HER MAJESTY THE QUEEN, – v. –, 2023 NBKB 173

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON R. v. Calvin Andrew Lewis 2023 NBKB 173 MCR/13/2020 BETWEEN: HER MAJESTY THE QUEEN, – and – CALVIN ANDREW LEWIS DECISION ON SENTENCE BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATE OF HEARING: July 5, 2023 DATE OF DECISION: July 5, 2023 (orally) APPEARANCES: Malika Levesque, for the Crown Alex Pate, agent for Nathan Gorham, for the accused

DYSART, J. (Orally) INTRODUCTION [ 1 ] Calvin Lewis was charged with first degree murder in the death of his girlfriend, Tina McAleer. Ms. McAleer was stabbed thirty-two times in the living room of her apartment in Hillsborough, New Brunswick on the morning of May 2, 2020. [ 2 ] Trial proceeded before this Court by judge alone, and the Court heard from thirteen witnesses over five days in April of last year. [ 3 ] Mr. Lewis admitted that he killed Ms. McAleer and that he stabbed her thirty-two times. The trial focused on whether Mr.

Lewis had the necessary intent for murder, whether he was suffering from a mental disorder at the time of the killing, either drug-induced or organic, which might have eliminated or reduced his criminal liability, and whether Mr. Lewis might be entitled to the partial defence of provocation. [ 4 ] In terms of the facts of the case, those are found in the Court’s reasons of February 3, 2023. The evidence at trial established that the relationship between Mr. Lewis and Ms.

McAleer was one that was marked by drug use by both of them, and that it was a toxic and sometimes violent relationship. [ 5 ] It is uncontroverted that Mr. Lewis was a daily user of methamphetamine and marijuana. Likewise, the evidence proves that Ms.

McAleer was also using methamphetamine and marijuana at the time of her death. [ 6 ] This Court heard evidence from several witnesses that Calvin Lewis made repeated threats to harm and kill Tina McAleer in the weeks and months prior to her killing. [ 7 ] The evidence further established that Calvin Lewis suffered from several mental health issues, including diagnoses by Dr.

Ralph Holly, a forensic psychiatrist, of paranoid personality disorder, antisocial personality disorder and, in and around the time of the killing, drug-induced psychosis brought on by his daily methamphetamine use. [ 8 ] The evidence at trial established that on the morning of May 2, 2020, following a night of drug use and very little sleep, Mr. Lewis awoke and had a conversation with Ms. McAleer, who was sitting on a couch in the living room. He went to look for cigarettes and, while looking in their bedroom, he testified that he found a needle and syringe containing a bluish-green substance. Mr.

Lewis testified that he believed that Ms. McAleer, who he said had threatened him in the past, intended to kill him by injecting him with the contents of that syringe. He testified that when he confronted her, her words confirmed his suspicions, and she reiterated her plan to kill him. He therefore “lost it”, grabbed a knife from the fireplace mantel and he stabbed Ms. McAleer repeatedly. [ 9 ] Based on Mr. Lewis’ testimony and that of Shane Brady, Mr. Lewis’ son who was living at the apartment, the events occurred quickly — within a matter of a minute or so. Mr.

Brady, who was in the bathroom, returned to find Ms. McAleer laying on the couch, covered in blood. He fled the apartment at that time. [ 10 ] Mr. Lewis then called 911 and reported that he killed Ms. McAleer. He then took her car keys and fled in her minivan before being stopped and arrested by police. [ 11 ] At the close of the trial, the Crown abandoned first degree murder, and both the Crown and the Defence agreed that the essential elements of second-degree murder had been proven beyond a reasonable doubt.

The only issue before the Court was the Defence’s claim that the partial defence of provocation, as set out in

section 232 of the Criminal Code , applied to the killing. The Defence argued that Mr. Lewis was provoked due to his belief that Ms. McAleer planned to kill him, and that he lost the power of self-control. By operation of the Criminal Code , a second-degree murder which is the result of provocation is reduced to manslaughter.

[ 12 ] In those reasons dated February 3, 2023, this Court dismissed that partial defence of provocation and found Mr. Lewis guilty of second-degree murder. [ 13 ] The Court must now impose its sentence. [ 14 ]

Section 745 of the Criminal Code provides that, upon conviction for second-degree murder, the offender shall be sentenced to: (…) imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years (…) [ 15 ] That is, the only issue before the Court is whether to extend the period of parole ineligibility beyond the ten-year minimum. [ 16 ] It is important to note that this period of ineligibility is not the period of incarceration which Mr. Lewis will serve.

Rather, it is the number of years of imprisonment which Mr. Lewis must serve before he is eligible to apply for parole. Whether Mr. Lewis will be released from prison will be a decision for the Parole Board. If Mr. Lewis is released from prison, he will be subjected to strict conditions, likely for the remainder of his life. [ 17 ] It is my responsibility to determine whether Mr. Lewis will serve ten years before he is eligible to apply for parole, or whether he should serve a mandatory sentence which is longer than ten years before applying for parole, not to exceed 25 years. [ 18 ]

Section 745.4 of the Criminal Code provides guidance as to the factors to be considered by a judge in determining the number of years the offender must serve before he or she may become eligible for parole. In this case, since there was no jury, those considerations are: 1. The character of the offender; and 2. The nature of the offence and the circumstances surrounding its commission. [ 19 ] In addition, this Court must also consider the general purposes and objectives applicable to sentencing offenders in Canada.

Section 718 of the Criminal Code provides: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[20] The Criminal Code also requires a sentence to be proportionate to the gravity of the offence and the degree of responsibility ofthe offender as per

section 718.1, and that the sentence comply with the parity principle, which is that the sentence should be similar tosentences imposed on similar offenders for similar offences committed in similar circumstances as required by

section 718.2(

b) of theCriminal Code. [21] The Supreme Court of Canada has also provided guidance to trial judges who are called upon to pass sentence for second-degreemurder. In R. v. Shropshire, , the Supreme Court clarified that an extension of the period of parole ineligibility beyondten years is not restricted to unusual circumstances, and secondly, that such an extension need not be used sparingly. [22] Our Court of Appeal adopted the Supreme Court’s reasoning and provided additional guidance in Nash v. R., 2009 NBCA 7.

Inthat case, the Court of Appeal articulated how a trial judge is expected to consider the criteria set out above; the character of theoffender; and the nature and circumstances of the offence. [23] As for the character of the offender, the Court of Appeal in Nash, supra, had the following to say at paragraphs 46 and 47: [46] If we turn to the “character” of the offender, consideration will be given to the offender’s background, age, mental state at the timeof the murder as reflected in medical, psychological or psychiatric evidence.

Age is a relevant consideration and we are told that theprospect of offender recidivism is to be examined when dealing with the “character of the offender”. The youthful offender may exhibitthe characteristics of one who is capable of rehabilitation. The elderly offender may not present a threat of recidivism or needrehabilitation. Thus, in some cases “age” may be looked on as a mitigating factor when combined with other factual circumstances. Theoffender’s criminal record is examined with meticulous care.

With respect to those with a previous record, the sentencing judge will lookto the offender’s penal history, its duration and the number of convictions and their seriousness. One constant in the jurisprudence is thatprevious convictions for serious violent offences will be regarded as an aggravating factor. The sentencing judge is concerned not onlywith the objectives of denunciation and deterrence but also with whether the offender represents a “future dangerousness” ascontemplated by s. 718(

c) of the Criminal Code. This explains why a “positive” Pre-Sentence Report will be looked on favourably whilea “negative” one may serve as one of the grounds reinforcing the need to extend the period of parole ineligibility. [47] Remorse as an aggravating or mitigating factor has been examined above. In brief, the expression of genuine remorse is alwaysregarded as a mitigating factor.

In cases where the offender has pled not guilty and been found guilty, the general rule is that the failureto express remorse is not an aggravating factor. […] [24] With respect to the nature and circumstances of the offence, the Court of Appeal notes that, in every case of second-degreemurder, there is an element of brutality and viciousness. To distinguish between relative degrees of brutality when we are, after all,dealing with the loss of a life, might be regarded by some as insensitive or minimizing the loss to the loved ones of the deceased. That iscertainly not the intent of this exercise.

It must be acknowledged, however, that there is a distinction to be drawn between a murderwhich does not involve a high degree of suffering or brutality, and one which involves egregious or sadistic brutality. This Court mustconsider where on that spectrum the present case lies, as particularly brutal or sadistic killings are deserving of a more severepunishment.

That said, the Court of Appeal reminds us in Nash, that extreme brutality is not a condition precedent to extending theperiod of parole ineligibility beyond the minimum ten years. [25] The Court of Appeal tells us that the amount of planning involved is a factor to consider, along with the reason for the killing.

Apurely random or senseless murder will typically be treated more harshly. [26] And of course, the Court must consider and weigh any mitigating or aggravating factors in the case. [27] Ultimately, I must consider all of the factors in this case, not the least of which is the impact that the killing has had on TinaMcAleer’s family and on the community. [28] While the factors of deterrence and denunciation are not typically treated as paramount in cases of murder,

section 718.04 of theCriminal Code provides that, when a court imposes a sentence for an offence that involves the abuse of a person who is vulnerablebecause of personal characteristics — including because the person is Aboriginal and female — the court shall give primaryconsideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. Here, the Court issatisfied that Tina McAleer was indeed vulnerable because of her personal circumstances as a woman. [29] The caselaw, including the Court of Appeal decision in Nash provides that there are effectively three ranges to be considered by

the sentencing judge in a case of second-degree murder. The low range, generally 10 to 15 years, is reserved for offenders whose prospects of rehabilitation appear good or for whom, for reasons such as age or a low likelihood of reoffending, there would be little purpose in extending the period of incarceration. The third range, that is from 20 to 25 years, is reserved for what the courts have described as the “worst cases” committed by the “worst offenders”.

In the middle are those cases which do not meet the criteria for the upper or lower ranges. [ 30 ] In this case, the Crown argues that Tina McAleer’s killing falls in the high range of the middle tier of cases, justifying a period of parole ineligibility of twenty years, while the Defence argues that there are a number of mitigating factors in play which justify the minimum ten years of ineligibility. [ 31 ] I will now turn to the particular considerations in this case and my analysis. CHARACTER OF THE OFFENDER [ 32 ] Mr. Lewis did not request a Pre-Sentence Report.

As a result, the Court does not know much about the offender, other than the evidence presented at trial. [ 33 ] Other important considerations include his age and his criminal record, both of which have been addressed by counsel. [ 34 ] I will address Mr. Lewis’ criminal record first. [ 35 ] Mr. Lewis has a lengthy list of offences beginning in 1989, when he was convicted of two counts of break and enter and one count of trafficking in narcotics. He received a sentence of six months incarceration. [ 36 ] Four years later, in 1993, he was convicted of robbery, kidnapping and theft.

He was sentenced to four years incarceration. The year after his statutory release, he was convicted of assault and was recommitted to prison. [ 37 ] In 2001, he was convicted of sexual assault and was sentenced to twelve months incarceration plus time served, and he was given three years probation. [ 38 ] In 2003, he was convicted of criminal negligence causing bodily harm, arson and producing a scheduled substance. He was sentenced to three years in prison for those offences. He was also convicted that same year with breach of probation, assault on a peace officer and fleeing police. [ 39 ] Mr.

Lewis then enjoyed a fairly lengthy period where he appears to have been law-abiding, save for a single conviction for providing false or misleading information in relation to the Sex Offender Registry. [ 40 ] Then, in 2020, Mr. Lewis pleaded guilty to uttering threats against Tina McAleer and to assaulting her. He was given 90 days’ remand credit and was sentenced to time served. [ 41 ] Mr. Lewis pleaded guilty to those offences just weeks before he killed Tina McAleer. [ 42 ] Overall, while this is Mr.

Lewis’ first conviction for murder, it is clear that he has led a violent life with numerous serious criminal offences. He has several convictions for breach of probation or breach of undertakings. His previous convictions and periods of incarceration, the longest of which was four years, do not appear to have had much impact in terms of rehabilitation. [ 43 ] As for age, Calvin Lewis is now 52 years of age. He was 49 years old when he killed Ms. McAleer.

[44] Neither the Crown nor the Defence pointed to Mr. Lewis’ age as an important factor. That said, as will be seen, the Defence hascited a number of sentencing decisions from around the country related to youthful offenders. Mr. Lewis is not a youthful offender, ofcourse. NATURE AND CIRCUMSTANCES OF THE OFFENCE [45] Murder of any kind involves an element of brutality. It is inherent. Every murder involves the taking of a life which is arguablythe most heinous crime known to our society. That being said, not all murders are alike.

Not all murders attract the same level of moralblameworthiness. [46] In this case, the Crown argues that this was a particularly brutal and heinous murder committed in the context of an intimatepartner relationship. The Crown points to the fact that Ms. McAleer was in her own home at the time of her killing and that she wastherefore particularly vulnerable and defenseless. [47] The Crown argues that, because the murder was committed against Mr. Lewis’ intimate partner,

section 718.2(a)(ii) of theCriminal Code requires that to be considered as an aggravating factor. The Crown also points to

section 718.04, which provides that,where the case involves violence against a vulnerable person, including a woman, that the Court’s primary considerations in reaching afit sentence are denunciation and deterrence. The Crown argues that a longer period of parole ineligibility is therefore justified. [48] The Crown also agues that this is a case of what has been termed “domestic murder” and argues that the Court should alsoconsider it an aggravating factor that the offender abused his position of trust vis-à-vis the victim. The Crown cites the 2020 decision ofthe Nova Scotia Court of Appeal in R. v.

Butcher, 2020 NSCA 50, where the Court held that breach of trust was another aggravatingfactor to consider, in addition to violence committed against a domestic partner, where the offender killed his domestic partner. Thatapproach was specifically rejected by this Court in R. v. Joseph Paul Irving, 2015 NBQB 70, where Justice Grant had this to say atparagraph 44: [44] The domestic nature of this offence is an aggravating factor as set out in

section 718.2(a)(ii) of the Criminal Code. The Crownalso submits that s. 718.2(a)(iii) applies as Mr. Irving, in committing this offence “ … abused a position of trust or authority.” I do notaccept that as an aggravating factor in this case. Rather, I accept the submission of the defence that in any spousal relationship thepartners are equal and neither is in a position of authority over the other. I accept that Mr. Irving was in a position of trust as her spousebecause being able to feel safe with your spouse is a kind of trust that is implicit in a spousal or common law relationship.

That, in myview, is one reason why s.718.2(a)(ii) is an aggravating factor, because that implicit trust has been violated. However, Mr.

Irving was notin a position, in relation to his wife, of the trust that a person in authority such as a parent or a teacher exercises over another person, so Ifind that s. 718.2(a)(iii) does not apply in this case. [49] I adopt the approach taken by Justice Grant, for to do otherwise would be to stack the aggravating factors where the legislatorclearly intended to treat those two scenarios — intimate partner violence versus breach of trust — as distinct circumstances. [50] As for the Defence, counsel for Mr.

Lewis argues that, in terms of moral blameworthiness, this case falls at the lower end ofwhat is, by definition, a heinous crime. Counsel argues that when Ms. McAleer was killed, Calvin Lewis was sleep-deprived and hadbeen taking methamphetamine on a daily basis for a period of weeks. The Defence points to evidence that Mr. Lewis was suffering fromhallucinations in the timeframe prior to the killing, and that he was paranoid and suspicious of Ms. McAleer, believing she was planningto kill him. [51] The Defence also points to Mr.

Lewis’ personality disorders, arguing that he had a diminished capacity to control his impulses. Intheir brief, the Defence cites the Alberta Court of Appeal in R. v. Resler, 2011 ABCA 167, where the Court held that it was appropriatefor a sentencing judge to consider the offender’s mental illness in the assessment of his or her moral blameworthiness. The Crownacknowledges that Mr. Lewis’ psychological conditions are proper considerations on sentencing. [52] Finally, the Defence argues that the Court must also consider the issue of provocation. The Defence cites R. v.

Stone, , where the Supreme Court of Canada held that, in a case where the jury had accepted the partial defence of provocation andreturned a verdict of manslaughter, provocation was necessarily part of the Court’s assessment of the offender’s moral blameworthinessin determining a fit sentence. [53] Of course, in Stone, the partial defence of manslaughter was accepted by the trier of fact. In this case, it was not.

[ 54 ] So, can provocation be a consideration where the partial defence related to provocation is dismissed? Counsel for Mr. Lewis argues that there is nothing in the Stone decision which would expressly limit that consideration to cases where the partial defence of provocation is accepted by the trier of fact.

That is true, though counsel was unable to identify any case where provocation was rejected while also being treated as a mitigating factor at the sentencing stage. [ 55 ] In my view, the answer is no — provocation is not a proper mitigating circumstance in this case. [ 56 ] In its reasons of February 3, 2023, this Court considered the Supreme Court’s decision in R. v. Tran , 2010 SCC 58 , which dealt with the partial defence of provocation.

As the Supreme Court explained at paragraph 37: [37] The inquiry into whether the accused was in fact acting in response to the provocation focuses on the accused’s subjective perceptions of the circumstances, including what the accused believed, intended or knew. In other words, the accused must have killed because he was provoked and not because the provocation existed. [ 57 ] Having concluded, as this Court did, that Mr. Lewis had not killed Tina McAleer because he was provoked, it would be unreasonable to impose a more lenient sentence on the basis of an alleged provocation by the victim.

Provocation simply does not apply to this case, either in the determination of Mr. Lewis’ guilt, nor in imposing a fit sentence. VICTIM IMPACT STATEMENTS [ 58 ] The Court received Victim Impact Statements from five individuals. Samantha Sanford [ 59 ] Ms. Sanford read her statement in the courtroom. [ 60 ] Tina McAleer was her mother. She described how her mother's murder has affected her life in immeasurable ways, including physically, psychologically, and financially. [ 61 ] Ms.

Sanford explained that she now has PTSD requiring treatment, and that she is constantly fearful and has become hyper vigilant with respect to her own safety and that of her family. She explained how, in the aftermath of Tina McAleer’s death, she had to remove her mother's belongings from the apartment where the murder occurred, which was traumatic for her. [ 62 ] She described how she had to remain strong for her family members through the grieving process, and how she had to help Tina’s mother accept that her daughter was dead.

She described how the loss of Tina McAleer changed her from an outgoing, fun person to someone who struggles with activities of daily living. She spoke of how Tina would never get to watch her grandchildren grow up, or to see the kind of mother Ms. Sanford would become. [ 63 ] Ms. Sanford described her mother as “her person”, someone who always had her back and was there for her. Graham Sanford [ 64 ] Mr. Sanford is Tina McAleer’s son-in-law. He described how Ms. McAleer’s death took a piece of his wife with her, and how his children would never have a relationship with their grandmother. Mr.

Sanford discussed how he struggles with forgiveness. Madisyn Sanford [ 65 ] Madisyn Sanford is Tina McAleer’s granddaughter.

[ 66 ] In her victim impact statement, she discusses how the murder has affected their entire family. She describes that she now lives in fear that Calvin Lewis will get out of jail and will hurt her family again. [ 67 ] She explains how she misses her grandmother very much, and how she wishes she could have told her grandmother how much she loved her before she died, and how she would have hugged her a little longer. Tammy Tingley Stoddard [ 68 ] Ms. Tingley Stoddard was Tina McAleer’s best friend.

She described how the loss has affected her in numerous ways, and how she felt guilty at not having been able to prevent Tina's death. She described how she tried to convince Ms. McAleer to leave Mr. Lewis, to no avail. [ 69 ] She described how Tina McAleer was so excited about being a grandmother, and how she wanted to make her children and her grandchildren's lives better. [ 70 ] Since Tina McAleer’s death, Ms. Tingley Stoddard has struggled with depression, anxiety and trust issues in her relationships. She explained that she feels lost and lonely without her best friend. [ 71 ] Ms.

Tingley Stoddard indicated that she suffered economically due to her depression and anxiety, which led to missing work. She then lost her house and her car, which she attributes to the loss of her best friend. [ 72 ] Finally, she stated that she is fearful of Calvin Lewis and worries that he will come after her. Samuel Davis Steeves [ 73 ] The Court also received a Victim Impact Statement from Samuel Davis Steeves, who is the uncle of Tina McAleer. Mr. Steeves described how he has gone through grief and loss as a result of Ms. McAleer’s death.

He described that he had a special bond with Tina, one that would never be replaced. ALLOCUTION BY THE OFFENCER [ 74 ] As required by

section 726 of the Criminal Code , the offender was asked whether he had anything to say to the Court prior to sentence being imposed. He did not. MITIGATING AND AGGRAVATING FACTORS [ 75 ] The parties generally agree as to the various mitigating and aggravating factors in this case. They disagree, however, as to the relative weight to be given to those factors. [ 76 ] As for aggravating factors, the Crown raises the following: • The murder was committed against Mr. Lewis’ intimate partner; • Tina McAleer, as a woman, was a vulnerable person; • Mr.

Lewis’ lengthy and oftentimes violent criminal history; • In particular, the recent convictions for uttering threats to Ms. McAleer and having assaulted her, only weeks prior to the killing, as per Nash , supra, at paragraph 73 ); • The brutal circumstances of the killing, with the victim suffering 32 stab wounds; and

• The impact that the offence has had on Ms. McAleer’s family and friends. [ 77 ] The Defence argues that the following are mitigating circumstances in this case: • Mr. Lewis suffered from mental health issues, including personality disorders which rendered him paranoid, and which reduced his ability to control his impulses; • He was sleep-deprived and was using methamphetamine on a daily basis; • Mr. Lewis testified to fearing for his safety and worrying that Ms. McAleer was planning to kill him; • Mr. Lewis acted spontaneously, with no planning. It was described as a “crime of passion”; • Mr.

Lewis had immediate regret, contacted 911 and gave a statement to police in which he admitted to the killing; • He cooperated with police; • He showed anguish and regret in the immediate aftermath and during his interview with police; and • He offered to plead guilty to manslaughter at the start of the trial, indicating an acceptance of responsibility for Tina McAleer’s death. [ 78 ] The Defence also argues that Mr. Lewis has been in pre-sentence remand for three years, part of that during strict Covid-19 measures.

The Defence argues that this should be a mitigating circumstance. [ 79 ] The Crown does not dispute that these are considerations for the Court. [ 80 ] As for the 2020 convictions, the Defence points to Mr. Lewis’ denial at trial to having committed those offences, and to the exculpatory affidavit sworn by Tina McAleer in relation to those offences. Both parties agree that if that affidavit is to be considered, so too should Ms. McAleer’s statement to police of September 2019, which substantiated the allegations of threats, at least.

But, while the Court can certainly consider what might be inadmissible evidence at trial, if that evidence is deemed credible and trustworthy, the inescapable fact is that Calvin Lewis pleaded guilty to those offences, and this Court will not treat those guilty pleas as illegitimate or of lesser significance based upon an after-the-fact denial.

SIMILAR CASES — THE PARITY PRINCIPLE [ 81 ] As noted above, a fit sentence is one which is proportional to the gravity of the offence and which respects the parity principle, which requires that the sentence be similar to sentences imposed upon similar offenders for similar offences committed in similar circumstances. [ 82 ] While no two cases are identical, the Court must consider other sentences imposed for second-degree murder under similar circumstances. [ 83 ] The Crown suggests a sentence in the middle tier, i.e. from 15 to 20 years, and cites the following decisions. R. v. Mollins , 2021 NBQB 91 .

The offender was convicted by a jury of second-degree murder. He had gone to the home of his drug dealer, the victim, intending to threaten the victim with a knife. A scuffle ensued and the victim was stabbed several times. The accused had a lengthy, sometimes violent criminal history, and the Court imposed a thirteen-year period of parole ineligibility. R. v. Tucker , 2017 NBQB 17 . The offender was convicted by a jury in the second-degree murder of his mother. The evidence established that Mr. Tucker shot his mother in the face at close range. She was killed in her bedroom, and she died almost instantly.

Following the murder, Mr. Tucker attempted to hide the body and cover up evidence of the killing. Mr. Tucker did not testify and offered no motive for the killing of his mother. He had a fair Pre-Sentence Report and no convictions for violent crimes. His parole ineligibility was set at fourteen years. R. v. Roy , 2016 NBQB 7 . The offender pleaded guilty to second-degree murder in the death of his mother. He had just been released from hospital following a diagnosis of anxiety, as well as opioid and methamphetamine abuse. He was paranoid and agitated. He

returned to his parents’ home, and in the early morning hours, he stabbed his mother multiple times while she was lying in her bed. He then set fire to the home. The offender was twenty-five years old at the time of the offence and he had a criminal record including property related offences, impaired driving, and an indictable assault involving a family member. His parole eligibility was set at sixteen years. R. v. Irving , 2015 NBQB 70 . A jury convicted Mr. Irving in the second-degree murder of his wife. He strangled her after she disclosed that she wanted a divorce.

He was extremely jealous as a husband and was somewhat controlling. He had no previous criminal record. In view of the domestic nature of the offence and the fact that Mr. Irving used an extension cord in the commission of the crime, the Court imposed a period of parole ineligibility at twelve years. R. v. Angnatuk , 2020 QCCS 3650 . An aboriginal offender murdered his partner by inflicting some one hundred and seventy-five wounds using a sharp, pointed weapon. He had been charged about three months earlier with assault causing bodily harm against the same victim.

He was on an undertaking at the time of the offence. The Court imposed a period of parole ineligibility of eighteen years. R. v. Butcher , 2018 NSSC 194 . The offender was convicted by a jury of second-degree murder. He had killed his girlfriend while she was lying in bed. He stabbed and slashed her in the face and neck. The offender had recently learned that the victim was planning to leave him. The offender had attained university-level education and had a positive pre-sentence report. He attempted suicide after the murder.

The Court imposed a period of parole ineligibility of fifteen years, which was upheld on appeal. [ 84 ] The Crown also cites R. v. Getson , 2011 NBQB 51 , but the Court notes that that case involved a joint recommendation from the Crown and the Defence and is therefore of limited value to the Court. [ 85 ] Counsel for the Defence suggests a sentence at the lowest range, and cites the following cases: R. v. Eli , 2015 BCSC 926 . A nineteen-year-old aboriginal offender broke into a home, took a knife from the kitchen and stabbed the two occupants, killing one and severely injuring the other.

There was no apparent motive. The murder and attempted murder were described by the Court as particularly egregious. The Court considered Gladue factors, and it was noted that the offender suffered from drug and alcohol abuse and had been subjected to violence in the home. He was a first-time offender. He was sentenced to a period of parole ineligibility of twelve years. R. v. Assi , 2021 MBQB 217 . The offender got into an altercation with another man at a café where the offender worked. The manager sent the victim and his friend out and told the offender to go home.

He grabbed a knife, left through the back door and then confronted the victim and his friend, stabbing the victim and killing him. The offender unsuccessfully argued provocation. The offender was twenty years of age and a first-time offender. He was sentenced to parole ineligibility of eleven years. R. v. Lincoln , 2009 BCSC 1181 . The female aboriginal offender was convicted by a jury of second-degree murder in the killing of her infant daughter. She stabbed the child ten times.

The Court heard that she suffered from symptoms similar to foetal alcohol syndrome as well as borderline personality disorder symptoms with alcohol intoxication superimposed upon them, causing the offender to be in a frenzied state at the time of the killing. She was a youthful, twenty-year-old offender. She was sentenced parole ineligibility of ten years. R v. Yliruusi , 2011 BCSC 268 . The offender was convicted of second-degree murder following the stabbing death of the victim in the victim’s apartment.

The offender was under the influence of drugs and alcohol at the time and killed the victim during an attempt to rob him of money and drugs. The offender was thirty-two years of age with a lengthy criminal record, but only two violent crimes; a conviction for assault for which he was sentenced to one month in jail, and a conviction for assault with a weapon for which he was sentenced to six months in jail. The offender was remorseful, and the Court sentenced him to the minimum period of parole ineligibility of ten years. R. v. Lalonde , 2013 BCSC 1349 .

An aboriginal offender pleaded guilty to second degree murder after killing a sex worker in an apparently random attack. The Court noted that the offender had a long history of mental health problems and substance abuse. He heard voices telling him to commit the offence, which the Court concluded were likely delusions. The offender had a lengthy criminal history, both as a youth and as an adult, and some of those convictions were for violent crimes. The Court imposed the minimum sentence of ten years of parole ineligibility. R. v. Harper , 2019 MBQB 82 .

The offender, a young aboriginal man, was convicted by a jury of second-degree murder in the beating death of his cousin. They had been drinking when a fight started. The offender was twenty-six years of age with no prior criminal

history. The Court received evidence that the offender’s behaviour was out of character. A co-accused, who had initiated the attack, had pleaded guilty to second-degree murder and had been sentenced on a joint recommendation to the minimum period of parole ineligibility. The Court therefore imposed the same sentence on Mr. Harper. R. v. Khosa , 2014 BCSC 194 . The accused was given a ten-year parole ineligibility term for stabbing his sister thirteen times in the throat. The offender had no prior criminal history, or history of violence, but Mr. Khosa suffered from schizophrenia.

It is noted that the sentence was the result of a joint submission, and so its persuasive value is somewhat limited. ANALYSIS [ 86 ] In my view, the caselaw that is relied upon by the Defence is almost all distinguishable from the present case. Nearly every case involves youthful aboriginal offenders, some of whom had no prior criminal records. They are mostly older cases, and generally do not involve murder against an intimate partner.

It is acknowledged that the offenders’ mental health issues feature prominently in those cases referred to by the Defence, but that is but one of the considerations this Court must apply. [ 87 ] It has been often said that sentencing is far from an exact science. No two cases are identical, and no two offenders are identical. [ 88 ] In the present case, Mr. Lewis has a lengthy criminal history involving violence and significant periods of incarceration, which suggests that rehabilitation is unlikely.

His age, combined with that criminal history, leads this Court to conclude that there is a significant risk that he will re-offend, and the Court is satisfied that Calvin Lewis represents a future dangerousness, which supports a longer period of ineligibility. [ 89 ] Also, the nature and circumstances of this murder, committed against Mr. Lewis’ intimate partner in her own home, and the violent, brutal circumstances of the killing, leads this Court to conclude that a sentence in the lower tier, that is below fifteen years, would not appropriately address the need for denunciation and deterrence.

This was a truly heinous crime committed against a vulnerable person who had been repeatedly threatened by the offender. The various victim impact statements received by the Court speak to the tragic consequences and the wide repercussions of this terrible crime. [ 90 ] That said, I am satisfied that the mitigating factors in this case, which include Mr.

Lewis’ documented psychological conditions, his paranoia and his reduced impulse control, the fact that he was at the time of the killing a daily user of methamphetamine, and his readiness to accept at least some degree of responsibility for the killing, all justify a sentence at the lower end of that middle tier. [ 91 ] In my view, taking into consideration all the circumstances of this case, the character of the offender, the circumstances surrounding the commission of the offence, the sentencing principles set out in the Criminal Code and relevant jurisprudence, as well as the parity principle and the need for denunciation and deterrence in this case, a fit sentence is a period of parole ineligibility of 15 years.

DISPOSITION [ 92 ] Mr. Lewis, would you please stand, sir. [ 93 ] Calvin Lewis, you have been found guilty of second-degree murder in the death of Tina McAleer. [ 94 ] Your killing of Ms.

McAleer has resulted in unspeakable loss to her family and to her friends, who are still struggling to come to grips with her senseless death. [ 95 ] The Criminal Code mandates that your sentence shall be life imprisonment, and I order that you shall serve a period of at least 15 years before you are eligible to apply for parole, commencing on the date that you were taken into custody, being May 2 nd , 2020. [ 96 ] As well, I am going to impose the following ancillary orders.

[ 97 ] Firstly, I impose a lifetime Weapons Prohibition Order pursuant to

section 109 of the Criminal Code . [ 98 ] Secondly, pursuant to

section 487.04 of the Criminal Code , I make a DNA order requiring that a sample of your bodily substances be taken, analyzed and the resulting DNA profile maintained in the national DNA databank. [ 99 ] Third, in accordance with

section 743.21 of the Criminal Code , I order that, during the custodial period of your sentence, you shall be prohibited from communicating, either directly or indirectly, with any of the following persons: • Samantha Sanford; • Madisyn Sanford; • Laura Tingley; • Graham Sanford; • Melanie Tingley; • Shane Brady; • Tammy Tingley Stoddard; and • Sam Steeves [ 100 ] Fourthly, I am issuing a Forfeiture Order of the weapon which was seized by police as part of the investigation, as well as suspected controlled drugs and substances, pursuant to

section 491 of the Criminal Code . [ 101 ] I will not make any order for a Victim Fine Surcharge in this case in accordance with

section 737 of the Criminal Code as I am satisfied that to make such an order, in the circumstances of this case, would give rise to an undue hardship. [ 102 ] You may be seated, sir. [ 103 ] To the family and friends of Tina McAleer, I wish to express my sympathy for your loss. No sentence imposed by this Court can bring back your mother, your grandmother, or your best friend. [ 104 ] It is hoped that this trial process has allowed for a just result and a fit sentence for Calvin Lewis. Thank you. DATED at Moncton, New Brunswick this 5 th day of July 2023. _____________________________________ Robert M. Dysart, Judge of the Court of Queen's Bench of New Brunswick