R. v. Wiens

2013 BCSC 1577 R. v. Wiens IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Wiens, 2013 BCSC 1577 Date: 20130725 Docket: 40090 - K Registry: Penticton Regina v. Keith Gregory Wiens Restriction on Publication: Pursuant to 648(1) C.C.C. Before: The Honourable Mr. Justice Barrow Oral Reasons for Sentence Counsel for the Crown: C. Forsyth T.A. Livingston Counsel for the Accused: C.D. Evans, Q.C. I. McKay Place and Date of Trial/Hearing: Kelowna, B.C. July 25, 2013 Place and Date of Judgment: Kelowna, B.C. July 25, 2013 [1] THE COURT: Keith Gregory Wiens has been convicted by a jury of the second degree murder of his common law spouse, Lynn Kalmring. [2] During the trial, Mr. Wiens testified in his own defence. He maintained that he killed Ms. Kalmring in self‑defence. The jury rejected his evidence. [3] Following the return of the verdict, the jury was asked, as required by s. 745.2 of the Criminal Code, for their recommendation as to the length of time that Mr. Wiens should serve in custody before being eligible to apply for parole. They unanimously recommended that he serve 20 years. [4] The Crown argues that I should impose a period of 15 years of parole ineligibility. They argue that there are several aggravating circumstances. The first is that because Ms. Kalmring was Mr. Wiens' common law spouse, killing her necessarily amounts to an abuse of her, and by virtue of s. 718.2(a)(ii), that is an aggravating circumstance. Second, the Crown argues that the fact that Mr. Wiens used a handgun, a handgun that he kept fully loaded and ready at hand, is an aggravating circumstance. Support for that proposition is said to be found in R. v. Jojic, 2012 BCCA 101. Third, the Crown argues that the fact that Mr. Wiens shot his spouse in the face at close range and then attempted to manipulate the scene in an effort to avoid responsibility is an aggravating circumstance. Finally, the Crown argues that the unanimous recommendation of the jury is a clear signal of their view of the moral blameworthiness of Mr. Wiens. [5] Counsel for Mr. Wiens argue that a period of 10 to 12 years is appropriate in this case. They argue that it is impossible to know whether the jury found that Mr. Wiens manipulated the scene after the fact and that, on the evidence, there is a reasonable doubt about whether that has been proven. They note that Mr. Wiens is a man without a criminal record, and because of his status as a retired RCMP officer, the time he has spent and will spend in prison will be what is colloquially referred to as "hard time". He has been in jail for the past 18 months. Throughout that period, he has been in protective custody, and as a result, he has been confined to his cell 22 or 23 hours a day. Finally, counsel argue that Mr. Wiens is profoundly remorseful for what he did. [6] Because Mr. Wiens has been convicted of second degree murder, the sentence I must impose is one of life imprisonment. The issue now is whether the minimum period of imprisonment that he must actually serve before being eligible to apply for parole should be increased from 10 years, which is the minimum requirement set by the Criminal Code. [7] Whether it should be increased is to be decided by reference to the factors set out in s. 745.4 of the Criminal Code and the legal principles that generally apply to the discretionary determination of the period of parole ineligibility. Those legal principles were helpfully summarized by MacKenzie J.A. in R. v. Bennight, 2012 BCCA 461. At paragraph 18, she noted that the court must take account of the character of the offender, the nature of the offence, and the circumstances surrounding the commission of the offence, together with the recommendation of the jury. All of that is found in s. 745.4. Further, the general principles of denunciation and deterrence, as well as the court's assessment of the offender's future dangerousness are relevant. She quoted with approval the categories of cases identified by Donald J.A. in R. v. Cerra, 2004 BCCA 594. The two categories are cases which generally attract a sentence of between 12 and 15 years of parole ineligibility and cases which fall within the range of 15 to 20 years. Of course, those categories only apply if the court determines that an increase in the minimum period of parole ineligibility is otherwise warranted. Moreover, the categories are guidelines and not rigid rules. Lastly, Madam Justice MacKenzie noted that the court must consider the range of sentence imposed in other cases in similar circumstances. [8] It is first necessary to find the facts on which Mr. Wiens is to be sentenced. In finding those facts, I am to be guided by the law set out in R. v. Gauthier (1996), 108 C.C.C. (3d) 231 (B.C.C.A.). There the court noted that when sentencing an offender on the basis of a conviction following a jury verdict, the court must take as given the facts which implicitly and necessarily flow from that verdict. It is clear that the jury found Mr. Wiens had one of the two intentions necessary to commit murder and that his actions were not justified on the basis of self-defence. Beyond the necessary implications of the jury's verdict, the court is not to attempt to reconstruct the logical processes that the jury may have followed in reaching their verdict. Rather, it is to come to its own conclusions as to the relevant facts. To the extent those facts are aggravating, it is necessary that they be proved beyond a reasonable doubt. [9] I accept the evidence of Shelley Pertelson. She testified that the deceased phoned her less than an hour before she was murdered. She testified that her sister was upset but not angry and that she said she loved Mr. Wiens and did not wish to leave him, but she felt, that is, Ms. Kalmring felt, that financial matters were more important to Mr. Wiens than his relationship with her. [10] Next, I accept that Ms. Kalmring was not a violent person. She had been involved in three reasonably long relationships before she and Mr. Wiens began their common law relationship. All three of her former spouses testified. They all said that while from time to time they argued during the course of their relationship, at no point was Ms. Kalmring violent, either towards them or towards anyone else in their experience. Mr. Wiens' own experience with Ms. Kalmring, with the possible exception of the evening of August 15, 2011, is consistent with that evidence. [11] Mr. Wiens testified that he and Ms. Kalmring enjoyed a quiet and uneventful day on August 15th. They ate dinner at about 9 p.m. and then played a video game. They consumed alcohol during the course of the day and the evening, and while neither was capable of driving, neither of them was intoxicated to any significant degree. He testified that he went to bed at about 10:30 p.m. He said that Ms. Kalmring wished to have sexual relations with him and he declined. He said that that sparked an argument, during which Ms. Kalmring came into the master bedroom where he was attempting to fall asleep, on three or perhaps four occasions. He testified that, on each occasion, she was increasingly angry. She left on one occasion for a reasonably long period, during which he fell asleep. [12] He testified that he was awoken to find Ms. Kalmring assaulting him. He got up and they argued even more vociferously. When she left on this occasion, she was so angry that Mr. Wiens thought she might be violent towards him. He said that, as a result, he armed himself with his loaded 9mm handgun, and when she returned to the room, she had a large kitchen knife in her left hand, upraised as if to stab him. When she advanced towards him, he said that he backed up as far as he could and then shot her in the face. [13] When Ms. Kalmring's body was found, she was lying on her back with her left arm extended from the side of her body at about 90 degrees. There was a knife resting in the palm of her left hand. [14] It was the Crown's contention that Mr. Wiens put the knife in Ms. Kalmring's hand after he shot her, in order to avoid responsibility for his actions. [15] I am satisfied beyond a reasonable doubt that Mr. Wiens put the knife in Ms. Kalmring's hand after the fact. I reach that conclusion for several reasons. First, the notion that Ms. Kalmring would attack Mr. Wiens in the fashion he described is inconsistent with Ms. Pertelson's evidence as to her demeanour during their conversation. Second, it is inconsistent with Ms. Kalmring's general character, as testified to by all of her former partners throughout her adult life. Third, the notion that she was in a state of frenzied anger is inconsistent with the orderly placement of a quantity of cash and a wedding ring on the island in the kitchen. Ms. Kalmring explained to her sister that when she and Mr. Wiens had argued over money, she removed her ring and retrieved some money she had been saving to finance their activities while visiting their summer home in Arizona. She said at one point that she threw them at Mr. Wiens. Those items were found neatly placed on the kitchen island when the police arrived. I am satisfied that Ms. Kalmring put them there after the argument. Fourth, I accept that Ms. Kalmring, in addition to being generally non‑violent, was adverse to weapons generally and to knives and firearms in particular. Fifth, Mr. Wiens was taller and some 50 pounds heavier than Ms. Kalmring. He is a retired RCMP officer. He was in good physical health in August of 2011. I think it highly unlikely that Ms. Kalmring would attack him, with or without a knife. Finally, and most significantly, the physical evidence at the scene supports this conclusion. The expert evidence from bloodstain pattern analysts and forensic pathologists conflicts, but I do not rest my conclusion on that evidence. I do, however, find the physical placement of the knife and the physical placement of Ms. Kalmring's left arm inconsistent with where she was standing when she was shot. The evidence is all to the effect that Ms. Kalmring was shot when she was standing very close to the foot of the bed and almost at the midpoint of the bed. According to Mr. Wiens, when he shot her, she went to the ground, first into a sitting position and then she fell backwards into a supine position, with her legs straight out in front of her torso. That is the position she was found in by the police. I accept that she died virtually instantly upon the gunshot wound being inflicted. I accept that she collapsed virtually instantly in the location she was standing when the wound was inflicted. I reach that conclusion both because of the nature of the wound and the physiological effect it would have had on her body, and also because of the blood that was deposited on the bed clothing at the foot of the bed. I simply do not understand how it would be possible for her to collapse in that position and then fall backward, all the while keeping the knife in her hand. Further, I do not understand how her arm would or could end up extended from her body. [16] For all these reasons, I am satisfied beyond a reasonable doubt that Mr. Wiens put the knife in her hand after the fact, in order to avoid responsibility for his conduct. [17] In reaching this conclusion, I have not overlooked the evidence of Mr. Wiens. I do not believe his evidence and neither did the jury. Moreover, his evidence does not leave me in a state of reasonable doubt as to how the knife ended up in Ms. Kalmring's hands. [18] I will not catalogue all the reasons for rejecting his evidence. I will, however, point to one significant issue. According to what Ms. Kalmring told Ms. Pertelson, she and Mr. Wiens had been arguing over finances on the evening she was killed. Mr. Wiens said in his examination-in-chief that the subject of finances may have come up during the course of that argument. In cross-examination, he categorically denied that the subject had come up. He also denied that it was a source of friction between him and Ms. Kalmring more generally. [19] The evidence is clear that he wrote a letter to Ms. Kalmring on New Year's Day 2011. The letter was clearly written in a state of some anger or upset on his part; that much is apparent both from the substance of the letter and the manner in which he punctuated it. It is also consistent with the other evidence that suggests that he was not satisfied that Ms. Kalmring was contributing financially to their relationship to the degree he thought she should. [20] In cross-examination, he testified that the letter was written by him almost at Ms. Kalmring's request, and that after it was written, he did not see it again nor apparently direct his mind to it. That account is simply unbelievable. It was an issue in their relationship and it was an issue on August 15th. His evidence in respect of that letter, and more generally in respect of the matters upon which he and Ms. Kalmring obviously had some level of dispute, taints his evidence entirely. [21] Returning to the analysis and dealing first with the character of the offender, I note that Mr. Wiens has no criminal record and enjoyed a long career as an RCMP officer. There is no evidence before me as to how his friends, family or colleagues regard him. His character is, it seems to me, more or less a neutral factor in the analysis. [22] I note, however, that some of his family members have attended the trial on his behalf. That may speak to his character. As to the nature of the offence, I have set out the circumstances above. There are two features of the offence that are aggravating. First, Mr. Wiens shot and killed his unarmed spouse. Second, I consider it aggravating that he attempted to cover up what he did after the fact. Whether that is properly regarded as an aggravating circumstance or merely evidence of a lack of remorse, or some combination of both, it is a factor which, in my view, militates in favour of increasing the period of parole ineligibility. [23] Next, there is the recommendation of the jury. The recommendation was unanimous. I recognize the limitations that such recommendations necessarily carry with them. Jurors do not, of course, take into account the jurisprudence that has been developed in relation to sentencing generally and to fixing periods of parole ineligibility in particular. They are recommendations made with limited information about the accused. That said, they are, as Ryan J.A. pointed out in R. v. Cruz (1998), 124 C.C.C. (3d) 157 at para. 44, an avenue for "the jury to communicate to the trial judge their view of the seriousness of the [matter]". Such recommendations are "to be considered a serious communication from the jury and may not easily be discounted" (R. v. Hoang, 2002 BCCA 430 at para. 12 per Saunders J.A.). [24] In terms of the authorities generally, in R. v. Neumann, 2010 BCCA 446, the Court of Appeal upheld a 12-year period of parole ineligibility in relation to a 63‑year‑old offender who had shot his estranged spouse. Mr. Neumann had no criminal record, and the jury made no recommendation as to the period of parole ineligibility in that case. There was no suggestion that Mr. Neumann had done anything after the fact which aggravated his conduct. [25] In R. v. Bennight, the jury also made no recommendation, and the trial judge imposed a period of 18 years' parole ineligibility. That was upheld on appeal. The facts in that case were, however, significantly more aggravated. The killing was brutal in the extreme and the accused had a criminal record. [26] In R. v. Panghali, 2011 BCSC 421, Holmes J. imposed a 15-year period of parole ineligibility on an offender who had strangled his wife and burned her body, leaving it on a beach to be discovered days later. In that case, reference was made to R. v. Teske (2005), 32 C.R. 6 103 (Ont.C.A.), in which an accused killed his spouse and then took steps to hide his crime. The Court of Appeal fixed a period of parole ineligibility of 13 years. [27] I was referred by counsel for Mr. Wiens to two cases. The first is R. v. Benham, [2009] B.C.J. No. 2763 (S.C.). In that case, Madam Justice Fisher imposed a period of 12 years' parole ineligibility. The 39-year-old offender had no criminal record; however, he had been subject to several peace bonds resulting from violent incidents with women. Mr. Benham strangled his spouse in their home. He was tried before a judge sitting alone, and thus there was no recommendation from a jury. The Crown argued that Mr. Benham's post-offence conduct amounted to an attempt on his part to cover up his crime. The court was not persuaded that was so. [28] I was next referred to R. v. Taylor, 2007 BCSC 390. In that case, the accused was convicted of second degree murder of his common law spouse. He shot her in the head with a .308‑calibre hunting rifle in their home. He had a minor criminal record and the jury recommended a 12-year period of parole ineligibility. The accused's defence in that case was that the shooting was an accident. There was no suggestion that he manipulated the scene in order to advance that defence. Halfyard J. noted, in terms of mitigating circumstances, that the crime seemed senseless and impulsive and not planned, and was likely fuelled by alcohol (see para. 15). The Crown did not seek an increase in the period of parole ineligibility and the court endorsed what was, in effect, a joint submission for 10 years. [29] I am satisfied that Mr. Wiens' action in killing Ms. Kalmring was impulsive and was borne of anger fuelled by alcohol. [30] Having regard to the jury's recommendation, the fact that the offence involved an abuse of a spouse, and the post-offence conduct, I consider that a period of parole ineligibility of 13 years is appropriate. [31] I may have imposed a higher period of ineligibility, but for the fact that serving the sentence will be more difficult for Mr. Wiens than it would be for others. In reaching this conclusion, I take judicial notice of the fact that police officers serving prison sentences are generally kept in protective custody. This is not a case of an offender being treated more leniently because of his status as peace officer or former peace officer, but rather a recognition that serving his sentence will be more difficult because of that status. [32] I have not made mention of the consequences of this senseless killing for the family of Ms. Kalmring. I have not ignored those consequences. Although no victim impact information has been provided to me, I heard Ms. Kalmring's sister and her daughter testify. The pain and the sense of loss they both so profoundly feel was palpable. The consequences of this senseless killing do not end with Ms. Pertelson and Ms. Cummings. Ms. Kalmring's sisters have been present throughout this trial, and the emotional cost that the killing and the subsequent attempts to avoid responsibility for it are and have been obvious. I acknowledge that sense of loss and those consequences. [33] Mr. Wiens, would you please stand up, sir. [34] I sentence you to a period of imprisonment for life with no eligibility to apply for parole for a period of 13 years. I also order a lifetime weapons prohibition under s. 109 of the Criminal Code, and order that you provide a DNA sample under s. 487.051. "G.M. Barrow, J." Barrow J.