Her Majesty the Queen - v. -, 2017 SKPC 027

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 027 Date: March 17, 2017 Information: 90113502 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Matthew Warren Lavallee Appearing: Ms. Cynthia Alexander For the Crown Mr. Pab Chetty For the Accused DECISION S.D. SCHIEFNER, J INTRODUCTION : [ 1 ] The accused, Matthew Lavallee, was charged with the following offences: (1) that he did attempt to murder Liza Nelson by stabbing contrary to

Section 239 (

b) of the Criminal Code ; (2) that he did wound Liza Nelson thereby committing an aggravated assault contrary to Section 268(2) of the Criminal Code of Canada.

[ 2 ] The events giving rise to these charges involved a violent physical attack by Mr. Lavallee against his estranged girlfriend (and the mother of his children). At the outset of the trial, Mr. Lavallee entered a guilty plea to the charge of aggravated assault. The trial proceeding with respect to Count 1 – attempted murder. [ 3 ] The Crown called Constable Kent Shaw and Constable Matthew Walker to testify. The Crown also called the victim, Liza Nelson; her sister, Takara Nelson; and Alex Lariviere. Mr. Lavallee testified in his own defense. [ 4 ] The principle issue that I must decide is whether or not Mr.

Lavallee held the specific intent necessary to be found guilty of the offense of attempted murder; namely, the intention to kill another human being. The other elements of the offence have been proven by the Crown’s evidence and by Mr. Lavallee’s guilty plea to the charge of aggravated assault. THE EVIDENCE [ 5 ] In this decision, I have referred to the accused by his proper name. However, I have referred to the Crown witnesses by their first names only.

I have done so to avoid confusion associated with common/similar surnames. [ 6 ] The violence that gave rise to these charges occurred just before noon on February 27, 2016, in the Northern Hamlet of Weyakwin, in the Province of Saskatchewan (“Weyakwin”). At that time, the accused, Matthew Lavallee and the victim, Liza Nelson (Liza) were both living in that community. They had grown up in Weyakwin and had known each other for approximately 10 years. During this period, they dated and had two children. From time to time, they lived together.

There was conflicting evidence as to whether or not they were living together at the time of the incident. Mr. Lavallee testified that they were living together. However, the overwhelming preponderance of evidence was that, while they had lived together from time to time, they were not living together at the time of the incident. I will return to this issue later in these reasons. [ 7 ] When they were not living together, Mr. Lavallee lived with his parents in a house just two streets away from Liza’s place. The distance between Liza’s house and Mr.

Lavallee’s parent’s house was described as less than a five minute walk. The reality is that Weyakwin is a small community and everyone lives within walking distance of each other. [ 8 ] Liza is 23 years old; Mr. Lavallee is 27. They have two children; Jace, age 6 and Jennessa, age 5. At the time of the incident, the children were living with Liza at House 52 in Weyakwin. For the most part, Jace and Jennessa lived with Liza. However, they also spent time with Mr. Lavallee and his parents in Weyakwin. [ 9 ] On February 26, 2016, the children were spending the day with Mr. Lavallee and/or his parents.

At about 6:00 p.m. that night, Liza and some of her friends started socializing and drinking. At that time, the group consisted of Liza, Jackie Lariviere (Jackie), Alex Lariviere (Alex) who is Jackie’s cousin, Vernon Ross (aka “Trudeau”), and Jordon Lavallee (Jordon) who is Mr. Lavallee’s brother. The group was at Jackie’s mom’s house on Beattie Street in Weyakwin. Liza and Alex both testified that they were drinking. Liza said they were drinking vodka. Alex testified they were drinking whiskey and beer.

Little turns on the difference. [ 10 ] At some point, the group left Jackie’s house and went to Trudeau’s house. Trudeau lived a short distance away. Liza and her friends continued socializing at Trudeau’s house. While at Trudeau’s place, they continued playing cards and drinking. At some point that night but while the group was still at Trudeau’s house, Mr. Lavallee showed up. Liza testified that Mr. Lavallee was looking for her and he wanted to talk about the kids. Jace and Jennessa were with Mr. Lavallee’s parents. Mr.

Lavallee was upset that the kids were spending too much time with his parents; believing instead that they should be with Liza. The tenor of the testimony was that initially the issue of the kids was the subject of disagreement between Mr. Lavallee and Liza but not so as to distract from the fun the group was having. While at Trudeau’s house someone offered Mr. Lavallee a beer. He stayed and drank it. Mr. Lavallee had also brought a mickey of whiskey with him. Alex described the situation at Trudeau’s place as normal, social drinking. [ 11 ] After being at Trudeau’s place for about an hour, Liza, Mr.

Lavallee, Jackie, Alex and Jordon decided to leave. Trudeau did not go with them. The group walked to Liza’s place. While there, the group sat around the kitchen table. They played cards. They listened to music and generally had a good time. While there, the group continued drinking. At about 4:00 a.m. on February 27, 2016, Liza’s sister, Takara Nelson (Takara), and her friend, Caitlin Moosehunter (Caitlin) arrived and joined the group. Takara testified that, when she got to Liza’s house, everyone seemed to be getting along fine and having fun.

[ 12 ] Liza testified that she and Mr. Lavallee often argued about their kids when they had been drinking and this occasion was no exception. Alex testified that, after the alcohol kicked in, the discussion that Liza and Mr. Lavallee were having about the kids turned into an argument. Liza testified that Mr. Lavallee repeatedly brought up the issue of their children and, because they had been drinking, they began arguing. At various points, their friends interceded. Some talking separately with Mr. Lavallee and some talking individually with Liza.

Their arguments did not get violent but it was clearly a distraction for the group. On several occasions during the course of the evening, Mr. Lavallee was asked to leave because he kept bringing up the issue of the kids which was causing an argument between him and Liza. On one of these occasions, Mr. Lavallee was physically pushed out of Liza’s house because the argument was causing a disturbance. On each occasion Mr. Lavallee was asked to leave, he went outside or to another room, where he would cool off and then he would return to the group after he had calmed down.

Both Alex and Takara testified that he would be good for a while but then he would again bring up the issue of the kids causing the argument between himself and Liza to start all over again. [ 13 ] At some point during the morning of February 27, 2016, Takara decided that one way to stop all the fighting about the kids was to go get them. Takara offered to drive Mr. Lavallee to his parent’s house, to pick up Jace and Jennessa, and to bring them back to Liza’s house. Mr. Lavallee agreed and went with Takara to his parent’s house. Takara testified that, when she and Mr. Lavallee left the house, Jordon (Mr.

Lavallee’s brother) and Caitlin (Takara’s friend) were sleeping on the couch. Liza, Alex and Jackie were still awake. [ 14 ] When they got to Mr. Lavallee’s parent’s place, Mr. Lavallee went inside and brought out Jennessa, together with two other children belonging to Jackie. Mr. Lavallee did not bring out Jace. Takara and the three children drove away leaving Mr. Lavallee at his parent’s house. [ 15 ] On the way back to Liza’s house, Takara saw Jackie walking on the road. Takara stopped, told Jackie she had her kids in the car, and gave her a ride home.

After dropping off Jackie and her kids at Jackie’s house, Takara started driving back to Liza’s house. Unfortunately, Takara’s car slipped in the snow/ice and got stuck. Takara and Jennessa then walked back to Jackie’s house and eventually got help getting her vehicle unstuck. It is not clear from the evidence how long Takara was away from Liza’s house. However, during this period a number of things happened. [ 16 ] Alex testified that by around dawn on February 27, 2016 everyone had stopped drinking. Soon thereafter, Takara and Mr. Lavallee left. Sometime after that, Jackie left to walk home.

Jordan and Caitlin went to sleep on the couch in the living room. Alex testified that, at some point after Jordon and Caitlin had fallen asleep, he and Liza started kissing. They then went into Liza’s bedroom. Alex testified that when they went into Liza’s bedroom the sun was up but it was still early in the morning. While in Liza’s room, they had sex and then fell asleep. [ 17 ] Alex testified that while he was sleeping he heard the front door of Liza’s house opening. Alex immediately got out of bed and started putting on his clothes. As he was pulling up his pants, Mr.

Lavallee opened the door and walked into the bedroom. Mr. Lavallee yelled at Liza “are you fucking Alex now?”. Mr. Lavallee then punched Alex a couple times in the head. Alex fought back and pushed Mr. Lavallee away, saying that he didn’t want to fight. Alex then grabbed his things and left the room. Alex testified that Mr. Lavallee was on the ground by Liza’s bed when he left the room. Alex testified that, as he left the house, he could hear Liza yelling at Mr. Lavallee to get out of her house. Alex did not hear Mr.

Lavallee say anything nor did he hear any sounds of violence coming from her room. [ 18 ] Alex then walked home. While walking, Alex saw Takara’s vehicle stuck in the snow. When Alex got home, he told his uncle (Alan) that Takara’s vehicle was stuck and asked him to go help get her vehicle unstuck. While Alex told his uncle about his recent altercation with Mr. Lavallee, he did not tell Takara. Rather, the focus of the conversation at that point was on getting Takara’s vehicle unstuck.

As indicated, it is unclear from the evidence how long it took to do so. [ 19 ] When Takara got her vehicle back on the road, she then took Jennessa and drove back to Liza’s house. When they got there, Takara discovered the front door was locked. She knocked and then banged on the front door. When no one answered, Takara went to the back door and tried to open it. When it would not open, Takara then started banging on the back door. At this point, Jordan heard the noise and woke up. He went to the back door and tried to let Takara in. However, the back door would not open.

So he went around to the front door and let Takara and Jenessa in. When Takara got inside the house, Liza’s bedroom door was closed. Takara assumed that Liza had gone to bed. Takara then went to the kitchen to make something to eat for Jenessa. While in the Kitchen, Takara then heard Liza calling her and she went into her bedroom. [ 20 ] Takara found Liza lying on the floor by her bed bleeding profusely and too weak to walk. At that point, the only other people in the house were Jennessa (Liza’s daughter), Jordan (Mr. Lavallee’s brother) and Caitlin (Takara’s friend).

Unbeknownst to Takara (who had been away from the house) and to Jordan and Caitlin (who had been sleeping), Mr. Lavallee had returned to the house and found Alex in Liza’s bed with her. He punched and wrestled with Alex. After Alex left the house, Mr. Lavallee attacked Liza and stabbed her 14 times.

[ 21 ] Liza testified that on the morning of February 27, 2016, she was drunk. She did not remember what time she had gone to bed (other than it was after Jackie left) or the details of how Alex came to be in bed with her. When Liza woke up later that morning, Mr. Lavallee was pushing his way into her bedroom. When Mr. Lavallee and Alex were pushing each other, Liza was still lying in her bed. [ 22 ] When Alex left the room, Liza testified that Mr. Lavallee got up on her bed and sat down on her stomach. He then pulled out a folding knife, unfolded it, and told her that he wanted to watch her die.

Liza testified that he also said he wanted to kill himself and that he would be better off without her. Liza testified that he then stabbed her in the neck and she started bleeding. Liza asked him to stop; telling him that she was going to bleed out. He said “I don’t care”. Medical records indicated two stab wounds on the left side of Liza’s neck near the jugular vein. [ 23 ] Liza testified that she put her right hand over her neck to stop the bleeding. Mr. Lavallee grabbed her left arm and cut her left wrist with his knife. Mr.

Lavallee then grabbed Liza’s right arm, pulling it away from her neck, and cut her right wrist. Medical records indicated that the wound to Liza’s right wrist was four cm in length and very deep. Tendons in the lower inside of the wrist were exposed and damaged, as was a neurovascular bundle in Liza’s wrist. While surgery was successful in repairing the tendon damage, Liza still has a loss of feeling in part of her hand. [ 24 ] Mr. Lavallee then stabbed Liza in the left eye with his knife.

Sufficient force was used such that the orbital wall and frontal bone was fractured in at least three places and the left eye was ruptured. Liza testified that at one point Mr. Lavallee threatened to cut out her other eye. Surgery to Liza’s left eye revealed a penetrating scleral laceration through to the back of the eye and significant muscle damage. Liza now has no vision in her left eye. [ 25 ] Liza testified that Mr. Lavallee then moved down to her ankles and sliced each ankle one after the other. Liza testified that she could feel blood come from both wounds.

Medical records confirmed lacerations on the front of both of Liza’s ankles. [ 26 ] Liza testified that Mr. Lavallee then moved back up her body and placed his knife at her throat. Liza testified that she grabbed the knife and it hurt. Medical evidence revealed that Liza experienced a deep cut to her right finger that required sutures. [ 27 ] In

summary, medical records indicate that Liza received approximately 14 stab wounds; three in the face, three in the neck, three on the left arm, one on the right wrist, one in the chest, one in the epigastrium, one on each ankle, and one in the scalp. Because of blood loss, Liza required two units of blood and two units of plasma. She was initially treated at the Prince Albert Victoria Union Hospital, stabilized and then transported to the Royal University Hospital in Saskatoon. Emergency surgery was performed on her left eye on February 27, 2016. Surgery on the right wrist took place on March 2, 2016.

In total, Liza spent eight days in hospital. [ 28 ] Liza testified that the attack stopped when Mr. Lavallee heard someone banging on the doors of the house. Liza testified that Mr. Lavallee stopped attacking her when he heard the noise and immediately left her room. When Mr. Lavallee left the room, Liza got up and tried to crawl out the window of her bedroom. She was too weak to do so and fell to the floor; which is where Takara found her. [ 29 ] As to alcohol consumption, Liza testified that Jackie had a 60 ounce bottle of vodka that she and her friends had been drinking.

In cross-examination, Liza acknowledged that Mr. Lavallee had been drinking but she testified that she was more intoxicated than he was. Alex testified that he had been drinking but denied the consumption of any drugs, including acid. Alex testified that Mr. Lavallee had been drinking as well. [ 30 ] Constable Kent Shaw of the RCMP testified that he was dispatched to Liza’s house (52 Nelson Street) at approximately 12:15 p.m. He was one of the first officers on the scene. When he got there, EMS staff were working on her.

Constable Shaw took detailed photographs of the scene which were tendered as exhibits in these proceedings. While processing Liza’s house that afternoon, Mr. Lavallee, together with his father, walked up to Liza’s house indicating his desire to turn himself in. Constable Shaw arrested Mr. Lavallee and placed him in his police cruiser. In cross-examination, Constable Shaw testified that he did not notice any odour of alcohol on Mr. Lavallee’s breath. [ 31 ] Constable Matthew Walker testified that he was also dispatched to Weyakwin and assisted in transporting Mr.

Lavallee from Constable Shaw’s cruiser to the detachment. In transporting him, Constable Shaw noticed that Mr. Lavallee had an injury to his leg. As a result, Mr. Lavallee was first taken to the Health Centre to have his knee looked at and then he was transported to the nearest RCMP detachment. In cross-examination, Constable Shaw testified that he did not form an opinion as to Mr. Lavallee’s state of intoxication, if

any, when he was dealing with him. MR. LAVALLEE’S TESTIMONY [32] Mr. Lavallee testified in his own defense. He testified that at the time of the incident he was living with Liza at her house inWeyakwin. [33] Mr. Lavallee testified that on the day in question he had been drinking and he was high on acid. He testified that his memoryof the day was very limited. In fact, his testimony included very little of what happened prior to the incident, the incident itself, and whathe did after the incident. He remembered drinking with Liza, Alex and their friends prior to the incident.

He also remembered going backto his home at some point and going to bed. In this part of his testimony, Mr. Lavallee referred to his mom and dad’s place in Weyakwinas his “home”. [34] Mr. Lavallee testified that he also remembered waking up and walking back to Liza’s house. When he got to Liza’s place, heremembered the front door was partially open. He remembered entering the house, walking upstairs to Liza’s bedroom, and finding Alexin bed with Liza. Mr. Lavallee testified that he was furious at finding Liza in bed with someone else. Mr.

Lavallee remembered wrestlingwith Alex and possibly punching him. [35] However, Mr. Lavallee testified that he does not remember anything after Alex left the room. He testified that he did notremember what he said to Liza or if he said anything. Mr. Lavallee testified that he did not remember punching or stabbing her. He did,however, remember have a folding pocket knife with him. Mr. Lavallee admitted to attacking Liza with his knife but testified that he wasnot “in a right state of mind” because he was angry, intoxicated and high. [36] When asked by his counsel if he wanted to kill Liza, Mr.

Lavallee answered “No I don’t”. When asked why he didn’t trytalking to Liza, Mr. Lavallee answered that he “was not in a right state of mind to have any sort of verbal resolution”. When asked by hiscounsel, Mr. Lavallee testified that he still loved Liza and that he was not trying to kill her. [37] In cross-examination, Mr. Lavallee admitted that the primary reason that he can not remember what happened during theattack was because he was so angry upon finding Liza in bed with Alex. He described himself as being in a rage when he attacked Liza,the angriest he had ever been in his life. [38] Mr.

Lavallee testified that he did not know why he left Liza’s room but admitted it was possibly because he heard someonecome to the house. Mr. Lavallee had no recollection as to where his pocket knife ended up other than he no longer had it. [39] After leaving Liza’s house, Mr. Lavallee ran into the nearby woods and wandered aimlessly until he was found by his fathernear a river. Mr. Lavallee testified that he didn’t remember much about the period of time he was walking in the woods, including wherehe walked or where he was going. He remembered hurting his knee when he tripped and fell. [40] Mr.

Lavallee’s father talked him into surrendering himself to police, which he did around 3:00 p.m. in the afternoon. THE LAW WITH RESPECT TO ATTEMPTED MURDER [41]

Section 239 of the Criminal Code, makes it an indictable offence to attempt by any means to commit murder. An inchoate(incomplete) crime such as attempted murder does not require a specific or particular harm. The actus reas is complete upon the first actin furtherance of the intention to commit murder beyond mere preparation. Nonetheless, attempted murder is a difficult offence to prove.A conviction requires proof beyond a reasonable doubt of the specific intent to kill. No lesser mens rea will suffice.

It is not sufficient toprove an intent to cause bodily harm that the accused person knows was likely to cause death and was reckless as to whether deathensues or not: R v Ancio, [1984] 1 SCR 225, (SCC). In other words, the intent required for proof of attempted murder isgreater than that required for murder: R v Odulate, 51 WCB (2d) 335; [2001] OJ No 4029 (QL) (Ont Sup Ct). See also: R v Arrieta, 2012BCCA 402.

ARGUMENT [42] Mr. Lavallee denies that he intended to kill Liza. To the contrary, Mr. Lavallee testified that he loved the victim but wasfurious upon finding her in bed with another man. Mr. Lavallee argues that his rage, coupled with his state of intoxication by alcohol anddrugs, deprived him of the capacity for rational thought or, at least, sufficient rational thought to form the specific intent necessary forthe charge of attempted murder. [43] On the other hand, the Crown argues that the evidence before this Court establishes the necessary intent to kill.

Simply put,the Crown argues that no other reasonable inference can be drawn from the evidence other than Mr. Lavallee’s intention to kill LizaNelson on February 27, 2016. The Crown takes the position that there is no air of reality to the suggestion that Mr. Lavallee was in anadvanced state of intoxication at the time or that he was otherwise unable to understand the consequences of his actions. Furthermore, theCrown argues that the defense of provocation has no application to a charge of attempted murder. In the alternative, the Crown arguesthere is no evidence to support Mr.

Lavallee’s claim of provocation within the accepted meaning of that term. [44] Counsel on behalf of both the Crown and Mr. Lavallee provided written briefs of law, which I have read and found to behelpful. ANALYSIS [45] While much of the evidence in these proceedings is not in dispute, there is conflicting evidence on certain matters, includingthe penultimate issue; being Mr.

Lavallee’s state of mind when he attacked Liza. [46] The Supreme Court of Canada has provided helpful guidance and a framework for triers of fact in criminal proceedings thatexplains what reasonable doubt means in the context of conflicting evidence or testimonial accounts where the “credibility” of thatevidence is at issue. This is commonly known as the “W(

D) framework” and was articulated by the Court in R v W(D), (SCC), [1991] 1 SCR 742: First, if you believe the accused, you must acquit; Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit; and Third, even if you are not left with a reasonable doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt of the guilt of the accused. [47] In applying the W(

D) framework, I am guided by four principles – principles which I have drawn from the scholarly work ofJustice David M. Paciocco in his paper “Doubt about Doubt: Coping with R v W(

D) and Credibility Assessment”: 1. Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred. The burden of proving allof the elements of the offence beyond a reasonable doubt remains on the Crown throughout. There is no onus on the accused to proveanything and the burden of proof never shifts to the accused: R v JHS, 2008 SCC 30 , [2008] 2 SCR 152 at para 9 [JHS]. 2.

In undertaking steps 1 and 2 of the WD framework, the Court must consider all of the evidence, not just the accused’s version ofevents in isolation: R v Hoohing (2007), 2007 ONCA 577 , 74 WCB (2d) 676 (Ont CA) at para 15. In other words, if the trier offact believes any evidence (either from the accused or elsewhere) that is inconsistent with the guilt of the accused for a particularoffence, the accused cannot be convicted of that offence. 3.

Even if the trier of fact does not entirely believe evidence that is inconsistent with guilt, if the trier of fact is left unsure whetherthat evidence is true then there is reasonable doubt. In this circumstance, the accused is also entitled to an acquittal: JHS at para 11.

4. Even if the trier of fact entirely disbelieves the testimony of an accused (or any other evidence inconsistent with guilt), the mererejection of that evidence does not prove guilt. To the contrary, the accused may not be convicted unless the evidence that is acceptedproves the accused’s guilt beyond a reasonable doubt. [48] In addition to conflicting evidence, this court must also make determinations with respect to the impact of intoxication if anyon Mr. Lavallee’s state of mind; the impact of provocation if any on Mr.

Lavallee’s state of mind; and ultimately whether or not theCrown has proven guilt beyond a reasonable doubt. I will address these issues in the following order. PROVOCATION, MENS REA, AND ATTEMPTED MURDER [49] Mr. Lavallee asserts that he and Liza were in a spousal relationship, that he had no idea that she had taken a lover, and thatthere was no basis for Mr. Lavallee to reasonably anticipate the he would find Liza in bed with another man when he entered herbedroom. Through counsel, Mr.

Lavallee argues that he was surprised at finding Liza in bed with Alex and shocked when suddenlyconfronted with her infidelity – in fact, in the act of committing infidelity. Mr. Lavallee argues that his attack on Liza was the directresult of a spontaneous loss of control on his part. [50] Mr. Lavallee’s counsel argues that these circumstances support the defense of provocation or, at the very least, that thecircumstances raise an air of reality to provocation compelling the Crown to negate it as a defence. In the event this court finds that thedefence of provocation is not available to Mr.

Lavallee, his counsel argues that the cumulative effect of anger, provocation andintoxication is relevant in determining whether or not the Crown has proven the requisite intent to kill. In taking these positions, counselfor Mr.

Lavallee relies on the following authorities: • s. 232 of the Criminal Code • R v Pappas, 2013 SCC 56, [2013] SCR 452, [Pappas]; and R v Cairney, 2013 SCC 55, [2013] 3 SCR 420 [Cairney] for therequisite subjective and objective elements that must be represent to establish an air of reality to the defence of provocation. • The following spousal infidelity cases: R v Tran, 2010 SCC 58, [2010] 3 SCR 350; R v Thibert, [1996] 1 SCR 37, 104 CCC (3rd)1, (SCC); R v Humaid, (ONCA); R v Singh, 2016 ONSC 3739; and R v M.S., 2012 NSPC 77 [R v M.S.].

Is provocation a defence to the charge of attempted murder? [51] As indicated, Mr. Lavallee relies on s. 232 of the Criminal Code. This

section provides as follows: 232(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in theheat of passion caused by sudden provocation.

(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years ofimprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation forthe purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

(3) For the purposes of this section, the questions (

a) whether the conduct of the victim amounted to provocation under subsection (2), and (

b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received, are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, orby doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm toany human being.

[ 52 ] I find that s. 232 is of no assistance to Mr. Lavallee for two reasons. First, this provision sets out the circumstances under which murder will be reduced to manslaughter. A plain reading of this provision indicates that the statutory defence of provocation applies to culpable homicide, not to attempted murder. Simply put, provocation, within the meaning of s. 232 , is not a defence to a charge of attempted murder so as to reduce the offence to a lesser charge. See: R v Campbell ,

(1977) CanLII 1191 (ONCA) [ Campbell ]. Secondly, s. 232 of the Criminal Code was amended in 2015 to specify that the defence of provocation only applies where the conduct of the victim constitutes an indictable offence punishable by five or more years in prison. The 2015 version of s. 232 was in full force and effect at the time of this offence. There is no evidence and certainly no air of reality to the assertion that Liza’s conduct constituted “an indictable offence under the Criminal Code that is punishable by five or more years of imprisonment”. Liza’s conduct may have been a betrayal in the eyes of Mr.

Lavallee but it was entirely lawful. [ 53 ] Taking Mr. Lavallee’s assertion of facts at their highest – namely that he and Liza were in a spousal relationship, as noted by the Court in M.S. , finding one’s spouse in bed with another lover is not sufficient to deprive an ordinary adult of the power of self- control. Even relying on the authorized cites by Mr. Lavallee – authorities, which must be taken with caution now that s. 232 has been amended - the facts of this case do not satisfy the objective test for the statutory defence of provocation within the meaning ascribed in Pappas and Cairney .

Are acts of provocation to be considered in the overall determination of whether Mr. Lavallee had the specific intent required for attempted murder? [ 54 ] Yes. Although s. 232 is not available to Mr. Lavallee, his state of mind is central to the determination I must make in these proceedings. As noted by the Court in Campbell , provocative conduct of a victim may be relevant to mens rea . On the one hand, the victim’s conduct may be seen as the inspiration or trigger for the accused’s state of mind. On the other hand, it may also be evidence from which a disturbed state of mind can be inferred.

As a result, I will return to this subject later in these reasons for decision when I make my determination as to whether or not the Crown has met its evidentiary burden. INTOXICATION, MENS REA , AND ATTEMPTED MURDER [ 55 ] Voluntary intoxication may form a defence in criminal proceedings. Whether it does depends upon the degree of intoxication, and the nature of the offence charged, including whether the offence is one of general or specific intent. [ 56 ] In these proceedings, Mr. Lavallee is charged with attempted murder.

To convict, there must be proof beyond a reasonable doubt of a specific intention; namely the intent to kill. In other words, the Crown must prove that, at some point during his attack, Mr. Lavallee meant to cause Liza’s death. As noted, no lesser mens rea will suffice. [ 57 ] In the case of R v Daley, 2007 SCC 53 at paras 41-44 , the Supreme Court of Canada provided helpful guidance to triers of fact in criminal proceedings where intoxication is raised as a defence.

As noted by the Court, the law recognizes three levels of intoxication: 1. “ Mild intoxication ”, which is characterized by alcohol-induced relaxation of both inhibitions and socially acceptable behaviour. Intoxication at this level is not recognized at law as providing a defence to either general or specific intent offences. It has never been accepted as a defence or excuse to the charge of attempted murder. 2. “ Advanced intoxication ”, which describes circumstances in which, due to the consumption of alcohol or drugs, the accused becomes unable to foresee the consequences of his/her actions.

In such circumstances, the capacity for an accused to form a specific intent may be impaired. As a result, voluntary intoxication in an advanced state can be a defence to an offence requiring specific intent. In the case of attempted murder, it is this level of impairment that provides the threshold for the defence of intoxication, since it may be sufficient to raise a reasonable doubt as to whether the accused acted with the requisite murderous intent. However, a high level of intoxication is required to achieve this state.

If there is an air of reality to the accused being in an advanced stage of intoxication, the Crown must then negate the defence. For example, by proving beyond a reasonable doubt that the accused had the specific intent to commit the offence, despite the evidence of advanced intoxication. 3. “ Extreme intoxication” , which is akin to automatism or insanity. Extreme intoxication may be a defence to both specific and general intent offences. However, this threshold of intoxication is not alleged by the accused and is not relevant to these proceedings.

[ 58 ] In these proceedings, Mr. Lavallee asserts that he was in an advanced state of intoxication at the time of the offence. If there is a reasonable doubt that Mr. Lavallee did not (or could not) form the specific intent to kill Liza because he was too intoxicated to do so, then he must be acquitted of the charge of attempted murder. [ 59 ] Mr. Lavallee testified that he was both intoxicated and high on acid prior to the incident. However, he did not testify as to how much he drank or when. He also did not testify as to how much acid he took and when.

Nonetheless, evidence of intoxication need not come directly from Mr. Lavallee. As a consequence, I have recounted in some detail the evening of February 26 and the morning of February 27 to aid in determining Mr. Lavallee’s pattern of consumption and the passage of time. [ 60 ] The evidence that Mr. Lavallee was intoxicated consists of the following: • Mr. Lavallee’s testimony, that he was both intoxicated and high on acid prior to the incident. • The common evidence of Liza and Alex that Mr. Lavallee began drinking with them on the evening of February 26, 2016 when they were at Trudeau’s place.

Neither Liza nor Alex testified as to how much Mr. Lavallee drank nor did they testify as to seeing him take acid. • The evidence that the group of six individuals consumed 60 ounces of vodka (or whiskey), together with a mickey (13 ounces) of whiskey and an unspecified number of beer over a period of approximately 12 to 14 hours. • The fighting between Liza and Mr. Lavallee about their children, which Liza testified often occurred when they had been drinking. The fighting culminated in Mr. Lavallee being asked to leave multiple times, once with physical force. • Liza’s testimony that Mr.

Lavallee was drunk – albeit not as drunk as she was. • Mr. Lavallee’s testimony, that his memory of the relevant period of time was very limited and that he remembers almost nothing after he became enraged upon finding Liza in bed with Alex. [ 61 ] The Crown submits that the limited evidence of consumption in this case does not establish an air of reality to Mr. Lavallee being so intoxicated that he could not foresee the consequences of his actions. Simply put, the Crown says it is purely speculative to suggest Mr.

Lavallee was in an advanced state of intoxication when he attacked Liza. [ 62 ] In this respect, I agree with the Crown. I am not persuaded that the evidence in these proceedings provided a sufficient factual foundation for Mr. Lavallee’s assertion that he was in an advanced state of intoxication when he attacked Liza. [ 63 ] Mr. Lavallee’s evidence that he was intoxicated and took acid was perfunctory. He gave no evidence as to his drinking pattern. He said he took acid but there is no specific evidence as to what he took, when he took it or the effect it had on him.

While both Alex and Liza acknowledged that Mr. Lavallee had been drinking, neither Liza, Alex nor Takara described him as being in an advanced state of intoxication. [ 64 ] While Mr. Lavallee was disruptive during the evening and was asked to leave more than once, this evidence is of limited probative value. The genesis of the disruption was Liza and Mr. Lavallee fighting over the kids. However, Mr.

Lavallee was upset about the kids before he began drinking at Trudeau’s place. [ 65 ] Furthermore, the evidence of alcohol consumption indicates it was consumed over a prolonged period of time (between 12 to 14 hours). There is no evidence that Mr. Lavallee consumed any more or any less than anyone else. Furthermore, there is no evidence that Mr. Lavallee drank (or took anything) after Takara drove him home. In other words, there was a period of time (up to three or four hours) prior to the incident where Mr. Lavallee did not consume any alcohol. [ 66 ] Other than his lack of recall, there is no evidence that Mr.

Lavallee exhibited any of the common indicia of advanced impairment prior to or after the offence. To the contrary, two experienced police officers who dealt with him three to four hours after the incident did not report any indicia of impairment. [ 67 ] Finally, there is no expert evidence of the type commonly called to support a defence of intoxication which typically addresses the time and amount of the accused’s consumption of alcohol/drugs, projects Mr. Lavallee’s blood alcohol concentration, and explains the physical effects the alcohol and drugs may have had on his cognition.

[68] While there is evidence that Mr. Lavallee consumed alcohol, there is no air of reality to his assertion that he was in anadvanced state of intoxication and thus was incapable of understanding or foreseeing the natural and probable consequences of hisactions. [69] To the contrary, I am satisfied beyond a reasonable doubt that the Crown has proven that Mr. Lavallee clearly understood thenature and consequences of his actions notwithstanding the alcohol he consumed or the drugs that he said he consumed. In my opinion,Mr. Lavallee’s actions during the attack shed considerable light on his state of mind.

The attack on Liza was extensive and prolonged.More importantly, the method of Mr. Lavallee’s attack demonstrates both an awareness of the consequences and active guidance of hisown actions. [70] The only weapon he had in his possession was a folding pocket-knife. Mr. Lavallee told Liza he wanted to watch her bleed outand then he specifically attacked areas of her body to maximize the lethality of his weapon including her neck, her wrists and her ankles.In my opinion, the nature of Mr. Lavallee’s attack unequivocally demonstrates an awareness of the limitations of his weapon and desireto maximize its lethality.

Furthermore, Mr. Lavallee broke off his attack when he heard someone knocking on the door of Liza’s house.Doing so indicates that he had sufficient awareness to recognize the potential for detection and avoid discovery. [71] For the foregoing reasons, I am satisfied that Mr. Lavallee was not so intoxicated on February 27, 2016 at the time he attackedLiza that his capacity to understanding and foresee the consequences of his actions was impaired.

CREDIBILITY, MENS REA AND PROOF BEYOND A REASONABLE DOUBT [72] The law with respect to attempted murder and proof of intent was well described in a number of cases, including: R v Gamble and Bluebell, 2010 SKQB 414, 363 Sask R 311, at para 12 [Bluebell]; R v Carelse, 2012 SKQB 475, 407 Sask R 223, at paras 49 to 59 [Carelse]; R v Bear, 2013 SKQB 303 [Bear]; R v McArthur, 2013 SKCA 139, 427 Sask R 180 at paras 10 to 13 [McArthur]; R v Kay, 2015 SKQB 109, at paras 28 to 31 [Kay]; and R v Bako, 2016 SKPC 83 , 2016 SKPC 083 at paras 42 to 54. [73] As noted from the case law, the charge of attempted murder is difficult to prove.

The mens rea that must be proven is thespecific intent to kill. Intention is about Mr. Lavallee’s state of mind when he attacked Liza. The determination of intent may be thesubject of direct evidence (such as Mr. Lavallee’s testimony) or it may be inferred from the totality of the circumstances, including theconduct of the accused and context within which the violence occurred.

For example, when a weapon is used, the following factors arerelevant to determining intent: the nature of the weapon used including its lethality (McArthur); how the weapon was used including theforce with which the wounds were inflicted (Bluebell); the nature of the wounds and whether they were to a vital part of the anatomy(Bear, McArthur & Kay); and the persistence of the attack – in the case of a knife, whether the stabbing was repeated (Bluebell).

Inaddition, indications of intent may also be inferred from the nature of the relationship between the parties and any words spoken by theaccused during the attack (Bear). Finally, indications of intent may be inferred from the conduct of the accused in the periodimmediately following the attack, including leaving the victim alone without calling for medical assistance (McArthur & Kay). [74] Defence counsel asks this Court to consider the cumulative effect of both provocation and intoxication, together with Mr.Lavallee’s evidence that he did not intend to kill Liza on February 27, 2016.

I agree with counsel that if the cumulative effect of thesefactors amounts to reasonable doubt, Mr. Lavallee cannot be convicted of the charge of attempted murder. Unfortunately for Mr.Lavallee, they do not. [75] First, I do not accept Mr. Lavallee’s testimony that he did not intend to kill Liza as either reliable or credible. There is aninternal conflict in his testimony. On the one hand, Mr. Lavallee relies on intoxication and provocation to suggest that he did not knowwhat he was doing at the time of the offence.

On the other hand, he remembers some things that happened, such as sleeping at hisparent’s place, waking up and walking back to Liza’s place, the front door being partially open, and walking into Liza’s room. Heremembers finding Alex in bed with Liza but very little after that point. While he remembers being furious at Liza, he denies theintention to kill her. It is illogical that Mr. Lavallee could be in such a disordered state that he did not know what he was doing but that he

could still have a reliable memory as to his intentions or lack thereof at that moment. [76] Secondly, I do not accept as credible Mr. Lavallee’s evidence that he and Liza were living together at the time. There was noevidence to support this suggestion. To the contrary, in his testimony, Mr. Lavallee referred to his home being with his mom and dad, notwith Liza. The overwhelming weight of evidence was that they were estranged but still friends. However, even taking Mr.

Lavallee’sassertion at its highest, that they were in a spousal relationship at the time of the offence, Liza’s conduct did not constitute an insult orwrongful act capable of amounting to provocation to kill. As noted by Derrick, J. in M.S., supra, at paras 76 & 77: [76] I do not find that a suspicion that a girlfriend has been seeing someone else, or even the fact of it, can be regarded as provocation ofthe kind that engages the compassion of the law reducing what otherwise would be a murder to manslaughter.

Feelings of anger andfrustration do not constitute provocation of the kind that will achieve such a result. (R. v. Young, (NS CA), [1993]N.S.J. No. 14 (C.A.); R. v. Lees, 2001 BCCA 94 , [2001] B.C.J.

No. 249 (C.A.), paragraph 23) [77] Permitting a perceived threat to a relationship, or its actual breakdown to constitute an insult or wrongful act capable of amountingto provocation to kill “…would set a dangerous precedent…” (Young, page 4 (Q.L. version) It would not accord with the law’s emphasison discouraging homicidal violence, an emphasis that must have special resonance in the context of intimate relationships where womenand girls are acknowledged to be particularly vulnerable. (R. v. Lavallee, (SCC), [1990] S.C.J. No. 36, paragraph 32; R.v. Malott, [1998] S.C.J.

No. 12, paragraph 44: “…the reality of our society is that typically, it is women who are victims of domesticviolence, at the hands of their male intimate partners.”) [77] Thirdly and most importantly, the overwhelming weight of evidence, including the nature of the attack and the words Mr.Lavallee spoke to Liza during the attack, is unequivocally indicative of a murderous intention on his part. On this point I should note thatI found the victim’s evidence regarding the attack to be both reliable and credible. Testifying was clearly difficult for her. Yet hertestimony was clear and cogent.

I observed no amplification or obfuscation in any of her evidence. Her evidence as to the nature of theattack was consistent and corroborated by the medical evidence presented by the Crown. Furthermore, Liza’s evidence was unshakenunder cross-examination. I also accept as credible and reliable Liza’s description of the words spoken by Mr. Lavallee during the attackand I do so for the same reasons. [78] It would appear that the first wound Liza received to her neck rendered her largely defenseless. She was bleeding profusely.She immediately began pleading for her life. Mr.

Lavallee responded both verbally and physically. He told her that he wanted to watchher bleed to death and then methodically began attacking areas of her body where bleeding could be anticipated. Furthermore, the attackwas both violent and prolonged. He moved up and down her body inflicting injuries at vulnerable locations. In addition, Mr. Lavalleestabbed Liza in the eye with sufficient force to fracture the bones around her eye socket. But for Takara returning to Liza’s place andinterrupting his attack, the logical conclusion of Mr. Lavallee’s actions would have been Liza’s death. [79] Liza pled for her life.

She clearly thought it was in danger. She grabbed the blade of Mr. Lavallee’s knife with her bare handwhen he placed it to her throat. As soon as Mr. Lavallee left the room, she tried to crawl out her window. In light of her dire physicalcondition at the time, this can only be seen as

an act of sheer desperation on her part. [80] The totality of evidence in these proceedings demonstrates, beyond any reasonable doubt, that Mr. Lavallee intended to killLiza Nelson on February 27, 2016. He not only stabbed her repeatedly with a knife, the method employed in his attack demonstrates anintention to maximize his weapon’s lethality by targeting particular areas of Liza’s body.

These actions are entirely consistent with theevidence that he told Liza he wanted to watch her bleed to death and wholly indicative of a state of mind that is not only aware of theconsequences of his actions but in active command of his actions. [81] Furthermore, there is no doubt in my mind that Mr. Lavallee intended the natural and obvious consequences of his actions;namely, to kill Liza. In coming to this conclusion, I am satisfied, beyond any reasonable doubt, that neither Mr.

Lavallee’s state ofintoxication nor the shock of finding Liza in bed with another man was sufficient to rob him of the capacity for rational thought. To thecontrary, in light of the iniquitous, methodical, and persistent way Mr. Lavallee attacked Liza and his actions in breaking off his attack toavoid detection, I am left with the inescapable conclusion that, at the time of the attack, Mr. Lavallee was well aware of theconsequences of his actions and actively in command of those actions. Simply put, while there is evidence that Mr.

Lavallee wasdrinking, the overwhelming preponderance of evidence supports the conclusion that he was less drunk than he alleged and that he wasentirely capable of acting rationally at that time. [82] Mr. Lavallee’s anger at finding Liza in bed with another man was clearly the motive for his attack. However, I am satisfiedbeyond any reasonable doubt that his state of mind was such that he understood and could foresee the consequences of his actions. WhileMr. Lavallee may not wish it now, there is no doubt in my mind that while he was attacking Liza on February 27, 2016, he intended tokill her.

CONCLUSION [ 83 ] For the foregoing reasons, I find Mr. Lavallee guilty of the attempted murder of Liza Nelson on February 27, 2016, at Weyakwin, in the Province of Saskatchewan. [ 84 ] With respect to the charges set forth in the Information, I find Mr. Lavallee guilty of attempted murder (count 1). While Mr. Lavallee has entered a guilty plea to the charge of aggravated assault (count 2), the Kienapple principle applies and that charge is subsumed in the conviction of count 1.

Accordingly, I direct a conditional stay on the charge of aggravated assault, such stay to become absolute at the expiration of any applicable period of appeal. Dated this 17 th day of March, A.D. 2017, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J