R. v. Wiebe, 2023 BCSC 1080

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Wiebe, 2023 BCSC 1080 Date: 20230609 Docket: 55244-2 Registry: Vernon Rex v. Shaun Ross Wiebe, also known as Shaun Wiebe Before: The Honourable Justice Beames Oral Reasons for Sentence Counsel for the Crown: M. Cissell Counsel for the Accused: N.C. Jacob Place and Date of Trial/Hearing: Vernon, B.C. June 9, 2023 Place and Date of Judgment: Vernon, B.C. June 9, 2023 [ 1 ] THE COURT: Shaun Wiebe is before me today for sentencing. On May 1, 2023, after a thorough canvass of the plea by Mr. Justice Betton, Mr.

Wiebe entered a guilty plea to Count 1 on the indictment, which reads as follows: that between March 10 and March 15, 2018, at or near Vernon, he committed the manslaughter of Heather Barker, contrary to s. 236 (

b) of the Criminal Code . [ 2 ] On the sentencing hearing I have had the benefit of comprehensive submissions from counsel, who have provided and reviewed a number of case authorities, as well as numerous victim impact statements and three letters provided by defence counsel with respect to Mr. Wiebe’s circumstances, and particularly steps taken since the time of his arrest. [ 3 ] The purposes and principles, as well as the objectives, of sentencing are set out in sections 718 through 718.2 of the Criminal Code .

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more objectives, which objectives include denunciation, deterrence, rehabilitation of offenders, reparations for and acknowledgment of harm done to victims and to the community, and the promotion of a sense of responsibility in offenders. [ 4 ] The fundamental principle is found in s. 718.1, which provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

This, of course, requires a consideration of the circumstances of the offence and the circumstances and character of the offender. [ 5 ]

Section 718.2 requires a sentencing judge to have regard to aggravating and mitigating circumstances, and to take into consideration the principle that sentences should be similar to sentences imposed on similar offenders for similar offences. [ 6 ] Sentencing is, by necessity, a very individualized process and very fact-specific. No two cases are identical.

All of the factors I have just set out must be considered by the judge, in this case me, when assessing what the fit sentence is to be imposed in all of the circumstances. [ 7 ] Drawing from the material put before the Court, I will briefly outline the circumstances of the offence and then the circumstances of Mr. Wiebe. [ 8 ] An agreed statement of facts was marked as Exhibit 1 on the sentencing. It fully sets out the circumstances of the offence. By way of

summary of that document, Mr. Wiebe and the victim, Heather Barker, were in an intimate relationship. They had lived together since August of 2017, less than eight months before the offence was committed. Ms. Barker also worked at Mr. Wiebe’s business, which was a pharmacy. Their relationship was tumultuous. Both were struggling with issues with alcohol, illicit drug use, and depression. Mr. Wiebe was a regular user of injectable steroids. [ 9 ] On the evening of March 15, 2018, both were drinking. Mr. Wiebe accused Ms.

Barker of taking narcotics from the pharmacy safe, as a discrepancy in the narcotics count had been discovered that day, and he demanded to look into Ms. Barker’s purse. They became engaged in a physical struggle over his attempt to take the purse. He shoved her and she fell to the floor. After she got up and was sitting on the edge of their bed he continued to demand to know where the drugs were and to ask her how she could do that to his business. [ 10 ] According to information he gave to undercover officers during what is colloquially known as a “Mr.

Big” operation, he then grabbed her hair, threw her to the ground, jumped on her, and repeatedly struck her head on the floor. He described to the undercover

officers that he was enraged and seeing red. He told the undercover officers that she said to him to stop and she told him that he was going to kill her, and that is the last thing he remembers her saying. He did eventually stop. [ 11 ] Just after 2 a.m., a call originating from Mr. Wiebe’s sister’s home in Saskatchewan was made to 9-1-1 and an ambulance was dispatched to the couple’s home. Mr. Wiebe had called his sister to say that Ms. Barker was breathing “weird”, and he had been unable to rouse her, and then her breathing stopped. It was his sister’s husband who called 9-1-1 while Mr.

Wiebe was on the line with his sister. A 9-1-1 operator broke into the call and provided direction to Mr. Wiebe to start CPR, which he did. [ 12 ] Ms. Barker, after the arrival of the ambulance, was taken to the hospital. She was found to have a Glasgow Coma Scale of 3, which is the lowest possible score. She was found to have a blood alcohol reading consistent with moderate to severe intoxication, as well as some Valium in her system. She was not breathing spontaneously.

She had numerous injuries to her body including bruising and broken ribs, but most serious of which clearly were the brain injuries seen on a CT scan administered at the hospital. She never regained consciousness and in the afternoon of March 16, 2018, she was removed from life support and died from her injuries. [ 13 ] Mr. Wiebe is 45 years old. He grew up on a farm in rural Saskatchewan in a close family. He had a happy youth, was involved in some extracurricular activities, and excelled academically.

After delaying his university by a year, he attended the University of Saskatchewan, took one year of nursing and then transferred to and completed the pharmacy program. [ 14 ] After graduation he was hired to work as a pharmacist in Vernon. He worked in a number of pharmacies and eventually invested in a franchise pharmacy under the Target umbrella. When Target withdrew from Canada, he had some troubles with his investment.

He then opened his own pharmacy in approximately 2015, which he continued to own and operate until the date of the offence. [ 15 ] I am told by his counsel that he faced numerous challenges from 2015 to the date of the offence, including a nephew who developed a serious heart condition which required numerous surgeries, financial challenges, the birth of his own child who also, it turned out, had heart problems, the breakdown of his marriage and extended family court proceedings, after which or during which his wife took the child and left Vernon.

According to his counsel he has not seen his child for years. [ 16 ] His counsel described that Mr. Wiebe was in a downward spiral, substantially abusing alcohol and steroids, and nearly bankrupt. It was in and around this time that he met Ms. Barker and their relationship commenced. [ 17 ] Mr. Wiebe’s counsel advised the Court that one of the steroids being taken by Mr. Wiebe at this time was a steroid with potential side effects of aggression and paranoia. [ 18 ] After the death of Ms. Barker, Mr. Wiebe closed his business and returned to the family farm. That is where he was residing when the Mr.

Big operation commenced in hopes of eliciting a confession from Mr. Wiebe. The Mr. Big operation culminated, after over 90 different scenarios, in Mr. Wiebe admitting his role in the death of Ms. Barker. He was then arrested on January 17, 2021, and charged with the offence of manslaughter. [ 19 ] Mr. Wiebe was initially held in jail until he secured bail and was released on June 3, 2021. He has been on strict bail conditions since that date, with no reported breaches.

He has taken some steps to get treatment for his drug and alcohol issues and has sought treatment for depression, for which he has seen a psychiatrist and is continuing to take medication. [ 20 ] I am told that Mr. Wiebe has not had traditional employment since his return to Saskatchewan, given that employment opportunities are apparently limited in his hometown of Herbert. He has been working on the family farm and assisting with the care of his sister’s four children.

His licence as a pharmacist is currently suspended. [ 21 ] I turn now to the mitigating and aggravating circumstances, as required to be given consideration by the provisions of the Criminal Code . [ 22 ] Mr. Wiebe has pled guilty and by doing so he accepts responsibility for his actions. At the age of 45 he has no criminal record. He was, until this offence, a productive member of the community. He has the support of family. He has spent over two years on strict bail without any reported compliance issues.

Through counsel and in his remarks at the end of submissions, he expressed remorse and apologized for his actions. [ 23 ] This offence was committed against his intimate domestic partner in a place that was her home, and on her bed, where she ought to have been able to feel, and to be, safe. She was in a vulnerable condition, considerably smaller than Mr.

Wiebe and highly intoxicated, and therefore even less able to defend herself from his attack than she otherwise would have been. [ 24 ] I heard read, by the victims themselves or by Crown counsel, victim impact statements from family and friends of Heather Barker. Specifically before the Court are victim impact statements from all three of Ms. Barker’s daughters, who are now 22, and either 20 or 21, and 16. I say either as I am not quite sure about my math in terms of the details of the statements that were read. I also have victim impact statements from Ms. Barker’s parents, her brother, Ms.

Barker’s former husband and the father of her three children, her former mother-in-law and two longtime and dear friends. [ 25 ] All of them spoke lovingly of Ms. Barker and all spoke of the grief and the enormous loss they have suffered as a result of having had Ms. Barker taken from them by the incomprehensible acts of violence inflicted upon her by Mr. Wiebe on March 15, 2018. Who would not feel great sympathy for the losses suffered by the family and friends of Heather Barker, and most particularly by her children and her parents? The courage exhibited by Ms.

Barker’s daughters in writing and then reading in court their statements was moving. In response to the question posed by the youngest, I can confidently say that Ms. Barker would be proud of them all. [ 26 ] Counsel provided me with books of authorities. Attached are copies of their indexes. Counsel reviewed those authorities in their submissions and I have had the opportunity to review them over the break. [ 27 ] As the Court of Appeal said in Badhesa , 2019 BCCA 70 :

[24] The offence of manslaughter encompasses conduct which has caused the death of another person and falls short of intentional killing. It covers a wide range of cases extending from “near accident” to “near murder” and different degrees of moral culpability attach along a continuum within that spectrum. A sentencing judge assesses moral culpability for manslaughter by considering the offender’s mental state in the context of the unlawful act itself and the offender’s personal characteristics, blending and balancing all in combination.

Factors that weigh in the balance include intentional risk-taking, the harm caused, the normative character of the offender’s conduct, the degree of deliberation involved, the existence of provocation and the element of chance involved in the resulting death: [citations omitted.] . . . [26] Sentences imposed for manslaughter range from a suspended sentence to life imprisonment. Given that wide range, the judge must carefully determine the degree of an individual offender’s moral culpability and craft a sentence that accounts adequately for the unique constellation of relevant factors present in a case.

The task is complex and sometimes factors unrelated to where the unlawful act falls on the “near accident” to “near murder” spectrum nonetheless bear on the degree of the offender’s moral culpability. [ 28 ] The general range of sentences for manslaughter in this province has been recognized, barring exceptional circumstances, to be between four and 15 years. The cases provided by counsel today support a sentence near the lower end of the range in circumstances somewhat similar to those before me today. [ 29 ] In this case, the Crown and the defence have made a joint submission as to the sentence.

They have submitted to the Court that the appropriate sentence for Mr. Wiebe is one of four years less credit for time served. That is at the low end of the normal range of sentences, but within the range. That submission comes after negotiations between Crown counsel and defence counsel, and it is the joint sentence submission upon which the guilty plea was entered. [ 30 ] Crown counsel candidly admitted that absent the guilty plea, there would have been a complex and lengthy trial, and I will note the outcome of which was uncertain. A central piece of the Crown’s case was the Mr.

Big undercover operation, which would have been the subject of a lengthy voir dire as to its admissibility. There certainly was a risk that Mr. Wiebe’s confessions as to his involvement in the death of Ms. Barker would not have been admissible at trial. [ 31 ] Further, the case has been the subject of some delay. The Supreme Court of Canada, in R. v.

Jordan , 2016 SCC 27 , has directed that the Charter right of the accused to have a trial within a reasonable time generally requires that a trial in this Court complete within 30 months of the date of the charges (“ Jordan date”). [ 32 ] The Jordan date in this case is next month. Clearly, the Jordan date would not and could not have been met. That might have resulted in the charges against Mr. Wiebe being stayed such that there would never have been a trial. [ 33 ] In R. v. Cheema , 2019 BCCA 268 , the B.C.

Court of Appeal summarized the approach that trial judges must take to joint sentence submissions made by counsel following the Supreme Court of Canada decision in Anthony-Cook , as follows: [20] As Justice Moldaver explained in Anthony-Cook , resolution discussions between Crown counsel and defence counsel are essential to the smooth and efficient functioning of the criminal justice system. Joint submissions often result from these discussions and provide significant benefits to the Crown, the accused, the public at large and the administration of justice.

The near-certainty associated with joint submissions allows the Crown to avoid taking flawed cases to trial and encourages accused persons to cooperate. In addition, a joint submission might result in a more lenient sentence for an accused than would otherwise be expected, minimize the stress and costs associated with trials and offer the accused an opportunity to make amends.

Most importantly, joint submissions provide a degree of certainty to all concerned that the benefits underlying the agreement will be respected, which has been described as an “instrumental feature” of the criminal justice system: [citation omitted.] . . . [23] In Anthony-Cook , the Court made it clear that joint submissions should only be rejected if the proposed sentence “would bring the administration of justice into disrepute or is otherwise contrary to the public interest”.

This occurs only where that sentence “would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system”. This deferential approach recognizes that Crown and defence counsel have a high degree of knowledge of the circumstances of the offender and the offence and the strengths and weaknesses of their respective positions. Accordingly, counsel are well-placed to arrive at a joint submission that reflects the interests of the accused and the general public at large: [citation omitted.] [ 34 ] No sentence imposed upon Mr.

Wiebe will undo the harm caused by his actions on March 15, 2018, nor bring back his victim, Heather Barker, to her family and friends, nor give them comfort. His violence against her that night was horrific and is inexcusable. [ 35 ] Having said that, the sentence jointly proposed by counsel is one within the range. It does give a certainty of outcome to a case that would otherwise have had a very uncertain outcome. It is not a joint sentence submission that the law entitles me to reject. [ 36 ] Mr. Wiebe, please stand up. I impose upon you a sentence of four years, which is 1,461 days.

You are entitled to credit for time served of 200 days. Consequently, the sentence of new time, which I impose upon you today, is one of 1,261 days. [ 37 ] In addition, you must provide a sample of your DNA pursuant to s. 487.051(1) of the Criminal Code . Pursuant to s. 109 of the Criminal Code , from the time of your release from custody you are prohibited for a period of 10 years from the possession of any of the weapons defined in that section. [ 38 ] For the duration of your sentence you must have no contact with the following persons: J.B., M.B., M.A.B., D.C., G.C., M.B.B.

[ 39 ] My reasons are to be transcribed and when transcribed, they are to be transmitted to the federal Corrections authorities, together with a copy of the agreed statement of facts which was marked as Exhibit 1 on these proceedings. I have already signed the forfeiture order. [ 40 ] Is there anything arising? [ 41 ] CNSL. M. CISSELL: Crown would ask for a stay of proceedings on Count 2 of the indictment. [ 42 ] THE COURT: Count 2 will be stayed. [ 43 ] CNSL. N. JACOB: Nothing further, thank you, Justice. [ 44 ] THE COURT: Thank you, counsel, and again, my sympathies to all involved. “Beames J.” Appendix