R. v. McNeil (J.B.), (1998) 168 N.S.R.(2d) 59 (CA)

• Judge: Roscoe, Pugsley and Bateman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 04, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 168 N.S.R.(2d) 59 (CA)

R. v. McNeil (J.B.) (1998), 168 N.S.R.(2d) 59 (CA);

    505 A.P.R. 59

MLB headnote and full text

Temp. Cite: [1998] N.S.R.(2d) TBEd. MY.009

John Bradley McNeil (appellant) v. Her Majesty The Queen (respondent)

(C.A.C. No. 143971)

Indexed As: R. v. McNeil (J.B.)

Nova Scotia Court of Appeal

Roscoe, Pugsley and Bateman, JJ.A.

May 4, 1998.

Summary:

The accused returned home to find his common law wife in bed with his employee. The accused, with no history of violence, grabbed a baseball bat and viciously beat the employee to death. The accused then beat his wife, although not inflicting serious injuries. Following a jury trial, the accused was found not guilty of second degree mur­der, but guilty of manslaughter (employee) and aggravated assault (wife).

The Nova Scotia Supreme Court, in a judgment reported 164 N.S.R.(2d) 27; 491 A.P.R. 27, subsequently sentenced the accused to 10 years' imprisonment for man­slaughter and 18 months (concurrent) for aggravated assault. The court rejected the Crown's request that the accused serve one-half of his sentence before being eligible for parole. The accused appealed. The Crown cross-appealed, submitting that the sentences should be served consecutively.

The Nova Scotia Court of Appeal dis­missed the appeal and cross-appeal.

Criminal Law - Topic 5802

Sentencing - Concurrent sentences - The accused returned home to find his wife in bed with another man - The accused grabbed a baseball bat and beat the man to death - He then beat his wife - The accused was convicted of manslaughter and aggravated assault - The Nova Scotia Supreme Court, in sentencing the accused, imposed concurrent sentences where "there is a sufficiently close nexus in time to characterize them as part of a single trans­action" - The Nova Scotia Court of Appeal held that the trial judge did not err in imposing concurrent sentences rather than consecutive sentences - See para­graph 29 to 30.

Criminal Law - Topic 5848

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

Criminal Law - Topic 5882

Sentence - Manslaughter - Accused returned home to find his estranged com­mon life wife in bed with another man - Accused picked up a baseball bat and viciously beat the man to death - Jury acquitted accused of second degree mur­der, presumably because he was pro­voked by the situation and acted in the heat of passion - The accused then beat his wife, although not inflicting serious physical injuries - Accused not a violent person - No prior criminal record - No substance abuse - Hard worker and good provider for children - Favourable pre-sentence report - Accused remorseful - High prob­ability of rehabilitation - The trial judge sentenced the accused to 10 years' impris­onment for manslaughter and 18 months (concurrent) for aggravated assault - The Nova Scotia Court of Appeal dismissed the accused's sentence appeal - The trial judge gave the accused adequate credit on sen­tencing for the provocation, which was marginal at best - The sentence fell within the appropriate range for manslaughter and was not excessive - The court affirmed the imposition of concurrent sentences.

Criminal Law - Topic 5938

Sentence - Aggravated assault - [See Criminal Law - Topic 5882 ].

Cases Noticed:

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; 102 C.C.C.(3d) 193, refd to. [para. 10].

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. 11].

R. v. C.A.M., [1996] 1 S.C.R. 660; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327, refd to. [para. 12].

R. v. Creighton, [1983] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321; 83 C.C.C.(3d) 346, refd to. [para. 13].

R. v. MacLeod (L.S.) (1994), 132 N.S.R.(2d) 118; 376 A.P.R. 118 (C.A.), refd to. [para. 18].

R. v. Woermann, [1992] M.J. No. 419, refd to. [para. 20].

R. v. Chipilski (1986), 41 Man.R.(2d) 252 (C.A.), refd to. [para. 20].

R. v. Salmon (1972), 10 C.C.C.(2d) 184 (Ont. C.A.), refd to. [para. 20].

R. v. Gregor (1953), 31 M.P.R 99 (N.S.C.A.), refd to. [para. 23].

R. v. MacDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 14 W.A.C. 321; 114 C.C.C.(3d) 436, refd to. [para. 29].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 232 [para. 14].

Counsel:

Joel E. Pink, Q.C., for the appellant;

William D. Delaney, for the respondent.

This appeal and cross-appeal were heard on March 25, 1998, before Roscoe, Pugsley and Bateman, JJ.A., of the Nova Scotia Court of Appeal.

On May 4, 1998, Bateman, J.A., delivered the following judgment for the Court of Appeal.