.(2d) 293 (Q.B.), refd to. [para. 135].

Crothers v. Simpson Sears Ltd. - see Singh v. Dura Singh v. Dura (1988), 86 A.R. 268; 59 Alta. L.R.(2d) 1 (C.A.), refd to. [para. 135].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 100]; sect. 9 [para. 94]; sect. 12 [para. 71]; sect. 15(1) [para. 131].

Criminal Code, R.S.C. 1970, c. C-34, sect. 214, sect. 218(1), sect. 669(a) [para. 72].

Authors and Works Noticed:

Canada, Law Reform Commission, Imprisonment and Release (1976), Working Paper No. 11, p. 10 [para. 116].

Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987), generally [para. 11].

Holdsworth, History of English Law, vol. 11, p. 618 [para. 128].

Levendusky, D.B., Annotation to Nixon v. Administrator of General Services, Supreme Court's Views as to What Constitutes a Bill of Attainder Prohibited by Federal Constitution, 53 L. Ed. 2d 1273 [para. 128].

Manning and Mewett, Criminal Law (2nd Ed.), p. 548 [para. 77].

Mewett, Alan W., First Degree Murder (1978), 21 C.L.A. 82, pp. 86, 87 [para. 62].

Morris, Norval, Sentencing and Parole (1977), 51 Aust. L.J. 523, p. 529 [para. 109].

Russell on Crime (9th Ed.), part I, p. 412 [para. 79].

Stephen's Digest of Criminal Law (7th Ed.), p. 225 [para. 78].

The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause (1962-63), 72 Yale L.J. 330 [para. 128].

Walker, Nigel, Sentencing in a Ration al Society (1969) [para. 115].

Counsel:

P.W.L. Martin, Q.C., and E.C. Wilson, for the Crown;

J.J. Ogle, for the accused Bowen;

N.C. O'Brien, for the accused Kay.

This case was heard before D.C. McDonald, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on November 24, 1988: