R. v. McNeil (J.B.), (1997) 164 N.S.R.(2d) 27 (SC)

• Judge: Saunders, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 27, 1997
• Jurisdiction: Nova Scotia
• Citations: (1997), 164 N.S.R.(2d) 27 (SC)

R. v. McNeil (J.B.) (1997), 164 N.S.R.(2d) 27 (SC);

    491 A.P.R. 27

MLB headnote and full text

Temp. Cite: [1998] N.S.R.(2d) TBEd. JA.014

Her Majesty The Queen v. John Bradley McNeil

(C.R. No. 106189)

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

Nova Scotia Supreme Court

Saunders, J.

November 27, 1997.

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 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.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibil­ity - [See Criminal Law - Topic 5882 ].

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" - See paragraph 20.

Criminal Law - Topic 5847

Sentencing - Considerations on imposing sentence - Remorse of accused - The Nova Scotia Supreme Court stated that "while genuine remorse is always con­sidered as a mitigating circumstance, the law in this jurisdiction makes it clear that a lack of remorse is never to be seen as an aggravating circumstance during the sen­tencing process" - See paragraph 24.

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 common law wife in bed with another man (his employee) - 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 Nova Scotia Supreme Court sentenced the accused to 10 years' imprisonment for manslaughter and 18 months (concurrent) for aggravated assault - The court declined to order that the accused serve at least one-half of his sentence before being eligible for parole.

Criminal Law - Topic 5938

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

Cases Noticed:

R. v. McQuaid (H.) et al. (1996), 149 N.S.R.(2d) 104; 432 A.P.R. 104 (S.C.), refd to. [para. 17].

R. v. Whynot (B.R.) (1996), 147 N.S.R.(2d) 111; 426 A.P.R. 111 (C.A.), refd to. [para. 19].

R. v. McDow (G.A.) (1996), 147 N.S.R.(2d) 343; 426 A.P.R. 343 (C.A.), refd to. [para. 19].

R. v. Izzard (W.) (1995), 148 N.S.R.(2d) 35; 429 A.P.R. 35 (Prov. Ct.), refd to. [para. 19].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 236 [para. 2]; sect. 268(2) [para. 3].

Authors and Works Noticed:

Ruby, Clayton, Sentencing (4th Ed. 1994), p. 44 [para. 20].

Counsel:

Joel Pink, Q.C., and Deidre Murphy, for the accused;

Ken Haley and Dan McRury, for the Crown.

This case was heard on October 6-10 and 14-16, 1997, before Saunders, J., of the Nova Scotia Supreme Court, who delivered the following sentencing decision orally on November 27, 1997.