R. v. Durette (D.), (2003) 259 N.B.R.(2d) 209 (CA)

• Judge: Drapeau, Larlee and Deschênes, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 11, 2003
• Jurisdiction: New Brunswick
• Citations: (2003), 259 N.B.R.(2d) 209 (CA);2003 NBCA 22

R. v. Durette (D.) (2003), 259 N.B.R.(2d) 209 (CA);

    259 R.N.-B.(2e) 209; 681 A.P.R. 209

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] N.B.R.(2d) TBEd. MY.019

Her Majesty the Queen (appellant) v. Denise Durette (respondent)

(157/02/CA; 2003 NBCA 22)

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

New Brunswick Court of Appeal

Drapeau, Larlee and Deschênes, JJ.A.

March 11, 2003.

Summary:

A court composed of judge and jury found Durette guilty of second degree murder. Durette appealed. She asked the Court of Appeal to render a verdict of not criminally responsible by reason of mental disorder or, alternatively, to render a verdict of guilty of manslaughter.

The New Brunswick Court of Appeal, in a decision reported at 247 N.B.R.(2d) 149; 641 A.P.R. 149, allowed the appeal and ordered a new trial. The Court held that the trial judge had erred in his instructions on reason­able doubt and that the evidence did not allow the Court to enter a verdict of not criminally responsible by reason of mental disorder.

At the new trial, Durette pleaded guilty to the charge of having caused the death of the victim in the commission of an indictable offence, i.e. discharging a firearm. This was manslaughter within the meaning of s. 236(a) of the Criminal Code. The trial judge imposed the minimum sentence of imprison­ment, a term of four years. The trial judge reduced this sentence by 24 months to take into account the 12 months served by Durette prior to her conviction for second degree murder. The trial judge then further reduced the sentence by 12 months to take into account the 12 months served by Durette following her conviction for second degree murder. The trial judge made a pro­hibition order pursuant to s. 109(2) of the Criminal Code and an order under s. 487.051(1)(a) authorizing the taking of samples of bodily substances for the purpose of forensic DNA analysis. The Crown ap­plied for leave to appeal.

The New Brunswick Court of Appeal dismissed the application.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The New Brunswick Court of Appeal ruled that the sentencing judge may reduce a sentence to account for pre-sentencing custody even though it may result in a sentence below the minimum prescribed for the offence in question - In this case, a reduction of two months for every month of pre-sentencing custody was entirely appropriate - Moreover, when determining sentence in the context of a new trial, the court had to take into account any time served after sentence - See paragraph 13.

Criminal Law - Topic 5882

Sentence - Manslaughter - Durette suffered from "severe depression with delusions" - She decided to commit suicide and take her son with her in the afterlife - Durette killed her son but did not succeed in taking her own life - Durette was convicted of second degree murder - Afterwards she was allowed a new trial - She then pleaded guilty to manslaughter - The trial judge imposed the minimum sentence of impris­onment, a term of four years - She reduced this sentence by 24 months to take into account the 12 months served by Durette prior to her conviction for second-degree murder - The trial judge then further re­duced the sentence by 12 months to take into account the 12 months served by Durette following her conviction for sec­ond degree murder - This then left one year to be served out of the four years imposed - The New Brunswick Court of Appeal confirmed the decision.

Cases Noticed:

R. v. R.P. (2001), 245 N.B.R.(2d) 179; 636 A.P.R. 179 (C.A.), consd. [para. 11].

R. v. Daigle (M.), [2002] N.B.R.(2d) Supp. No. 4 (C.A.), refd to. [para. 11].

R. v. Kerton (R.E.) et al. (2002), 250 N.B.R.(2d) 177; 650 A.P.R. 177 (C.A.), refd to. [para. 11].

R. v. Fournier (H.E.) (2002), 252 N.B.R.(2d) 256; 658 A.P.R. 256 (C.A.), refd to. [para. 11].

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236, refd to. [para. 13].

R. v. Churchill (1982), 38 A.R. 266 (C.A.), refd to. [para. 13].

R. v. Brouillard, [1985] 1 S.C.R. 39; 57 N.R. 168, refd to. [para. 13].

R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321; 58 C.C.C.(3d) 353, refd to. [para. 17].

R. v. Creighton, [1993] 3 R.C.S. 3; 157 N.R. 1; 65 O.A.C. 321; 83 C.C.C.(3d) 346, refd to. [para. 17].

R. v. Valiquette (1990), 37 Q.A.C. 8; 60 C.C.C.(3d) 325 (C.A.), refd to. [para. 18].

R. v. Sriskantharajah (A.) (1994), 72 O.A.C. 170; 90 C.C.C.(3d) 559 (C.A.), refd to. [para. 18].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 109(2) [para. 14]; sect. 719(3) [para. 13].

Counsel:

Paul J. Veniot, for the appellant;

Pierre F. Dubé, for the respondent.

This application was heard on March 11, 2003, by Drapeau, Larlee and Deschênes, JJ.A., of the New Brunswick Court of Ap­peal.

Drapeau, J.A., delivered the following decision orally in both official languages for the Court of Appeal on March 11, 2003.