R. v. E.T.P., (2002) 163 Man.R.(2d) 113 (CA)

• Judge: Philp, Kroft and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 18, 2002
• Jurisdiction: Manitoba
• Citations: (2002), 163 Man.R.(2d) 113 (CA);2001 MBCA 194

R. v. E.T.P. (2002), 163 Man.R.(2d) 113 (CA);

    269 W.A.C. 113

MLB headnote and full text

Temp. Cite: [2002] Man.R.(2d) TBEd. MR.010

Her Majesty The Queen (respondent) v. E.T.P. (accused/appellant)

(AR 01-30-04827; 2001 MBCA 194)

Indexed As: R. v. E.T.P.

Manitoba Court of Appeal

Philp, Kroft and Monnin, JJ.A.

February 18, 2002.

Summary:

The accused was charged with manslaughter, aggravated assault and four counts of assault with a weapon. The victim was the accused's mentally challenged half-brother.

The Manitoba Court of Queen's Bench, in a decision reported at 151 Man.R.(2d) 236, acquitted the accused of manslaughter and aggravated assault and convicted him of the four counts of assault with a weapon. The court subsequently sentenced the accused to two years' imprisonment on each conviction, to be served consecutively. The accused appealed.

The Manitoba Court of Appeal, Philp, J.A., dissenting, allowed the appeal and substituted a sentence of six years for each conviction, to be served concurrently.

Editor's Note: For a related case, see 151 Man.R.(2d) 257.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - The accused was convicted of four counts of assault with a weapon and sentenced to two years' imprisonment on each offence to be served consecutively - The victim, the accused's mentally challenged half-brother, lived under appalling conditions in the basement of the accused's home and was often brutally beaten by the accused and the accused's stepson - The beatings were inflicted over a four year period using a variety of weapons and instruments, such as a metal car jack and a whip made from an electrical cord - The beatings increased to a daily basis in the last two weeks of the victim's life - The Manitoba Court of Appeal found that the length of the sentence (eight years) offended the totality principle - The four offences were part of a single criminal activity or transaction, being the continued and prolonged beating of a single victim - A six year term was appropriate for each conviction to be served concurrently - See paragraphs 46 to 78.

Criminal Law - Topic 5883

Sentence - Assault with a weapon or assault causing bodily harm - The accused was convicted of four counts of assault with a weapon and sentenced to two years' imprisonment on each offence to be served consecutively - The victim, the accused's mentally challenged half-brother, lived under appalling conditions in the basement of the accused's home and was often brutally beaten by the accused and the accused's stepson - The beatings increased to a daily basis in the last two weeks of the victim's life - The 17 year old stepson had already pleaded guilty to manslaughter as a young offender and had been sentenced to three years' secure custody - The accused had a dated criminal record - Not remorseful - The Manitoba Court of Appeal substituted a sentence of six years for each conviction, to be served concurrently - See paragraphs 46 to 78.

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; 129 D.L.R.(4th) 657; 43 C.R.(4th) 269, refd to. [para. 15].

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; 105 C.C.C.(3d) 327, 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; 114 C.C.C.(3d) 436, refd to. [para. 15].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 24 D.L.R.(4th) 536; 36 M.V.R. 240; 69 B.C.L.R.(2d) 145; 18 C.R.R. 30, refd to. [para. 15].

R. v. Paul, [1982] 1 S.C.R. 621; 42 N.R. 1; 67 C.C.C.(2d) 97; 138 D.L.R.(3d) 455, refd to. [para. 27].

R. v. Turland, [1968] Crim. L.R. 281 (Eng. C.A.), refd to. [para. 29].

R. v. Valade (1970), 15 C.R.N.S. 42 (Que. C.A.), refd to. [para. 29, footnote 8].

R. v. Robinson (R.) (1993), 135 A.R. 342; 33 W.A.C. 342 (C.A.), refd to. [para. 31].

R. v. Drouin (M.G.) (1994), 125 Sask.R. 49; 81 W.A.C. 49 (C.A.), refd to. [para. 31].

R. v. Cameron (D.I.) (1995), 136 Nfld. & P.E.I.R. 105; 423 A.P.R. 105 (P.E.I.C.A.), refd to. [para. 31].

R. v. E.C.S. (1995), 151 N.S.R.(2d) 136; 440 A.P.R. 136 (S.C.), refd to. [para. 31].

R. v. G.P.W. (1998), 106 B.C.A.C. 239; 172 W.A.C. 239 (C.A.), refd to. [para. 31].

R. v. Johnson (B.) (1998), 116 B.C.A.C. 279; 190 W.A.C. 279; 131 C.C.C.(3d) 274 (C.A.), refd to. [para. 31].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 687 [para. 14]; sect. 718.1 [para. 16]; sect. 718.2 [paras. 13, 56]; sect. 718.3(4)(c)(ii) [para. 12].

Authors and Works Noticed:

Ruby, Clayton C., Sentencing (4th Ed. 1994), p. 45 [para. 29].

Ruby, Clayton C., Sentencing (5th Ed. 1999), pp. 47 [paras. 27. 61]; 480 to 483 [para. 25].

Thomas, D.A., Principles of Sentencing (2nd Ed. 1979), pp. 54 [paras. 21, 59]; 57 [paras. 27, 61]; 57 to 58 [paras. 29, 33, 63].

Counsel:

G.G. Brodsky, Q.C., and A.H. Dalmyn, for the appellant;

M.A. Pflug and C.A. Vanderhooft, for the respondent.

This appeal was heard before Philp, Helper and Monnin, JJ.A., of the Manitoba Court of Appeal. On February 18, 2002, the decision of the court was released and the following opinions were filed:

Philp, J.A., dissenting - see paragraphs 1 to 45;

Kroft, J.A. (Monnin, J.A., concurring) - see paragraphs 46 to 78.