MONCTON, N.B. – A New Brunswick man who admitted to stabbing his girlfriend 32 times has been found guilty1 of second degree murder after a judge rejected his claim that he acted “in the heat of passion” following a sudden provocation. The February 2023 decision from the Court of King’s Bench of New Brunswick concluded that Calvin Lewis made a conscious decision to kill Tina McAleer out of anger and frustration, rather than losing his self-control in a moment of rage.
The case, which unfolded in a Moncton courtroom, hinged entirely on whether Mr. Lewis was entitled to the partial defence of provocation, which, if successful, would have reduced the murder conviction to manslaughter. While the Crown conceded that the evidence did not support a conviction for first degree murder, it maintained that Mr. Lewis had the necessary intent for second degree murder. Mr. Lewis admitted he caused Ms. McAleer’s death on May 2, 2020, in the Hillsborough apartment they shared, but argued his moral blameworthiness was lessened because he had been provoked.
The court heard a harrowing account of the events that transpired that spring morning. Shane Brady, who identified himself as Mr. Lewis’s son and was living in the apartment, testified that he woke up around 10:00 AM to find Ms. McAleer on the living room couch. He passed Mr. Lewis in a hallway, and the two exchanged brief “good morning” greetings. Mr. Brady noted nothing unusual about Mr. Lewis’s demeanor at that moment. Seconds after entering the bathroom, however, Mr. Brady heard Ms. McAleer shout for help. When he emerged, he found a horrific scene: Ms. McAleer was on the couch, covered in blood, with Mr. Lewis standing over her holding a knife. Mr. Brady testified that Mr. Lewis, who had a “blank” look in his eyes, then moved toward him, causing him to flee the apartment.
At 10:16 AM, just minutes after the attack, Mr. Lewis called 9-1-1. In the call, he calmly told the operator, “I killed someone.” He identified himself and the victim, Tina McAleer, and when asked, “Did you mean to kill someone?” he replied, “Yes I did.” He then left the apartment in Ms. McAleer’s van. He was stopped by police shortly after, where he spontaneously told an officer, “The knife is in the van.” While being transported to the police detachment, he became emotional and said, “You know what, the sad part of all of this is that I truly loved her.” An autopsy would later confirm Ms. McAleer died from 32 stab and cut wounds, including wounds to her heart and aorta.
The trial painted a grim picture of the couple’s two-year relationship, which witnesses, including Ms. McAleer’s family and friends, universally described as toxic, volatile, and fuelled by heavy, daily methamphetamine use by both individuals. The court heard evidence that Mr. Lewis had made numerous threats against Ms. McAleer in the months leading up to her death. Her sister, Laura Tingley, testified that Mr. Lewis had admitted to threatening to stab Ms. McAleer just weeks before the killing. Another friend, Melanie Tingley, recalled Mr. Lewis telling the victim, “Your day is coming, Tina Tingley.” Tammy Tingley-Stoddard, Ms. McAleer’s best friend, testified that while Mr. Lewis was in jail earlier that year, he made threats over the phone, saying things like, “You know you’re going to die, right?”
In a lengthy police statement given hours after the killing, and later in his own testimony, Mr. Lewis described feeling trapped and controlled. He blamed Ms. McAleer for sending him to jail and stated that his probation conditions gave her power over him. “She got me right by the balls,” he told police. The core of his defence rested on the events immediately preceding the attack. Mr. Lewis claimed that on the morning of May 2, he found a syringe with a bluish-green substance in their bedroom. He testified that he believed Ms. McAleer, who he claimed had previously made threats to have him killed, intended to use it on him.
He said he flushed the needle and confronted Ms. McAleer, who was on the living room couch. According to Mr. Lewis, when he told her what he had done, she replied that it did not matter because she could get another one. She then allegedly told him, “Don’t matter, you’ll be done before the end of the day anyway.” Mr. Lewis told police and the court that at that moment, he “just lost it” and “freaked out,” grabbing a knife from the mantle and attacking her.
Justice Robert M. Dysart undertook a detailed analysis of the five legal elements required for the provocation defence. For the defence to succeed, the victim’s conduct must be an indictable offence, it must be sufficient to deprive an ordinary person of self-control, the accused must have actually lost self-control, and both the provocation and the killing must be sudden.
Justice Dysart found that the Crown could not prove beyond a reasonable doubt that Ms. McAleer did not utter the threat, thus satisfying the first element. He also found the Crown failed to disprove the second element: that an ordinary person, placed in the context of the volatile, drug-filled, and paranoid relationship, would not have lost self-control.
However, the defence failed on two crucial subjective elements. Justice Dysart concluded that the Crown had proven beyond a reasonable doubt that Mr. Lewis had not lost the power of self-control. The judge pointed to Mr. Lewis’s own statements to police, such as “I couldn’t live with the lie,” “I just didn’t see any way out,” and “Enough is enough.” These words, the judge found, did not describe a man whose passions were uncontrollably aflame. Instead, they painted a picture of “an angry man who felt trapped, who had made numerous threats to kill Tina McAleer and who blamed her for his situation, and who was fed up with her controlling his life.” The judge determined that Mr. Lewis made a conscious decision to kill his girlfriend because he had “had enough,” not because he was provoked into an uncontrollable rage.
Furthermore, the judge found the alleged provocation was not “sudden,” as required by law. The threat from Ms. McAleer did not “strike upon a mind unprepared for it.” Mr. Lewis had already told police that upon finding the needle, before the final confrontation, he knew Ms. McAleer planned to kill him. Her subsequent words, therefore, only confirmed what he already believed to be true and were not an unexpected shock that would cause a sudden loss of control.
Psychiatric evidence from Dr. Ralph Holly suggested Mr. Lewis suffered from several conditions, including substance-induced psychosis and paranoid personality disorder. However, the judge noted that the opinion of psychosis at the time of the killing was based on the assumption that the needle and threat were hallucinations, a fact that could not be proven. While accepting that Mr. Lewis had a paranoid personality, the judge’s final analysis rested on Mr. Lewis’s actions and his own description of his mindset.
Ultimately, because the Crown disproved essential elements of the provocation defence, it failed. Justice Dysart found Calvin Lewis not guilty of first degree murder, but guilty of the lesser included offence of second degree murder.
