R. v. An, 2011 ABQB 217

Court of Queen ’ s Bench of Alberta Citation: R. v. An, 2011 ABQB 217 Date: 20110405 Docket: 100161454Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Shengjun An Accused _______________________________________________________ Oral Reasons for Sentencing of the Honourable Mr. Justice A.D. Macleod _______________________________________________________ [ 1 ] Dr. An was charged with the first degree murder of his wife following her death on February 7, 2010. With the consent of the Crown, he pled guilty to manslaughter, an offence under s. 236 of the Criminal Code, R.S.C. 1985, c. C-46.

The plea was accepted and a conviction was entered for the crime of manslaughter. That this occurred on February 14, 2011 (Valentine’s Day) is yet another bitter irony in this terrible tragedy. [ 2 ] From the Statement of Admitted Facts (Exhibit 1) manslaughter was the appropriate charge in my view. [ 3 ] This matter is here for sentencing. I want to acknowledge the assistance of counsel, Mr. Cornfield and Mr. Bassett appearing for the Crown and Mr. Hepner for Dr. An. They have made my task much easier by agreeing on the facts and by focussing the Court on the appropriate factors which I must take into account.

I also want to acknowledge the work of the Court interpreter. Dr. An has difficulty with English. It is very important in a proceeding such as this that Dr. An understand what is going on and that he be able to follow the process without the language barrier which would otherwise exist. I thank Madam Interpreter for her valuable service and her continued efforts to translate our proceedings including my Reasons for Decision into Dr. An’s Mandarin language. I also want to acknowledge the presence, during this sentencing process, of several of Dr. An’s family, friends and colleagues who have travelled from

Ontario and China to show their support to Dr. An. I am certain that your presence is important to Dr. An. I understand from Mr. Hepner that a number of the visitors from China do not understand English and with that in mind we continue to encourage Madam Interpreter to speak loud enough so that everyone can understand what is being said. It is important that everyone who is interested understand these proceedings, the decision of the Court and the reasons for it. The transparency of Court proceedings is fundamental to the Rule of Law. [ 4 ] As I said, this is a terrible tragedy. Dr.

An and Yanrong Cheng, who will be referred to as Susan, married on March 3, 1993 in China. Their eldest daughter Meilin now aged 16 was born in China and their youngest daughter Meijun now 5 was born in Canada. They came to Canada in 2002 and Dr. An, who holds a medical degree and a PhD, was doing post-doctoral work in Montreal, and at Brock and Calgary Universities. A number of letters of support from colleagues are included in Exhibit 10 and I am satisfied from a review of them, and from what has been said here, that Dr. An is a very accomplished scientist in the field of microbiology and biochemistry.

He is involved in medical research. Prior to this incident he was conducting pharmaceutical research to reduce blood cholesterol. He is the Dean for the Research and Development Services at Habei Chemical Engineering and Pharmaceutical Technology College. In addition to being an outstanding scientist, he is a full professor at that institution. [ 5 ] Prior to this tragedy he is described as a loving father, husband and exemplary citizen with no record or history of violence. Dr. An and Susan moved to Calgary with their family so he could do post-doctoral work at the University of Calgary.

He completed this in late 2006. Afterward, he took on a position with his present University in China. Because their eldest daughter was a good student, Dr. An and Susan wanted her to complete her high school in Calgary and the decision was made that Susan and Meilin would live in Calgary, at their condominium in Edgemont, and Dr. An would work in China and take their younger daughter Meijun with him. [ 6 ] The family would meet together in China and in Calgary, but for long periods of time Susan and Meilin were separated from Dr. An and Meijun. The families of both Dr. An and Susan resided in China. Dr.

An and Meijun spent time with them while he carried out his duties there. [ 7 ] Susan worked at various jobs in Calgary during which she worked towards her certification as an acupuncturist and thereafter she worked as a massage therapist and an acupuncturist. [ 8 ] In May 2009 Susan met a person who has been described in the Statement of Admitted Facts as a “male client”. Eventually, their relationship became more involved and at some point became intimate. He began attending at the residence while Meilin was working at her part time job on Sundays.

In December 2009 the man and Susan shared a hotel room overnight in the Kananaskis area. Dr. An was in China and unaware of the relationship. [ 9 ] On Dr. An’s January 2010 visit to Calgary, the couple decided to purchase a new home in an area known as the Hamptons. Upon returning to their Edgemont home on February 6, 2010, after visiting with the bank to arrange financing, Dr. An became aware that Susan was talking on her cellular telephone in the car for some period of time. He questioned her and ultimately Susan confessed to the affair.

According to the Agreed Statement of Facts, between 5:30 and 7:11 pm February 6, Susan made 8 calls to her male friend’s work number. Because it was a Saturday, her calls were transferred to voice mail. Messages were left to the effect that Susan’s husband knows everything about the relationship and he “wants to see you right away.” [ 10 ] Sometime on February 6, 2010, Susan placed a call to her employer Ping Lang and asked her to call her back. When she did so, at 9:30 pm the same day, Dr.

An intercepted the call and said Susan was “very busy.” [ 11 ] Telus records show that at 8:06 pm a call was made from a 7-Eleven on Centre Street to Susan’s cell phone and the conversation lasted approximately 8 minutes. Susan told her friend that she had told everything to her husband and he wanted to talk to you (the “male friend”) right away. Dr. An grabbed the phone from her and started talking to the man in an angry tone. He said “my wife said that you have made love with her and you have taken her to the Banff”. He asked the man to come over to their residence but because he was scared the man refused.

Susan’s cell phone was used to leave messages at the man’s work number numerous times over the evening and the early morning of February 7, 2010. She left messages to the effect that “my husband wants to see you immediately. He is very angry. He is beating me.” [ 12 ] Almost immediately after those calls, at 12:41 am, Susan’s cell phone contacted 911. The call was terminated very quickly so it was not audio recorded. The 911 calls in CD audio format were entered as Exhibit 2 and the transcript of 4 calls made by 911 as Exhibit 3. I have reviewed them.

Immediately after Susan’s call to 911 was terminated the 911 operator called back. Dr. An answered and indicated to the operator that he did not call 911 and it must have been a wrong number and hung up. The 911 operator phoned again

and got Susan’s voice mail. The 911 operator called the police to tell them what had occurred. The 911 operator again called back at 12:48 and the phone was answered inadvertently by the eldest daughter. Meilin must have been aware generally as to what was going on and she attempted to deflect the 911 operator from any knowledge of what was happening or where they were. The 911 operator asked to speak to an adult and Dr. An came on the line and continued to run interference, to use the words of Mr. Cornfield.

Getting nowhere with him, the operator asked to speak to the daughter again but continued to get the run-around and was ultimately cut off. [ 13 ] At 8:55 am on February 7, 2010, Susan’s male friend phoned Susan’s cell phone. Dr. An answered and kept saying that the man should come over to his place and see him immediately. Dr. An was upset and angry and the man tried to calm him down. At one point he said “my wife is saying that if she will tell me everything you will marry her so come to my place and tell my wife that you are ready to marry her.

If you do not come to my place and tell my wife that you are ready to marry her if you do not come she will die.” Because he was scared the man hung up the phone. Dr. An later told police that he was trying to scare the man into coming to meet with him. [ 14 ] The male client at around 11:30 am on February 7, complained to an officer at the District 7 police station that he was being threatened by a man who thought the male client was having an affair with his wife. He gave the officer Susan’s cell number, which he called getting Dr. An who identified himself as Susan’s husband. Dr.

An told the officer he was trying to meet with the male client. He told the officer that Susan was not there; she was at work. [ 15 ] At 4:18 pm on Sunday, February 7, 2010 Dr. An called 911. He was worried about his wife. Dr. An was very upset and yelled in broken English for help. The 911 operator tried to calm him down and at several points admonished Dr. An for yelling at him. During that telephone call the EMS team arrived. They were met at the door by Dr. An who took them downstairs where they found Susan on a bed in the basement and the Accused said “could you save her”.

She was not receiving sufficient oxygen and there was no radial pulse. The police service was called for back up. Susan had a lot of bruising around her face, forehead, eyes and mouth area. She had urinated herself in the bed. There was also bruising and reddening on both of her wrists. [ 16 ] Dr. An lied to the EMS and police initially about the circumstances surrounding Susan’s condition and the events which led to her being in that condition. At 5:39 pm the Accused was arrested for assault, chartered and cautioned. Susan went into cardiac arrest at the Foothills Medical Centre where she died about 8:45pm.

Constable Chu, whose mother tongue is Mandarin, chartered and cautioned the Accused for aggravated assault, manslaughter and second degree murder. [ 17 ] On February 8, 2010 at 3:28 pm the police took a recorded statement from Dr. An who freely and voluntarily provided his statement at that time and again on February 10, 2010. The latter was both video and audio recorded. The statements are generally consistent with the known objective evidence and provided some additional pertinent information. [ 18 ] In my view, a clear picture as to what happened emerges. [ 19 ] Dr.

An was shocked and devastated by the news of Susan’s affair. To him, the life that they were working towards was shattered. He became consumed by feelings of anger, rejection and betrayal. The more he thought of it the more he became obsessed with the thought that Susan’s infidelity had destroyed the family. [ 20 ] Dr. An was unable to control his emotions and his obsession with his wife’s infidelity caused him to behave in a brutish manner, which was totally out of character for him, over the next 24 hours. That he was unable to control his emotions is not excusable but at some level it is sadly understandable.

It is difficult to be prepared for the unexpected. [ 21 ] That evening there began a pattern of hitting his wife with the palm of his hand, the back of his hand and occasionally his fist. There were “lots of fights.” There was much arguing. He grabbed her wrists bruising them and he says that was to prevent her from pounding him on the chest. This all occurred in the basement and the bed was moved down there so that Susan could “show how she made love to the man”.

This nightmare continued to unfold during the evening and the early hours of the morning of February 7, 2010. [ 22 ] The younger daughter was upstairs but Meilin was aware of some of what was going on including Dr. An’s hitting her mother. After midnight Susan tried to call 911 for help but she was stopped from doing so by Dr. An. The 911 operator called back and Dr. An tried to put them off by saying they had called by mistake. The 911 operator persisted and Meilin mistakenly answered and is why she said “oh shit” as soon as she realized what she had done.

As the Crown says, Meilin did run interference in an attempt to put the 911

operator off their trail and she did this with Dr. An’s knowledge. Whether he put her up to it or not is not clear but it is clear that she wasperforming that role to his knowledge. Clearly, she should not have been put in that position. [23] The last fight took place close to 2:00 am and it was during this altercation that Dr. An pushed his wife with considerableforce and she fell back and hit the back of her head on the thinly carpeted concrete floor.

Based upon the medical evidence referred to inthe Statement of Admitted Facts it was this blow to her head which caused an “irreversible brain injury” in the opinion of Dr. Boiteauwhose qualifications are marked as Exhibit 6. Dr. Joseph, who later dissected Susan’s brain, said the cause of death was a head injuryand the type of force that produced that injury was stronger than a knock-out blow by a boxer. This created a haemorrhage in the upperpart of the brain stem which is incompatible with life.

In his opinion, the bruise to her jaw would not have caused death as the jaw andthe face would have absorbed the impact. Dr. Andrews, the Deputy Chief Medical Examiner agreed that the cause of death was as aresult of a blunt head injury. It was consistent with a hard push onto a thinly carpeted concrete floor and the findings of the EMS teamwho arrived in the afternoon of February 7, 2010 are consistent with the time of the blow to the head being 2:00 am on that day. [24] Dr. An told his counsel that immediately after she hit her head she stood up and told Dr. An she felt dizzy and nauseous.

Hehelped her into bed, cleaned her up and she fell asleep. He checked on her periodically but her pulse, heartbeat and breathing appearednormal to him. He did not sleep that night as he was monitoring Susan and his daughters. Early the next morning, February 7, 2010, Dr.An drove his eldest daughter to her job and Susan was still sleeping when he returned. She never did wake up and, from the evidence, itis unlikely that intervention would have saved her after 2:00 am on February 7, 2010. [25] In the afternoon at 4:18 pm he called 911 shortly after becoming aware that her breathing was becoming more laboured.

Atthis point he became very worried. I think it is clear that he was hoping that things would turn out alright. It was wishful thinking.Although he was not a practising physician and had no practical experience, he must have been aware of the potential for harm. He wasclearly worried about her. It was not until that afternoon that reality set in. Even after he realized that the situation was out of control andthat Susan was in real danger he continued to try to avoid his personal responsibility.

It was not until after the news of her death had sunkin that he made a clean break of it and gave two statements to the police. I believe that in those statements Dr. An was truthful. Sentencing Provisions in the Code [26] Sentencing is extremely difficult particularly in cases of manslaughter because the range of sentences is very broad - from asuspended sentence on one end of the spectrum to life in prison at the other: R. v. Laberge (1995), 1995 ABCA 196 , 165 A.R.375, [1995] A.W.L.D. 588 at para. 6 (ABCA). The framework for sentencing is set out in the Criminal Code at s.

Section 718 setsout the broad fundamental purpose which is to foster respect for the law and to maintain a just, peaceful and safe society by imposing justsanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Section 718.1 sets out the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. Our Court of Appeal has stressed that this proportionality rule is the driving principle of sentencing andwhile there are other principles set out in 718 and 718.2 that are to be considered, the resulting sentence must reflect the proportionality

rule: R. v. Arcand, 2010 ABCA

Section 718.2 sets out other sentencing principles including a number of examples which are to be considered as aggravatingcircumstances. Those include circumstances where there is spousal abuse and child abuse. [27] While the recent case of R. v. Arcand emphasizes the proportionality principle and the need for consistency in sentencing italso recognizes that sentencing is an individualized process.

Although it is not exclusively about the offender and it is important torecognize the harm caused to the victim and the community by the crime, the circumstances of the offender and the circumstances of theoffence are still important. Circumstances are often unique; this case underscores that this is so. [28] There are a number of ancillary orders to which the parties have agreed: 1. the Court makes an order in Form 5.03 authorizing the taking of a number of samples of bodily substances that is reasonablyrequired for the purpose of forensic DNA analysis from Dr. An under s. 487.051of the Criminal Code. 2.

There will be a prohibition order under s. 109 of the Criminal Code in accordance with that section. 3. There will be a victim fine surcharge in accordance with s. 737 of the Criminal Code. The only matter left for me to decide is the length of the prison term which must be served. The Crown has referred me to R. v. Arcandand R. v. Laberge. They have argued that the proportionality rule and a number of aggravating factors suggest a range of a term ofimprisonment from seven to ten years. Those aggravating factors include: 1.

The Accused mislead the 911 operator and involved the oldest daughter in “running interference” with the 911 operator. 2. Dr. An beat Susan in front of the oldest daughter if not both daughters. 3. Dr An lied to the police on several occasions, to the EMS personnel and to Ping Lang. 4. Dr. An abused Susan over a lengthy period of time and that abuse led to her death. 5. Dr. An kept Susan confined and prevented her from seeking help. 6. It would appear from the information obtained from Dr.

An, and the pictures of Susan, that there was a considerable amount ofgratuitous violence prior to the shove which resulted in her falling and hitting her head which caused her death. Had the 911 operatorbeen able to have the police intervene prior to that fatal shove, the tragedy could have been averted. [29] The Crown stressed the Reasons for Judgment of the Chief Justice of this Province in R. v. Laberge in which Labergereceived 4 ½ years for the death of his nine-month-old daughter. He caused her head to hit a hard floor in a fit of anger.

The Crownargues that this case is one of more sustained and gratuitous abuse. I have also been referred to R. v. Stone, (SCC), [1999] 2 S.C.R. 290, 173 D.L.R. (4th) 66 which quoted Laberge with approval.

[ 30 ] The Crown also cited the cases of R. v. Wildeman , 2002 BCCA 112 , 173 B.C.A.C. 214 and R. v. Bridle , 2007 BCSC 1302 , [2007] B.C. W.L.D. 6092. These were two brutal incidents of spousal manslaughter and the circumstances of those cases were, in my view, such that they are of little assistance to me here. [ 31 ] To be fair, Mr. Cornfield, on behalf of the Crown, conceded many of the mitigating factors put forward by Mr. Hepner, counsel for Dr. An. Mr. Cornfield does not, however, always agree with the strength of those mitigating factors. [ 32 ] The mitigating factors include: 1. Significant remorse. 2.

A guilty plea to manslaughter which was offered as soon as the disclosure was reviewed. 3. Not only does Dr. An have no record, he had an exemplary character and had contributed much to society. He still has much to give to society in the future. 4. Soon after the tragic events he did cooperate fully with police, although he had lied earlier. 5. No weapons were used. 6. The tragic events emanated from his emotional overreaction to his wife’s infidelity and his actions were totally out of character. 7. He has strong support from his professional colleagues, his friends and his family. [ 33 ] Mr.

Hepner referred me to the Laberge case as well and argued that the cases suggest that the proportionality rule and the aggravating factors can be accommodated in a sentence of five years imprisonment. Those other cases include R. v. Colville , 2005 ABCA 319 , 380 A.R. 360; R. v. Gray , 2003 ABQB 473 , 338 A.R. 270 and R. v. Chan, 2006 ONCJ 436 . I have also had the benefit of numerous letters including one from a close friend of eight and a half years Mr. Xu Chen, Ms. Marlis Skilton with whom Dr An lived while taking his post-doctorate work in Ontario, Mr.

Xiqing (2 letters), President of the university where he teaches, a letter from his family in China and a letter from his eldest daughter. [ 34 ] Susan’s extended family did not submit victim impact statements but the Court has been told that Dr. An’s family keeps in touch with them and continues to help them financially. The letter from his eldest daughter serves in some sense as a victim impact statement. The Accused, after sentencing submissions, did submit a statement which was read into the record by the interpreter. [ 35 ] Based upon everything I have observed, I believe that Dr.

An’s statement reflects great remorse. He too was a victim of his own crime. I quote it here because I believe it demonstrates a profound insight on his part and one of the objectives of sentencing is “to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.” The following is the translation given to us by the interpreter of Dr. An’s statement: In deep sorrow and grief, I wish to express my very, very sorrow and very remorse, my regret. I have lost the most precious and dearest person.

I have taken - - I have lost the life of the most precious and dearest person in this world, the person who is dearest to me. She worked hard with me and for me for many years. We love each other. Our life is dependent on how we depend on each other for all these 18 years. She was my wedded wife and the mother of our two lovely daughters, also a daughter of a 70-year-old person. I deeply feel the grief and pain I have brought to all of them.

I weep every day. The guilt upon me is so great. If I can use all my tears to build a ladder, I will climb to heaven to bring her back to earth to spend time with our two daughters. Many times I saw her, met her in my dreams, and we recall the lovely romantic time we had together. But when I wake up, reality struck me. I didn’t really want to live. The pain is too great. As I think back, maybe the one very biggest mistake I made was to return to China to take on a fulltime job. Had I not done that, this tragedy would not have happened.

I returned to China to work with the hope that I would provide a better life for my wife and two daughters, but what’s been done was against her wish, and this is a tragic result. When I learned that my wife was with another man and having an affair outside of our marriage, I was shocked. It was like I was electrocuted. The normal mentality of a man was gone. I could not accept this reality. Then my weakness came through. I should have calmed down and dealt with the problem and thought through it.

Maybe if I wore my wife’s shoes, I would have understand her better, as a woman raising children that was alone, that was not easy. And if I had understood how difficult a situation she was in, it would have been helpful. I am too selfish. I am not an understanding husband, and I did not carry my responsibility as a father. A beautiful happy family with two lovely, intelligent daughters, now everything in my life is broken, has collapsed. She is gone. I have taken the happiness of the two daughters. I have taken the happiness of the 70-year-old mother. I am left with grief. I am left with guilt.

I repeatedly recall and think, what a cruel lesson I am learning. I want to change. I repent. If there is another chance I can live new again, then I would stand up on my own feet and to try to accomplish those wishes of my wife. I would look after her two daughters, and I would look after her mother until she has to go one day, and I will raise our two daughters, give them education until they can be independent, and I want to be a useful person to society. I will work hard to train the next generation to discover and invent new drugs for the benefit of humans.

And this contribution I may be able to make with what’s left of my energy. Analysis [ 36 ] There are numerous mitigating circumstances and factors to which I have already referred. Dr. An is an accomplished scientist and his university wishes him to continue with that work when he finishes serving his sentence and returns to China. His family wants him back as soon as possible and his daughters both need and want their father.

Never before have I witnessed a person convicted of a crime with such a sense of responsibility and guilt and recognition of the harm he has done. [ 37 ] I am mindful, however, that Arcand and Laberge contain a clear direction from our province’s Court of Appeal that whatever the mitigating circumstances, I must properly assess the culpability of the crime and the sentence must reflect the proportionality rule. A similar message was delivered by the British Columbia Court of Appeal in R. v. Cairns , 2004 BCCA 219 .

In that case, the accused had beaten his younger wife to death with a hammer after little provocation. It was a brutal act and the accused, after trial, was convicted of manslaughter. The trial judge imposed a sentence of four years and this was increased to seven by the Court of Appeal. [ 38 ] I am also aware that the offender’s level of moral culpability is influenced by many factors. As Chief Justice Fraser said in Laberge : In the case of unlawful act manslaughter, the most important of these will be what the unlawful act itself involved.

The nature and quality of the unlawful act itself, the method by which it was committed and the manner in which it was committed in terms of the degree of planning and deliberation are all relevant to this inquiry. (at paragraph 8) [ 39 ] When I compare the actions of Dr. An with that of Cairns , it is my view that Dr. An’s actions attract a much lower degree of culpability than that which existed in Cairns . [ 40 ] In this case there are significant aggravating factors. While retaliation for spousal infidelity is as old as infidelity itself, it has

[40] In this case there are significant aggravating factors. While retaliation for spousal infidelity is as old as infidelity itself, it haslong been recognized in this country that spousal abuse is inexcusable no matter what the reason. Moreover, a life has been wrongfullytaken. Accordingly, the difficult issue before me is how to determine an appropriate sentence which acknowledges the unique mitigatingcircumstances but also reflects the proportionality rule and the aggravating circumstances to which I have referred to earlier. [41] While Mr.

Hepner argues that at the time 911 was mislead Susan was not in any danger, that is surely a two edged sword.Had Dr. An taken the 911 call to his residence as a warning, which he should have, this tragedy would not have occurred. [42] Laberge emphasized the need to ensure that the sentence imposed fits the degree of moral fault of the offender. The Court ofAppeal in that case emphasized the need to ensure that the sentence imposed fits the degree of moral fault of the offender.

The ChiefJustice set out, at paragraph 17, three stages of objective and subjective mens rea which could be used to classify an accused’s moralculpability. It was recognized that there could be a number of combinations of objective and subjective intent. It was also recognized thatthey must all be placed in the context of the other factors influencing culpability. As in this case, Laberge was guilty of an unlawful actof manslaughter.

The Court found that objectively Laberge’s unprovoked assault on his baby daughter was of a kind of ferocity sufficientto properly place it within the second category of objective intent, i.e.

an act which was likely to cause serious bodily injury. The Courtalso found that Laberge was willfully blind to the fact that bodily injury would likely be caused by the manner in which he caused hisdaughter’s head to be struck against the floor. He was changing her diaper and he was in a position to control the baby’s bodilymovement in such a way that “he was able to strike her head first against the floor before any other part of her body touched the floor.”The Court refused to recognize, as the trial judge did, that Laberge acted “somewhat out of character” and he “lost it”.

The Court ofAppeal rejected that because, while Laberge did “lose it”, it was not as a result of any provocation by his 9 month old daughter. It wasnot a mitigating circumstance that Laberge had “an easily frustrated, aggressive personality” and that he was unwilling to exercise selfcontrol. [43] The Chief Justice, on behalf of the majority, said that the important question that must be answered, before one can determinewhat effect, if any, “losing it” might have on sentencing, is why the accused “lost it”.

It was also a consideration in that case that Dr.Hindmarch, a medical expert, had included in his written report that Laberge hit his baby’s head against the floor in a moment of “angerand frustration (while still suffering the after effects of a great deal of alcohol and drug consumption)”.

The majority in Labergeincreased the trial judge’s three year sentence to four and one half years. [44] The Crown argues that this case is much more serious because of the period of time over which the spousal abuse occurred.The Crown submits that provocation ought not to be a mitigating factor. [45] This is a difficult case to categorize on a culpability scale. I accept that Dr. An did not intend to kill his wife.

I also accept thathe did not intend to expose his wife to any serious injury. [46] However, emotions were running extremely high and viewed objectively, a prolonged period of intermittent physical abusecan bring about unexpected and tragic results. Had he been thinking clearly that would have been obvious to him. Dr. An was thephysically stronger one. Thus, objectively she was exposed to a risk of serious injury. Subjectively, the analysis is more difficult. I do notthink he believed that he was exposing his wife to a risk of serious injury until after the fatal blow to her head occurred.

But did hisextreme emotional response make him willfully blind? I think it is at least arguable. [47] Nevertheless, unlike the situation in Laberge, the answer to the question of why he lost it produces a very different answer. Helost it because of the revelation that his wife was having an affair with another man, which was a shock to him and turned his worldupside down. While this cannot excuse the spousal abuse, it is a factor that must be considered.

His emotional state was the reason (butnot the excuse) for the events which occurred between the period he discovered his wife’s infidelity until he called 911. [48] The case of R. v. Stone is relevant. In that case the Supreme Court upheld the trial judge’s decision to recognize provocationas a mitigating factor in sentencing for spousal manslaughter. It was appropriate to do so notwithstanding that the spousal connectionbetween offender and victim was an aggravating factor in sentencing at common law: see para: 241.

Though the sentence had beenimposed 9 months before the enactment of what is now s. 718.2, cases such as R. v. Brown (1992), 1992 ABCA 132 , 125 A.R.150, 14 W.A.C. 150 (ABCA) had clearly recognized spousal abuse as an aggravating factor prior to the enactment of s. 718.2. The Sentence

[ 49 ] The Crown correctly points out that the spousal abuse here was much more prolonged than the child abuse in R. v. Laberge . On the other hand, the Court of Appeal rejected any provocation in that case. As I read the majority reasons I am entitled to take the circumstances of provocation into account here. R. v. Stone is to the same effect. [ 50 ] R. v. Chan , while persuasive only, is a case of spousal manslaughter. There was no history of marital conflict. While the spousal abuse in that case was not of as long a duration, there was little to provoke the abuse.

Moreover, after he became alarmed at his wife’s condition the Accused did not contact 911. Even after he knew of her death he lied to the 911 operator and to others and got rid of damaging evidence. He denied responsibility to the police from October 2005 until March 2006. On the other hand, no children were involved. The sentence in that case was four years and two months. [ 51 ] I have also been referred to R. v. Senner , 2005 BCSC 1279 , [2005] B.C. W.L.D. 6278, a case where the victim was killed by his jealous lover with a knife. She received a conditional sentence. R. v.

Laberge was not cited and I think it is clear that the accused in Senner was more culpable than Dr. An. [ 52 ] While it is very different factually, R. v. Gray is an example of a case where the Accused pled guilty to manslaughter as an included offence to an original count of murder. In that case the victim was much taller than the assailant but the assailant was armed with a knife which he used to kill the victim in the parking lot of a bar.

He was sentenced for five years for manslaughter. [ 53 ] In my view, a sentence of five years imprisonment will serve the proportionality principle as well as accommodate the aggravating and mitigating circumstances to which I have referred. Please stand Dr. An. I sentence you to five years imprisonment for the offence of manslaughter. I exercise my discretion to reduce the sentence in light of the time served in custody and I do so by reducing the five years to three years to reflect the time served. Heard on the 14 th and 15 th days of February, 2011. Delivered orally on the 24 th day of February, 2011.

Dated at the City of Calgary, Alberta this 5 th day of April, 2011. A.D. Macleod J.C.Q.B.A. Appearances: G. Cornfield,Q.C. Robert D.L. Bassett for the Crown A. Hepner, Q.C. Ross Hepner for the Accused