Workplace shooter loses appeal of 2010 conviction

(Canadian OH&S News)

British Columbia’s highest court has dismissed an appeal from a former worker who was convicted of fatally shooting his ex-boss during a Christmas party five years ago.

Eric Kirkpatrick was convicted on Dec. 19, 2010 of second-degree murder in the death of Ben Banky, the 40-year-old co-founder of TallGrass Distribution Ltd., a natural health products company in Vancouver. At about 4 p.m. on Dec. 12, 2008, Kirkpatrick walked into the company, from which he had been fired the previous day, and shot Banky several times with a shotgun (COHSN, Jan. 5, 2009). About a dozen employees were holding a Christmas party at the time.

Kirkpatrick, now 66, appealed his December 2010 second-degree murder conviction from the Supreme Court of British Columbia after arguing that the judge erred in his consideration of the evidence of an eyewitness to the shooting. But Justice John Hall, writing for the three judges of the appeal court in his Dec. 9 decision, found that the trial judge made plain in his instructions that the task of the jury was to assess the weight of the evidence by all the witnesses in the case.

“There was an ample body of evidence from people in the TallGrass office at the time of the shooting and observers from outside the building that the appellant (Kirkpatrick) had fired the shots that killed Mr. Banky. This was by no means a ‘one witness’ case,” Justice Hall wrote.

In the appeal, counsel for Kirkpatrick also argued that his second-degree murder conviction should be substituted for a verdict of manslaughter, an unintentional variant of homicide, an argument that Justice Hall categorically dismissed.

“There was never the remotest possibility on the state of the evidence in this case that a trier of fact would return a verdict of manslaughter,” he wrote. “In my view, such a verdict would have been perverse. As I observed, the appellant here could count himself fortunate to have been convicted of the lesser included offence of second-degree murder as opposed to what he was charged with, namely, first-degree murder.”

Two days before the shooting, Kirkpatrick received a negative annual performance review and, when he reported for work that day, Banky told him he was being terminated effective that day. “He was escorted from the premises and, at that time, appeared to be in an angry frame of mind,” Justice Hall wrote.

He returned on Dec. 12 and found Banky with another employee, both of whom tried to escape by running to an office located near the boardroom. Kirkpatrick followed them and when Banky refused to leave the office, the former fired a shot through the partition, wounding Banky. “Then he approached the entrance to the office and fired again,” Justice Hall wrote. “Mr. Banky had been holding a chair in front of him as protection and the shot went through the chair. The appellant fired two more shots into the now-prone Mr. Banky.”

At his appeal trial, Kirkpatrick said that he had intended to shoot up some computer equipment at the firm, and that he had liked Banky and did not intend to kill him. “That professed positive attitude toward Mr. Banky did not seem to coincide with sentiments he expressed immediately after his termination,” Justice Hall wrote. “There was a powerful body of evidence supportive of a planned and deliberate homicide.”