R. v. Calnen (P.T.), (2016) 369 N.S.R.(2d) 347 (SC)

• Judge: Chipman, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 27, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 369 N.S.R.(2d) 347 (SC);2016 NSSC 35

R. v. Calnen (P.T.) (2016), 369 N.S.R.(2d) 347 (SC);

    1162 A.P.R. 347

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JA.045

Her Majesty the Queen v. Paul Trevor Calnen

(CRH No. 426776; 2016 NSSC 35)

Indexed As: R. v. Calnen (P.T.)

Nova Scotia Supreme Court

Chipman, J.

January 27, 2016.

Summary:

The victim died in the accused's home. The accused alleged that she accidentally fell down the stairs and that he panicked and burned her body. The accused pleaded guilty to interfering with human remains at the start of the trial, but not guilty to a charge of second degree murder. At the close of the Crown's case, based entirely on circumstantial evidence, the accused moved for a directed verdict of acquittal on the basis that there was insufficient evidence upon which a properly instructed jury could reasonably find the accused guilty.

The Nova Scotia Supreme Court, in a judgment reported (2015), 368 N.S.R.(2d) 129; 1160 A.P.R. 129, dismissed the motion. Following a limited weighing of the evidence, the court held that there was some circumstantial evidence on each of the essential elements of the offence of second degree murder. A properly instructed jury might choose to accept some or all of that evidence. A jury convicted the accused of second degree murder. Now at issue was the period of parole ineligibility.

The Nova Scotia Supreme Court sentenced the accused to life imprisonment without eligibility for parole for 15 years.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility -The 35 year old female victim died in the accused's home - The 50 year old accused alleged that she accidentally fell down the stairs and that he panicked, hiding and burning her body - A forensic examination to determine cause of death was impossible because of the condition of the body - Although the accused pleaded guilty to interfering with human remains, he pleaded not guilty to second degree murder - A jury convicted the accused of second degree murder - The Crown sought life imprisonment without eligibility for parole for 15 years for murder and a five year concurrent sentence for interfering with human remains - The accused sought the minimum period of parole ineligibility (10 years) and a three year concurrent sentence for interfering with human remains - Seven of 12 jurors chose to make a recommendation as to parole - Three recommended 10 years - One recommended 15 years - One recommended 20 years - Two recommended 25 years - The victim was his live-in girlfriend, who had planned to leave him on the day she was killed - Both used cocaine regularly around that time - Aggravating factors included the horrific nature of the crimes, the accused's overt attempt to minimize his domestic relationship with the victim, the concealing of and destroying evidence and prolonging of the agony for the victim's family - Mitigating factors included the lack of a criminal record, good work history, expression of remorse by pleading guilty to interfering with human remains and a generally positive pre-sentence report - The accused had no current issues with alcohol or drugs - The Nova Scotia Supreme Court sentenced the accused to life imprisonment without eligibility for parole for 15 years and five years' imprisonment (concurrent) for interfering with human remains.

Criminal Law - Topic 5881

Sentence - Murder - [See Criminal Law - Topic 5670 ].

Criminal Law - Topic 5955

Sentence - Dead human bodies - Offences re - [See Criminal Law - Topic 5670 ].

Cases Noticed:

R. v. Hawkins (H.J.) (2011), 298 N.S.R.(2d) 53; 945 A.P.R. 53; 2011 NSCA 7, refd to. [para. 6].

R. v. Lacasse (T.) (2015), 478 N.R. 319; 2015 SCC 64, refd to. [para. 9].

R. v. Borbely (I.C.), [2013] O.T.C. Uned. 3355; 2013 ONSC 3355, refd to. [para. 34].

R. v. Houle (J.J.) (2013), 549 A.R. 281; 2013 ABQB 70, refd to. [para. 34].

R. v. L.W.C., [2013] B.C.T.C. Uned. 495 (S.C.), refd to. [para. 34].

R. v. Purdy (K.K.) (2012), 323 B.C.A.C. 149; 550 W.A.C. 149; 2012 BCCA 272, refd to. [para. 34].

R. v. Cliff, 2011 BCSC 1177, refd to. [para. 34].

R. v. Paterson (D.R.) (2001), 149 B.C.A.C. 56; 244 W.A.C. 56; 2001 BCCA 11, refd to. [para. 34].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 34].

R. v. Ly and Duong (1992), 78 Man.R.(2d) 209; 16 W.A.C. 209 (C.A.), refd to. [para. 34].

R. v. Doyle (1991), 108 N.S.R.(2d) 1; 294 A.P.R. 1; 14 W.C.B.(2d) 387 (C.A.), refd to. [para. 34].

R. v. Constantineau, [1989] O.J. No. 809, refd to. [para. 34].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 52].

Counsel:

Eric R. Woodburn and Susan MacKay, for the Crown;

Peter D. Planetta and Sarah M. White, for the accused.

This matter was heard on January 27, 2016, at Halifax, N.S., before Chipman, J., of the Nova Scotia Supreme Court, who delivered the following judgment orally on the same date.