2003 MBCA 51, 2003 MBCA 51

Editor's note: This decision has been corrected in conformity with the notice of erratum issued on April 7, 2003, reproduced at the bottom of this document. IN THE COURT OF APPEAL OF MANITOBA Coram: Huband, Twaddle and Monnin JJ.A. B E T W E E N : HER MAJESTY THE QUEEN ) D. R. Slough and ) D. M. Coggan Appellant ) for the Appellant ) ) H. Weinstein, Q.C. and - and - ) H.

Krahn ) for the Respondent ) COLIN CLEMONS ) Appeal heard and ) Decision pronounced: (Accused) Respondent ) January 10, 2003 ) ) Written reasons: ) April 3, 2003 MONNIN J.A. (Giving the first judgment at the invitation of Huband J.A.) 1 This is a Crown appeal from a conditional sentence of two years less one day plus a period of probation of three years, imposed following a plea of guilty to a charge of manslaughter. 2 Following the submission from the Crown, leave was granted to appeal the sentence but the appeal was dismissed from the bench with reasons to follow. 3 The plea of guilty by the accused follows his killing of an individual in the early morning hours of September 13, 2001, while in a highly intoxicated state and after having been provoked by the deceased over a period of time.

In answer to the provocation, the accused “sucker punched” the victim who then proceeded to draw a knife on the accused. The accused managed to get the knife away from the victim and then “snapped,” proceeding to inflict nine stab wounds to the deceased both with the knife and a broken beer bottle. The attack can only be described as vicious. 4 At the time of sentencing, in August of 2002, the accused was 23 years of age and the father of a young child. He has a Grade 11 education with a record of involvement as a youth and a limited adult record.

Notwithstanding the record, his past is not a violent one and there is agreement that his conduct on the night of the incident was out of character. 5 The Crown argued before the sentencing judge, as it did on appeal, that the incident was one of significant blameworthiness that called for a penitentiary term in the area of five years’ imprisonment. 6 It has often been stated by sentencing courts and by appellate tribunals that the imposition of the correct sentence in a case of manslaughter is one of the most difficult tasks that a court faces.

There is a reduced blameworthiness to be attributed to an offender because of a lack of intent or because of provocation, but the result of the offender’s actions still culminate in a death in circumstances that absent that lack of intent or because that provocation would otherwise result in murder.

7 The sentencing options available to a sentencing court for this offence are like no other. They range from a suspended sentence to life imprisonment. A review of past sentencing decisions, whether in this jurisdiction or others, demonstrate that the breadth of those options have been exercised and it is extremely difficult to attempt to compare facts, circumstances and background of offenders in order to establish a restrictive or narrow range of fit and proper sentences.

In colloquial language, the sentences are all over the map. 8 This court has in the past set out the matters to be considered when sentencing an individual on a charge of manslaughter. See R. v. Campbell (1991), 1991 CanLII 11830 (MB CA) , 70 Man.R. (2d) 158 , R. v. Bell (1993), 1993 CanLII 14860 (MB CA) , 85 Man.R. (2d) 139 , R. v. Csincsa (1993), 1993 CanLII 14863 (MB CA) , 85 Man.R. (2d) 241 and R. v. Brian (1998), 1998 CanLII 17759 (MB CA) , 131 Man.R. (2d) 149 .

The principles enunciated in those cases were respected by the sentencing judge in the present case. 9 Furthermore one must be mindful of the admonitions and directives given to appellate tribunals by the Supreme Court of Canada in matters of sentence appeals. See R. v. M.(C.A.) , 1996 CanLII 230 (SCC) , [1996] 1 S.C.R. 500 , and R. v. Shropshire , 1995 CanLII 47 (SCC) , [1995] 4 S.C.R. 227 .

Because of the wide range of sentences available in manslaughter cases, the Supreme Court pronouncements make it clear that it is only in rare circumstances that an appellate court will be in a position to state that a sentence is unfit. 10 In order to consider interfering in such a sentence, the sentencing court will have had to commit a plain and obvious error and such an error will probably only be found to exist when a sentence is at either extremity of the sentencing range which I repeat is extremely wide.

To interfere with any sentence in between those extremes invites an appellate court to offend the principles imposed by the Supreme Court. 11 As an example of such a state of affairs, I can easily state that in the circumstances of this case, I would no more interfere with the sentence being appealed from than I would if the sentencing judge had imposed the five-year term that the Crown was seeking. In my view an acceptable range for manslaughter is at the very least that wide-ranging and possibly even more. 12 The appeal is therefore dismissed. J.A.

TWADDLE J.A. (concurring) 13 I agree with my brother Monnin that this sentence appeal should be dismissed, but I am unable to endorse all of his reasons. 14 There are but two bases on which this court may allow a sentence appeal. The first is where the sentence appealed from is not authorized by law and the second where the sentence is unfit. 15 A conditional sentence of imprisonment is undoubtedly one authorized by law. Summarizing his reasons in R. v.

Proulx , 2000 SCC 5 (CanLII) , [2000] 1 S.C.R. 61 , Lamer C.J.C. said (at para. 127): “No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment... .” 16 In terms of fitness, Lamer C.J.C. had this to say ( Proulx also at para 127 ): “[N]or should there be presumptions in favour or against a conditional sentence for particular offences.” There is thus no presumption that a conditional sentence is unfit where the offence is manslaughter. It all depends on the circumstances of the offence and those of the offender: cf . R. v.

Mananghaya (1997), 1997 CanLII 23083 (MB CA) , 118 Man.R. (2d) 30 (C.A.) and R. v. Torres (1998), 1998 CanLII 5171 (MB CA) , 126 Man.R. (2d) 278 (C.A.) . 17 The fitness of a sentence has to be judged on the criteria approved by the Supreme Court of Canada. I will refer to the leading pronouncements on the subject found in R. v. Shropshire , 1995 CanLII 47 (SCC) , [1995] 4 S.C.R. 227 and R. v. M. (C.A.) , 1996 CanLII 230 (SCC) , [1996] 1 S.C.R. 500 . 18 In Shropshire , the judgment of the court was delivered by Iacobucci J. He said (at para. 46):

An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. … A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable. 19 He went on to adopt the approach taken by the Nova Scotia Court of Appeal in R. v. Pepin (1990), 1990 CanLII 2481 (NS CA) , 98 N.S.R. (2d) 238 and R. v. Muise (1994), 1994 NSCA 198 (CanLII) , 94 C.C.C. (3d) 119 .

He quoted from the judgment in Pepin (at p. 251): … in considering whether a sentence should be altered, the test is not whether we would have imposed a different sentence; we must determine if the sentencing judge applied wrong principles or [if] the sentence is clearly or manifestly excessive. Iacobucci J. also quoted from the judgment in Muise (at p. 124): If a sentence imposed is not clearly excessive or inadequate it is a fit sentence assuming the trial judge applied the correct principles and considered all relevant facts. If it is a fit sentence an appeal court cannot interfere.

My view, that this is the correct approach for an appeal court, is not based on the notion that a trial judge has had the advantage of seeing and hearing the witnesses. This reason is expressed in some of the older cases as being the underlying reason for non-interference; that rationale clearly does not apply to a guilty plea. My view is premised on the reality that sentencing is not an exact science; it is anything but. It is the exercise of judgment taking into consideration relevant legal principles, the circumstances of the offence and the offender.

The most that can be expected of a sentencing judge is to arrive at a sentence that is within an acceptable range. In my opinion, that is the true basis upon which Courts of Appeal review sentences when the only issue is whether the sentence is inadequate or excessive. 20 The judgment of Bull J.A. in R. v. Gourgon (1981), 1981 CanLII 328 (BC CA) , 58 C.C.C. (2d) 193 (B.C.C.A.) , was also referred to with approval by Iacobucci J.

The quoted passage was in these terms (at p. 197): … the matter is clearly one of discretion and unless patently wrong, or wrong principles applied, or correct principles applied erroneously, or proper factors ignored or overstressed, an appellate Court should be careful not to interfere with the exercise of that discretion of a trial Judge. 21 The same view of an appeal court’s function in a sentence appeal was expressed by Lamer C.J.C. for the court in R. v. M. (C.A.) .

Summarizing his view, he said (at para. 90): Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. 22 Having regard to what the Supreme Court of Canada has said, I am of the opinion that an appellate court will be justified in finding a sentence to be unfit in only one or other of two circumstances: (

i) there is a palpable error, i.e. a wrong principle of law has been applied, a correct principle applied erroneously, a relevant factor not taken into consideration, an irrelevant factor taken into consideration or a relevant factor given too much or too little emphasis; or (ii) the sentence imposed is clearly unreasonable. 23 I do not find it helpful to speculate on the frequency of occasions when an appellate court will consider it appropriate to intervene. I expect the occasions will be rare, but I do not regard that expectation to be part of the test to be applied by an appellate court.

Only time will tell. 24 As my brother Monnin points out, the range of sentences which may legally be imposed for manslaughter is exceedingly wide, beginning with a suspended sentence at the lower end and culminating with life imprisonment at the top. In my view, however, this is not the range of reasonable sentences available to a trial judge in any particular case. The available range will be much narrower and its limits fixed by reference to the circumstances of the offence and the offender and, most particularly, the degree of the offender’s blameworthiness.

The higher the degree of blameworthiness, the higher will be the range. 25 In this case, the Crown argues that too much emphasis was given to the personal circumstances of the accused and that, in any event, the length of the prison term and its conditional nature make the sentence clearly unreasonable. 26 I find nothing in the sentencing judge’s reasons which would lead me to conclude that he placed too much emphasis on the circumstances of the accused.

To be sure, he referred to them more than once, but at the same time he made it plain that general deterrence and denunciation were major factors to be considered. He even went as far as saying: The reasons for [the Crown’s] position are quite compelling and they have given this court some trouble in coming to a conclusion that a penitentiary term is not required in this case. 27 I turn now to the question which, in my view, is more troublesome. Is the sentence clearly unreasonable? 28 The sentencing judge found the accused to have been subjected to “substantial” or “extreme” provocation.

It is this aspect of the case which, in my view, entitled the sentencing judge to assess the degree of the accused’s blameworthiness very much lower than would otherwise have been the case. 29 Given that assessment of the accused’s blameworthiness, a conditional sentence of two years less one day falls, in my opinion, within the appropriate range of sentences for this particular offence by this particular offender. 30 It was for those reasons that I concurred in dismissing the appeal.

J.A. I agree: J.A. ERRATUM April 7, 2003 TO WHOM IT MAY CONCERN: Re: R. v. Colin Clemons Docket: AR02-30-05369 Reasons delivered April 3, 2003 The attached pages 3 and 7 are to be replaced in the above-captioned decision, which was released on April 3, 2003. The second sentence in para. 7 (page 3) has been corrected to read as follows: They range from a suspended sentence to life imprisonment.

And the first sentence in para. 24 (page 7) has also been corrected and reads as follows: As my brother Monnin points out, the range of sentences which may legally be imposed for manslaughter is exceedingly wide, beginning with a suspended sentence at the lower end and culminating with life imprisonment at the top.