HER MAJESTY THE QUEEN, – v. –, 2023 NBKB 13

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON Her Majesty the Queen v. Calvin Lewis 2023 NBKB 013 MCR/13/2020 BETWEEN: HER MAJESTY THE QUEEN, – and – CALVIN LEWIS DECISION BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATES OF HEARING: April 20-22 and 27-28, 2022; May 2, 2022; December 21, 2022 DATE OF DECISION: February 3, 2023 APPEARANCES: Malika Levesque & Annie St-Jacques, for the Crown Nathan Gorham, K.C. & Breana Vandebeek, for the Accused

DYSART, J. (Orally and in writing) INTRODUCTION [ 1 ] Calvin Lewis was charged with first degree murder in the death of his girlfriend, Tina McAleer. [ 2 ] Trial proceeded before this Court by judge alone, and the Court heard from 13 witnesses over 5 days in April of last year. [ 3 ] Mr. Lewis admits that he killed Ms. McAleer in the apartment where they were living in Hillsborough, New Brunswick, on May 2, 2020. He admits that he stabbed her 32 times and that the stabbing caused her death. 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 ] After the evidence was tendered, and after both parties were granted lengthy adjournments to consider whether to lead additional evidence, the Crown ultimately acknowledged that the evidence did not support a conviction for first degree murder, in that it did not prove beyond a reasonable doubt that Tina McAleer’s killing had been planned and deliberate.

The Crown maintained, however, that the essential elements of second degree murder had been proven beyond a reasonable doubt. [ 5 ] Counsel for the accused, after those lengthy adjournments, admitted in argument that the essential elements of second degree murder had been made out, but argued that the partial defence of provocation, as set out in s. 232 of the Criminal Code , applied to the killing. The Defence argues that Mr. Lewis was provoked and lost the power of self-control, such that his moral blameworthiness is lessened.

By operation of the Criminal Code , a second degree murder which is the result of provocation is reduced to manslaughter. [ 6 ] Thus, after all is said and done, the sole issue to be determined by the Court is whether the partial defence of provocation is applicable in this case. The only two verdicts available to the Court are second degree murder and manslaughter. [ 7 ] More will be said about the legal requirements for provocation in these reasons. [ 8 ] First, the Court will outline the pertinent evidence presented at trial.

While the issues have been significantly narrowed in this case, the evidence which has a bearing on the questions still to be determined by the Court is nonetheless vast. EVIDENCE Agreed Statement of Facts [ 9 ] The parties submitted an Agreed Statement of Facts, which was marked as Exhibit #1 at trial. The Agreed Statement of Facts contain a number of documents as schedules, and those schedules also form part of Exhibit #1. [ 10 ] According to those agreed facts, Calvin Lewis and Tina McAleer had been in a domestic relationship for approximately 2 years prior to Ms. McAleer’s killing.

It was a volatile relationship, marked by frequent arguments as well as drug use by both of them. [ 11 ] The parties agree that Mr. Lewis caused Tina McAleer’s death on May 2nd, 2020 at the apartment where they were both living which was located at 2673 Main Street, in Hillsborough, New Brunswick. [ 12 ] It is agreed that Shane Brady, who was present in the apartment at the time of the killing, initially spoke with Ms. McAleer at around 10:00 AM. She was sitting on the couch in the living room. Mr. Brady then made his way down a corridor towards the bathroom.

As he did so, he passed Mr. Lewis, who had just come from the bathroom and was walking in the opposite direction, towards the living room. Both said good morning to each other. Mr. Brady then made his way into the bathroom and began urinating. Shortly after he entered the bathroom, Mr. Brady heard Ms. McAleer shout for help. [ 13 ] Mr. Brady was not initially concerned, as it was not uncommon for Ms. McAleer to call for help. Mr. Brady finished urinating in the bathroom, and then walked down the corridor to the living room.

When he got there, he saw Tina McAleer laying back on the couch in the living room, covered in blood. He also saw Calvin Lewis standing over her, with a knife in his right hand. Calvin Lewis then moved toward Mr. Brady, and Mr. Brady fled the residence. [ 14 ] At 10:16 AM, Calvin Lewis called 9-1-1. The contents of the 9-1-1 call will be detailed later in these reasons. [ 15 ] Shortly after calling 9-1-1, Mr. Lewis left the apartment and drove away in Ms. McAleer's Dodge Caravan. Melanie Tingley, a neighbour, observed Mr. Lewis and provided that information to officials. [ 16 ] Police were dispatched, and Cst.

Christopher Plomp observed the Dodge Caravan and stopped the vehicle at approximately 10:30 AM on Petersfield Road in Hillsborough. Calvin Lewis was the sole occupant, and upon exiting the vehicle he notified the officer: “The knife is in the van.” He repeated those words a few moments later. Mr. Lewis was subsequently arrested and photographs were obtained which showed a red substance, which appeared to be blood, on his hands. [ 17 ] Following his arrest, police executed a warrant to search the Dodge Caravan, and identified a knife in the van.

That knife was submitted to the RCMP forensic laboratory for analysis, which confirmed that the blade of the knife contained blood which matched the DNA of the victim, Tina McAleer. [ 18 ] Following his arrest, Mr. Lewis was transported to the police detachment. While en route , Mr. Lewis stated: “You know what, the sad part of all of this is that I truly loved her. Can I get my wallet?” [ 19 ] Tina McAleer was pronounced dead shortly before 11:00 AM on May 2nd, 2020. An autopsy performed by Dr. Marek Godlewski, a pathologist, concluded that Ms.

McAleer had suffered 32 stab and cut wounds of varying depths, including stab and cut wounds to her aorta and to the right and left ventricles of her heart, as well as to both lungs. Dr. Godlewski determined that the cause of death was “multiple stab and cut wounds to the chest.” Recording/Transcript of 9-1-1 Call [ 20 ] As noted in the Agreed Statement of Facts, Mr. Lewis contacted 9-1-1 within a few minutes of the killing. According to the recording and transcript of that call, which is identified as

Schedule 1 to Exhibit #1, Mr. Lewis immediately notified the 9-1-1 operator that he had killed someone. When asked, he told the operator his location, giving the civic address. He identified himself as Calvin Lewis, and he told the operator that he had stabbed Tina McAleer with a knife. He spelled his name and Ms. McAleer’s. He gave his date of birth, and asked them to send the cops. When asked, “Did you mean to kill someone?” he answered, “Yes I did.” [ 21 ] When the call was transferred to the telecoms officer for the RCMP, Mr.

Lewis became increasingly frustrated by the questions, many of which had already been asked by the 9-1-1 operator. He confirmed his name, the address and he again confirmed that he stabbed Ms. Tingley. When asked how to spell her last name, he answered that he did not know. What asked to give her age, he said he did not know. He became upset and hung up on the telecoms operator. [ 22 ] During the call, Mr. Lewis responded appropriately to the questioning, though he appears to have mixed up the civic address.

He was clearly agitated during the call and became increasingly annoyed, especially when the questions were repeated by the second operator. Autopsy and Toxicology Screen [ 23 ] As noted, an autopsy was performed by Dr. Godlewski. In his report, which is attached as

Schedule 7 to Exhibit #1, he notes that Ms. McAleer suffered some 32 stab and cut wounds to her body, most of which were in the chest and torso. He wrote:

“A number of wounds are identified within the left and right lungs within the upper and lower lobes. Three wounds are noted penetrating through the anterior pericardium, the tracks extending into the right and left cardiac ventricles and the septum of the heart. There are wounds through the anterior aspect of the root of the aorta, extending approximately 2 cm in width.” [ 24 ] Included within the autopsy report is a toxicology screen which was positive for THC, amphetamine and methamphetamine. That is, the evidence indicates that Ms.

McAleer had consumed THC, the active ingredient in cannabis, as well as amphetamine and methamphetamine prior to her death. Warned Caution Statement to Police [ 25 ] Exhibits 2A and 2B at trial are the CD recording (video and audio) and the transcript of the first of two warned caution statements given by Mr. Lewis to Cst. Patrick Arseneau, an officer with the RCMP’s Major Crimes Unit. The statement was given between 9:06PM and 10:36 PM on May 2, 2020 – that is, some 11 to 12 hours after Mr. Lewis was arrested. It was obtained after Mr.

Lewis had been afforded an opportunity to speak to a lawyer. [ 26 ] During the course of his statement to Cst. Arseneau, Mr. Lewis described what can only be termed a toxic relationship. [ 27 ] He described how he had been jailed earlier that year, having just been released about a month or so before the killing. He told Cst. Arseneau that he was on probation, and that Tina McAleer had put him in jail. [ 28 ] I will now review a number of excerpts from Exhibits 2A and 2B.

Of course, the original document is the audio-video recording of the interview contained on the CD, and so where there is a discrepancy from the transcript, it is because I have relied on the recording. [ 29 ] Mr. Lewis explained to Cst. Arseneau that he had been living at Tina McAleer’s apartment in Hillsborough since he was released from jail about a month earlier: Cst ARSENEAU: Can you tell me uh more about that? Lewis: Well, she sent me to jail for burning her house.

And I figured I'd burn her house down and she told the cops that and then she wrote a statement saying that didn't happen and, and what was the last time she sent me for. Last time she said I fucking, I was going to fucking hurt her and that didn't happen either. Ran across the road and called the cops on me. And they plea bargained me out. My… fucking due to this Corona bullshit. Or whatever she did to plea bargain me out. Cst ARSENEAU: Ok LEWIS: And well I got out and I went back, well I got out the first time, when she put me in, and then I came back cause she put me in again for saying I was gonna hurt her.

Cst ARSENEAU: Ok LEWIS: And then I got out again because they plea bargained those two, two charges together for me to plead guilty to, to get out, 18, 18 months probation and a bunch of fucking shit I gotta do, right? [ 30 ] Mr. Lewis then went on to explain his difficult relationship with Ms. McAleer, describing her as crazy and as someone who drove him crazy and was highly controlling.

Cst ARSENEAU: So how were things at home at that time? LEWIS: Things have never been good home. She's crazy. She drove me fucking crazy. Cst ARSENEAU: Crazy in what sense? LEWIS: I guess cause she set me the fuck up. Over and over and over. Cst ARSENEAU: She set you up? LEWIS: Well I don't know, it seems that way. Cst ARSENEAU: Ok LEWIS: It is that way. It's doesn't fucking seem that way, it is that way. I know. [ 31 ] Mr. Lewis expanded on this idea that Ms. McAleer controlled him, explaining that he had to follow conditions as part of his probation: Cst ARSENEAU: So what were the conditions?

LEWIS: Attend Mental Health, attend to fucking, I don't know, drug programs, some kind of violent and family home violent thing or fucking spousal abuse violent thing or wherever it was I had to do that too and... Cst ARSENEAU: Ok LEWIS: Call in every so often and this and that. Cst ARSENEAU: How did that go? LEWIS: You know, with this Corona right, we just started so. Cst ARSENEAU: Oh ok. LEWIS: But I called a couple times and we done our things a couple times, and stuff. And now say I wanted to leave her house today.

Beep beep beep beep she'd be on the fucking phone to the probation officer and I'd be going to jail. Whether I did a fucking thing or didn't do a fucking thing. I loved the woman to death man. But I couldn't get away from her. [ 32 ] At that point, Cst. Arseneau invites Mr. Lewis to explain what had transpired, beginning the evening prior. Mr.

Lewis explained that he had been feeling unwell the day before and so stayed in the bedroom, to stay “ The hell away from her too so she wouldn't argue and fight and fucking growl and fucking going at me .” He described that Shane Brady and his girlfriend, Maddie Holland, had stayed at the apartment that night.

[ 33 ] He explained that Tina McAleer had come to bed with him, but then got up in the middle night and was “ranting and raving” and then went to sleep on the couch in the living room, staying there until morning. He then had the following exchange with the officer: Cst ARSENEAU: […] What I want to know today and to be honest with you want to know the truth. I want to know what pushed you uh to do that today. LEWIS: She told me she was gonna kill me. Cst ARSENEAU: She told you she was gonna … LEWIS: I couldn't live with the lie. Because of the lie, after lie, after lie, after lie. And I know it.

And I know I know it. And she told me she gonna kill me. And I found the needle that she was gonna use to do it. Cst ARSENEAU: When did she say that? LEWIS: Last night. Well she said in her sleep something about Norm and fucking this one and that one’s dope or some fucking thing and I found the fucking needle. Cst ARSENEAU: Was that the first time she was saying something like that to you? LEWIS: No she could get me whacked anytime she wanted to, I suppose but, this is the first time I took it to heart. Really took it to heart. Cst ARSENEAU: So what happened this morning?

LEWIS: Well, same as every time, she'd go on about anything and everything, blame me for the world. Cst ARSENEAU: She was, she was putting pressure on you? LEWIS: Told me she was leaving. She puts pressure on me all day long every day. Drove me crazy. Cst ARSENEAU: And she knew you loved her. LEWIS: Oh yeah. I would imagine. Pretty hard not to. Cst ARSENEAU: So she basically pushed you to the limit. LEWIS: Pretty well. And then some … always. Cst ARSENEAU: So did she say something to you this morning that you know pushed you over the edge and committed you to do something like this?

LEWIS: She told me she was leaving and not coming back. She told me that I would never fucking make it through the day. Or something like that. I don't know how she said it but, she said it last night to me more or less in her sleep. Grunting and groaning and going on. But then I knew when she said it, then I found what I found and I knew what the fuck the deal was. She's lying to me for fucking months and months and months on end. About everything and anything. She used to do things to play with my head and my heart and my emotions, right.

Cst ARSENEAU: Mmhmm LEWIS: Pushed me right over the fucking...(crying) I really did love her. I really did. [ 34 ] Mr. Lewis then recounts how he had been sitting for days, crying over his difficult relationship with Ms. McAleer. He was then asked whether he predicted what was coming with Ms. McAleer, without being more specific. Mr. Lewis replied: LEWIS: No. How the fuck can you predict that coming? Cst ARSENEAU: Well I don't know. LEWIS: Well I don't know either. I didn't fucking predict it. I just lost it. Found the needle and knew she was gonna fucking dump me or something in my head.

Anyway it’s what I believed. I know she could've anytime she wanted to anyway but I'm just saying like, I don't know. Cst ARSENEAU: Where was the needle? LEWIS: Oh fuck, fucking bedroom. Threw it the fuck away. I don't know what the fucking deal is. I don't know what all the lies are about. I don't fucking know. But I know that I was living in a fucking lie. […]. Cst ARSENEAU: She was lying to you or? LEWIS: Steady. About everything and anything. [ 35 ] A little while later in the interview, Mr. Lewis expanded on the theme that Ms. McAleer was lying to him and controlling him.

LEWIS: […] I loved her to pieces man. I just didn't see any way out. Cst ARSENEAU: Why is that? LEWIS: Because she fucking tortured the fuck out of me. With lies and fucking deception and fucking bullshit moves every day in and day out. Cst ARSENEAU: So she knew how to play with your head. LEWIS: Yes she played with my head, my heart and fucking fuck fucking with me. I didn't want to harm her, but she wanted to fucking kill me. I just lost it, that's all. I just couldn't do it no more.

Cst ARSENEAU: Well you know Calvin I'm glad you're being honest with me today uh and you know I believe when you say that you lost it. Cause I, I truly believe that you loved her.

LEWIS: I do love her. Cst ARSENEAU: And that she was you know, like you said, playing with your head and you had no way out. Well you thought you had no way out. LEWIS: No I thought she was gonna kill me. I didn't think I pretty well knew it. She had enough of being with me and she was gonna fucking kill me. [ 36 ] When asked about the presence of Shane Brady in the apartment at the time of the killing, Mr. Lewis again expressed doubt as to whether Mr. Brady was or was not his son, as Ms. McAleer had tried to convince him.

LEWIS: I don't even know if that kid's name is Shane, I don't even know if that kid is my fucking kid. I don't fucking know nothing about it. Cause you could not believe a word that Tina fucking Tingley told me. So every fucking story she came up with her, or anything at all, you’d have to analyze it in your fucking head to make sure it was, was, was it the truth or is it a lie. Is it the truth or is it a lie. And most times it was a fucking lie. Cst ARSENEAU: It was overwhelming LEWIS: A little bit overwhelming, yeah. Still loved her. Through all of it.

And when fucking she said that, the fucking shit she said last night in her fucking sleep I found the fucking syringe, enough is enough. [ 37 ] Shortly after that, he repeats that sentiment – “I found the fucking needle. And yeah I had enough.” [ 38 ] Cst Arseneau asked why Mr. Lewis didn’t talk to Tina McAleer about the needle. He responded: “Because it makes no sense. It’s a fucking lie. You can’t talk to her about nothing. You can tell her the sky was fucking blue, she’d fucking tell you it was black.” [ 39 ] Mr. Lewis expresses doubt as to whether Ms.

McAleer loved him, stating that she drove him “ fucking nuts ,” that she laughed about it and that she “ tortured ” him. He again stated that he felt trapped in his relationship with Ms. McAleer: “You would go to walk out the door to leave or anything, she'd just call the fucking cops. And fuck I'm on probation with her I'd be fucked. And by the time I got back out she'd be there again to fucking pick me up. I left her. I went to other people's houses and stuff. She come down there and got me fucking kicked out of those places. Fucking. I tried to get away from her.

I couldn't.” [ 40 ] And then later in the interview: “ You can't walk away anyway. She got me right by the balls. I walk away she got a probation order. All she has to do is go boohoo and I'm done. And she boohoos all the fucking time anyway. She calls her fucking parents and everybody in the fucking fucking province and everybody in the fucking down there in the fucking village fucking for anything and everything. I loved her to death man. And all she did was fuck with me.” [ 41 ] Mr. Lewis then told Cst. Arseneau that he knew Ms. McAleer was lying to him about a number of things.

He expressed uncertainty as to whether he is Shane Brady’s father, and suggests that, for all he knows, Ms. McAleer may have been sexually involved with Mr. Brady. He felt that everyone was lying to him. LEWIS: […] But that ain't my fucking ordeal with her, my ordeal with her is that she fucking told me last night that she's got new dope and she's gonna fucking kill me with it. And I found the fucking syringe. Cst ARSENEAU: So that's the real reason why you killed her.

LEWIS: That's the fucking real reason cause I figured she was gonna off me. And I figured she was done with me and she was gonna fucking kill me, yeah. And I'm never fucking, uh she's fucking been asshole-ish before like that but I never fucking never really fucking believed in it, but yeah I did finally believe in it when she fucking seen what I seen and said what she said. Cst ARSENEAU: So that's the reason why you killed her. It's not because of the way she was treating you, it's the … because of the fact… LEWIS: She's treating me that way, yeah.

Cst ARSENEAU: It didn't help, but is it because of the fact she said that last night. LEWIS: She drove me nuts man. She pushed me... Cst ARSENEAU: I know LEWIS: ...to fucking, every fucking day. From fucking dawn to fucking night, like you know what I mean? Cst ARSENEAU: Mmhmm LEWIS: All night, all day long you, happy for a minute, asshole for the next. And I was nothing but a fucking arsehole to her and that's how she treated me the very fucking most of the time. I loved her. I did everything I could fucking possibly do for her.

Got to do her fucking dishes, clean her fucking house, lugging her fucking shit, do this do that, this and that, this and that. Any fucking thing possible she was woulda done or anything I could do for her I would've. I loved her with all my fucking heart. The big argument fucking today is I want twenty dollars out of a fucking welfare cheque and she coulda had the rest of it. That was one big argument last night there so she, she cashed my cheque and keep the fucking money like.

And then kick me out and you know what I mean and her play that little game I'd get halfway up the road and she'd come back and fucking get me and bring me back. Or kick me out and then I go down the fucking road with a bag full of clothes and wouldn't let me fucking take the bags of clothes out of the fucking car. She's fucking retarded. And I loved her to death. I loved her with every fucking bit of my heart. [ 42 ] After stating that he loved Ms. McAleer, Mr. Lewis told Cst. Arseneau that he loved her “’til I thought she was gonna fucking kill me. And there was no more thinking that she was gonna kill me.

I was fucking positive she was gonna kill me or why the fuck would she have a needle?” [ 43 ] Mr. Lewis then explains how nobody in the house “ does needles ,” meaning nobody was an IV drug user. He then explains how the presence of the needle in the apartment was consistent with something that had occurred a couple of days earlier, when he had felt a poke and said to Ms. McAleer that he thought she was trying to poke him with a needle, and they laughed at the idea of injecting someone with a drug. [ 44 ] He then has the following exchange with Cst. Arseneau about his interaction with Ms.

McAleer on the morning of her death: Cst ARSENEAU: So this morning when you woke up she was on the sofa? LEWIS: Yeah. Went and talked to her for a minute. Cst ARSENEAU: Did you talk to her?

LEWIS: Went back in and had a smoke, came back up talked to her again. And she fucking went on about something. Fucking like she does every fucking day. And went back out. And when she said she was leaving or some fucking thing and this and that. Or I was fucking done or some fucking thing however she said it. … I don't know. Cst ARSENEAU: That's when you lost it? LEWIS: I just lost it. Cst ARSENEAU: What happened? LEWIS: Uhhh I don't know, I knew she was gonna kill me or Cst ARSENEAU: Yeah I unders.. yeah LEWIS: Gonna end up in prison because of her or one way or the other...

Cst ARSENEAU: She was playing with your head. LEWIS: She's fucking me one way or the other. So I fucking lost it. [ 45 ] Mr. Lewis then tells Cst. Arseneau that following that argument with Ms. McAleer, he came back and spoke to her and they got into another argument, “ about some fucking stupid thing .” He explained that he believed everyone was playing games and lying to him – Ms. McAleer, her family, his brother and the entire community. “It's all a fucking lie. My whole life. Around her, involved with her, everybody in that fucking community that fucking is involved with her.

It's all a lie.” [ 46 ] He said it took him a while to figure that Ms. McAleer and everyone was lying to him and that his life was a lie. “Everything is a lie in her world to me. And I found that it took a while to figure that out, right, and then I figured it out that … that's what she's doing and has been doing. And I know, I can't leave, I'm pretty much hers. I'm pretty much fucking hers. For whatever fucking reason I knew, I know that I can't. I know if I leave her I'm getting killed, I know if I'm with her I'm gonna get killed.

I know that, but I don't know what for or why.” [ 47 ] At that point in the interview, Mr. Lewis decided to stop cooperating with police. He refused to give any more answers. [ 48 ] The next morning, Cst. Arseneau attempted to interview Mr. Lewis again. That day, Mr. Lewis denied any involvement in Ms. McAleer’s death. He denied that she had been stabbed when he left the apartment, he denied ever seeing the knife that was used to kill her, and he refused to cooperate further with the police. VIVA VOCE TESTIMONY AT TRIAL [ 49 ] I will now summarize the viva voce testimony received by the Court.

I will restrict this

summary to what the Court considers material and admissible evidence. Of course, the Court has considered all of the admissible evidence presented.

Laura Tingley [50] Laura Tingley is Tina McAleer’s sister. [51] Ms. Tingley described an event that occurred about one month prior to the stabbing, at Cook’s Convenience Store and Gas Bar in Hillsborough. She testified that she was standing next to the gas pump, speaking to Ms. McAleer, who was standing next to her vehicle approximately 50 feet away. Mr. Lewis was in Ms. McAleer’s vehicle. Ms. Tingley then described her own observations of Mr. Lewis uttering threats to beat Ms. McAleer. She did not recall his exact words. [52] She also described an incident within a couple of weeks of Ms. McAleer’s death.

She received a call at around 2:30AM. Ms. McAleer and Mr. Lewis had been arguing. Ms. McAleer reported that Mr. Lewis had grabbed her by the neck and had threatened to kill her. Laura Tingley left her home and made her way to the apartment in Hillsborough. She testified that she, Tina McAleer and Calvin Lewis all went out and sat in an old car in the yard of the apartment. She testified that Mr. Lewis admitted threatening to stab Tina McAleer, but said he loved her. Laura Tingley testified that she told Mr. Lewis that he should leave Ms.

McAleer’s apartment, but he refused. [53] Laura Tingley also testified that she received another call from her sister, just a few days before her death. Ms. McAleer reported that Calvin Lewis had threatened to kill her. She testified that Tina McAleer was crying and sounded panicked. Ms. Tingley testified that she asked her nephew, Daniel Tingley, and her then-boyfriend, Rodney Smith, to go to the apartment in Hillsborough to check on Tina McAleer that evening. Daniel Tingley [54] Daniel Tingley is Tina McAleer’s son.

He testified that a few days prior to his mother’s death, his aunt asked him to go and check on Ms. McAleer following a worrisome call. That is the same call as described by Laura Tingley. Daniel Tingley testified that he went to the apartment with Rodney Smith. When they arrived, they found Ms. McAleer and Mr. Lewis in the kitchen, seated at the table. Ms. McAleer had a cut on her right hand and it was wrapped in a towel. She reported to him that there was nothing to worry about. [55] On cross-examination, Mr.

Tingley confirmed that, around Christmas 2019, he had set up a Go Pro video camera in the corridor of Ms. McAleer’s apartment in Hillsborough, hiding it in a shoe. He testified that the video captured Calvin Lewis walking up and down the corridor of the apartment early one morning, between 3:00AM and 6:00AM. Mr. Lewis was holding a knife in his hand, and he was muttering to himself. The video is not in evidence. Shane Brady [56] Shane (Jake) Brady testified that he is the son of Calvin Lewis. He was living at Ms. McAleer’s apartment in Hillsborough for a few months prior to her death. He had moved in when Mr.

Lewis was in jail. [57] Mr. Brady testified that the relationship between Mr. Lewis and Tina McAleer was “ abusive .” He testified that he observed Calvin Lewis grab her and scream at her. [58] Mr. Brady was present in the apartment at the time of the killing. He testified that his girlfriend, Maddie Holland, had spent the night. She left before he got up that morning, which was at around 10:00AM. He testified that when he got up, he walked from his bedroom to the living room, where he found Tina McAleer sitting on the couch, using her phone. They exchanged good mornings as he waited to use the bathroom.

Calvin Lewis was in the bathroom at that time. [59] He testified that as Mr. Lewis left the bathroom, they passed one another in the corridor, exchanging good morning greetings. He testified that this was out of the ordinary for Mr. Lewis. Mr. Brady did not observe a knife in Mr. Lewis' hands when they passed in the corridor. [60] Mr. Brady then made his way to the bathroom. He testified that within seconds, possibly as much as a minute later, he heard Tina McAleer yelling for help. He testified that he finished using the bathroom, and then made his way to the living room in a matter of seconds. There, he saw Ms.

McAleer on the couch, covered in blood. He also saw Calvin Lewis, standing with a knife in his hand. He testified that Mr. Lewis turned towards him, and so he ran out of the apartment. On cross-examination, Mr. Brady confirmed that Mr.

Lewis had a “ blank ” look in his eyes. He acknowledged telling police that Mr. Lewis may have been “ looped out .” He testified that Calvin Lewis seemed to be pumped up, and had an intense look. [61] Mr. Brady confirmed that he observed Calvin Lewis taking drugs, which he described as white pills. He understood it was speed, or methamphetamine. He did not observe Tina McAleer taking speed, but he acknowledged that he gave a statement to the police in which he indicated that “ they ” took drugs every day. At trial, there was significant questioning regarding whether Tina McAleer used drugs.

In my view, there is no dispute about her drug use at the time of her death, as the toxicology report, described earlier in these reasons, confirmed the presence of THC, amphetamine and methamphetamine in her system. Tina McAleer was using drugs around the time of her death. [62] Mr. Brady testified that he did not observe any needles or syringes in the apartment. [63] He acknowledged telling police that Calvin Lewis was sceptical that Mr. Brady was his son. He also confirmed that he told police that Mr. Lewis was paranoid about Tina McAleer sleeping with a 20-year-old, like himself. [64] Mr.

Brady also confirmed that he told police that Mr. Lewis had behaved strangely and had been paranoid whenever Tina McAleer spoke to someone else in private, and that Mr. Lewis went so far as to suggest that Ms. McAleer was planning to have him killed. Mr. Brady confirmed on the stand that he witnessed an argument where Mr. Lewis expressed concerns that Ms. McAleer had arranged for someone to come and kill him. [65] Mr. Brady also confirmed that he had observed Mr. Lewis walking around the apartment, muttering to himself. [66] According to Mr. Brady, neither Mr. Lewis nor Ms.

McAleer slept much, and they were awake until approximately 4:00 AM the morning of the killing, bickering. Melanie Tingley [67] Melanie Tingley, who knew Tina McAleer for 12 or 13 years, testified that the relationship she observed between Ms. McAleer and Calvin Lewis was toxic. [68] She testified that she witnessed threats made by Mr. Lewis. She gave one specific example which occurred on January 7, 2020, just a few months before the stabbing. She was at the Hillsborough apartment and observed Mr. Lewis utter the threat: “Your day is coming, Tina Tingley” (using Ms.

McAleer’s maiden name). [69] She also testified that she witnessed Mr. Lewis threaten to kill Tina McAleer, but she provided no particulars with respect to that threat, either as to the date or where that incident occurred. [70] Melanie Tingley testified that she did not observe any syringe or needle in the Hillsborough apartment. Tammy Tingley-Stoddard [71] Tammy Tingley-Stoddard described yourself as Tina McAleer's best friend. [72] She, like others, testified that the relationship between Ms. McAleer and Mr. Lewis was toxic.

She said they were always fighting. [73] She testified that in the months prior to the killing, she moved in with Ms. McAleer at her apartment while Calvin Lewis was in jail, awaiting trial. During that time, she testified that she overheard threats made by Mr. Lewis from jail over the telephone. He called Ms. McAleer, who put the calls on speakerphone. She testified that Mr. Lewis threatened to kill Ms. McAleer over the phone, saying

things such as: “You put me in here.” “You know you're going to die, right?” “You know why I'm going to kill you, right?” “You know why you're going to get it when I get out, eh Tina?” [74] Ms. Tingley-Stoddard testified that she has known Calvin Lewis since she was a child, and that she recognized his voice. She testified that he became agitated during those telephone calls, usually because he was upset that Ms. McAleer had not put money on his account for use in the jail.

He also accused her of running around on him while he was in jail. [75] She testified that she did not observe any syringes or needles in the house, but she acknowledged drug use by both Mr. Lewis and Tina McAleer. [76] On cross-examination, Ms. Tingley-Stoddard acknowledged that she may have told police that Calvin Lewis had made threats that he should “just kill you” to Tina McAleer, and that sometimes it was in a joking manner. [77] It was suggested to her on cross-examination that she had not mentioned to police that Calvin Lewis had made threats from jail by telephone. Ms.

Tingley-Stoddard felt fairly sure that she had told police about those threats, but she acknowledged that she could not be 100% certain. [78] She confirmed that Mr. Lewis behaved strangely, sometimes following her and Tina McAleer around the apartment, as he seemed worried that they were going to go out without him. She confirmed that Mr. Lewis believed Tina McAleer was sleeping with other men, including his son and his brother. She also confirmed having overheard him on the telephone “ ranting ” about there being people in the walls of the apartment. She acknowledged that Mr.

Lewis sometimes changed topics to something completely unrelated to what they were discussing at the time. [79] She denied ever hearing Mr. Lewis suggest that she and Tina McAleer were plotting to kill him. [80] On re-examination, Ms. Tingley-Stoddard testified that the threats made over the telephone from the jail were never made in a joking manner. Owen Masters [81] Mr. Masters’ testimony was brief. The only pertinent evidence that he provided was that Calvin Lewis routinely did drugs, and specifically speed, which is not in controversy. [82] He also testified that he witnessed Mr.

Lewis, just a few days prior to the killing, suddenly become agitated. He had been sitting on the couch, drinking. He became angry with a raised voice, seemingly for no reason. He did not do anything violent, however. Mr. Masters also observed Mr. Lewis talking to himself and appeared to be hallucinating. Cst. Chris Plomp [83] Cst. Chris Plomp is a member of the RCMP. He testified that on the day of the killing, he was working from the Caledonia RCMP detachment. At around 10:17 AM, they received a report of a possible stabbing at 2673 Main Street in Hillsborough.

The suspect was reported to be Calvin Lewis, who was believed to be driving a black Dodge Caravan towards Riverview, New Brunswick.

[84] Cst. Plomp testified that he made his way towards Hillsborough by taking the Niagara Road, while his colleagues took the Coverdale Road. Cst. Plomp testified that he saw a black Dodge Caravan pass in the opposite direction, which he believed was the suspect vehicle. He activated his lights and made a U-turn. [85] He testified that the Caravan was driving at a normal speed of approximately 50 kilometers per hour but was not stopping. He eventually gave a siren blast, and the Caravan came to a stop. Cst.

Plomp testified that he drew his firearm, and the driver of the Caravan, Calvin Lewis, exited the vehicle and spontaneously stated: “The knife’s in the van.” [86] Cst. Plomp testified that Mr. Lewis responded to his commands to lie down on the ground, and he described Mr. Lewis' demeanor as calm. He testified that his colleagues, Cpl. Robertson and Cst. Robichaud, arrived shortly thereafter as backup, and Cst. Robichaud placed Mr. Lewis under arrest. Cst. Plomp then took a number of photographs, including photographs of Mr. Lewis with red staining on his hands and clothes.

He then searched the Dodge Caravan and found a knife between the front seats of the vehicle, under a pizza box. He testified that the knife appeared to have red staining. Cst. Jean-Luc Robichaud [87] Cst. Robichaud testified that he responded to a call of a possible stabbing and proceeded towards Hillsborough along the Coverdale Rd. He testified that he received a call over the radio that Cst. Plomp was following the suspect vehicle, a Dodge Caravan, on the Niagara Road, and so he proceeded in that direction. He testified that when he arrived on scene, Cst. Plomp had Mr. Lewis on the ground, face down. [88] Cst.

Robichaud testified that he then placed Mr. Lewis under arrest. He testified that Mr. Lewis was cooperative and calm. He testified that Mr. Lewis told him that the knife was in the van. He then placed Calvin Lewis in a police cruiser, read him his rights, and transported him to the Codiac RCMP detachment in Moncton. [89] Cst. Robichaud testified that, as they were driving along Assomption Boulevard in Moncton, near the Moncton Law Courts, Mr. Lewis appeared to become emotional, and said: “The worst part of it, I truly loved her.” [90] Cst. Robichaud testified that Mr.

Lewis seemed to understand everything that was said to him, and he responded appropriately to all questions and commands. Cst. Patrick Arseneau [91] Cst. Arseneau, as noted earlier in these reasons, conducted the interviews of Mr. Lewis following his arrest. While Cst. Arseneau testified at trial, the audio-video recording of the interviews speak for themselves. Calvin Lewis [92] The accused, Calvin Lewis, testified at trial. [93] Much of what he testified to was confirmation of other uncontested evidence.

For example, he and Tina McAleer had been in a relationship for about two years; that he had been living at her apartment in Hillsborough since his release from jail about a month before the killing; that Shane Brady was also living there at the time. [94] He also confirmed that his relationship with Tina McAleer was a difficult one, with a lot of arguing. [95] He testified that both he and Ms. McAleer were daily drug users. He testified that he was using speed on a daily basis, taking 10 to 15 tablets per day.

He did not know the ingredients or the potency of the drugs he was taking, which he described as “ bathroom barbiturates .”

[96] He was also using cannabis daily, which he testified made him mellow, and he took Percocet every day or two for arthritis and back pain. He took Seroquel “ every once in a while ” to help him sleep; though he acknowledged that he rarely slept when he was taking speed. [97] He testified that his drug use meant that he slept very little, sometimes going several days without sleep. He testified that a lack of sleep combined with drug use made him quick to argue. He testified that he usually walked away when Ms.

McAleer started an argument but that when he was on speed, he was more prone to argue back. [98] Prior to her death, Mr. Lewis testified that Tina McAleer had been using speed on a daily basis as well and had been for a few weeks. [99] He testified that in the week before the killing, his drug use did not change. He estimates that he was sleeping a couple of hours per night. [100] Mr. Lewis was asked about his statement to police, and his comment that Ms. McAleer and everyone around her was playing games, and that it was all a lie.

He testified that she had control over him and that he could not do anything or leave their apartment unless she allowed it. When asked to explain the lie, Mr. Lewis seemed incapable of articulating anything beyond a sense that everyone treated him differently than they had before his relationship with Tina McAleer. [101] Mr. Lewis was asked about threats purportedly made against him by Ms. McAleer. He testified that she had, on several occasions, voiced threats to have him killed. He said he had concerns for his own safety as a result of those threats.

He gave an example of a time she said she would take him to Shediac and dump him off a pier because he had taken her van and left her on the side of the road. That would have been two or three months prior to the killing. He considered that a threat to kill him, he testified. On another occasion, he said she asked a man, whose name he could not recall, to take Mr. Lewis into the woods on a 4-wheeler and leave him there. He testified that he considered that a threat to kill him as well. [102] While he stated that he had not taken those threats seriously, and while he testified that he mocked Ms.

McAleer by referring to her as the “ hitman for the Muppets ,” he nonetheless testified that these threats caused him to be worried for his safety. He testified that he always kept it in the back of his mind that she wanted to hurt him at some point. [103] He was then asked about his statement to police that he felt trapped with Ms. McAleer and her lies, and that whether he stayed with her or whether he left, he was going to be killed. Mr. Lewis testified that he felt that, where Ms. McAleer had already tried a couple of times to have him killed, he was likely to be killed if he left her.

He also testified that if he stayed with her, he was always on edge and worried that she planned to kill him. [104] Mr. Lewis was then asked something he told police occurred a week or two before the stabbing – something about being poked while lying on a bed. He testified that he was poked in the back while he and Ms. McAleer were lying on the bed by something, possibly a thumb tack, and he joked to Ms. McAleer that it that would be a good way to kill him, by injecting him with a needle. The same joke was repeated when they were at Mr. Lewis’ brother’s house a few days later.

It had been a joke, but he testified that when he found the needle and syringe on the morning of May 2, 2020, his mindset changed. [105] Mr. Lewis then testified as to the events of the hours prior to the stabbing. He testified that the previous night and into the early morning hours, he and Tina McAleer both used speed and possibly hashish. He testified that they were arguing, but he did not recall what they were arguing about. They both eventually went to bed, but he did not sleep. Ms.

McAleer slept for a while but eventually left their bedroom to sleep on the couch sometime in the early morning hours. [106] Mr. Lewis testified that, while she was sleeping, Tina McAleer was mumbling something about “ Norm ” and some reference to a “ new drug .” It did not mean anything to him at the time, he said. [107] Later, when he got out of bed, he testified that he went to the living room to speak to Ms. McAleer. He asked her where the cigarettes were.

He testified he went back to the bedroom to look for cigarettes and it was then that he found a needle and syringe which contained a bluish-green substance. He testified that he took the needle to the bathroom, removed the plunger from the syringe, dumped the contents, broke the needle and flushed it all down the toilet.

[108] He then proceeded to the living room to confront Ms. McAleer. He said he wanted to know why the needle was in the apartment, since they did not use intravenous drugs. He testified that he concluded that the needle was in the apartment so she “ could use it against me .” [109] He asked Ms. McAleer what the needle was doing in the bedroom. He told her he had flushed it down the toilet. She did not deny it was hers, but rather she replied that it did not matter, that she could get another one. This made him mad, he testified.

He confronted her by suggesting she planned to kill him, and she replied: “Don’t matter, you’ll be done before the end of the day anyway.” He testified that he interpreted that to mean she was going to have him killed. [110] He testified that he then grabbed the phone from Ms. McAleer’s hand. She then moved to grab something off the coffee table, though he could not say what, and at that time he grabbed a knife from the mantle in the living room, and he “jumped her and stabbed her.” He testified that he “just lost it” when Ms.

McAleer replied as she did. “How would you feel if your girlfriend said she was going to try and kill you?” he said. He testified that he freaked out and does not even really recall what happened. He knows he stabbed her, but he said he does not know how many times. [111] Mr. Lewis testified that he did not have the knife on him when he walked to the living room. He testified it was on the mantle, but he does not know who owned the knife or how it got there. [112] Mr. Lewis denied that he planned to kill Ms. McAleer. [113] He also testified that he does not recall calling 9-1-1, though he knows he did. [114] Mr.

Lewis testified that his memory is not good when he takes drugs. He testified that he believes he had suffered hallucinations prior to May 2, 2020, describing how he had seen people in the closet of the apartment. He heard noises and saw people in the closet who were not there. He used a stick to check and satisfied himself that they were not there. Mr. Lewis assumes it was because he had taken too many drugs. [115] On cross-examination, Mr. Lewis was asked about the testimony of other witnesses who described threats he made against Ms. McAleer.

He acknowledged hearing that testimony, but he was never asked whether he made those threats, either during examination- in-chief or cross-examination. Crown counsel then questioned Mr. Lewis about charges he had faced prior to the stabbing for which he had been jailed in the early part of 2020 – one of which was a threat made against Ms. McAleer. Mr. Lewis admitted that he pleaded guilty to that charge, but said it was part of a plea bargain so he could be released from jail during the COVID outbreak. He denied making that threat, which was the subject of the charge. [116] Mr.

Lewis was then asked about the incident described by others when Ms. McAleer’s hand was cut. He testified that she cut her hand when she tried to come across the table to stab him with a knife. He said she stabbed the table and cut her hand. He thought she was trying to scare him. [117] Mr. Lewis was asked about portions of his statement to police. He acknowledged telling police that he blamed Tina McAleer for sending him to jail. “Yes, I do” , he testified. He also acknowledged that on the day of the killing, he was subject to a probation order with conditions.

He acknowledged that if he breached those conditions, Tina McAleer or someone else could notify police. He also acknowledged telling police that, whether he did anything or not, Ms. McAleer had the power to send him back to jail. He testified that she had done it to him before and she could have done it again. [118] He testified that, when he confronted Tina McAleer about the needle, she was sitting on the couch. He wanted to know why the needle was in the house, he said. He testified that she stood up afterwards and started screaming at him.

He testified that he took her telephone from her because he wanted to know who she was calling. He says he knew she was not calling the police – he thought she was calling her cousin. He testified that the argument with Ms. McAleer might have lasted a couple of minutes before he ultimately stabbed her. [119] Finally, Mr. Lewis was asked about the amount of time which passed from when Tina McAleer told him that he would not make

it through the day to when he stabbed her. He testified: “A few seconds. […] A minute at the most.” [120] He confirmed that he did not know he was going to lose it that morning. Dr. Ralph Holly [121] Dr. Holly is a psychiatrist working at the Restigouche Hospital in Campbellton, New Brunswick. He was qualified as an expert in the field of psychiatry and was authorized to give opinion evidence with respect to the diagnosis of mental disorders and the effects of mental disorders. [122] Dr. Holly explained that he originally assessed Mr.

Lewis following his arrest on May 2, 2020 as part of a 30-day psychiatric assessment. He confirmed that, as part of that assessment, he concluded that Calvin Lewis was suffering from antisocial personality disorder and methamphetamine use disorder. [123] Prior to testifying at trial, Dr. Holly reviewed the evidence before the Court by reviewing the exhibits, including Mr. Lewis’ statement to police, by listening to the recorded testimony of the other witnesses and by sitting through Calvin Lewis’ testimony at trial. Armed with that additional information, Dr.

Holly testified that his opinion changed somewhat, and he now believes that Mr. Lewis was also suffering from substance-induced psychosis and paranoid personality disorder on May 2, 2020, in addition to those other two diagnoses. [124] Dr. Holly explained that substance-induced psychosis is brought on by regular use of certain drugs – methamphetamine, in this case. He testified that substance-induced psychosis can result in delusional thinking, such that the individual has unwavering false beliefs.

That is, the subject believes something which is untrue, and will be unable to be convinced otherwise. [125] In this case, Dr. Holly pointed to a couple of instances of such delusional thinking – when Mr. Lewis believed there were people in the closet and when he reported seeing a needle and syringe on the morning of the killing. Importantly, Dr. Holly testified that, if there is evidence to establish that those things were not present, that would be evidence that Mr. Lewis had lost a degree of contact with reality and was having delusions. [126] Dr.

Holly testified that delusions can vary, and often involve paranoia about others. Again, drawing the analysis back to the facts of this case, he cited that Mr. Lewis told police that everyone was lying to him and against him, including Ms. McAleer and his brother. He stated it could be considered delusional thinking if what Mr. Lewis believed is proven to be untrue. He felt that Mr. Lewis’s testimony that Tina McAleer was planning and trying to kill him would be consistent with delusional thinking, again if it was proven to be untrue. [127] Dr.

Holly also confirmed that delusional thinking can be characterized by disorganized speech and behaviour, for example jumping from one topic to another completely unrelated topic during a conversation. He agreed that muttering to oneself would also be an indication of psychosis. [128] Dr. Holly testified that, in his opinion, two features of this case appear to support that Mr. Lewis had delusional thinking: first, he believed that Ms. McAleer was having sex with others, including his 20-year-old-son, and secondly, his belief that she wanted to kill him.

He testified that, if the evidence establishes that his belief was untrue, that would tend to establish delusions and the presence of psychosis. [129] Dr. Holly testified that, with heavy use of methamphetamine, these delusions can last for up to 4 weeks, well after the direct effects of the drug have worn off. The same can also occur from chronic, heavy use of cannabis. [130] He testified that the symptoms of psychosis can vary over time, such that hallucinations – seeing or hearing things that are not there – will usually vary throughout the day; whereas delusional thinking – for example, the belief that Ms.

McAleer was sleeping with his son – would be more constant.

[131] With respect to the killing of Ms. McAleer, Dr. Holly testified that, in his opinion, it is highly probable that Mr. Lewis was suffering from substance-induced psychosis at the time. He based that opinion on the presumption that the needle reported by Mr. Lewis was not real and on his paranoid thinking related to other people. Dr. Holly went on to explain that psychosis can impact how the subject responds to outside stimuli and threats, as it affects one’s perceptions. He testified that, assuming the needle did not exist, Mr. Lewis likely reacted impulsively to a perceived threat.

He said this may have been due to psychosis and it may also have been due to his underlying personality disorder; and likely, it was a combination of several factors. [132] Dr. Holly acknowledged that, based on what he had heard and read, there was no evidence to substantiate that the needle did not exist or that Ms. McAleer’s threat did not exist. He assumed those things were imagined, but he agreed that it was entirely possible they were real. He had no way of knowing. [133] Dr.

Holly then went on to explain that substance-induced psychosis is distinct from delusional disorder, which is a primary psychiatric disorder. He testified that such a diagnosis can only occur following a 6-month assessment of the patient in order to rule out other explanations for the delusions. He testified that it is unlikely, in his opinion, that Mr. Lewis was suffering from an organic delusional disorder. [134] As for Mr. Lewis’ paranoid personality disorder, Dr.

Holly testified that this condition can cause symptoms including a belief that people want to hurt you, that people are not loyal and those feelings can trigger anger. He testified that the condition is marked by over- valuation combined with an unwavering belief. Dr. Holly testified that Mr. Lewis likely had paranoid personality disorder from prior to his drug use. [135] As for sleep deprivation, Dr. Holly testified that the effects can be wide-ranging, from hallucinations, to augmenting the effects of paranoid personality disorder, to impacting the subject’s impulse-control. In terms of Mr.

Lewis, specifically, all Dr. Holly could say was that sleep deprivation may have impacted his impulse-control, and he stated that the significance of that impact would be impossible to estimate. [136] Regarding the overall effect of substance-induced psychosis in this case, Dr. Holly testified that it does not give rise to a defence of “Not Criminally Responsible” because Mr. Lewis understood the nature and consequence of his actions that day, and he had the ability to know right from wrong. [137] During cross-examination, Dr. Holly confirmed that he first met Mr.

Lewis three days after the stabbing, on May 5, 2020. He said that during his assessment of Mr. Lewis at the Restigouche Hospital, he did not observe any behaviours suggestive of hallucinations. He testified that Mr. Lewis seemed oriented and had normal working memory. [138] Dr. Holly testified that after he received some disclosure in the case, while Mr. Lewis was still being assessed in Restigouche, he met with Mr. Lewis again and Mr. Lewis told Dr. Holly that he “ felt trapped .” [139] Dr. Holly acknowledged that he could not say when Mr.

Lewis was or was not psychotic, unless it can be confirmed that he saw or heard something that was not real. [140] Finally, Dr. Holly agreed on cross-examination that Mr. Lewis had exhibited what were termed “ positive acts ,” such as taking Ms. McAleer’s telephone from her and attempting to hide the knife under a pizza box in the van. He explained that the presence of a personality disorder does not mean that the subject loses free will; but it may result in the subject having less impulse control and a lower frustration tolerance.

THE PARTIAL DEFENCE OF PROVOCATION [141] As mentioned earlier in these reasons, Calvin Lewis pleads a partial defence, namely provocation. [142] Provocation is referred to as a partial defence because, if it applies, it will not exonerate Calvin Lewis of criminal responsibility in the killing of Tina McAleer. He will not be acquitted. It is unlike other defences, for example self-defence, which have the effect of exonerating the accused completely.

[143] Here, both the Crown and Defence agree on one thing – the essential elements of the offence of second degree murder are met. Ifthe partial defence of provocation is applicable, the charge of second degree murder would be reduced by law to manslaughter, with aless severe sentence commensurate with that less blame-worthy offence. [144] The partial defence of provocation is intended to account for what have been termed the human frailties common to everyone.

Itis intended to address those circumstances where someone has been provoked and who, due to such provocation, has had their passionsso inflamed that they are unable to control their actions. This partial defence has been a part of the criminal law in Canada for well overa century. As stated by the Supreme Court of Canada in the now nearly 100-year-old decision of R. v. Manchuk, (SCC): “Provocation . . . neither justifies nor excuses the act of homicide.

But the law accounts the act and the violent feelings which promptedit less blameable because of the passion aroused by the provocation, . . . though still sufficiently blameable to merit punishment ― and itmay be punishment of high severity ― but not the extreme punishment [applicable to murder].” [145] It is important to recall that, no matter the outcome of the analysis in this case, Mr.

Lewis will be convicted of a serious criminaloffence – either second degree murder or manslaughter – and he will be given a fit sentence for that offence according to law. [146] The partial defence is set out in s. 232 of the Criminal Code, which reads: 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. [147] By operation of that section, provocation only applies to criminal acts which would otherwise be murder. [148] As stated, the parties agree that the evidence presented in this case proves beyond a reasonable doubt that Mr.

Lewis committedsecond degree murder. The only remaining question is whether he was provoked. [149] The essential elements of second degree murder are that the accused, Calvin Lewis, committed an unlawful act; that his unlawfulact caused Tina McAleer’s death; and that Mr. Lewis had the intent required for murder. [150] Of course, Mr. Lewis admits that he stabbed Tina McAleer and he admits that the stabbing caused her death. The only remainingelement is intent for murder. To prove that Calvin Lewis had the intent required for murder, the Crown would be required to provebeyond a reasonable doubt either that Mr.

Lewis meant to kill Tina McAleer when he stabbed her, or that he intended to cause her bodilyharm which he knew was likely to cause her death and was reckless whether death ensued or not. [151] Like counsel for both the Crown and Defence, the evidence in this case satisfies this Court beyond a reasonable doubt that CalvinLewis did, indeed, have the necessary intent for murder. [152] As a result, the next question to be determined is whether there is sufficient evidence before this Court to lend an air of reality tothe partial defence of provocation. [153] Like many other defences in the criminal law, provocation need not be proven by the accused.

Rather, if there is an air of realityto the partial defence, the Crown must prove beyond a reasonable doubt that provocation does not apply. [154] Because of this additional burden on the Crown, the Court must first determine whether there is an air of reality.

[155] Before engaging in the air of reality analysis, I will first introduce in a

summary fashion the elements of the defence. PROVOCATION — ELEMENTS [156] One of the simplest and most commonly cited description of the elements of the partial defence of provocation comes theSupreme Court’s decision in R. v. Thibert, (SCC), a decision penned by Justice Cory. He wrote at paragraph 4: “The

section specifies that there is both an objective and a subjective element to the defence. Both must be satisfied if the defence is tobe invoked. First, there must be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power ofself-control as the objective element.

Second, the subjective element requires that the accused act upon that insult on the sudden andbefore there was time for his passion to cool. [...]” [157] The Criminal Code was amended in 2015, and so the wrongful act committed by the victim must now be an indictable offencepunishable by 5 years in prison. [158] Others have broken down the objective and subjective tests into 5 distinct questions. For example, in its model jury instructions,the Canadian Judicial Council lists them as follows: 1. The victim engaged in conduct that constituted an indictable offence punishable by five years or more. 2.

The victim’s conduct was sufficient to deprive an ordinary person of the power of self-control; and 3. When the accused killed the victim, he or she had lost the power of self-control as a result of the victim’s conduct; and 4. The victim’s conduct was sudden; and 5. The accused’s acts that caused the victim’s death were committed suddenly and before there was time for his or her passion to cool. [159] That is the approach I prefer, as it breaks each element down to a simple, direct question.

AIR OF REALITY [160] While this trial proceeded by judge alone, most murder trials are decided by juries. [161] Before the defence of provocation can be left with a jury, the trial judge must first determine whether there is an air of reality tothat defence. While this exercise is somewhat unusual in the context of a judge-alone trial, it is nonetheless a necessary step given that itcreates a new burden on the Crown to disprove, beyond a reasonable doubt, the elements of provocation. [162] The classic statement of the air of reality test was established by the Supreme Court of Canada in R. v.

Cinous, 2002 SCC 29,which remains the leading authority with respect to the air of reality test. That test was set out at paragraphs 53, 54 and 65 of the decisionas follows: 53 In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by theaccused to be true. See Osolin, supra; Park, supra. The evidential foundation can be indicated by evidence emanating from theexamination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses.

It can also rest upon the factualcircumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by theaccused. See Osolin, supra; Park, supra; Davis, supra. 54 The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question isreserved for the jury. See Finta, supra; R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330. The trial judge does not make

determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. SeeR. v. Bulmer, (SCC), [1987] 1 S.C.R. 782; Park, supra. Nor is the air of reality test intended to assess whether thedefence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day.

The question for the trial judge is whether theevidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue. […] […] The question is whether there is evidence upon which a properly instructed jury acting reasonably could acquit if it believed theevidence to be true. The second part of this question requires the trial judge to determine whether the evidence relied upon is reasonablycapable of supporting the inferences required to acquit the accused. [163] In R. v.

Mayuran, 2012 SCC 31 , Justice Abella had this to say about the air of reality analysis in the context aprovocation defence: [21] In determining whether a defence has an air of reality, there must be an examination into the sufficiency of the evidence. It is notenough for there to be “some evidence” supporting the defence (Cinous, at para. 83). The test is “whether there is (1) evidence (2) uponwhich a properly instructed jury acting reasonably could acquit if it believed the evidence to be true” (Cinous, at para. 65).

For defencesthat rely on indirect evidence or defences like provocation that include an objective reasonableness component, the trial judge mustexamine the “field of factual inferences” that can reasonably be drawn from the evidence (Cinous, at para. 91). [164] In a companion decision to Mayuran, supra, Chief Justice McLachlin (as she then was) had this to say in R. v.

Pappas, 2013 SCC56 , at paragraphs 22 and 25: [22] The air of reality test requires courts to tread a fine line: it requires more than “some” or “any” evidence of the elements of adefence, yet it does not go so far as to allow a weighing of the substantive merits of a defence: R. v. Mayuran, 2012 SCC 31, [2012] 2S.C.R. 162, at para. 21. A trial judge applying the air of reality test cannot consider issues of credibility and reliability, weigh evidencesubstantively, make findings of fact, or draw determinate factual inferences: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 87;R. v.

Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 12. However, where appropriate, the trial judge can engage in a “limitedweighing” of the evidence, similar to that conducted by a preliminary inquiry judge when deciding whether to commit an accused totrial: see R. v.

Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, cited by McLachlin C.J. and Bastarache J. in Cinous, at para. 91. […] [25] Where the evidence instead requires the drawing of inferences in order to establish the elements of a defence, the trial judge mayengage in a limited weighing to determine whether the elements of the defence can reasonably be inferred from the evidence. “Thejudge does not draw determinate factual inferences, but rather comes to a conclusion about the field of factual inferences that couldreasonably be drawn from the evidence”: Cinous, at para. 91.

In conducting this limited weighing, the trial judge must examine thetotality of the evidence: Cinous, at para. 53; Park, at para. 13, per L’Heureux-Dubé J. [165] It is within that legal framework, then, that the Court must approach the 5 essential elements related to the partial defence ofprovocation in order to determine whether there is or is not an air of reality. 1. The victim engaged in conduct that constituted an indictable offence punishable by five years or more. Here, there is evidencefrom Mr. Lewis that Tina McAleer had made threats to kill him in the past. Mr.

Lewis said that he found a syringe with a bluish-greensubstance, and that Ms. McAleer said something to the effect: “You wont’ make it through the day.” That evidence and the inferenceswhich may be drawn from it are sufficient, in my view, such that a properly instructed jury acting reasonably could have reasonabledoubt as to that element, i.e. that she threatened to kill Mr. Lewis. 2. The victim’s conduct was sufficient to deprive an ordinary person of the power of self-control. This is, of course, an objectivestandard. Whether Mr. Lewis was, in fact, deprived of self-control matters not at this stage.

In the context of an objective standard, thatcomponent cannot be established by direct evidence, since it requires an analysis beyond what was said by the accused. The trial judgemust decide whether it can be inferred that an ordinary person would have been deprived of self-control. In my view, a properlyinstructed jury acting reasonably could have reasonable doubt on that issue based upon the evidence in this case and the inferences whichmight reasonably be drawn. 3. When the accused killed the victim, he or she had lost the power of self-control as a result of the victim’s conduct. Accordingto Mr.

Lewis, he “lost it.” That is what he told police and it is what he testified to in the courtroom. He testified that he freaked out.

Shane Brady testified that Mr. Lewis appeared calm only moments earlier when they passed in the corridor. This is a subjective branch of the test, and in my view there is therefore evidence which could lead a properly instructed jury acting reasonably to have reasonable doubt as to this element. 4. The victim’s conduct was sudden . Again, there is evidence that Mr. Lewis did not plan to kill Ms. McAleer, and he testified that he “lost it.” There is evidence that he was calm moments earlier, and by all accounts the events of May 2, 2020 unfolded over a very brief timeframe of perhaps a few minutes.

I am satisfied that a properly instructed jury acting reasonably could have reasonable doubt on that issue. 5. The accused’s acts that caused the victim’s death were committed suddenly and before there was time for his or her passion to cool. For the same reasons as the previous element, I am satisfied that a properly instructed jury acting reasonably could have reasonable doubt on that issue. [166] There is an air of reality to the partial defence, and so the Court must now engage in the analysis of answering those 5 questions.

That is, has the Crown proven beyond a reasonable doubt that at least one of those elements is absent in this case, such that the partial defence of provocation fails. W. (D.) ANALYSIS [167] Before setting out the Court’s findings of fact, the Court will first address the need for a W. (D.) analysis. [168] Typically, when an accused testifies, the Court is required to undertake an analysis, commonly referred to as the W. (D.) analysis.

The purpose of that analysis is to ensure that the trier of fact – either a judge acting alone or a jury – never forgets that the accused is presumed innocent throughout the trial and the analysis of the evidence, and that the accused need not prove anything.

As a result, the analysis provides that if the trier of fact believes the testimony of the accused that he or she did not commit the alleged offence, then the accused must be acquitted. [169] Likewise, and more importantly, even if the trier of fact does not believe the accused, if his or her testimony gives rise to a reasonable doubt, they must be acquitted.

And, even if the accused’s testimony does not give rise to reasonable doubt, if the rest of the evidence presented at trial does not prove the accused’s guilt beyond a reasonable doubt, he or she must be acquitted. [170] That analysis cannot be applied in the same manner in the context of this case. Mr. Lewis admits that he killed Ms. McAleer and he admits that he meant to do it, or at least that he meant to stab her, and he knew it was likely to result in her death. Even if the Court believes all his testimony, Calvin Lewis cannot be acquitted.

Recall that the partial defence would only reduce the conviction to manslaughter. [171] Of course, some of the elements involved the application of an objective standard - the standard of the “ordinary person.” The W. (D.) analysis will have limited application in those instances, but the Court remains cognisant that it is at all times the Crown’s burden of proof, and that burden never shifts to the accused. Calvin Lewis need not prove that he was provoked; rather, the Crown must prove that he was not provoked.

And the Crown can only accomplish that by disproving one or more of the elements beyond a reasonable doubt. [172] That, in my view, is the proper application of W. (D.) to this analysis. FINDINGS OF FACT [173] There are a number of factual determinations which are not controversial in this case. [174] Every witness who knew them testified that the relationship between Tina McAleer and Calvin Lewis was a toxic one, marred by drug use, arguments, hostility and indeed violence.

That is not disputed. [175] I have no difficulty in concluding that Calvin Lewis was a daily methamphetamine user in the weeks leading to the killing. I have

no difficulty concluding that he also used cannabis, either “weed” or hashish, on a daily or nearly daily basis as well. The toxicology report confirms that Tina McAleer was also a user of those drugs at the time of her death. THREATS [176] One of the themes throughout the Crown’s case was evidence that Mr. Lewis had made threats against Tina McAleer. [177] The Court finds that Calvin Lewis made several threats to harm and kill Tina McAleer in the days, weeks and months before he killed her. [178] I accept the evidence of Laura Tingley that Calvin Lewis admitted to having threatened to stab Ms.

McAleer a week or two before her death. I found Ms. Tingley to be entirely credible with respect to that evidence. [179] I further accept the evidence of Shane Brady that he witnessed Mr. Lewis grab Ms. McAleer and scream at her. As well, I accept the testimony of Melanie Tingley that Calvin Lewis threatened to kill Ms. McAleer, and that in January 2020 he said, “ Your day is coming, Tina Tingley .” [180] I further accept the evidence of Tammy Tingley-Stoddard, who described numerous threats, including threats to kill Tina McAleer, made over the telephone while Calvin Lewis was in jail.

That evidence is consistent with Mr. Lewis’ own evidence that he blamed Tina McAleer for putting him in jail. While the Court recognizes that Mr. Lewis may have made threats in a joking manner in the past, the evidence satisfies me that he also made serious threats to harm her and kill her while he was in jail. ANIMUS [181] Calvin Lewis admits that he blamed Ms. McAleer for sending him to jail in 2020. It is also clear that he blamed her for being subject to conditions as part of his probation, and there is no doubt that Mr. Lewis felt trapped by Ms. McAleer.

He felt that she controlled his life and could have sent him back to jail at any time. She had him by the balls, as he told police. [182] Also, while he was not questioned about this during his testimony, Mr. Lewis told police that, in addition to believing that Ms. McAleer wanted to kill him, he believed she was planning to leave him. He stated this more than once in his interview with Cst. Arseneau. [183] As well, he told Cst. Arseneau that the night or early morning prior to the killing, he and Ms. McAleer argued over money. He wanted $20 from a welfare cheque and offered that she could keep the rest.

Apparently, she did not agree. That was clearly one of the factors in play on the morning of May 2, 2020. PSYCHIATRIC ILLNESS/DRUG-INDUCED PSYCHOSIS [184] I now turn to Mr. Lewis’ mental state and Dr. Holly’s opinion. [185] During the trial, Mr. Lewis’ mental state was the focus of much of the evidence presented. By the end of the trial and during closing arguments, it seems to feature much less prominently in both the Crown’s and the Defence’s case. Given that the only live issue is the partial defence of provocation, the relevance of Mr.

Lewis’ mental state would seem only to have relevance to the subjective parts of the analysis. [186] Dr. Holly is a qualified and experienced expert in psychiatry with extensive experience in forensic psychiatry. He examined Mr. Lewis in May 2020 after the killing, first seeing him on May 5 th . [187] There is no defence of “Not Criminally Responsible” being advanced in this case, and Dr. Holly agreed that Mr. Lewis understood the nature and consequences of his actions and he had the ability to tell wrong from right.

[188] Initially, after that 30-day assessment in Restigouche, Dr. Holly diagnosed Calvin Lewis with antisocial personality disorder andmethamphetamine disorder. He did not offer the Court any real assistance in understanding those conditions or how they might haveaffected Mr. Lewis. [189] He then added two diagnoses after reviewing the evidence in this case – drug-induced psychosis and paranoid personalitydisorder. Dr. Holly specifically discounted delusional disorder in this case. [190] Dr. Holly testified that he believed Mr. Lewis was suffering from drug-induced psychosis at the time of the killing.

This wasbased on his assumption that certain things described by Calvin Lewis were in fact hallucinations. Specifically, he testified that if therewas no needle in the apartment that morning, and if Ms. McAleer did not threaten to kill him, then those were likely hallucinations ordelusional thoughts. And the most likely explanation for hallucinations is drug-induced psychosis. This would be consistent with prior,corroborated instances, such as when Mr. Lewis saw people in the closet – which was confirmed to be false. [191] But Dr.

Holly acknowledged that he had no way of knowing whether the needle and the threat were real or imagined, and heacknowledged that he was not aware of any evidence that would tend to prove they were not real. Neither is the Court aware of anyevidence which could be used to establish that the needle and the threat were not real. In the end, all we have is the evidence of Mr.Lewis on that point, since Ms. McAleer was the only person who might be able to say otherwise. [192] So, Dr.

Holly’s theory of drug-induced psychosis at the time of the killing is based on his assumption that the needle and thethreat are not real, which he acknowledged cannot be established in this case. This is to be distinguished from previous incidents, daysearlier, when Mr. Lewis reported seeing people in the closet. [193] Also, when one

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