R. v. Choy (L.), 2013 ABCA 334

• Judge: Conrad, Picard and O'Brien, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 07, 2013
• Citations: 2013 ABCA 334;(2013), 561 A.R. 99

R. v. Choy (L.) (2013), 561 A.R. 99; 594 W.A.C. 99 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. OC.030

Her Majesty the Queen (appellant) v. Lily Choy (respondent)

(1103-0289-A; 2013 ABCA 334)

Indexed As: R. v. Choy (L.)

Alberta Court of Appeal

Conrad, Picard and O'Brien, JJ.A.

October 7, 2013.

Summary:

The accused, a registered nurse, was charged with second degree murder in the death of a three year old foster child in her care. She was convicted of manslaughter and sentenced to six years' imprisonment. The accused appealed her conviction. The Crown appealed the sentence.

The Alberta Court of Appeal, in a judgment reported [2013] A.R. Uned. 111, dismissed the accused's conviction appeal.

The Alberta Court of Appeal allowed the Crown's sentence appeal and substituted a sentence of eight years' imprisonment.

Editor's Note: For related cases see 508 A.R. 265, 508 A.R. 272, 508 A.R. 279, and 508 A.R. 288.

Criminal Law - Topic 5833.1

Sentencing - Considerations on imposing sentence - Child abuse - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5882

Sentence - Manslaughter - The accused, a registered nurse, was convicted of manslaughter in the death of a three year old foster child in her care - The child had an extensive brain injury caused by "a rather considerable application or applications of force" - The child also had extensive bruising over much of his body, resulting from assaults and spankings administered by the accused in the days preceding his death - The child's body temperature was below normal, as he had on occasion been put in an unheated garage in January as a disciplinary measure - The Crown sought 12-16 years' imprisonment on the basis that this was a case of "near murder" - The trial judge rejected "near murder" and sentenced the accused to six years' imprisonment - The Alberta Court of Appeal allowed the Crown's sentence appeal and increased the sentence to eight years' imprisonment - Six years' imprisonment was internally inconsistent with the trial judge's finding that the accused's moral blameworthiness was high - The manslaughter was the result of a pattern of abuse that became progressively worse - This was not a momentary lapse by someone of lesser intellect - The court noted "the need to condemn serious crimes of violence against the most vulnerable members of our community".

Cases Noticed:

R. v. Laberge (K.K.) (1995), 165 A.R. 375; 89 W.A.C. 375; 1995 ABCA 196, refd to. [para. 7].

R. v. Cascoe, [1970] 2 All E.R. 833 (C.A.), refd to. [para. 7].

R. v. Eneas, [1994] B.C.J. No. 262 (C.A.), refd to. [para. 7].

R. v. M.C.N. (2012), 524 A.R. 366; 545 W.A.C. 366; 2012 ABCA 158, refd to. [para. 12].

R. v. Nickel - see R. v. M.C.N.

R. v. S.D.C. (2013), 556 A.R. 27; 584 W.A.C. 27; 2013 ABCA 46, refd to. [para. 12].

Counsel:

J.B. Dartana, for the appellant;

M.T. Duckett, Q.C., for the respondent.

This appeal was heard on September 17, 2013, before Conrad, Picard and O'Brien, JJ.A., of the Alberta Court of Appeal.

On October 7, 2013, the following memorandum of judgment was delivered by the Court.