R. v. Lavery, 2012 ABQB 42

Court of Queen ’ s Bench of Alberta Citation: R. v. Lavery, 2012 ABQB 42 Date: 20120118 Docket: 061192837Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Noel Lavery Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Introduction [ 1 ] Sometime between 9:20 p.m. and midnight on September 27, 2006, Noel Lavery placed a pillow over the face of his wife, Sherry Lavery. Shortly after midnight, Ms.

Lavery was pronounced dead by emergency medical personnel who had been called to the Lavery residence as a result of a 9-1-1 call placed by Mr. Lavery. [ 2 ] Mr. Lavery faces the charge that, on or about the 27 th day of September, 2006, at or near Edmonton, Alberta, he unlawfully caused the death of Sherry Lavery, thereby committing second degree murder, contrary to Section 235(1) of the Criminal Code , R.S.C. 1985, c. C-46 [the “ Code ”].

Facts [ 3 ] On September 27, 2006, Ms. Lavery was almost 51 years old and Mr. Lavery was 78. They had been a couple for approximately 16 years, the last 14 of them married. [ 4 ] Mr. Lavery had three children from a prior marriage and Ms. Lavery had one. The couple were particularly close to Ms. Lavery’s daughter (Leigh Makarewicz), Leigh’s husband (Kevin Walters), and their young daughter. The closeness was both physical, in that they lived within steps of each other’s residence, and emotional. They had always spent a great deal of time together. [ 5 ] Several witnesses, including Ms. Makarewicz and Mr.

Walters, testified to Mr. Lavery’s love of Ms. Lavery and the care that he took of her. Some confirmed that Mr. Lavery had never been (and they could not conceive of him being) violent toward his wife and that they had always had a warm and loving relationship. Mr. Walters described Mr. Lavery as “a great guy, probably one of the nicest guys you’ll meet”, an “awesome man”, and that he would “do anything for anybody”. [ 6 ] Unfortunately, however, Ms. Lavery from time to time had a drinking problem.

More unfortunately, as a result of gastric bypass surgery that she had approximately two years before her death, her drinking problem escalated significantly. Prior to the surgery Ms. Lavery remained quite functional despite her often heavy consumption of alcohol. However, after the surgery she became increasingly inebriated, usually before supper and eventually did not sober up by the time she rose the next day. [ 7 ] In the last part of her life, Ms. Lavery’s drinking, in Ms. Makarewicz’ words, “affected every aspect of every activity of their lives”. It got to the point where Ms.

Makarewicz did not want her daughter exposed to her mother’s drunkenness and she cut off her daughter’s visits to her grandmother. Mr. Walters went even further, approximately one month before her death, telling Ms. Lavery not to call anymore and refusing to go visit her. He described this as washing his hands of “probably one of his best friends”. [ 8 ] Before things progressed to that point, Ms. Lavery had made several attempts to control her drinking. She had attempted to cut back, had attended AA counselling, had entered rehab/detox programs, and had negotiated reduced drinking limits.

As a result, there had been some brief periods of sobriety. In 2006 she: had attended a detox program at Henwood between January 1 and 9; was hospitalized at the Grey Nuns between June 3 and 6; was in a car accident on June 10 while inebriated; was taken to the Grey Nuns by ambulance on June 16 and again on July 18; and attended detox at the Royal Alex briefly on July 20 and again on July 25. Following what Ms. Makarewicz described as a “terrible” period in August, she and Mr. Lavery obtained a 30 day committal order, pursuant to which Ms.

Lavery entered a detox program at the Royal Alexandra Hospital on September 13. Unfortunately, as a result of steps taken by Ms. Lavery, she was discharged from that program shortly after. [ 9 ] Ms. Makarewicz described August and September 2006 as “hell on earth”. She indicated that she and Mr. Lavery relied heavily on each other during this time. While the majority of the care fell to Mr. Lavery, she did anything she could to make it easier on him so that he would have the energy to deal with Ms. Lavery when she was not present (particularly at night, when Ms.

Makarewicz cared for their daughter while her husband was at work). Ms. Makarewicz felt that Mr. Lavery was often pushed to the limit. She described him as a slight man (which he is) who had difficulty picking up Ms. Lavery. As a result, he often called five or six times a day to request her assistance in lifting Ms. Lavery because Ms. Lavery was so heavily intoxicated that she was essentially bedridden and sometimes incontinent. [ 10 ] Ms. Makarewicz observed that Mr. Lavery was notably stressed and “rattled” in the months leading up to Ms. Lavery’s death. These observations were shared by Mr. Lazar, Mr.

Lavery’s counsellor, who had counselled Mr. Lavery weekly since September 2005. Mr. Lazar had noticed changes in Mr. Lavery’s appearance in May 2006: he became paler, began to shake, and seemed depressed. As a result, Mr. Lazar recommended that Mr. Lavery see his family physician. On September 14, the last appointment he had with Mr. Lavery before Ms. Lavery’s death, Mr. Lazar noted that Mr. Lavery was shaking, pale and depressed, and that he was no longer cheerful. [ 11 ] Although Mr. Walters had stopped going to visit the Lavery household, Ms. Makarewicz would tell him “when things were bad over there”.

He used the same terminology as his wife in describing the months leading up to Ms. Lavery’s death as a “roller-

coaster”. Ms. Makarewicz described it as an emotional roller-coaster that was testing everyone’s sanity, while Mr. Walters described it as the worst roller-coaster ride he’d ever been on. It was so bad that Mr. Walters invited Ms. Lavery, after they had driven in from the lake following the car accident in June, to kill herself so that they would “all be done with the suffering”. Mr. Walters testified that Ms. Lavery had repeatedly told him that she wanted to die as a result of her alcoholism and that he suggested she kill herself because he had at that moment had enough. Mr.

Walters was not the only witness who testified that Ms. Lavery had repeatedly said she wanted to die or she wanted to kill herself. Ms. Makarewicz provided similar evidence. And Mr. Lavery had told several people of Ms. Lavery’s similar comments to him. [ 12 ] On the evening of September 27, 2006, Mr. Lavery arranged with Ms. Makarewicz for the latter to go to the Lavery residence to check on Ms. Lavery while Mr. Lavery attended his weekly “Men for Sobriety” meeting. The meeting was from approximately 6:00 p.m. to 9:00 p.m. When Ms. Makarewicz arrived she found her mother lying on the floor. Ms.

Lavery had urinated at the foot of the bed because she was not able to get herself to the bathroom. Ms. Makarewicz cleaned up her mother and put her back in her bed. She believes she would have been at the residence approximately 20 minutes before returning home to her daughter. [ 13 ] When Mr. Lavery returned to his residence shortly after his meeting ended, he called Ms. Makarewicz to let her know that he was back home. Ms. Makarewicz told him about what had happened that evening. [ 14 ] Ms. Makarewicz next heard from Mr.

Lavery at approximately 11:57 p.m., when he called her to tell her he was calling the police. She initially thought her mother had “done something” but Mr. Lavery soon told her that he had killed her mother. She immediately called Mr. Walters and asked him to go to the Lavery residence because she couldn’t leave their daughter. [ 15 ] When Mr. Walters arrived at the Lavery house, Ms. Lavery was on the bed with a pillow over her face. When he went over to try and perform CPR, Mr.

Lavery pushed him and said it was “too late”. [ 16 ] Constables Gibbs, Paul and Smith arrived shortly after midnight, having been dispatched to the Lavery residence as a result of Mr. Lavery’s 9-1-1 call. All observed that Mr. Lavery appeared to be sober, calm and coherent. Constable Gibbs had the impression that he was upset. Constable Smith thought it was odd that Mr. Lavery was so calm in the circumstances. He also noted that Mr. Lavery appeared to be tired. [ 17 ] Constables Gibbs and Paul observed Mr. Lavery holding and “lovingly caressing” Ms. Lavery’s body and stroking her hair. At one point Mr.

Lavery rocked back and forth while cradling her head in his lap. They also observed Ms. Makarewicz attempting to comfort Mr. Lavery. Constables Gibbs and Smith expressed concern for Mr. Lavery, indicating that they hadn’t wanted to leave him alone in the circumstances, that he might need “comforting”. Constable Gibbs said she was touched and upset by his comments. [ 18 ] The officers had minimal discussions with Mr. Lavery at the scene. Constable Gibbs appears to have had the most contact with him. After she “Chartered and Cautioned” Mr. Lavery, they had a brief conversation about Ms. Lavery’s alcoholism. Mr.

Lavery was upset that she had been released from the hospital and indicated that she had been drunk ever since her discharge. He told Constable Gibbs that Ms. Lavery had said she would rather be dead and had asked him to prepare a cocktail of drugs for her to ingest. He advised Constable Gibbs that he had told Ms. Lavery what he was going to do before he did it. He also confirmed to Constable Gibbs that he believed in the rule of law and was prepared to pay the price. In addition to his more explicit comments to Constable Gibbs, Mr.

Lavery indicated to Constable Paul that he didn’t have to check for a pulse because he had “made sure” before he called 9-1-1. [ 19 ] In addition to comments he made to the officers who arrived at his residence, and to the 9-1-1 operator prior to their arrival, which expressly or implicitly confirmed that he had smothered Ms. Lavery, Mr. Lavery gave a lengthy statement to Detective Martin at Police Headquarters shortly after he was transported there. The statement detailed Ms. Lavery’s battles with alcohol and the problems that it had caused her and her family.

While several portions of his statement deal with the events leading up to and during the placement and holding of a pillow over Ms. Lavery’s face, the following passage is particularly relevant: And Sherry had had drinking and would not acknowledge that it was time to do something about it. We had a very intimate talk between the two of us tonight and she said I don’t think I’m ever gonna quit drinking. She said I think I’ll die an alcoholic and she said to me maybe you need to do something about that. I poured her another drink. She sort of spilled it.

She had um she had soiled the bed previously and I took the glass and I picked up a pillow. And I put it on her face and I lay on it and I cried, cried and I didn’t pick up the

phone and phone nine one one until I was sure she wasn’t breathing anymore. And when I was absolutely sure she wasn’t, lifted the pillow and kissed her and phoned nine one one. And then phoned her daughter. Her son [in-law] come over and tried to do CPR on her an I said: “get the hell away. I knew you would do this”. [to which Detective Martin responded “umm”] Now it was over yes. I murdered my wife. I don’t deny any of it. What’s done is done and I’ll accept the consequences. [ 20 ] Detective Martin described the interview as “unusual” and “unique”. He also described Mr.

Lavery’s demeanor during the interview as responsive, coherent and cooperative. It was his impression that he and Mr. Lavery had no problems in communicating with or understanding one another. He pointed out that, at one point in the interview, Mr. Lavery didn’t know where the contents of his pockets had gone, although later in the interview he recalled being searched. He also observed that at one point Mr.

Lavery appeared to be confused about what he had said earlier in the interview in relation to having had a drink when he had returned home that evening. [ 21 ] In viewing the tape, I was struck by how little emotion Mr. Lavery exhibited. As Constable Smith had earlier observed, it seemed odd that Mr. Lavery was so calm in the circumstances. The tone of his voice and his demeanor in describing the events that had occurred indicated little emotion, were not dissimilar from what you would expect from a person who was describing the weather. In addition, Mr.

Lavery appeared very tired and fell asleep on a few occasions when Detective Martin left him alone in the interview room. [ 22 ] I found all of the witnesses to be credible and reliable. Expert Evidence Dr. Bannach [ 23 ] Dr. Bannach is a forensic pathologist who conducted the autopsy on Ms. Lavery. He determined that Ms. Lavery’s death was a homicide resulting from smothering. He based his opinion largely on information received from the police, which in turn was based largely on statements received from Mr. Lavery, Ms. Makarewicz and Mr. Walters. [ 24 ] Dr. Bannach confirmed that Ms.

Lavery did not have cirrhosis. She did have fatty liver, a condition which was reversible if Ms. Lavery had stopped drinking. There was some evidence of liver disease but Ms. Lavery was not “at death’s door”; that is, death was not imminent from any natural cause. [ 25 ] Dr. Bannach confirmed that a person being smothered might or might not fight, depending on their level of consciousness and sobriety. He also confirmed that smothering might result in involuntary heaving, seizure or convulsion but these symptoms do not occur in all cases. Given Ms. Lavery’s blood alcohol level, Dr.

Bannach opined that she may not have put up any purposeful resistance. He confirmed that it takes longer to lose consciousness when being smothered, rather than strangled, but once consciousness is lost the process is similar to death by strangulation. The time to death varies, but it is within a matter of minutes. [ 26 ] Dr. Bannach also testified as to the blood alcohol concentration (BAC) levels and drug levels disclosed in the toxicology report. Since the toxicologist also testified, the toxicology report will be reviewed below. Ms. Campbell [ 27 ] Ms.

Campbell is a forensic toxicologist who provided a toxicology report, as well as a table regarding the influence of alcohol

on human functioning, which were entered in evidence at trial. The table provided a general guide to BAC levels and their usual effects at various ranges of alcohol concentration. Ms. Campbell explained that each stage of influence is assigned a range because there are variations among individuals. In addition, an individual’s reactions can fall outside the norm (ie, their signs and symptoms may not accord to the usual signs and symptoms attributed to a corresponding BAC range).

For example, inexperienced drinkers may exhibit signs of impairment much more pronounced than experienced drinkers, although their BAC may be the same. Conversely, chronic alcoholics or persons who are experienced in drinking large quantities of alcohol may appear quite functional even though their BAC level may suggest they ought to be in a coma or even dead. [ 28 ] Ms. Campbell explained how test samples are taken from different sites in the body because BAC levels can be affected by the water content in different tissue types.

She explained how there should be a relationship between levels in various parts of the body and how a skewing of the levels can arise from post-mortem events such as fluid migration. [ 29 ] In Ms. Lavery’s case, her BAC level varied from 391 (milligrams) in (100 millilitres of) her blood, to 448 in the vitreous of her eye, to 467 in her urine. Ms. Campbell concluded that this range of ratios indicated that there was no undue influence from post- mortem events, that her levels were relatively stable, and that her BAC was decreasing at the time of her death. The results did not allow confirmation of what Ms.

Lavery’s peak BAC level would have been. [ 30 ] Ms. Campbell also testified as to the various drugs measured in Ms. Lavery’s blood. The only drug found at a non-therapeutic level was Effexor. However, because it was obtained from heart blood, Ms. Campbell opined that the test level might not be accurate due to post-mortem distribution. In any event, it was not close to a lethal range, even if the observed concentration was not entirely accurate. [ 31 ] Ms. Campbell confirmed that alcohol and Effexor have additive effects, not compound effects. Ms.

Campbell confirmed that one of the possible side effects of Effexor is an increase in suicidal thoughts. She also confirmed that Ms. Lavery’s BAC level (regardless of which source was used) was potentially lethal. Dr. Woods

a) Voir Dire Ruling [ 32 ] During the trial the Crown took the position that certain portions of Dr. Woods’ written expert report and of his trial testimony ought to be ruled inadmissible and that other portions of his evidence ought to be given little or no weight. I will reiterate here my ruling on the voir dire, both for completeness of my decision in this matter and because the issues raised by the Crown remain relevant in connection with my analysis of the issues I must decide in reaching a verdict in this case. [ 33 ] The Crown had objected to a very significant portion of Dr.

Woods’ written report, as well as a few sentences from his trial evidence (which portions were highlighted on the documents). It had three reasons for doing so. It asserted that: 1. some portions offended the ultimate issue rule and should therefore be excluded; 2. some portions related to collateral issues or Dr. Woods’

interpretation of evidence that was put before me but for which there was no need for expert evidence and therefore it too ought to be excluded; or 3. some portions represented hearsay on which Dr. Woods had based his opinions and therefore the resulting opinions should be given little or no weight. [ 34 ] Although the Crown had not specifically indicated the basis of the highlighting in each case, I concluded that the vast majority of the highlighted portions fell into the third category.

[ 35 ] I dealt first with the ultimate issue rule and the Crown’s argument that certain opinions given by Dr. Woods ought to be excluded as they were in reference to Mr. Lavery’s intent. The Crown had conceded that Dr. Woods’ testimony and report concerning Mr. Lavery’s alleged depression, and the possible effects of depression on judgment, was admissible. However, the Crown argued that Dr. Woods had gone much further and had provided a conclusive opinion concerning Mr. Lavery’s intent at the time that he placed and held a pillow over Mr. Lavery’s face. The Crown was of the view that Dr.

Woods’ opinions in relation to the effects of various factors on judgment and the interplay between judgment and intent go to the ultimate issue (the mens rea of Mr. Lavery) and therefore ought to be excluded. [ 36 ] The Crown was concerned that I, as the trier of fact, might rely on Dr. Woods’ opinion and allow that opinion to usurp my responsibility to decide the issue of intent. I rejected the Crown’s argument that I ought to exclude any portions of Dr. Woods’ opinion evidence which the Crown argued related to intent for several reasons.

Firstly, I confirmed that I understood that it is my responsibility to determine whether the Crown has established each of the essential elements of the offence beyond a reasonable doubt and that I would be derelict in that duty if I allowed an expert witness to make such a determination. I confirmed that I would not allow Dr.

Woods to do so in this case and that I considered his opinion to be one of many pieces of evidence before me, all of which, to the extent they are relevant and admissible, must be given proper weight. [ 37 ] Secondly, I was satisfied that the necessity and relevance criteria were satisfied in this case. I pointed out that there was a good reason the Crown did not dispute that a psychiatric diagnosis calls for a psychiatric expert. Similarly, the potential consequences of a psychiatric condition are best explained by a psychiatrist. I confirmed that I had found it helpful to have Dr.

Woods explain the potential impact of depression and of the interplay of various psychological, physical, and social factors on decision making and behaviour. I considered this an area in which expert psychiatric evidence would generally be helpful. [ 38 ] Thirdly, I found it significant that, approximately four years after Mr. Lavery was charged with the offence, both the Crown and Defence had requested that the Court appoint a psychiatric professional for the purposes of assessing Mr. Lavery. There was an apparently mutual concern about Mr. Lavery’s mental state. Dr.

Woods’ report and his trial testimony were a direct result of the Court ordered assessment. I noted that Dr. Woods is an independent expert, appointed by the Court and not retained by one party. There was no suggestion that he was biassed. I also noted that, although it was originally ordered for a different purpose (ie, to assess whether Mr. Lavery might be suffering from a mental disorder of such a kind as might render him not criminally responsible), the resulting report was also used to address issues directly related to factors which might have played a

part in his actions. I did not find it surprising that Dr. Woods might refer to intent in portions of his report and opinion. To be admissible, his evidence had to be relevant to an issue in the trial. Clearly, the issue of intent was central in the trial and Dr. Woods’ evidence concerning the psychiatric conditions and various psychological, psychiatric, physical, and social variables which might have played a

part in Mr. Lavery’s mental functioning and physical actions are clearly referable to that issue. I assumed it was for that reason that the cases seem to draw a distinction between permitting an expert to provide opinions that are related to and deal closely with ultimate issues but caution against (and indeed prohibit) the trier of fact allowing an expert’s opinion to usurp their decision making responsibility. [ 39 ] I observed that I would be free to reject Dr. Woods’ evidence, in whole or in part.

I concluded that I was not satisfied that the ultimate issue rule, if and to the extent it still exists in Canadian Law, in this case required the exclusion of any portion of Dr. Woods’ evidence which touched on the impact of depression, or other factors, on judgment or mental functioning. [ 40 ] Furthermore, I did not read the specific portions of Dr. Woods’ report, or his comments in his testimony, to represent (directly or inferentially) an opinion of Dr. Woods that he had concluded that Mr. Lavery was incapable of forming or did not form specific intent during the events in question.

To the contrary, I noted that Dr. Woods had referred to capacity to form intent being “compromised”. He referred to the interplay of various mitigating psychiatric and psychological variables impairing judgment. He did not say that Mr. Lavery was incapable of forming intent or that he lost the ability to make a decision. Nor did I consider his reference to the “legal domain” of not criminally responsible or the category of diminished responsibility as constituting an opinion that Mr. Lavery did or did not have specific intent. Rather, I consider that Dr. Woods was of the opinion that Mr.

Lavery did not appear to fall within the category of not criminally responsible but had to be assessed outside that category. [ 41 ] I then turned to the Crown’s objection to Dr. Woods’ use of the term “diminished responsibility”. The Crown argued that Dr. Woods was providing a legal opinion (because diminished responsibility is a legal concept) when he referred to that term and to the expression “the legal domain of not criminally responsible”. Dr. Woods is a highly regarded forensic psychiatrist who appears often in this Court.

The Crown did not challenge his qualifications, was satisfied with his appointment to conduct the court ordered assessment, and apparently calls Dr. Woods as a Crown witness on occasion. I do not accept that Dr. Woods intended to give, or in fact gave, a legal opinion when he used the term “diminished responsibility”. I presumed that Dr. Woods understood his role, was well aware that he is not qualified to give legal opinions, and that, in using the expression “diminished responsibility” he understood that he was giving psychiatric opinion evidence and not drawing a legal conclusion.

[ 42 ] I confirmed my acceptance of the Crown’s argument that diminished responsibility is not accepted in Canadian Law. However, I accepted Dr. Woods’ evidence, whether framed as “diminished responsibility”, or as “disturbed mind set”, or as “compromised capacity” or as some other similar expression, as Dr. Woods’ opinion of the psychiatric conditions that might have been at play, and the possible consequences of those psychiatric conditions on Mr. Lavery’s actions during the events in question.

I considered that opinion evidence could be of assistance to me as I am not trained in psychiatry and do not have a full appreciation of the interplay between various psychiatric or psychological conditions and their possible effect on both mental functioning and physical actions.

As such, I considered them to be admissible, as one of the pieces of evidence that might assist me in determining whether the Crown had met its burden of proof in relation to the element of intent. [ 43 ] I did agree with the Crown’s argument that motive is not relevant to the issue of criminal responsibility for the offence with which Mr. Lavery is charged. I agreed that I ought to, and did, disregard Dr. Woods’ discussion of whether Mr.

Lavery’s actions should be viewed as having an altruistic basis, rather than being the product of a self-serving, malevolent or malicious motive. [ 44 ] With respect to the issue of collateral issues which were specifically identified in the Crown’s submissions, I concluded that I ought not to have any regard to Dr. Woods’ testimony in relation to them. This included Dr. Woods’ report and/or testimony in relation to the risk assessment of the possibility for future offences, Dr. Woods’

interpretation of Exhibit 5, and Dr. Woods’ comments about Mr. Lavery’s discussion with Detective Martin during the September 28, 2006 interview. [ 45 ] In relation to the bulk of the material which was objected to by the Crown on the basis that Dr. Woods had relied on hearsay evidence, I confirmed that I was satisfied that Dr. Woods’ opinion was not only admissible with those portions included but that it was necessary to have the underlying information included for the purposes of assessing the weight to be put on the opinion.

I noted that expert opinions are typically and to a large extent predicated on information obtained from a variety of sources and, consequently, much of it will be hearsay. I concluded that it was important to have the underlying information, together with the identification of its source, in order to assess the weight that can be attributed to the opinions that are based on that information. [ 46 ] I agreed with the Defence position that the source of some third party information can reasonably be viewed as being more reliable than others.

To the extent that the underlying information is viewed as having a higher degree of reliability, I considered that the resulting opinions can be accorded greater weight (contrasted, for example, where opinions are based on hearsay evidence of interested parties, particularly an accused). On the other hand, opinions based on hearsay evidence or assumptions which underlie an expert report can be accorded greater weight where they find support in admissible and reliable evidence entered at trial. I concluded the ruling on the voir dire by observing that the issue of weight to be placed on various aspects of Dr.

Woods’ opinions would impact my analysis related to my verdict on the charge. Dr. Woods ’ Evidence [ 47 ] Dr. Woods’ evidence consisted of: 1. a twenty-four page written report dated September 2010, which begins by confirming that it was provided at the request of this Court, which required a forensic mental health evaluation to assist in the determination of criminal responsibility; and 2. testimony he gave at trial. [ 48 ] In his written report, Dr. Woods concluded that Mr. Lavery had suffered a major depressive disorder, single episode, moderate to severe, which was in partial remission.

He also concluded that Mr. Lavery was in sustained full remission from alcohol dependence. He further concluded that Mr. Lavery did not manifest features suggestive of a psychotic illness, an anxiety disorder, a dissociative disorder, or substantial organic brain impairment. Mr. Lavery did not meet the criteria for a clinically significant personality disorder and is not criminal minded (antisocial or psychopathic) by nature. Dr. Woods based these conclusions upon his clinical evaluation of Mr. Lavery (ie, his observations of Mr. Lavery during their interviews, as well as comments made by Mr.

Lavery to him during those interviews) and a review of available and accessible collateral documentation (including police reports, the taped interview with Detective Martin, and testing conducted by Dr. Pugh, Ms. Gail Hanasyk and Dr. Greer, which he considered to be credible and reliable sources of information).

[ 49 ] In both his report and his testimony, Dr. Woods explained the meaning and functioning of critical judgment and automatic judgment, the impairment of which may affect a person’s ability to assess, discern, and act appropriately in a given situation, or to understand a situation correctly and act appropriately in completing the reflex performance of an action. Dr. Woods confirmed that, when a person is labouring from a mental disorder, the regulation of their emotional and behavioural states is compromised. Dr.

Woods explained how the presence of various factors can contribute to a compromise of mental functioning. These included the presence of a mental disorder (for example, major depressive episode or other psychiatric variable), and biological and psycho-social variables (including: high level of stress, feelings of hopelessness or helplessness, intense emotional suffering, and heightened emotions such as anger, discouragement, frustration). Dr. Woods explained the interplay between various cognitive, emotional, experiential and situational factors.

He explained his role in determining what variables might be at play in a given case, to break down what is a very complex process that happens in a very short period of time in order to determine if there is anything that is compromising mental functioning and, if so, whether it is related to psycho-pathology. [ 50 ] Dr. Woods considered that there were a number of such factors or variables present in Mr. Lavery’s case. Mr. Lavery’s depression had been present for some time prior to September 27, 2006. He had become discouraged, demoralized and frustrated as a result of his continuing efforts to get Ms.

Lavery help in dealing with her alcoholism, but had not been successful and the situation had been becoming increasingly worse. He was in pain from watching the woman he loved suffering with the disease of alcoholism, to the point where Ms. Lavery had expressed a wish to die or to commit suicide. Dr.

Woods expressed the opinion that, on the evening of September 27, 2006, this conglomeration of factors, some protracted and some more immediate (for example, mounting depression, demoralization and hopelessness; possible anger at having been treated that evening in a belligerent manner by his wife; the pain in seeing his wife’s deterioration) all came together. As a result, Dr. Woods opined that Mr. Lavery may have lost conscious control of an underlying impulse. Dr. Woods thought it was possible that at that particular moment (ie, placing and holding the pillow over Ms. Lavery’s face) Mr.

Lavery’s impairment in judgment, impairment in behavioural and emotional self control, and potential impairment in being able to determine right from wrong, might have rendered him incapable of foreseeing the consequences of his physical actions. [ 51 ] Dr. Woods acknowledged and agreed that Mr. Lavery engaged in many intentional, purposive, and deliberate actions on September 27, 2006, including ones taken in very close proximity to (both before and after) the time he placed the pillow on Ms. Lavery’s face. Dr. Woods did not see this as being mutually exclusive with his opinion that Mr.

Lavery’s mental functioning may have been impaired to such an extent at the time of the smothering that he could have been incapable of foreseeing the consequences of his action. He indicated that Mr. Lavery could nonetheless be capable of deliberate, purposeful and goal directed behaviours at around the same time because he was neither psychotic nor disassociated. [ 52 ] Dr. Woods also acknowledged that, to the extent that any of the information or documentation he relied on in forming his opinion turns out not to be accurate, then his opinions could be affected. The Criminal Code , RSC 1958, c.

C-46 ( “ Code ”) [ 53 ]

Section 229(

a) of the Code states: 229 Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; [ 54 ] Pursuant to Section 231(1) of the Code , murder can be either first degree murder or second degree murder. Murder is first degree murder when it is planned and deliberate (s. 231(2)). All murder that is not first degree murder is second degree murder (s. 231(7)). [ 55 ] Culpable homicide that is not murder or infanticide is manslaughter (s. 234).

Issues [ 56 ] The Defence argues that I ought to have reasonable doubt that Mr. Lavery caused Ms. Lavery’s death. In the alternative, the Defence argues that I ought to have reasonable doubt that Mr. Lavery had the specific intent required to support a conviction for second degree murder. Accordingly, the issues I must decide are: 1. Did Mr. Lavery’s actions on the evening of September 27, 2006 cause Ms. Lavery’s death? 2. If so, at the time of such actions did Mr. Lavery mean to cause Mr. Lavery’s death?

Arguments of the Parties Position of the Crown [ 57 ] The Crown acknowledges that this is a “tragic” and “most unusual” case. The Crown also concedes that feeling a certain amount of sympathy toward Mr. Lavery might be natural given the particular circumstances of this case. The Crown reminds me of the first principle that ought to guide me in the performance of my duty - that my decision making process must be devoid of sympathy and prejudice in favor of a rational process of fact finding.

a) Causation [ 58 ] The Crown submits that this is not a significant issue in this case as suggested by the Defence. [ 59 ] The Crown argues that the evidence supports a finding that Ms. Lavery was alive when Mr. Lavery placed the pillow over her face. In particular, the Crown relies on Mr. Lavery’s statements made immediately after he finished doing so. Mr. Lavery told several people he had killed his wife.

He also told several people that he had had an intimate conversation with her when he returned to the home that evening, that she has spilled the drink he had poured her, and that he had kissed her and told her what he was going to do. He also told several people that she was either moving, squirming, twitching and/or convulsing while he lay on top of her with the pillow over her face; and that he held the pillow until she stopped, making sure that she was “gone” / wasn’t breathing before he called anyone. [ 60 ] The Crown also points out that Ms. Lavery had been conscious earlier in the evening when Ms.

Makarewicz had been there, in an inebriated condition similar to the state she had been in for many days. [ 61 ] The Crown points to the expert evidence that a person’s body does not twitch or move after brain death. [ 62 ] The Crown argues that there is no reason to doubt Mr. Lavery’s repeated accounts of the events that occurred that evening and that I ought not to ignore Mr. Lavery’s credible, honest, and straightforward statements to Ms. Makarewicz, Mr. Walters, the 9-1-1 operator, Constable Gibbs and Detective Martin, made shortly after the event. [ 63 ] The Crown rejects the Defence’s argument that Ms.

Lavery might have already been dead when Mr. Lavery placed the pillow over her face. While the BAC level in Ms. Lavery’s body was high enough to kill some people, the evidence of the experts also confirms that a chronic alcoholic like Ms. Lavery would not necessarily have the same reaction as a less experienced, infrequent or light drinker and might, in fact, remain quite functional even with high BAC levels in her blood. In addition, although there were several drugs in her

system, none were at a lethal level. Therefore, even though Dr. Bannach testified that, in the absence of other evidence, he might have concluded that Ms. Lavery had died of a drug and alcohol overdose, that was not his conclusion, as he had evidence to the contrary. Furthermore, Dr. Bannach was clear that Ms. Lavery was not about to die from any natural cause and could have recovered from her alcoholism.

b) Intent [ 64 ] The Crown points out that intent must be inferred and reminds me that there is a presumption that someone intends the natural consequences of their acts. The Crown submits that it has proven beyond a reasonable doubt that Mr. Lavery intended to (ie, meant to) cause Ms. Lavery’s death. It further submits that the evidence shows that Mr. Lavery was sane and sober at the time and that his actions are not ambiguous in any way. [ 65 ] The Crown reminds me that I must consider all of the evidence. Here, the Crown argues that there is ample evidence of purposive, goal-directed actions on the part of Mr.

Lavery leading up to and on the day of Ms. Lavery’s death. For example, some time earlier Mr. Lavery had discussed taking this type of action (ie, killing Ms. Lavery) at his Men for Sobriety group, and on the date of her death he had gone to get her alcohol, tried to feed her, arranged for Ms. Makarewicz to come while he was at his meeting, attended his meeting and called Ms. Makarewicz when he returned home. [ 66 ] In addition, the Crown points to Mr. Lavery’s actions immediately after smothering her. These include his comments on the 9- 1-1 call, his statements to Ms. Makarewicz, his rebuke of Mr.

Walters when he attempted to administer CPR, his statements to various police officers on their arrival at his residence, and his many statements to Detective Martin during their conversation. Specifically in relation to Mr. Lavery’s rebuke of Mr. Walters, the Crown argues that I ought to infer that the reason for Mr. Lavery’s comments to Mr. Walters is that he didn’t want Mr. Walters to interfere with his goal of killing Ms. Lavery. [ 67 ] The Crown argues that Mr. Lavery’s actions are not like a series of stab wounds. Rather they were a continuous action aimed at stopping Ms.

Lavery’s breathing in order to cause her death. Unlike R. v Paul , 2011 BCCA 46 , 299 BCAC 85, leave refused [2011] SCCA No. 217, Mr. Lavery was not suffering from auditory hallucinations which, in Paul , caused the accused to lack specific intent. [ 68 ] Like the accused in R. v Dupras , 2003 BCCA 124 , Mr. Lavery was depressed and had been prescribed anti-depressant medication. In Dupras , the accused had driven by his estranged wife and her new boyfriend, turned his car around, and ran into them, killing them both.

The accused was convicted of second degree murder in relation to his wife and manslaughter in relation to her boyfriend. The expert witness in Dupras opined that the object of Mr. Dupras’ actions was his estranged wife and that he didn’t have the specific intent to kill her boyfriend. The Crown points out that, in this case, Dr. Woods’ evidence did not go that far. [ 69 ] The Crown submits that the fundamental issue in this case is what use I can make of Dr. Woods’ expert opinion. The Crown submits that Dr. Woods didn’t opine that Mr. Lavery didn’t intend to kill Ms. Lavery.

This, in the Crown’s submission, distinguishes this case from the two British Columbia cases referred to above. What Dr. Woods did refer to was Mr. Lavery’s capacity to form intent being “compromised”. The Crown argues that “compromised” does not mean unable to do something at all. [ 70 ] The Crown suggests that there is a disconnect between the psychiatric terms used by Dr. Woods and the meaning of similar terms at law. The Crown suggests that what Dr. Woods is getting at was Mr. Lavery’s motive and his character, neither of which are relevant in this case. Similarly, Dr. Woods refers to Mr.

Lavery having reduced ability to make choices or to making bad choices as a result of the various variables or factors that were impacting his life at that time. The Crown points out that, just as drunken intent is still intent, depressed intent is still intent. The Crown points out that Mr. Lavery had choices. For example, he could have left or he could have sought further medical or other assistance for Ms. Lavery’s condition. Instead, he chose to kill her rather than exercise those options. The exercise of poor judgment doesn’t eliminate intent.

The Crown submits that he was aware of the options, he seemed to know what he was doing and did it freely, and he understood and accepted the consequences of those actions. [ 71 ] In addition, the Crown reiterates its earlier concerns regarding the weight to be given to Dr. Woods’ opinion, suggesting that certain of the facts relied on by Dr. Woods were not in evidence at trial. [ 72 ] Although the facts are different, the Crown suggests that at least some of the circumstances of this case are similar to that in R. v Latimer , 2001 SCC 1 , [2001] 1 SCR 3.

It suggests that some of the comments made in that case are relevant here. Similarly, the

Crown suggests that I ought to consider some of the Supreme Court of Canada comments in Rodriguez v British Columbia (Attorney General), (SCC), [1993] 3 SCR 519, 107 DLR (4th) 342, regarding the protection of vulnerable persons and the sanctityof life. Position of the Defence

a) Causation [73] The Defence relies on the evidence of Dr. Bannach and Ms. Campbell, who both testified that Ms. Lavery’s BAC level waspotentially lethal. Furthermore, Dr. Bannach relied on statements made to police in determining the cause of death. Without thosestatements he might well have concluded that Ms. Lavery died of a combination of drugs and alcohol. Accordingly, the Defence arguesthat Ms. Lavery might have died from a lethal combination of alcohol and drugs prior to Mr. Lavery placing the pillow over her face.

Ifso, it would not be legally possible for him to have killed her. [74] The Defence points to the Supreme Court of Canada decision in R. v. Sarrazin, 2011 SCC 54, 422 NR 214, in which apathologist could not rule out the possibility that an overdose of cocaine, and not a blood clot resulting from a gunshot wound, couldhave caused death. The Court accepted the appeal argument that the trial judge should not have restricted his instructions to the jury andought to have left the possibility of attempted murder for consideration by the jury. [75] In this case, the Defence argues that the expert evidence concerning Ms.

Lavery’s BAC level and the concentrations ofEffexor and other drugs in her system creates a real possibility that she could have died before Mr. Lavery put the pillow over her face.On this basis, the Defence argues I ought to a have reasonable doubt about the cause of Ms. Lavery’s death.

b) Intent [76] The Defence argues that I ought to have reasonable doubt about whether Mr. Lavery had the specific intent to kill his wifebased on both Dr. Woods’ expert opinion and an application of common sense. [77] The Defence points out that this is a highly unusual case. Mr. Lavery was described in very positive terms by many of thewitnesses, particularly Mr. Walters. The Defence considers it remarkable that neither Mr. Walters nor Ms. Makarewicz exhibited anyanimosity toward Mr.

Lavery, even though he was alleged to have killed the latter’s mother and one of the former’s best friends. [78] The Defence argues that, in the circumstances Mr. Lavery found himself, anyone would be stressed out, depressed, and besidehimself (“at the end of his tether”, to use Mr. Lavery’s expression, or “pushed beyond the brink”, to use Ms. Makarewicz’). [79] Mr. Lavery was taking medication for depression and the Defence submits that it is reasonable to conclude that he wasseverely depressed on the evening of September 27, 2006.

Consequently, it is also reasonable to conclude that his ability to reason wasaffected. This in turn would have effected his ability to form intent. [80] Furthermore, although Dr. Woods relied on third party sources in forming his opinion, the Defence suggests that much of thethird party material was from reliable sources. As well, it conformed to the testimony received at trial. Accordingly, the Defence arguesthat I can place considerable weight on Dr. Woods’ opinion. [81] The Defence submits that I ought to have a reasonable doubt about whether Mr. Lavery had the intent to kill Ms. Lavery.

Analysis Issue 1: Causation [ 82 ] While it was theoretically possible that there was sufficient alcohol in Ms. Lavery’s body that her BAC could be the direct cause of her death, the evidence does not support this theoretical argument. [ 83 ] Dr. Bannach and Ms. Campbell confirmed that the BAC levels obtained from the tests performed on Ms. Lavery’s body fell within the ranges that normally could cause death. However, they were equally clear that not all persons whose BAC levels fell within the lethal range would die as a result of this level of alcohol consumption.

This is particularly so when the BAC level is obtained from an experienced drinker or chronic alcoholic who has become accustomed to having a high BAC level in his or her body. [ 84 ] Had there been no other evidence relevant to whether Ms. Lavery was or was not alive at the time Mr. Lavery place the pillow on her face, the theoretical argument, when coupled with the toxicology reports, would have raised a reasonable doubt in my mind. However, in this case there was quite a bit of evidence concerning Ms. Lavery’s condition immediately preceding and during the smothering incident. Mr.

Lavery provided that evidence. He confirmed that he had been talking to Ms. Lavery shortly before placing the pillow on her face. He described their exchange as an intimate conversation and mentioned to at least one witness that he had told her what he was going to do before he did it. More importantly, he indicated to various witnesses that he had waited until she stopped moving (or twitching, or convulsing) and that he had made sure she was dead before he called 9-1-1. I have no difficulty in accepting the honesty of Mr. Lavery’s comments, or his ability to appreciate whether or not Ms.

Lavery was alive at the time he placed the pillow over her face and held it there. He specifically stated that he waited until she had stopped breathing, a clear confirmation that he observed her breathing before he put the pillow on her face. [ 85 ] Unlike Sarrazin , I have considered the possibility advanced by the Defence and its basis but the evidence in this case does not support the Defence argument. Issue 2: Intent [ 86 ] I agree with the Crown that the real issue in this case is whether Mr. Lavery intended to kill Ms.

Lavery when he placed a pillow over her face late on the evening of September 27, 2006. [ 87 ] There seems to be general agreement that this is a very unique and unusual case. More than once the phrase “out of character” was used to describe Mr. Lavery’s actions that night. This may well be an appropriate expression to use to refer to a man who was described by those who know him best as gentle and caring but who took steps to end the life of a woman that he clearly loved, admired and respected.

However, the fact that his actions were out of character does not answer the question before me, because it is not his character, nor his motives, that are relevant to my determination. [ 88 ] There is no doubt that Mr. Lavery engaged in numerous goal-oriented and purposive actions in close proximity, prior to and after, the smothering incident. It is clear that this fact is highly relevant to my analysis but I conclude that context alone is not determinative. I must look at all the evidence to determine whether the Crown has proved beyond a reasonable doubt that Mr. Lavery had the intent to kill Ms.

Lavery. [ 89 ] In argument on the voir dire the Crown took the position that I ought to exclude Dr. Woods’ evidence insofar as it touched on the issue of intent, on the basis that it offended the ultimate issue rule. I rejected that argument. In its argument on the trial proper, the Crown took a different position. It pointed out that the expert witness in R. v. Dupras had provided an opinion that the accused had not had the specific intent to kill his estranged wife’s boyfriend. The Crown suggested that was a distinguishing fact in the case before me, taking the position that Dr. Woods had not opined that Mr.

Lavery did not intend to kill his wife. [ 90 ] I agree that Dr. Woods did not provide a definitive opinion on the issue of Mr. Lavery’s intent. Rather, Dr. Woods provided

his expert opinion concerning the effects that various variables and factors could have on a person’s ability to reason, to appreciate what actions were potentially available, and possibly to resist an action that was not fully formed in the person’s conscious mind. Dr. Woods testified about the various physical, psychological, social, situational and other factors that individually and in combination impact mental functioning. In my opinion this is squarely within his area of expertise and is evidence which I ought to consider in my analysis, since mental functioning or its compromise may affect intent.

However, it is for me to determine whether, on the facts of this case, I have a reasonable doubt that Mr. Lavery had the intent to kill Ms. Lavery. [ 91 ] There is no doubt that Ms. Lavery’s alcoholism had reached a point where it was creating terrible stress for her family. Ms. Makarewicz and Mr. Walters testified to the toll it was taking on them, as well as the toll it was taking on Mr. Lavery. Their accounts were supported by Mr. Lavery’s own accounts, as well as Mr. Lazar’s testimony. [ 92 ] While every detail in every document reviewed by Dr.

Woods may not be entirely correct, I agree with the Defence that much of it was corroborated by the evidence of Ms. Makarewicz, Mr. Walters and the police witnesses. In addition, I agree with the Crown’s submission in its argument that there is no reason to doubt Mr. Lavery’s honesty and therefore, just as the Crown urged me to accept his evidence for the purposes of concluding that Ms. Lavery was not already dead when he put the pillow over her face, I conclude that his accounts of the events leading up to his smothering of Ms.

Lavery are credible and align with the other evidence in this case. [ 93 ] It is clear to me that on the evening of September 27, 2006, Mr. Lavery was physically, mentally and emotionally exhausted from caring for his wife, whose condition had deteriorated to such an extent that she could no longer care for herself. This placed tremendous stress on those who loved her. Mr. Lavery, as her primary caregiver, would have been the one most affected. In addition to the emotional stress, his age and stature would have made caring for her very physically challenging and exhausting.

I do not have to be a psychiatrist to appreciate that Mr. Lavery would have been significantly impacted by the physical, mental and emotional exhaustion and the extreme stress that he was under. I agree with the Defence position that it is not just an expert opinion that comes into play in this case. Common sense also dictates that all of the factors faced by Mr. Lavery would have impacted his mental state. [ 94 ] Depression is a medical diagnosis and in this case was made by at least two physicians - initially by Mr. Lavery’s family physician and later by Dr. Woods.

It is not hard for me to accept that episodic, situational depression could arise in these circumstances. Nor do I have any difficulty accepting that feelings of extreme hopelessness and helplessness could arise in these circumstances. Mr. Lavery, along with Ms. Makarewicz and Mr. Walters, had taken extreme measures to try and get Ms. Lavery assistance with her problem. They had repeatedly failed and her discharge from the psychiatric unit, so soon after Mr. Lavery and Ms.

Makarewicz had been successful in obtaining a committal order, would have been extremely disheartening, frustrating and demoralizing. [ 95 ] To the extent that Dr. Woods talked in terms of motive and character, I reiterate that those are not relevant to a legal analysis of the issue to be decided by me in this case. However, I interpret Dr. Woods’ testimony as addressing more than those issues. I also disagree with the Crown’s suggestion that Dr. Woods was only talking about factors that preceded an exercise of free will by Mr. Lavery.

While there are indicia of rational thought and purposeful action, the numerous factors and variables referred to by Dr. Woods did not cease to exist at the moment Mr. Lavery placed the pillow on Ms. Lavery’s face. Those factors and variables were at play throughout and I understand Dr. Woods’ expert evidence to support the possibility that, as purposeful as Mr. Lavery’s actions might be, he may well have been compromised to the extent that he did not form intent at that moment. [ 96 ] I have detailed earlier in this Judgment many of the circumstances and factors that would have impacted Mr.

Lavery on the evening of September 27, 2006. They included his age; his physical stature; physical and emotional exhaustion; feelings of frustration, hopelessness, sadness, and helplessness; clinical depression; and possibly anger. It is not hard for me to conclude that a combination of these (and possibly other factors which might have been present in the circumstances of his life) could have overwhelmed him. [ 97 ] Moreover, observation of Mr. Lavery’s interview with Detective Martin indicates not only that Mr.

Lavery appeared to be physically exhausted, but also a surprising and unusual lack of emotional affect. Even though Mr. Lavery was sober and able to communicate verbally, his demeanour and actions indicate to me that his earlier actions and their consequences may not have registered on an emotional level. There appeared to be a disconnect between his words (in particular, the description of his actions) and his reaction (or rather, lack thereof) to them.

I have some doubt that I can rely on his words regarding his intent. [ 98 ] The Crown emphasizes that, unlike a series of stab wounds, smothering is a continuous action. If there is a distinction, I do not consider it to be a determining factor in this case. It is not the nature of the act which persuades me but, rather, Mr. Lavery’s mental functioning and his state of mind at the time of the act. The evidence persuades me that there were numerous factors affecting those

aspects of his overall condition. [ 99 ] It is clear that the Crown does not have to prove the elements of the offence to the level of scientific or absolute certainty. However, it is equally clear that the reasonable doubt standard is far closer to certainty than to probability. In the unique circumstances of this case, given all of the variables at play and having regard to both the expert evidence and my common sense conclusion about the effect that such extreme circumstances could have on a person’s mental functioning, I am left with a reasonable doubt that Mr. Lavery had the intent to kill Ms.

Lavery when he placed the pillow on her face and held it there until she stopped breathing. Conclusions [ 100 ] Having no reasonable doubt that Ms. Lavery was alive at the time that Mr. Lavery put a pillow on her face and held it there until she stopped breathing, but having a reasonable doubt that, at the time he did so, Mr. Lavery had formed the intent to kill Ms. Lavery, I conclude that Mr. Lavery is guilty of manslaughter. [ 101 ] I will sentence Mr. Lavery following receipt of submissions from the parties. Heard on various dates between September 26 and November 25, 2011.

Dated at the City of Edmonton, Alberta this 18 th day of January, 2012. D.L. Shelley J.C.Q.B.A. Appearances: Mr. M. Huyser-Wierenga and Ms. D. Green for the Crown Mr. P. Royal, Q.C. for the Accused