R. v. Colville (D.), 2005 ABCA 319

• Judge: Picard, Berger and Ritter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 03, 2005
• Citations: 2005 ABCA 319;(2005), 380 A.R. 360 (CA)

R. v. Colville (D.) (2005), 380 A.R. 360 (CA);

    363 W.A.C. 360

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. OC.012

Her Majesty The Queen (respondent) v. David Colville (appellant)

(0301-0108-A; 2005 ABCA 319)

Indexed As: R. v. Colville (D.)

Alberta Court of Appeal

Picard, Berger and Ritter, JJ.A.

October 3, 2005.

Summary:

The accused was convicted by a jury of manslaughter and criminal negligence causing bodily harm. Section 236(a) of the Criminal Code provided a mandatory minimum sentence of four years' imprisonment for manslaughter using a firearm. The trial judge sentenced the accused to concurrent sentences of six years' imprisonment. The accused appealed, submitting that the sentences were demonstrably unfit and that s. 236(a) constituted cruel and unusual treatment or punishment under s. 12 of the Charter.

The Alberta Court of Appeal allowed the appeal, reducing the sentences to four years' imprisonment. The court found it unnecessary to determine whether s. 236(a) violated s. 12 of the Charter, as the mandatory minimum sentence was warranted (i.e. no need to consider issue of constitutional exemption).

Civil Rights - Topic 3829

Cruel and unusual treatment or punishment - What constitutes - Mandatory minimum and consecutive sentences - [See Criminal Law - Topic 5805 ].

Criminal Law - Topic 5805

Sentencing - General - Statutory range mandatory (incl. mandatory minimum sentence) - The accused gave chase to a vehicle that had parked in his garden, revving its engine and spinning its tires - The accused caught the vehicle and approached it on foot, carrying a rifle for protection - The accused broke the vehicle's window, intending to make a citizen's arrest - In doing so, the rifle accidentally discharged, killing one vehicle occupant and injuring the other - A jury found the accused guilty of manslaughter and criminal negligence causing bodily harm - The accused was a first offender and within his legal rights in giving chase and attempting to effect a citizen's arrest - The accused believed the rifle was unloaded - The accused was sentenced to concurrent sentences of six years' imprisonment - Section 236(a) of the Criminal Code provided for a mandatory minimum sentence of four years' imprisonment for manslaughter involving a firearm - The accused appealed on the ground that the sentences were unfit and that s. 236(a) constituted cruel and unusual punishment contrary to s. 12 of the Charter - The Alberta Court of Appeal allowed the appeal to the extent of reducing the sentences to four years' imprisonment - Six years was excessive - Since four years was an appropriate sentence, it was unnecessary to determine whether the mandatory minimum sentence violated s. 12 (issue of need for a constitutional exemption did not arise).

Criminal Law - Topic 5863.1

Sentence - Criminal negligence causing death or bodily harm - [See Criminal Law - Topic 5805 ].

Criminal Law - Topic 5882

Sentence - Manslaughter - [See Criminal Law - Topic 5805 ].

Cases Noticed:

R. v. Colville (D.) (2004), 357 A.R. 36; 334 W.A.C. 36; 2004 ABCA 293, leave to appeal refused (2005), 336 N.R. 399 (S.C.C.), refd to. [para. 13].

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, refd to. [para. 15].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 15].

R. v. Tallman et al. (1989), 94 A.R. 251 (C.A.), refd to. [para. 18].

R. v. Laberge (K.K.) (1995), 165 A.R. 375; 89 W.A.C. 375 (C.A.), refd to. [para. 18].

R. v. Morrisey (M.L.) (No. 2), [2000] 2 S.C.R. 90; 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1, refd to. [para. 18].

R. v. Lecaine (1990), 104 A.R. 175 (Q.B.), affd. (1990), 105 A.R. 261 (C.A.), refd to. [para. 19].

R. v. Owens, [1986] B.C.W.L.D. 1619 (S.C.), affd. [1986] B.C.W.L.D. 2881 (C.A.), refd to. [para. 19].

R. v. Ball, [1993] O.J. No. 3207 (Gen. Div.), refd to. [para. 19].

R. v. Deane (K.), [1997] O.J. No. 3578 (C.J. Prov. Div.), affd. (2000), 129 O.A.C. 335 (C.A.), affd. [2001] 1 S.C.R. 279; 265 N.R. 1; 140 O.A.C. 269, refd to. [para. 19].

R. v. Bill (L.D.), [1997] B.C.T.C. Uned. J23; 13 C.R.(5th) 103, additional reasons [1998] B.C.T.C. Uned. 173; 13 C.R.(5th) 125 (S.C.), refd to. [para. 23].

R. v. Bill (L.D.) (1999), 123 B.C.A.C. 159; 201 W.A.C. 159 (C.A.), refd to. [para. 23].

R. v. Ferguson (M.E.) (2005), 372 A.R. 309; [2005] 4 W.W.R. 737 (Q.B.), refd to. [para. 23].

R. v. Stark (G.H.) (2001), 286 A.R. 88; 253 W.A.C. 88 (C.A.), refd to. [para. 24].

R. v. Henry (T.A.) (2002), 203 N.S.R.(2d) 40; 635 A.P.R. 40; 164 C.C.C.(3d) 167 (C.A.), refd to. [para. 24].

Counsel:

E. Tolppanen, for the respondent;

N.C. O'Brien, Q.C., for the appellant.

This appeal was heard on September 16, 2005, before Picard, Berger and Ritter, JJ.A., of the Alberta Court of Appeal.

On October 3, 2005, the following memorandum of judgment was delivered by the Court.