Yellowknife (Oct 01/04) - One year to the day after he watched his wife hang herself with a shower curtain, Ian Adam Kirby was convicted in NWT Supreme Court.

The Yellowknife man stood accused of standing negligently by while his heavily intoxicated wife took her own life.

From this "drunken, volatile domestic situation," Justice John Vertes reached two conclusions: that Kirby was guilty of criminal negligence causing death, and guilty of a failing to provide the necessaries of life.

On Sept. 30, 2003, Betsy Kalaserk-Kirby was found nearly dead in the couple's downtown apartment. Both Kirby and his wife were drunk and toxicology tests at the autopsy determined that Kalaserk-Kirby had a blood-alcohol level of 0.26, more than three times the legal limit.

The case hinged on whether Kirby was in the bathroom at the time of the incident.

It came down to testimony from Betsy's two children -- who were in the home at the time, and are now aged eight and 19 -- which defence counsel called contradictory.

Her young son testified to seeing Kirby in the bathroom with his mother, while the daughter testified to overhearing Kalaserk-Kirby say she wanted to kill herself, and Kirby calling her "chicken" for wanting to do so.

She also told the court that she heard the boy ask Kirby to take the curtain from his mother's neck, and, when rebuffed, ask him again.

At that time, she testified, Kirby acceded.

A motion by defense counsel Kelly Payne to throw out their testimony was rejected by Vertes.

In his decision, Vertes said that ultimately Betsy's eight-year-old son gave "a complete and coherent narrative account," and that he was prepared to accept his evidence.

He added that rather than negating the daughter's testimony, he corroborated it.

Husband 'did nothing'

The essential facts of the case, in Vertes' final determination, are that Kirby was in the bathroom when his wife wrapped the shower curtain around her neck. No evidence was presented to suggest Kirby assisted in the suicide.

However, when she did hang herself "the accused did nothing," and then left the apartment without telling Betsy's daughter what had happened or calling for medical aid.

Vertes told the court that "this is not a case about euthanasia or assisted suicide," and instead "the fact that Mrs. Kirby wanted to kill herself does not amount to a legal defense for the accused."

Further, the judge pointed out that no evidence was entered to say that Kirby was too intoxicated to understand the consequences of his wife's actions, and Kirby's indifference thus constituted "a marked and substantial departure from what a reasonable person would do in these circumstances."

Although Kirby was found guilty on both counts of the indictment, Vertes stayed the conviction for failing to provide the necessaries of life under a legal rule that states when convictions have the same factual foundation, a conditional stay should be entered on the lesser charge.

Kirby's sentencing hearing is scheduled for Oct. 25. Until that time, he has been remanded into custody.

"It is not murder. It is a crime of omission, not commission, but it is nevertheless a serious offence," Vertes told the court.

"Under the circumstances I don't see how I can issue a continuation of bail."

Criminal negligence causing death carries a maximum sentence of life in prison.