R. v. Clemons (C.), 2003 MBCA 51

• Jurisdiction: Manitoba
• Judge: Huband, Twaddle and Monnin, JJ.A.
• Neutral Citation: 2003 MBCA 51
• Citation: 2003 MBCA 51,(2003), 173 Man.R.(2d) 161 (CA),[2003] 8 WWR 265,[2003] CarswellMan 115,[2003] MJ No 101 (QL),173 Man R (2d) 161,173 Man.R.(2d) 161,(2003), 173 ManR(2d) 161 (CA),[2003] M.J. No 101 (QL),173 ManR(2d) 161
• Date: 10 January 2003
• Court: Court of Appeal (Manitoba)

R. v. Clemons (C.) (2003), 173 Man.R.(2d) 161 (CA);

    293 W.A.C. 161

MLB headnote and full text

Temp. Cite: [2003] Man.R.(2d) TBEd. AP.024

Her Majesty The Queen (appellant) v. Colin Clemons (accused/respondent)

(AR 02-30-05369; 2003 MBCA 51)

Indexed As: R. v. Clemons (C.)

Manitoba Court of Appeal

Huband, Twaddle and Monnin, JJ.A.

January 10, 2003.

Summary:

The accused pled guilty to manslaughter and was sentenced to a conditional sentence of two years less a day, plus three years of probation. The Crown appealed from the sentence.

The Manitoba Court of Appeal dismissed the appeal.

Criminal Law - Topic 5848

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

Criminal Law - Topic 5882

Sentence - Manslaughter - While highly intoxicated and after having been provoked by the victim over a period of time, the accused "sucker punched" the victim who then drew a knife on the accused - The accused got the knife away from the victim and then "snapped" - He proceeded to inflict nine stab wounds to the victim both with the knife and a broken beer bottle - The victim died - The accused pled guilty to manslaughter and was sentenced to a conditional sentence of two years less a day, plus three years of probation - He was 23 years old at the time of sentencing - While he had a limited record, he did not have a violent past and the conduct on the night of the incident was out of character - The Crown appealed from the sentence - The Manitoba Court of Appeal dismissed the appeal - The finding that the accused had been subjected to "substantial" or "extreme" provocation entitled the sentencing judge to assess the degree of the accused's blameworthiness very much lower than would otherwise have been the case.

Criminal Law - Topic 5882

Sentence - Manslaughter - [See Criminal Law - Topic 6203 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - The Manitoba Court of Appeal dismissed a Crown appeal from a conditional sentence of two years less a day imposed for manslaughter - Monnin, J.A., stated that "[i]n order to consider interfering in such a sentence, the sentencing court will have had to commit a plain and obvious error and such an error will probably only be found to exist when a sentence is at either extremity of the sentencing range which I repeat is extremely wide. To interfere with any sentence in between those extremes invites an appellate court to offend the principles imposed by the Supreme Court [of Canada]" - Twaddle, J.A. (Huband, J.A., concurring) stated that "[a]s my brother Monnin points out, the range of sentences which may legally be imposed for manslaughter is exceedingly wide, beginning with a suspended sentence at the lower end and culminating with life imprisonment at the top. In my view, however, this is not the range of reasonable sentences available to a trial judge in any particular case. The available range will be much narrower and its limits fixed by reference to the circumstances of the offence and the offender and, most particularly, the degree of the offender's blameworthiness" - See paragraphs 10 and 24.

Cases Noticed:

R. v. Campbell (1991), 70 Man.R.(2d) 158 (C.A.), refd to. [para. 8].

R. v. Bell (M.A.) (1993), 85 Man.R.(2d) 139; 41 W.A.C. 139 (C.A.), refd to. [para. 8].

R. v. Csincsa (M.A.P.) (1993), 85 Man.R.(2d) 241; 41 W.A.C. 241 (C.A.), refd to. [para. 8].

R. v. Brian (D.) (1998), 131 Man.R.(2d) 149; 187 W.A.C. 149 (C.A.), refd to. [para. 8].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327, refd to. [paras. 9, 17].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [paras. 9, 17].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 15].

R. v. Mananghaya (C.) (1997), 118 Man.R.(2d) 30; 149 W.A.C. 30 (C.A.), refd to. [para. 16].

R. v. Torres (F.) (1998), 126 Man.R.(2d) 278; 167 W.A.C. 278 (C.A.), refd to. [para. 16].

R. v. Pepin (1990), 98 N.S.R.(2d) 238; 263 A.P.R. 238 (C.A.), refd to. [para. 19].

R. v. Muise (D.R.) (1994), 135 N.S.R.(2d) 81; 386 A.P.R. 81; 94 C.C.C.(3d) 119 (C.A.), refd to. [para. 19].

R. v. Gourgon (1991), 58 C.C.C.(2d) 193 (B.C.C.A.), refd to. [para. 20].

Counsel:

D.R. Slough and D.M. Coggan, for the appellant;

H. Weinstein, Q.C., and H. Krahn, for the respondent.

This appeal was heard on January 10, 2003, before Huband, Twaddle and Monnin, JJ.A., of the Manitoba Court of Appeal. The judgment of the Court of Appeal was pronounced orally on January 10, 2003, and written reasons were provided on April 3, 2003, including the following opinions:

Monnin, J.A. - see paragraphs 1 to 12;

Twaddle, J.A. (Huband, J.A., concurring) - see paragraphs 13 to 30.