An Abbotsford man charged with the second-degree murder of his estranged wife in 2008 was found guilty on Monday of the lesser charge of manslaughter.
Justice Carol Ross ruled in B.C. Supreme Court in Chilliwack that Robert McMath, 69, accidentally shot Janice McMath twice in the chest, resulting in her death in hospital nine days later.
She said the Crown did not prove beyond a reasonable doubt that McMath intentionally shot Janice, 64, to kill her and prevent her from going after certain assets in their divorce settlement.
The court heard that the pair married in 1981, separated in 1995, reconciled in 1996 and then separated again in 2003.
Janice began divorce proceedings in 2005 and sought spousal support and a division of assets which included the home and property on McMath Street in the Bradner area of Abbotsford where the couple lived during their marriage.
The 24-acre farm was first purchased by McMath's grandparents and had been passed to his parents and then to him. He has lived on the property since 1969.
McMath wanted to pass the acreage, as well as four other parcels of land, to the couple's five sons, Ross said.
If a court ruled that Janice was entitled to a portion of these assets, the properties would likely have to be sold so that she could receive her share, Ross added.
The couple was unable to reach an agreement on the matter, and a trial date was set for June 4, 2008. Janice was shot just days before then – on May 28 – and died on June 7.
McMath – and some witnesses at trial – testified that he and Janice remained friendly during their separation. Two of the couple's sons lived with him, and Janice visited the McMath Street property two or three times a week.
The pair often talked over a glass of wine or cup of coffee, the court heard. McMath also occasionally visited Janice at her residence, and there was talk of a possible reconciliation, Ross said.
The judge said no evidence was presented to indicate that the couple's relationship had ever been violent nor did neighbours who heard the gunshots testify that they had heard any arguing or shouting on the night in question.
McMath testified that on May 28, 2008, he was concerned that coyotes had been attacking and killing chickens on his property. He loaded three cartridges into a .32 Remington rifle in his home and moved the gun outside near the chicken coop.
Janice came over for a visit that evening, and the two shared a bottle of wine.
McMath testified that he told Janice he had some work to do in the barn, and she accompanied him as the two continued to drink wine and talk.
They later headed back to the house, and McMath testified that on their way, he picked up the nearby rifle with the intention of unloading it. He said his back was turned to Janice, but she walked in his path as he stumbled, due to his arthritic knee giving out, and the gun went off.
According to police testimony, McMath reported that the gun went off again when he fell, and Janice was shot a second time.
Crown argued at trial that the "pump action" of the rifle meant that the gun could only have fired a second time if McMath intentionally reloaded it.
But expert testimony at trial provided scenarios in which the rifle could have accidentally been discharged a second time when McMath fell, depending where his hands and fingers were situated on the gun and whether, and how, the gun struck the ground.
Ross found McMath guilty of manslaughter, saying she believed he was negligent in the way he stored the gun and that he had failed to engage the gun's safety mechanism while there was a cartridge in the chamber.
" … the risk that the rifle might discharge and harm someone was foreseeable," she said.
If McMath had been found guilty of second-degree murder, he would have received an automatic life sentence.
A conviction of manslaughter involving a firearm can result in a prison term of anywhere from four years to life. A date for McMath's sentencing has not yet been set.