The New Brunswick Court of Appeal has dismissed the appeal of Calvin Lewis1, upholding his conviction for the second degree murder of his intimate partner, Tina McAleer. The court affirmed the trial judge’s finding2 that while Ms. McAleer may have threatened Mr. Lewis, he did not kill her in a sudden heat of passion but rather as a deliberate, conscious act stemming from a toxic and controlling relationship. Readers who are unfamiliar with the original court case are encouraged to read our earlier news report here.
The tragic events unfolded on May 2, 2020, in the apartment Mr. Lewis and Ms. McAleer shared. Mr. Lewis, who was 48 at the time, stabbed Ms. McAleer 32 times, causing her death. The case that followed delved deep into a volatile two year relationship characterized by frequent arguments, mutual drug use, and Mr. Lewis’s profound paranoia. He was initially charged with first degree murder, but this was later reduced to second degree murder at trial. While Mr. Lewis admitted to the killing, his defence rested on the partial defence of provocation under the Criminal Code, arguing his culpability should be reduced to manslaughter.
According to an Agreed Statement of Facts and testimony from multiple witnesses, including Mr. Lewis’s own son, Shane Brady, the months and days leading up to the killing were fraught with tension. Mr. Lewis harboured suspicions that Ms. McAleer was unfaithful, even believing she was having an affair with Mr. Brady. He also questioned whether Mr. Brady was his biological son. His behaviour was described as increasingly erratic and paranoid, convinced that Ms. McAleer was conspiring to have him killed.
On the morning of the killing, Mr. Brady testified that he spoke with Ms. McAleer and found her in good spirits. As he walked to the bathroom, he passed his father in the hallway. Shortly after, while in the bathroom, he heard Ms. McAleer call for help but was not immediately alarmed, as he stated such calls were common during their arguments. When he emerged, he discovered a horrific scene: Ms. McAleer was on the couch covered in blood, and Mr. Lewis was standing over her holding a knife. Mr. Lewis then moved toward his son, who fled the apartment.
Much of the case hinged on a detailed, cautioned statement Mr. Lewis gave to police approximately twelve hours after his arrest. In it, he painted a picture of a man who felt utterly trapped and psychologically tormented. “Things have never been good at home. She’s crazy. She drove me fucking crazy,” he told Cst. Patrick Arseneau. He claimed Ms. McAleer had previously set him up, making false accusations that led to his incarceration. He felt controlled by a probation order that required him to reside with her. “I loved the woman to death man. But I couldn’t get away from her,” he said, explaining that if he tried to leave, she would call his probation officer and he would be sent back to jail.
When asked what pushed him to kill her, Mr. Lewis’s account centered on a threat and a discovery. “She told me she was gonna kill me,” he stated. “And I found the needle that she was gonna use to do it.” He claimed that the night before, he heard her mumble in her sleep about a new drug. The next morning, he found a needle and syringe filled with a bluish-green substance in the bedroom. This, he believed, was the instrument of his impending murder.
His account of the final moments was that he confronted Ms. McAleer after flushing the needle. According to his trial testimony, when he accused her of planning to kill him, she retorted, “Don’t matter, you’ll be done before the end of the day anyway.” He testified that he took this as a direct confirmation of her murderous intent. He claimed that after she made this statement and reached for her phone, he “just lost it,” grabbing a knife from the mantle and stabbing her repeatedly.
After the attack, Mr. Lewis called 911, fled in Ms. McAleer’s vehicle, and was soon stopped by police. He immediately told the officer, “The knife is in the van,” where it was found hidden under a pizza box.
While Mr. Lewis’s narrative focused on a sudden loss of control prompted by a death threat, testimony from other witnesses painted a more complex picture. Several people, including Ms. McAleer’s sister, testified that Mr. Lewis had threatened to kill and stab Ms. McAleer on previous occasions. A forensic psychiatrist testified that Mr. Lewis suffered from several conditions, including antisocial personality disorder, methamphetamine use disorder, and paranoid personality disorder, which could cause distorted perceptions and paranoia.
At trial, the judge from the Court of King’s Bench had to determine if the defence of provocation applied. The law requires a two part test. The first, objective part asks if the victim’s conduct, which must be a serious crime like a death threat, was sufficient to deprive an ordinary person of self control. The second, subjective part asks if the accused actually lost control and acted on the sudden, before their passion had time to cool.
The trial judge accepted that Ms. McAleer’s alleged threat could have been enough to make an ordinary person lose control. However, the judge concluded that the Crown had proven beyond a reasonable doubt that Mr. Lewis himself had not subjectively lost his self control. The judge viewed Mr. Lewis’s actions not as a sudden, passionate outburst, but as the culmination of long standing anger and frustration. He was an angry man who felt trapped, blamed Ms. McAleer for his situation, and was fed up. Statements Mr. Lewis made to police like “Enough is enough” were interpreted not as the words of someone who lost control, but as “the words of someone who made a decision to take control and who made a conscious, deliberate decision to kill Tina McAleer.”
Furthermore, the trial judge found the provocation was not “sudden” as required by law. The threat from Ms. McAleer was not something that struck an “unprepared mind.” Rather, it confirmed the paranoid fears Mr. Lewis had been harbouring for a long time. Based on this, the judge rejected the provocation defence and convicted him of second degree murder.
In his appeal, Mr. Lewis argued the trial judge’s verdict was unreasonable. His lawyer, Nathan Gorham, K.C., submitted that since the judge found an ordinary person could have lost self control, it was inconsistent to then find that Mr. Lewis himself had not. He also argued the judge misapprehended the evidence and failed to properly consider his client’s testimony that he “lost it.”
The Court of Appeal, in a unanimous decision written by Justice Robichaud, disagreed. The court clarified that the objective and subjective parts of the provocation test are distinct. “While the circumstances may have been sufficient to cause an ordinary person to lose self-control, this does not mean Mr. Lewis actually lost control and acted on the provocation,” Justice Robichaud wrote. “To conclude otherwise would merge the subjective and objective components, rendering the subjective component meaningless.”
The appeal court found the trial judge had correctly considered the totality of the evidence. This included Mr. Lewis’s history of making threats, his feeling of being controlled, his paranoia, and the context of their toxic relationship. The court endorsed the trial judge’s conclusion that Mr. Lewis did not kill because he was provoked, but killed because the provocation provided a final impetus to end a situation he found unbearable.
The court also affirmed the finding that the provocation was not sudden, citing a Supreme Court of Canada precedent. Mr. Lewis’s mind was prepared for a confrontation, and Ms. McAleer’s final words were not an unexpected shock but the “final stage of doing what he had come to do.” The court granted leave to appeal but ultimately dismissed the appeal, cementing the second degree murder conviction.
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