R. v. Phillips (L.R.) (1999), 123 O.A.C. 304 (CA)
MLB headnote and full text
Temp. Cite: [1999] O.A.C. TBEd. AU.013
Her Majesty The Queen (respondent) v. Lenard Roy Phillips (appellant)
(C23085)
Indexed As: R. v. Phillips (L.R.)
Ontario Court of Appeal
Doherty, Rosenberg and O’Connor, JJ.A.
August 9, 1999.
Summary:
An accused was found not guilty of first degree murder. He was convicted of second degree murder of a police officer and sentenced to life imprisonment without eligibility for parole for 18 years. The accused appealed his conviction and sentence. The Crown cross-appealed the acquittal of the first degree murder, which it later abandoned.
The Ontario Court of Appeal dismissed the appeal on the conviction, allowed the sentence appeal and reduced the parole ineligibility period to 15 years.
Criminal Law – Topic 1294
Murder – Defences – Self-defence – Evidence – An accused was convicted of second degree murder of a police officer – The trial judge instructed the jury that the evidence that the accused was intoxicated or impaired was irrelevant to the elements referred to in ss. 34(2)(a) and 34(2)(b) of the Criminal Code of Canada – The accused appealed his conviction, arguing, inter alia, that the trial judge erred in charging the jury regarding the application of s. 34(2) of the Criminal Code – The Ontario Court of Appeal dismissed the accused’s conviction appeal, stating that the trial judge properly instructed the jury – See paragraphs 12 to 13.
Criminal Law – Topic 5337
Evidence and witnesses – Confessions and voluntary statements – Admissibility – General – An accused was convicted of second degree murder of a police officer – At trial the Crown introduced two comments made by the accused while he was being driven in a police cruiser to the detachment – The accused appealed his conviction, arguing, inter alia, that his later statement to two different police officers at the detachment, which was made one hour after the original two comments and after the accused spoke to a lawyer, was admissible – The Ontario Court of Appeal dismissed the conviction appeal – The statement was inadmissible because there was insufficient nexus between the statement and the earlier comments – A relevant consideration was the accused’s conversation with a lawyer – The accused could not adduce his self-serving statements through other witnesses – See paragraphs 10 to 11.
Criminal Law – Topic 5352
Evidence and witnesses – Confessions and voluntary statements – Statements to a person in authority – [See
Criminal Law -Topic 5337
].
Criminal Law – Topic 5670
Punishments (sentence) – Imprisonment and parole – Parole – Period of ineligibility – [See
Criminal Law – Topic 5881
].
Criminal Law – Topic 5670.4
Punishments (sentence) – Imprisonment and parole – Parole – Period of ineligibility – Reduction – [See
Criminal Law – Topic 5881
].
Criminal Law – Topic 5834
Sentencing – Considerations on imposing sentence – Circumstances tending to increase sentence – [See
Criminal Law – Topic 5881
].
Criminal Law – Topic 5834
Sentencing – Considerations on imposing sentence – Circumstances tending to increase sentence – An accused murdered a police officer – This was an unintended consequence – The Ontario Court of Appeal stated that unforeseen consequences of an offence can properly be seen as an aggravating factor on sentencing – Unforeseen consequences unquestionably play a role in the denunciatory purpose of imposing sentence – When a police officer was killed in the execution of duty, the community was understandably outraged – In imposing sentence, it was appropriate to reflect society’s revulsion for this aspect of the offence – See paragraphs 26 to 27.
Criminal Law – Topic 5839
Sentencing – Considerations on imposing sentence – Parole and parole legislation – [See
Criminal Law – Topic 5881
].
Criminal Law – Topic 5881
Sentence – Murder – An accused stabbed a police officer, who died from blood loss – The accused, 34 years old, was convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 18 years – The accused appealed his sentence – The Ontario Court of Appeal reduced the parole ineligibility period to 15 years – The trial judge erred in principle in finding that the accused committed the murder with planning and deliberation and in attaching significant weight to this finding as an aggravating factor in increasing the period of parole ineligibility – Considerations included: the accused’s alcohol problem and related treatment; his criminal record; his pre-sentence report and the jury’s recommendation – The importance of denouncing the killing of a police officer required a significant increase in the minimum period for parole ineligibility – See paragraphs 15 to 34.
Cases Noticed:
R. v. Reilly (1984), 55 N.R. 274; 15 C.C.C.(3d) 1, appld. [para. 13].
R. v. DeSousa, [1992] 2 S.C.R. 944; 142 N.R. 1; 56 O.A.C. 109; 76 C.C.C.(3d) 124; 15 C.R.(4th) 66, refd to. [para. 26].
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. 28].
R. v. Pahpasay, [1992] O.J. No. 1957 (Gen. Div.), refd to. [para. 32].
Counsel:
Irwin Koziebrocki, for the appellant;
John Corelli and Howard Leibovich, for the respondent.
This appeal was heard on June 25, 1999, by Doherty, Rosenberg and O’Connor, JJ.A., of the Ontario Court of Appeal. The Court of Appeal delivered the following decision on August 9, 1999.
