R. v. Tallman, Tallman, Laboucan and Auger, (1989) 94 A.R. 251 (CA)

• Court: Court of Appeal (Alberta)
• Case Date: February 14, 1989
• Citations: (1989), 94 A.R. 251 (CA);1989 ABCA 47;65 Alta LR (2d) 75;94 AR 251;48 CCC (3d) 81;68 CR (3d) 367;[1989] AJ No 119 (QL);6 WCB (2d) 405

R. v. Tallman (1989), 94 A.R. 251 (CA)

MLB headnote and full text

Her Majesty The Queen (appellant) v. Victor Paul Tallman, Joseph Dale Tallman, Richard Sammy Laboucan and Glenn Charles Auger (respondents)

(Appeal Nos. 8803-0070-A; 8703-1072-A; 8803-0380-A; 8803-0381-A)

Indexed As: R. v. Tallman, Tallman, Laboucan and Auger

Alberta Court of Appeal

Laycraft, C.J.A., McClung, J.A. and Berger, J. (ad hoc)

February 14, 1989.

Summary:

A robbery victim was accidentally shot during the commission of the robbery. Victor Tallman, Joseph Tallman, Laboucan and Auger were each charged with second-degree murder under s. 213(d) of the Criminal Code. The four accused were tried separately. Laboucan was convicted and the other three accused were awaiting trial when s. 213(d) was declared to be unconstitutional by the Supreme Court of Canada. Thereafter Laboucan's conviction for murder was quashed and a conviction for manslaughter was substituted. The other three accused pleaded guilty to manslaughter. The four accused were separately sentenced as follows: Joseph Tallman (2.5 years' imprisonment), Victor Tallman (four years' imprisonment), Laboucan and Auger (six years' imprisonment each). The Crown appealed the sentences; Laboucan and Auger cross-appealed their sentences.

The Alberta Court of Appeal allowed the Crown appeals respecting Victor and Joseph Tallman and substituted sentences of eight years' imprisonment for each of them. The court affirmed the sentences of six years' imprisonment for Laboucan and Auger.

Criminal Law - Topic 5831.4

Sentencing - Considerations on imposing sentence - Judicially determined minimum sentences - Four accused were convicted of manslaughter in circumstances that would have constituted second degree murder under s. 213(d) of the Criminal Code had s. 213(d) not been declared unconstitutional - The Alberta Court of Appeal was asked to establish general sentencing guide lines for offences formerly defined as murder under ss. 213(a) and 213(d), including a "starting point" for the typical case - The Alberta Court of Appeal declined to set out sentencing guidelines, where there were too many variables to make guidelines useful - The court noted that there could be a wide variation of facts and culpability, requiring too much adjustment for particular cases to make guidelines useful - See paragraphs 5 to 14.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - Pretrial custody - Section 649(2.1) of the Criminal Code permitted a court to consider pretrial custody in fixing sentence - The Alberta Court of Appeal stated that there was no automatic formula crediting 1.5, 2 or 3 times pretrial custody against sentence - The court stated that the effect of pretrial custody was better left to the sentencing judge's discretion - The court applied the usual rule that the credit against sentence for pretrial custody equals somewhat more than the actual time in pretrial custody - See paragraphs 40 to 44.

Criminal Law - Topic 5882

Sentence - Manslaughter - Four teenagers broke into a house, stole rifles and ammunition and shot up the house - They decided to rob a store, but could not get in, so they went to the manager's house to get keys - They broke in and found the manager - The manager was killed when one of the rifles accidentally discharged - The teenagers ran, returned later to verify whether the manager was dead, then left to continue their plan to rob the store - Two of them surrendered to the R.C.M.P.; the other two were caught the next day - There was no attempt to get medical help and no remorse shown - Victor Tallman was 16 years and four months of age and had 12 prior convictions for break and enter, armed robbery and six theft convictions - Victor was unlawfully at large from a youth correctional centre at the time - Family life characterized by violence and alcohol abuse - Two months pretrial custody over and above serving remainder of existing sentence - Victor and his brother were the most aggressive and culpable of the four - The Alberta Court of Appeal increased Victor's sentence for man slaughter (for what was previously second-degree murder under s. 213(d) of the Criminal Code) from four to eight years' imprisonment.

Criminal Law - Topic 5882

Sentence - Manslaughter - Four teenagers broke into a house, stole rifles and ammunition and shot up the house - They decided to rob a store, but could not get in, so they went to the manager's house to get keys - They broke in and found the manager - The manager was killed when one of the rifles accidentally discharged - The teenagers ran, returned later to verify whether the manager was dead, then left to continue their plan to rob the store - Two of them surrendered to the R.C.M.P.; the other two were caught the next day - There was no attempt to get medical help and no remorse shown - Joseph Tallman was 18 years and seven months of age and had two prior convictions for break and enter and one each for mischief, theft and resisting arrest - Family life characterized by violence and alcohol abuse - Spent 16.5 months in pretrial custody - Joseph and his brother were the most aggressive and culpable of the four - The Alberta Court of Appeal increased Joseph's sentence for manslaughter (for what was previously second-degree murder under s. 213(d) of the Criminal Code) from 2.5 to eight years' imprisonment.

Criminal Law - Topic 5882

Sentence - Manslaughter - Four teenagers broke into a house, stole rifles and ammunition and shot up the house - They decided to rob a store, but could not get in, so they went to the manager's house to get keys - They broke in and found the manager - The manager was killed when one of the rifles accidentally discharged - The teenagers ran, returned later to verify whether the manager was dead, then left to continue their plan to rob the store - Two of them surrendered to the R.C.M.P.; the other two were caught the next day - There was no attempt to get medical help and no remorse shown - Laboucan was 18 years and four months old and had six prior convictions for break and enter, four for theft and one for mischief - Spent 20.5 months in pretrial custody - Played a lesser part in the incident - The Alberta Court of Appeal affirmed a sentence of six years' imprisonment for manslaughter (for what was previously second-degree murder under s. 213(d) of the Criminal Code).

Criminal Law - Topic 5882

Sentence - Manslaughter - Four teenagers broke into a house, stole rifles and ammunition and shot up the house - They decided to rob a store, but could not get in, so they went to the manager's house to get keys - They broke in and found the manager - The manager was killed when one of the rifles accidentally discharged - The teenagers ran, returned later to verify whether the manager was dead, then left to continue their plan to rob the store - Two of them surrendered to the R.C.M.P.; the other two were caught the next day - There was no attempt to get medical help and no remorse shown - Auger was 17 years and four months old and had previous convictions for break and enter and sexual assault - One of 13 children - Family life characterized by violence and alcohol abuse - Spent 21 months in pretrial custody - The Alberta Court of Appeal affirmed a sentence of six years' imprisonment for manslaughter (for what was previously second-degree murder under s. 213(d) of the Criminal Code).

Cases Noticed:

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 60 C.R.(3d) 289; 39 C.C.C.(3d) 118, refd to. [para. 1].

R. v. Martineau (1988), 89 A.R. 162 (C.A.), refd to. [para. 1].

R. v. Hayes (1989), 89 N.R. 138 (S.C.C.), refd to. [para. 4].

R. v. Maskill (1981), 29 A.R. 107; 58 C.C.C.(2d) 408, refd to. [para. 6].

R. v. Johnas et al. (1982), 41 A.R. 183; 2 C.C.C.(3d) 490, refd to. [para. 6].

R. v. Hessam (1983), 43 A.R. 247, refd to. [para. 6].

R. v. Sandercock (1985), 62 A.R. 382; 22 C.C.C.(3d) 79, refd to. [para. 6].

R. v. Konkolus (1988), 86 A.R. 144, refd to. [para. 9].

R. v. Trinneer, [1970] 3 C.C.C. 289 (S.C.C.), refd to. [para. 13].

R. v. Munro and Munro (1983), 8 C.C.C.(3d) 260 (Ont. C.A.), refd to. [para. 32].

R. v. Regan et al. (1975), 24 C.C.C.(2d) 225, refd to. [para. 41].

R. v. Tebb (1986), 69 A.R. 11, refd to. [para. 42].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 213(a), sect. 213(d) [para. 1]; sect. 649(2.1) [para. 40].

Criminal Code, R.S.C. 1985, c. C-46, sect. 230(a), sect. 230(d) [para. 1]; sect. 721(3) [para. 40].

Authors and Works Noticed:

Nadin-Davis, Sentencing in Canada, pp. 155, 156 [para. 43].

Counsel:

Jack Watson, for the appellant;

A.D. Pringle, for the respondent, Victor Tallman;

B.A. Beresh, for the respondent, Joseph Tallman;

G.E. Sillito, for the respondents, Richard Laboucan and Glenn Auger.

These appeals were heard before Laycraft, C.J.A., McClung, J.A. and Berger, J. (ad hoc), of the Alberta Court of Appeal.

On February 14, 1989, Laycraft, C.J.A., delivered the following judgment for the Court of Appeal.