R. v. McLeod (E.M.), 2016 MBCA 7

• Judge: MacInnes, Burnett and Pfuetzner, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: November 23, 2015
• Jurisdiction: Manitoba
• Citations: 2016 MBCA 7;(2015), 323 Man.R.(2d) 251 (CA)

R. v. McLeod (E.M.) (2015), 323 Man.R.(2d) 251 (CA);

      657 W.A.C. 251

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. FE.004

Her Majesty The Queen (respondent) v. Emery Miles McLeod (accused/appellant)

(AR14-30-08308; 2016 MBCA 7)

Indexed As: R. v. McLeod (E.M.)

Manitoba Court of Appeal

MacInnes, Burnett and Pfuetzner, JJ.A.

November 23, 2015.

Summary:

The accused was charged with second degree murder. A jury found the accused guilty of manslaughter. The accused was sentenced to 15 years' imprisonment. The accused applied for leave to appeal his sentence.

The Manitoba Court of Appeal granted leave to appeal, but dismissed the sentence appeal.

Criminal Law - Topic 5882

Sentence - Manslaughter - The accused and victim shared an apartment - While intoxicated, they engaged in a consensual wrestling match - The accused stated that he held the victim in a choke hold for 20 seconds - The victim choked and gasped - The accused left the room - When the accused returned three hours later, the victim was dead - The accused did nothing to check on the victim's condition - He did not seek assistance - Instead, he dismembered the body using a knife and axe - The various body parts were placed in bags and put in garbage bins throughout Winnipeg - The head was never found, so the exact cause of death could never be forensically determined - The accused was charged with second degree murder - A jury convicted him of manslaughter - The trial judge sentenced the accused to 15 years' imprisonment, being 11 to 13 years for the killing and an additional two to four years for his post-offence conduct of dismembering and hiding the body - The accused appealed the sentence as being demonstrably unfit - The Crown conceded that the sentence was at the high end of the scale, but argued that it was not demonstrably unfit - The Manitoba Court of Appeal dismissed the appeal - Where the reason for the jury's verdict was unclear (no intent to kill due to intoxication and/or accident), the trial judge reasonably found that "despite the accidental consequences and his self-induced intoxication, the accused ought to have known, had he proceeded reasonably, that putting someone in a chokehold as he did, for 20 seconds, was likely to cause life-threatening injuries" - The court held that the trial judge committed no error in principle - Notwithstanding that the sentence was at the top end of the range, the court was not persuaded that the sentence was unfit.

Cases Noticed:

R. v. Ruizfuentes (H.S.) (2010), 258 Man.R.(2d) 220; 499 W.A.C. 220; 2010 MBCA 90, refd to. [para. 13].

R. v. Roncaioli (J.) (2011), 278 O.A.C. 117; 2011 ONCA 378, refd to. [para. 15].

R. v. Clemons (C.) (2003), 173 Man.R.(2d) 161; 293 W.A.C. 161; 2003 MBCA 51, refd to. [para. 16].

R. v. Laberge (K.K.) (1995), 165 A.R. 375; 89 W.A.C. 375 (C.A.), refd to. [para. 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. [para. 26].

Counsel:

L.J. Tailleur, for the appellant;

N.M. Cutler, for the respondent.

This appeal was heard on November 23, 2015, before MacInnes, Burnett and Pfuetzner, JJ.A., of the Manitoba Court of Appeal.

On November 23, 2015, the judgment of the Court was delivered orally, with the following written reasons of MacInnes, J.A., filed on January 19, 2016.