R V Lavallee

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R. v. Lavallee, 2017 SKPC 27, 2017 CarswellSask 123
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Copyright \u169\'3f Thomson Reuters Canada Limited or its licensors (excluding
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2017 SKPC 27
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Saskatchewan Provincial Court
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R. v. Lavallee
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2017 CarswellSask 123, 2017 SKPC 27
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Her Majesty the Queen and Matthew Warren Lavallee
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S.D. Schiefner Prov. J.
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Judgment: March 17, 2017
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Docket: Prince Albert 90113502
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Counsel: Ms Cynthia Alexander, for Crown
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Mr. Pab Chetty, for Accused
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Subject: Criminal
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; Evidence
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Criminal law
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--- Offences
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\u8212\'3f Murder
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\u8212\'3f Attempted murder
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\u8212\'3f Miscellaneous
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Provocation \u8212\'3f Male accused and female complainant had lived together from
time to time, but whether they were living together at time of offence at bar was
disputed \u8212\'3f Accused, complainant, and others began socializing and drinking
at complainant\rquote s house in evening \u8212\'3f Next morning, accused entered
complainant\rquote s bedroom and found her in bed with man \u8212\'3f After man
left bedroom, accused attacked complainant with knife \u8212\'3f Complainant
received approximately 14 wounds, including cuts to her neck, wrists and ankles,
and stab wound that ruptured her left eye \u8212\'3f Accused was charged with
attempted murder \u8212\'3f Accused convicted \u8212\'3f Provocation defence in s.
232 of Criminal Code was of no assistance to accused for two reasons \u8212\'3f
First, that provision applies to culpable homicide, not to attempted murder
\u8212\'3f Second, facts of this case did not satisfy objective test for statutory
defence of provocation within meaning ascribed in decisions cited by accused
\u8212\'3f Even if accused\rquote s assertion that he and complainant were in
spousal relationship was accepted, finding one\rquote s spouse in bed with another
lover is not sufficient to deprive ordinary adult of power of self-control
\u8212\'3f Acts of provocation were relevant to whether accused had specific intent
required for attempted murder \u8212\'3f However, cumulative effect of provocation
and intoxication, together with accused\rquote s evidence, did not raise reasonable
doubt that he had specific intent required.
\par
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Criminal law
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--- Defences
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\u8212\'3f Intoxication
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\u8212\'3f Specific intent
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Male accused and female complainant had lived together from time to time, but
whether they were living together at time of offence at bar was disputed \u8212\'3f
Accused, complainant, and others began socializing and drinking at
complainant\rquote s house in evening \u8212\'3f Next morning, accused entered
left bedroom, accused attacked complainant with knife \u8212\'3f Complainant
received approximately 14 wounds, including cuts to her neck, wrists and ankles,
and stab wound that ruptured her left eye \u8212\'3f Accused was charged with
attempted murder \u8212\'3f Accused convicted \u8212\'3f There was no air of
reality to accused\rquote s assertion that he was in advanced state of intoxication
and thus was incapable of understanding or foreseeing natural and probable
consequences of his actions \u8212\'3f To contrary, Crown proved that accused
clearly understood nature and consequences of his actions \u8212\'3f Accused\rquote
s evidence that he was intoxicated was perfunctory \u8212\'3f Accused did not
testify as to how much he drank or when, or as to how much acid he took and when
\u8212\'3f Fact that accused was disruptive during evening was of limited probative
value \u8212\'3f Accused did not consume any alcohol for period of up to three or
four hours prior to incident \u8212\'3f Other than accused\rquote s lack of recall,
there was no evidence that he exhibited any of common indicia of advanced
impairment prior to or after offence \u8212\'3f There was no expert evidence to
support defence of intoxication, which typically addresses time and amount of
consumption, blood alcohol concentration, and physical effects of alcohol and drugs
on cognition.
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i0
Criminal law
}
}
{\f2 \b0 \fs20 \cf1 \i0
--- Offences
}
}
{\f2 \b0 \fs20 \cf1 \i0
\u8212\'3f Murder
}
}
{\f2 \b0 \fs20 \cf1 \i0
\u8212\'3f Attempted murder
}
}
{\f2 \b0 \fs20 \cf1 \i0
\u8212\'3f Elements
}
}
{\f2 \b0 \fs20 \cf1 \i0
\u8212\'3f Specific intent
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
Male accused and female complainant had lived together from time to time, but
whether they were living together at time of offence at bar was disputed \u8212\'3f
Accused, complainant, and others began socializing and drinking at
complainant\rquote s house in evening \u8212\'3f Next morning, accused entered
left bedroom, accused told complainant that he wanted to watch her die, then
stabbed her twice in neck near her jugular vein \u8212\'3f When complainant told
accused she was going to bleed out, he said he didn\rquote t care and continued his
attack \u8212\'3f Complainant received approximately 14 wounds, including cuts to
her wrists and ankles, and stab wound that ruptured her left eye \u8212\'3f Accused
stopped his attack when he heard complainant\rquote s sister entering house
\u8212\'3f Accused was charged with attempted murder \u8212\'3f Accused
convicted \u8212\'3f Cumulative effect of provocation and intoxication, together
with accused\rquote s evidence, did not raise reasonable doubt that he had specific
intent required for attempted murder \u8212\'3f Accused\rquote s testimony that he
did not intend to kill complainant was neither reliable nor credible \u8212\'3f
There was conflict in accused\rquote s testimony between his reliance on
intoxication defence and his claim to remember not having intention to kill
\u8212\'3f Even accepting accused\rquote s assertion that parties were in spousal
relationship at time of offence, complainant\rquote s conduct did not constitute
insult or wrongful act amounting to provocation to kill \u8212\'3f Most
importantly, nature of attack and words accused spoke to complainant during attack
were unequivocally indicative of murderous intention \u8212\'3f But for
complainant\rquote s sister interrupting accused\rquote s attack, logical
conclusion of his actions would have been complainant\rquote s death.
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\*\bkmkstart crsw_tableOfAuthorities_1}{\*\bkmkend crsw_tableOfAuthorities_1}
\par
{\li0 \f2 \qj \b1 \ri0 \fs20 \cf21 \i0
{\*\bkmkstart crsw_tableOfAuthoritiesHeader_1}{\*\bkmkend
crsw_tableOfAuthoritiesHeader_1}
{\f2 \b1 \fs20 \cf21 \i0
Table of Authorities
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\*\bkmkstart crsw_tableOfAuthoritiesBody_1}{\*\bkmkend
crsw_tableOfAuthoritiesBody_1}
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i0
Cases considered by
}
{\f2 \b1 \fs20 \cf1 \i1
}
}
:
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. A. (M.A.)
}
}
{\field {\*\fldinst HYPERLINK
"http://nextcanada.westlaw.com/Link/Document/FullText?
findType=Y&pubNum=6407&serNum=2028832531&originationContext=document&transitionType
=DocumentItem&vr=3.0&rs=cblt1.0&contextData=(sc.UserEnteredCitation)" }{\fldrslt
(2012), 2012 BCCA 402, 2012 CarswellBC 3143, 328 B.C.A.C. 189, 558 W.A.C. 189
}}}
(B.C. C.A.) \u8212\'3f referred to
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Ancio
}
}
(1984), [1984] 1 S.C.R. 225, 6 D.L.R. (4th) 577, 52 N.R. 161, 2 O.A.C. 124, 10
C.C.C. (3d) 385, 39 C.R. (3d) 1, 1984 CarswellOnt 41, 1984 CarswellOnt 799
}}}
(S.C.C.) \u8212\'3f referred to
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Bako
}
}
(2016), 2016 SKPC 83, 2016 CarswellSask 870
}}}
(Sask. Prov. Ct.) \u8212\'3f considered
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Bear
}
}
(2013), 2013 SKQB 303, 2013 CarswellSask 623, 428 Sask. R. 166
}}}
(Sask. Q.B.) \u8212\'3f considered
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Cairney
}
}
(2013), 2013 SCC 55, 2013 CarswellAlta 1985, 2013 CarswellAlta 1986, 5 C.R. (7th)
223, 302 C.C.C. (3d) 1, 87 Alta. L.R. (5th) 1, 365 D.L.R. (4th) 306, 450 N.R. 1,
[2013] 3 S.C.R. 420, 561 A.R. 192, 594 W.A.C. 192
}}}
(S.C.C.) \u8212\'3f followed
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Campbell
}
}
(1977), 38 C.C.C. (2d) 6, 17 O.R. (2d) 673, 1 C.R. (3d) 309, 1977 CarswellOnt 5
}}}
(Ont. C.A.) \u8212\'3f considered
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Carelse
}
}
}}}
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Daley
}
}
(2007), 2007 SCC 53, 2007 CarswellSask 707, 2007 CarswellSask 708, [2008] 1 W.W.R.
1, 226 C.C.C. (3d) 1, 52 C.R. (6th) 221,
}
{\f2 \b0 \fs20 \cf5 \i1
(
}
}
sub nom.
}
{\f2 \b0 \fs20 \cf5 \i1
R. v. W.J.D.)
}
}
369 N.R. 225, 288 D.L.R. (4th) 1, [2007] 3 S.C.R. 523,
}
{\f2 \b0 \fs20 \cf5 \i1
(
}
}
sub nom.
}
{\f2 \b0 \fs20 \cf5 \i1
R. v. W.J.D.)
}
}
302 Sask. R. 4,
}
{\f2 \b0 \fs20 \cf5 \i1
(
}
}
sub nom.
}
{\f2 \b0 \fs20 \cf5 \i1
R. v. W.J.D.)
}
}
411 W.A.C. 4
}}}
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Gamble
}
}
}}}
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Humaid
}
}
(2006), 2006 CarswellOnt 2278, 37 C.R. (6th) 347, 208 C.C.C. (3d) 43, 210 O.A.C.
68, 81 O.R. (3d) 456
}}}
(Ont. C.A.) \u8212\'3f referred to
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Kay
}
}
(2015), 2015 SKQB 109, 2015 CarswellSask 251
}}}
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. McArthur
}
}
(2013), 2013 SKCA 139, 2013 CarswellSask 861, 427 Sask. R. 180, 591 W.A.C. 180
}}}
(Sask. C.A.) \u8212\'3f considered
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Odulate
}
}
(2001), 2001 CarswellOnt 3627
}}}
(Ont. S.C.J.) \u8212\'3f referred to
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Pappas
}
}
(2013), 2013 SCC 56, 2013 CarswellAlta 1987, 2013 CarswellAlta 1988, 5 C.R. (7th)
271, 302 C.C.C. (3d) 295, 87 Alta. L.R. (5th) 30, 365 D.L.R. (4th) 331, 450 N.R.
37, [2013] 3 S.C.R. 452, 561 A.R. 228, 594 W.A.C. 228, 295 C.R.R. (2d) 209
}}}
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. S. (M.)
}
}
(2012), 2012 NSPC 77, 2012 CarswellNS 633, 1014 A.P.R. 324, 320 N.S.R. (2d) 324
}}}
(N.S. Prov. Ct.) \u8212\'3f considered
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Singh
}
}
(2016), 2016 ONSC 3739, 2016 CarswellOnt 9334
}}}
(Ont. S.C.J.) \u8212\'3f referred to
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Thibert
}
}
(1996), [1996] 3 W.W.R. 1, 45 C.R. (4th) 1, 192 N.R. 1, 104 C.C.C. (3d) 1, 131
D.L.R. (4th) 675, [1996] 1 S.C.R. 37, 178 A.R. 321, 110 W.A.C. 321, 1996
CarswellAlta 368F, 1996 CarswellAlta 518
}}}
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Tran
}
}
(2010), 2010 SCC 58, 2010 CarswellAlta 2281, 2010 CarswellAlta 2282, 261 C.C.C.
(3d) 435, 326 D.L.R. (4th) 1, 80 C.R. (6th) 1, [2011] 3 W.W.R. 1, 409 N.R. 1, 36
Alta. L.R. (5th) 67, [2010] 3 S.C.R. 350, 223 C.R.R. (2d) 105, 493 A.R. 123, 502
W.A.C. 123
}}}
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. W. (D.)
}
}
(1991), 3 C.R. (4th) 302, 63 C.C.C. (3d) 397, 122 N.R. 277, 46 O.A.C. 352, [1991]
1 S.C.R. 742, 1991 CarswellOnt 80, 1991 CarswellOnt 1015
}}}
\par
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i0
Statutes considered:
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
Criminal Code
}
}
, R.S.C. 1985, c. C-46
\par
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
s. 232 \u8212\'3f referred to
\par
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
s. 232(1) \u8212\'3f considered
\par
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
s. 239 \u8212\'3f considered
\par
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
s. 239(1)(b) \u8212\'3f referred to
\par
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
s. 268(2) \u8212\'3f referred to
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
TRIAL of accused charged with attempted murder of his former spouse.
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\*\bkmkstart co_opinion_1}{\*\bkmkend co_opinion_1}
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i1
}
}
:
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\*\bkmkstart co_anchor_Sa000468639_1}{\*\bkmkend co_anchor_Sa000468639_1}
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i0
INTRODUCTION:
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\*\bkmkstart crsw_paragraph_num_1_1}{\*\bkmkend crsw_paragraph_num_1_1}
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
1 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fThe accused, Matthew Lavallee, was
charged with the following offences:
\par
}
}
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
(1) that he did attempt to murder Liza Nelson by stabbing contrary to Section
239(b) of the
}
{\f2 \b0 \fs20 \cf1 \i1
Criminal Code
}
}
;
\par
}
}
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
(2) that he did wound Liza Nelson thereby committing an aggravated assault contrary
to Section 268(2) of the
}
{\f2 \b0 \fs20 \cf1 \i1
Criminal Code
}
}
of Canada.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
2 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fThe events giving rise to these
charges involved a violent physical attack by Mr. Lavallee against his estranged
girlfriend (and the mother of his children). At the outset of the trial, Mr.
Lavallee entered a guilty plea to the charge of aggravated assault. The trial
proceeding with respect to Count 1 \u8212\'3f attempted murder.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
3 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fThe Crown called Constable Kent Shaw
and Constable Matthew Walker to testify. The Crown also called the victim, Liza
Nelson; her sister, Takara Nelson; and Alex Lariviere. Mr. Lavallee testified in
his own defense.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
4 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fThe principle issue that I must
decide is whether or not Mr. Lavallee held the specific intent necessary to be
found guilty of the offense of attempted murder; namely, the intention to kill
another human being. The other elements of the offence have been proven by the
Crown\rquote s evidence and by Mr. Lavallee\rquote s guilty plea to the charge of
aggravated assault.
\par
}
}
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i0
THE EVIDENCE
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
5 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fIn this decision, I have referred to
the accused by his proper name. However, I have referred to the Crown witnesses by
their first names only. I have done so to avoid confusion associated with
common/similar surnames.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
6 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fThe violence that gave rise to these
charges occurred just before noon on February 27, 2016, in the Northern Hamlet of
Weyakwin, in the Province of Saskatchewan (\rdblquote Weyakwin\rdblquote ). At that
time, the accused, Matthew Lavallee and the victim, Liza Nelson (Liza) were both
living in that community. They had grown up in Weyakwin and had known each other
for approximately 10 years. During this period, they dated and had two children.
From time to time, they lived together. There was conflicting evidence as to
whether or not they were living together at the time of the incident.
}
Mr. Lavallee testified that they were living together. However, the overwhelming
preponderance of evidence was that, while they had lived together from time to
time, they were not living together at the time of the incident. I will return to
this issue later in these reasons.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
7 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fWhen they were not living together,
Mr. Lavallee lived with his parents in a house just two streets away from
Liza\rquote s place. The distance between Liza\rquote s house and Mr.
Lavallee\rquote s parent\rquote s house was described as less than a five minute
walk. The reality is that Weyakwin is a small community and everyone lives within
walking distance of each other.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
8 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fLiza is 23 years old; Mr. Lavallee
is 27. They have two children; Jace, age 6 and Jennessa, age 5. At the time of the
incident, the children were living with Liza at House 52 in Weyakwin. For the most
part, Jace and Jennessa lived with Liza. However, they also spent time with Mr.
Lavallee and his parents in Weyakwin.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
9 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fOn February 26, 2016, the children
were spending the day with Mr. Lavallee and/or his parents. At about 6:00 p.m. that
night, Liza and some of her friends started socializing and drinking. At that time,
the group consisted of Liza, Jackie Lariviere (Jackie), Alex Lariviere (Alex) who
is Jackie\rquote s cousin, Vernon Ross (aka \ldblquote Trudeau\rdblquote ), and
Jordon Lavallee (Jordon) who is Mr. Lavallee\rquote s brother. The group was at
Jackie\rquote s mom\rquote s house on Beattie Street in Weyakwin. Liza and Alex
both testified that they were drinking. Liza said they were drinking vodka. Alex
testified they were drinking whiskey and beer. Little turns on the difference.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
10 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fAt some point, the group left
Jackie\rquote s house and went to Trudeau\rquote s house. Trudeau lived a short
distance away. Liza and her friends continued socializing at Trudeau\rquote s
house. While at Trudeau\rquote s place, they continued playing cards and drinking.
At some point that night but while the group was still at Trudeau\rquote s house,
Mr. Lavallee showed up. Liza testified that Mr. Lavallee was looking for her and he
wanted to talk about the kids. Jace and Jennessa were with Mr. Lavallee\rquote s
parents. Mr. Lavallee was upset that the kids were spending too much time with his
parents; believing instead that they should be with Liza. The tenor of the
testimony was that initially the issue of the kids was the subject of disagreement
between Mr. Lavallee and Liza but not so as to distract from the fun the group was
having. While at Trudeau\rquote s house someone offered Mr. Lavallee a beer. He
stayed and drank it. Mr. Lavallee had also brought a mickey of whiskey with him.
Alex described the situation at Trudeau\rquote s place as normal, social drinking.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
11 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fAfter being at Trudeau\rquote s
place for about an hour, Liza, Mr. Lavallee, Jackie, Alex and Jordon decided to
leave. Trudeau did not go with them. The group walked to Liza\rquote s place. While
there, the group sat around the kitchen table. They played cards. They listened to
music and generally had a good time. While there, the group continued drinking. At
about 4:00 a.m. on February 27, 2016, Liza\rquote s sister, Takara Nelson (Takara),
and her friend, Caitlin Moosehunter (Caitlin) arrived and joined the group. Takara
testified that, when she got to Liza\rquote s house, everyone seemed to be getting
along fine and having fun.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
12 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fLiza testified that she and Mr.
Lavallee often argued about their kids when they had been drinking and this
occasion was no exception. Alex testified that, after the alcohol kicked in, the
discussion that Liza and Mr. Lavallee were having about the kids turned into an
argument.
}
Liza testified that Mr. Lavallee repeatedly brought up the issue of their children
and, because they had been drinking, they began arguing. At various points, their
friends interceded. Some talking separately with Mr. Lavallee and some talking
individually with Liza. Their arguments did not get violent but it was clearly a
distraction for the group. On several occasions during the course of the evening,
Mr. Lavallee was asked to leave because he kept bringing up the issue of the kids
which was causing an argument between him and Liza. On one of these occasions, Mr.
Lavallee was physically pushed out of Liza\rquote s house because the argument was
causing a disturbance. On each occasion Mr. Lavallee was asked to leave, he went
outside or to another room, where he would cool off and then he would return to the
group after he had calmed down. Both Alex and Takara testified that he would be
good for a while but then he would again bring up the issue of the kids causing the
argument between himself and Liza to start all over again.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
13 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fAt some point during the morning of
February 27, 2016, Takara decided that one way to stop all the fighting about the
kids was to go get them. Takara offered to drive Mr. Lavallee to his parent\rquote
s house, to pick up Jace and Jennessa, and to bring them back to Liza\rquote s
house. Mr. Lavallee agreed and went with Takara to his parent\rquote s house.
Takara testified that, when she and Mr. Lavallee left the house, Jordon (Mr.
Lavallee\rquote s brother) and Caitlin (Takara\rquote s friend) were sleeping on
the couch. Liza, Alex and Jackie were still awake.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
14 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fWhen they got to Mr.
Lavallee\rquote s parent\rquote s place, Mr. Lavallee went inside and brought out
Jennessa, together with two other children belonging to Jackie. Mr. Lavallee did
not bring out Jace. Takara and the three children drove away leaving Mr. Lavallee
at his parent\rquote s house.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
15 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fOn the way back to Liza\rquote s
house, Takara saw Jackie walking on the road. Takara stopped, told Jackie she had
her kids in the car, and gave her a ride home. After dropping off Jackie and her
kids at Jackie\rquote s house, Takara started driving back to Liza\rquote s house.
Unfortunately, Takara\rquote s car slipped in the snow/ice and got stuck. Takara
and Jennessa then walked back to Jackie\rquote s house and eventually got help
getting her vehicle unstuck. It is not clear from the evidence how long Takara was
away from Liza\rquote s house. However, during this period a number of things
happened.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
16 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fAlex testified that by around dawn
on February 27, 2016 everyone had stopped drinking. Soon thereafter, Takara and Mr.
Lavallee left. Sometime after that, Jackie left to walk home. Jordan and Caitlin
went to sleep on the couch in the living room. Alex testified that, at some point
after Jordon and Caitlin had fallen asleep, he and Liza started kissing. They then
went into Liza\rquote s bedroom. Alex testified that when they went into
Liza\rquote s bedroom the sun was up but it was still early in the morning. While
in Liza\rquote s room, they had sex and then fell asleep.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
17 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fAlex testified that while he was
sleeping he heard the front door of Liza\rquote s house opening. Alex immediately
got out of bed and started putting on his clothes. As he was pulling up his pants,
Mr. Lavallee opened the door and walked into the bedroom. Mr. Lavallee yelled at
Liza \ldblquote are you fucking Alex now?\rdblquote . Mr. Lavallee then punched
Alex a couple times in the head. Alex fought back and pushed Mr. Lavallee away,
saying that he didn\rquote t want to fight. Alex then grabbed his things and left
the room. Alex testified that Mr. Lavallee was on the ground by Liza\rquote s bed
when he left the room.
}
Alex testified that, as he left the house, he could hear Liza yelling at Mr.
Lavallee to get out of her house. Alex did not hear Mr. Lavallee say anything nor
did he hear any sounds of violence coming from her room.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
18 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fAlex then walked home. While
walking, Alex saw Takara\rquote s vehicle stuck in the snow. When Alex got home, he
told his uncle (Alan) that Takara\rquote s vehicle was stuck and asked him to go
help get her vehicle unstuck. While Alex told his uncle about his recent
altercation with Mr. Lavallee, he did not tell Takara. Rather, the focus of the
conversation at that point was on getting Takara\rquote s vehicle unstuck. As
indicated, it is unclear from the evidence how long it took to do so.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
19 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fWhen Takara got her vehicle back on
the road, she then took Jennessa and drove back to Liza\rquote s house. When they
got there, Takara discovered the front door was locked. She knocked and then banged
on the front door. When no one answered, Takara went to the back door and tried to
open it. When it would not open, Takara then started banging on the back door. At
this point, Jordan heard the noise and woke up. He went to the back door and tried
to let Takara in. However, the back door would not open. So he went around to the
front door and let Takara and Jenessa in. When Takara got inside the house,
Liza\rquote s bedroom door was closed. Takara assumed that Liza had gone to bed.
Takara then went to the kitchen to make something to eat for Jenessa. While in the
Kitchen, Takara then heard Liza calling her and she went into her bedroom.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
20 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fTakara found Liza lying on the
floor by her bed bleeding profusely and too weak to walk. At that point, the only
other people in the house were Jennessa (Liza\rquote s daughter), Jordan (Mr.
Lavallee\rquote s brother) and Caitlin (Takara\rquote s friend). Unbeknownst to
Takara (who had been away from the house) and to Jordan and Caitlin (who had been
sleeping), Mr. Lavallee had returned to the house and found Alex in Liza\rquote s
bed with her. He punched and wrestled with Alex. After Alex left the house, Mr.
Lavallee attacked Liza and stabbed her 14 times.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
21 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fLiza testified that on the morning
of February 27, 2016, she was drunk. She did not remember what time she had gone to
bed (other than it was after Jackie left) or the details of how Alex came to be in
bed with her. When Liza woke up later that morning, Mr. Lavallee was pushing his
way into her bedroom. When Mr. Lavallee and Alex were pushing each other, Liza was
still lying in her bed.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
22 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fWhen Alex left the room, Liza
testified that Mr. Lavallee got up on her bed and sat down on her stomach. He then
pulled out a folding knife, unfolded it, and told her that he wanted to watch her
die. Liza testified that he also said he wanted to kill himself and that he would
be better off without her. Liza testified that he then stabbed her in the neck and
she started bleeding. Liza asked him to stop; telling him that she was going to
bleed out. He said \ldblquote I don\rquote t care\rdblquote . Medical records
indicated two stab wounds on the left side of Liza\rquote s neck near the jugular
vein.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
23 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fLiza testified that she put her
right hand over her neck to stop the bleeding. Mr. Lavallee grabbed her left arm
and cut her left wrist with his knife. Mr. Lavallee then grabbed Liza\rquote s
right arm, pulling it away from her neck, and cut her right wrist. Medical records
indicated that the wound to Liza\rquote s right wrist was four cm in length and
very deep. Tendons in the lower inside of the wrist were exposed and damaged, as
was a neurovascular bundle in Liza\rquote s wrist. While surgery was successful in
repairing the tendon damage, Liza still has a loss of feeling in part of her hand.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
24 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fMr. Lavallee then stabbed Liza in
the left eye with his knife. Sufficient force was used such that the orbital wall
and frontal bone was fractured in at least three places and the left eye was
ruptured. Liza testified that at one point Mr. Lavallee threatened to cut out her
other eye. Surgery to Liza\rquote s left eye revealed a penetrating scleral
laceration through to the back of the eye and significant muscle damage. Liza now
has no vision in her left eye.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
25 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fLiza testified that Mr. Lavallee
then moved down to her ankles and sliced each ankle one after the other. Liza
testified that she could feel blood come from both wounds. Medical records
confirmed lacerations on the front of both of Liza\rquote s ankles.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
26 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fLiza testified that Mr. Lavallee
then moved back up her body and placed his knife at her throat. Liza testified that
she grabbed the knife and it hurt. Medical evidence revealed that Liza experienced
a deep cut to her right finger that required sutures.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
27 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fIn summary, medical records
indicate that Liza received approximately 14 stab wounds; three in the face, three
in the neck, three on the left arm, one on the right wrist, one in the chest, one
in the epigastrium, one on each ankle, and one in the scalp. Because of blood loss,
Liza required two units of blood and two units of plasma. She was initially treated
at the Prince Albert Victoria Union Hospital, stabilized and then transported to
the Royal University Hospital in Saskatoon. Emergency surgery was performed on her
left eye on February 27, 2016. Surgery on the right wrist took place on March 2,
2016. In total, Liza spent eight days in hospital.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
28 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fLiza testified that the attack
stopped when Mr. Lavallee heard someone banging on the doors of the house. Liza
testified that Mr. Lavallee stopped attacking her when he heard the noise and
immediately left her room. When Mr. Lavallee left the room, Liza got up and tried
to crawl out the window of her bedroom. She was too weak to do so and fell to the
floor; which is where Takara found her.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
29 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fAs to alcohol consumption, Liza
testified that Jackie had a 60 ounce bottle of vodka that she and her friends had
been drinking. In cross-examination, Liza acknowledged that Mr. Lavallee had been
drinking but she testified that she was more intoxicated than he was. Alex
testified that he had been drinking but denied the consumption of any drugs,
including acid. Alex testified that Mr. Lavallee had been drinking as well.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
30 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fConstable Kent Shaw of the RCMP
testified that he was dispatched to Liza\rquote s house (52 Nelson Street) at
approximately 12:15 p.m. He was one of the first officers on the scene. When he got
there, EMS staff were working on her. Constable Shaw took detailed photographs of
the scene which were tendered as exhibits in these proceedings. While processing
Liza\rquote s house that afternoon, Mr. Lavallee, together with his father, walked
up to Liza\rquote s house indicating his desire to turn himself in. Constable Shaw
arrested Mr. Lavallee and placed him in his police cruiser. In cross-examination,
Constable Shaw testified that he did not notice any odour of alcohol on Mr.
Lavallee\rquote s breath.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
31 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fConstable Matthew Walker testified
that he was also dispatched to Weyakwin and assisted in transporting Mr. Lavallee
from Constable Shaw\rquote s cruiser to the detachment. In transporting him,
Constable Shaw noticed that Mr. Lavallee had an injury to his leg. As a result, Mr.
Lavallee was first taken to the Health Centre to have his knee looked at and then
he was transported to the nearest RCMP detachment.
}
In cross-examination, Constable Shaw testified that he did not form an opinion as
to Mr. Lavallee\rquote s state of intoxication, if any, when he was dealing with
him.
\par
}
}
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i0
MR. LAVALLEE\rquote S TESTIMONY
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
32 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fMr. Lavallee testified in his own
defense. He testified that at the time of the incident he was living with Liza at
her house in Weyakwin.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
33 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fMr. Lavallee testified that on the
day in question he had been drinking and he was high on acid. He testified that his
memory of the day was very limited. In fact, his testimony included very little of
what happened prior to the incident, the incident itself, and what he did after the
incident. He remembered drinking with Liza, Alex and their friends prior to the
incident. He also remembered going back to his home at some point and going to bed.
In this part of his testimony, Mr. Lavallee referred to his mom and dad\rquote s
place in Weyakwin as his \ldblquote home\rdblquote .
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
34 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fMr. Lavallee testified that he also
remembered waking up and walking back to Liza\rquote s house. When he got to
Liza\rquote s place, he remembered the front door was partially open. He remembered
entering the house, walking upstairs to Liza\rquote s bedroom, and finding Alex in
bed with Liza. Mr. Lavallee testified that he was furious at finding Liza in bed
with someone else. Mr. Lavallee remembered wrestling with Alex and possibly
punching him.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
35 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fHowever, Mr. Lavallee testified
that he does not remember anything after Alex left the room. He testified that he
did not remember what he said to Liza or if he said anything. Mr. Lavallee
testified that he did not remember punching or stabbing her. He did, however,
remember have a folding pocket knife with him. Mr. Lavallee admitted to attacking
Liza with his knife but testified that he was not \ldblquote in a right state of
mind\rdblquote because he was angry, intoxicated and high.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
36 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fWhen asked by his counsel if he
wanted to kill Liza, Mr. Lavallee answered \ldblquote No I don\rquote t\rdblquote .
When asked why he didn\rquote t try talking to Liza, Mr. Lavallee answered that
he \ldblquote was not in a right state of mind to have any sort of verbal
resolution\rdblquote . When asked by his counsel, Mr. Lavallee testified that he
still loved Liza and that he was not trying to kill her.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
37 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fIn cross-examination, Mr. Lavallee
admitted that the primary reason that he can not remember what happened during the
attack was because he was so angry upon finding Liza in bed with Alex. He described
himself as being in a rage when he attacked Liza, the angriest he had ever been in
his life.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
38 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fMr. Lavallee testified that he did
not know why he left Liza\rquote s room but admitted it was possibly because he
heard someone come to the house. Mr. Lavallee had no recollection as to where his
pocket knife ended up other than he no longer had it.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
39 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fAfter leaving Liza\rquote s house,
Mr. Lavallee ran into the nearby woods and wandered aimlessly until he was found by
his father near a river. Mr. Lavallee testified that he didn\rquote t remember much
about the period of time he was walking in the woods, including where he walked or
where he was going. He remembered hurting his knee when he tripped and fell.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
40 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fMr. Lavallee\rquote s father talked
him into surrendering himself to police, which he did around 3:00 p.m. in the
afternoon.
\par
}
}
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i0
THE LAW WITH RESPECT TO ATTEMPTED MURDER
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
41 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fSection 239 of the
}
{\f2 \b0 \fs20 \cf1 \i1
Criminal Code
}
}
, makes it an indictable offence to attempt by any means to commit murder. An
inchoate (incomplete) crime such as attempted murder does not require a specific or
particular harm. The
}
{\f2 \b0 \fs20 \cf1 \i1
actus reas
}
}
is complete upon the first act in furtherance of the intention to commit murder
beyond mere preparation.
}
Nonetheless, attempted murder is a difficult offence to prove. A conviction
requires proof beyond a reasonable doubt of the specific intent to kill. No lesser
}
{\f2 \b0 \fs20 \cf1 \i1
mens rea
}
}
will suffice. It is not sufficient to prove an intent to cause bodily harm that
the accused person knows was likely to cause death and was reckless as to whether
death ensues or not:
}
{\f2 \b0 \fs20 \cf1 \i1
R. v. Ancio
}
}
, [1984] 1 S.C.R. 225
}}}
(S.C.C.),
}
findType=Y&pubNum=0008051&cite=1984CANLIIAU69&originatingDoc=I4b46549ac67e2eb2e0540
021280d79ee&refType=IC&originationContext=document&vr=3.0&rs=cblt1.0&transitionType
=DocumentItem&contextData=(sc.UserEnteredCitation)" }{\fldrslt
1984 CanLII 69
}}}
. In other words, the intent required for proof of attempted murder is greater than
that required for murder:
}
{\f2 \b0 \fs20 \cf1 \i1
R. v. Odulate
}
}
(2001), 51 W.C.B. (2d) 335, [2001] O.J. No. 4029
}}}
(Ont. S.C.J.) (QL). See also:
}
{\f2 \b0 \fs20 \cf1 \i1
R. v. A. (M.A.)
}
}
, 2012 BCCA 402
}}}
(B.C. C.A.).
\par
}
}
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i0
ARGUMENT
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
42 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fMr. Lavallee denies that he
intended to kill Liza. To the contrary, Mr. Lavallee testified that he loved the
victim but was furious upon finding her in bed with another man. Mr. Lavallee
argues that his rage, coupled with his state of intoxication by alcohol and drugs,
deprived him of the capacity for rational thought or, at least, sufficient rational
thought to form the specific intent necessary for the charge of attempted murder.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
43 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fOn the other hand, the Crown argues
that the evidence before this Court establishes the necessary intent to kill.
Simply put, the Crown argues that no other reasonable inference can be drawn from
the evidence other than Mr. Lavallee\rquote s intention to kill Liza Nelson on
February 27, 2016. The Crown takes the position that there is no air of reality to
the suggestion that Mr. Lavallee was in an advanced state of intoxication at the
time or that he was otherwise unable to understand the consequences of his actions.
Furthermore, the Crown argues that the defense of provocation has no application to
a charge of attempted murder. In the alternative, the Crown argues there is no
evidence to support Mr. Lavallee\rquote s claim of provocation within the accepted
meaning of that term.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
44 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fCounsel on behalf of both the Crown
and Mr. Lavallee provided written briefs of law, which I have read and found to be
helpful.
\par
}
}
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i0
ANALYSIS
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
45 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fWhile much of the evidence in these
proceedings is not in dispute, there is conflicting evidence on certain matters,
including the penultimate issue; being Mr. Lavallee\rquote s state of mind when he
attacked Liza.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
46 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fThe Supreme Court of Canada has
provided helpful guidance and a framework for triers of fact in criminal
proceedings that explains what reasonable doubt means in the context of conflicting
evidence or testimonial accounts where the \ldblquote credibility\rdblquote of
that evidence is at issue. This is commonly known as the \ldblquote
}
{\f2 \b0 \fs20 \cf1 \i1
W(D)
}
}
framework\rdblquote and was articulated by the Court in
}
{\f2 \b0 \fs20 \cf1 \i1
R. v. W. (D.)
}
}
, [1991] 1 S.C.R. 742
}}}
(S.C.C.):
\par
}
}
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
First, if you believe the accused, you must acquit;
\par
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
Second, if you do not believe the testimony of the accused but you are left in a
reasonable doubt by it, you must acquit; and
\par
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
Third, even if you are not left with a reasonable doubt by the evidence of the
accused, you must ask yourself whether, on the basis of the evidence which you do
accept, you are convinced beyond a reasonable doubt of the guilt of the accused.
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
47 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fIn applying the
}
{\f2 \b0 \fs20 \cf1 \i1
W(D)
}
}
framework, I am guided by four principles \u8212\'3f principles which I have drawn
from the scholarly work of Justice David M. Paciocco in his paper \ldblquote
}
{\f2 \b0 \fs20 \cf1 \i1
Doubt about Doubt: Coping with
}
}
}
{\f2 \b0 \fs20 \cf1 \i1
R. v. W. (D.)
}}}
}
}
{\f2 \b0 \fs20 \cf1 \i1
and Credibility Assessment
}
}
\rdblquote :
\par
}
}
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
1. Criminal trials cannot properly be resolved by deciding which conflicting
version of events is preferred. The burden of proving all of the elements of the
offence beyond a reasonable doubt remains on the Crown throughout.
}
There is no onus on the accused to prove anything and the burden of proof never
shifts to the accused:
}
findType=Y&serNum=2016194706&pubNum=0006489&originatingDoc=I4b46549ac67e2eb2e054002
1280d79ee&refType=IC&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=D
ocumentItem&contextData=(sc.UserEnteredCitation)" }{\fldrslt
{\f2 \b0 \fs20 \cf5 \i1
R v JHS
}
}
, 2008 SCC 30 (CanLII), [2008] 2 SCR 152 at para 9
}}}
\sb200
[
}
{\f2 \b0 \fs20 \cf1 \i1
JHS
}
}
].
\par
}
}
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
2. In undertaking steps 1 and 2 of the
}
{\f2 \b0 \fs20 \cf1 \i1
WD
}
}
framework, the Court must consider all of the evidence, not just the
accused\rquote s version of events in isolation:
}
{\f2 \b0 \fs20 \cf5 \i1
R v Hoohing
}
}
(2007), 2007 ONCA 577 (CanLII), 74 WCB (2d) 676 (Ont CA)
}}}
\sb200
at para 15. In other words, if the trier of fact believes any evidence (either
from the accused or elsewhere) that is inconsistent with the guilt of the accused
for a particular offence, the accused cannot be convicted of that offence.
\par
}
}
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
3. Even if the trier of fact does not entirely believe evidence that is
inconsistent with guilt, if the trier of fact is left unsure whether that evidence
is true then there is reasonable doubt. In this circumstance, the accused is also
entitled to an acquittal:
}
{\f2 \b0 \fs20 \cf1 \i1
JHS
}
}
at para 11.
\par
}
}
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
4. Even if the trier of fact entirely disbelieves the testimony of an accused (or
any other evidence inconsistent with guilt), the mere rejection of that evidence
does not prove guilt. To the contrary, the accused may not be convicted unless the
evidence that is accepted proves the accused\rquote s guilt beyond a reasonable
doubt.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
48 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fIn addition to conflicting
evidence, this court must also make determinations with respect to the impact of
intoxication if any on Mr. Lavallee\rquote s state of mind; the impact of
provocation if any on Mr. Lavallee\rquote s state of mind; and ultimately whether
or not the Crown has proven guilt beyond a reasonable doubt. I will address these
issues in the following order.
\par
}
}
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i0
PROVOCATION, MENS REA, AND ATTEMPTED MURDER
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
49 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fMr. Lavallee asserts that he and
Liza were in a spousal relationship, that he had no idea that she had taken a
lover, and that there was no basis for Mr. Lavallee to reasonably anticipate the he
would find Liza in bed with another man when he entered her bedroom. Through
counsel, Mr. Lavallee argues that he was surprised at finding Liza in bed with Alex
and shocked when suddenly confronted with her infidelity \u8212\'3f in fact, in the
act of committing infidelity. Mr. Lavallee argues that his attack on Liza was the
direct result of a spontaneous loss of control on his part.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
50 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fMr. Lavallee\rquote s counsel
argues that these circumstances support the defense of provocation or, at the very
least, that the circumstances raise an air of reality to provocation compelling the
Crown to negate it as a defence. In the event this court finds that the defence of
provocation is not available to Mr. Lavallee, his counsel argues that the
cumulative effect of anger, provocation and intoxication is relevant in determining
whether or not the Crown has proven the requisite intent to kill. In taking these
positions, counsel for Mr. Lavallee relies on the following authorities:
\par
}
}
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\u8226\'3f s. 232 of the
}
{\f2 \b0 \fs20 \cf1 \i1
Criminal Code
\par
}
}
}
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\u8226\'3f
}
{\f2 \b0 \fs20 \cf1 \i1
R. v. Pappas
}
}
, 2013 SCC 56, [2013] 3 S.C.R. 452
}}}
\sb200
(S.C.C.), [
}
{\f2 \b0 \fs20 \cf1 \i1
Pappas
}
}
]; and
}
{\f2 \b0 \fs20 \cf1 \i1
R. v. Cairney
}
}
, 2013 SCC 55, [2013] 3 S.C.R. 420
}}}
\sb200
(S.C.C.) [
}
{\f2 \b0 \fs20 \cf1 \i1
Cairney
}
}
] for the requisite subjective and objective elements that must be represent to
establish an air of reality to the defence of provocation.
\par
}
}
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\u8226\'3f The following spousal infidelity cases:
}
{\f2 \b0 \fs20 \cf1 \i1
R. v. Tran
}
}
, 2010 SCC 58, [2010] 3 S.C.R. 350
}}}
\sb200
(S.C.C.);
}
{\f2 \b0 \fs20 \cf1 \i1
R. v. Thibert
}
}
, [1996] 1 S.C.R. 37, 104 C.C.C. (3d) 1
}}}
\sb200
(S.C.C.),
}
0021280d79ee&refType=IC&originationContext=document&vr=3.0&rs=cblt1.0&transitionTyp
e=DocumentItem&contextData=(sc.UserEnteredCitation)" }{\fldrslt
1996 CanLII 249
}}}
\sb200
;
}
{\f2 \b0 \fs20 \cf1 \i1
R. v. Humaid
}}}
}
[
}
2006 CarswellOnt 2278
}}}
\sb200
(Ont. C.A.)], 2006 CanLII 12287;
}
{\f2 \b0 \fs20 \cf1 \i1
R. v. Singh
}
}
, 2016 ONSC 3739
}}}
\sb200
(Ont. S.C.J.); and
}
{\f2 \b0 \fs20 \cf1 \i1
R. v. S. (M.)
}
}
, 2012 NSPC 77
}}}
\sb200
(N.S. Prov. Ct.) (CanLII) [
}
{\f2 \b0 \fs20 \cf1 \i1
R v M.S.
}
}
].
\par
}
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i1
Is provocation a defence to the charge of attempted murder?
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
51 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fAs indicated, Mr. Lavallee relies
on s. 232 of the
}
{\f2 \b0 \fs20 \cf1 \i1
Criminal Code
}
}
. This section provides as follows:
\par
}
}
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
232(1) Culpable homicide that otherwise would be murder may be reduced to
manslaughter if the person who committed it did so in the heat of passion caused by
sudden provocation.
\par
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
(2) Conduct of the victim that would constitute an indictable offence under this
Act that is punishable by five or more years of imprisonment and that is of such a
nature as to be sufficient to deprive an ordinary person of the power of self-
control is provocation for the purposes of this section, if the accused acted on it
on the sudden and before there was time for their passion to cool.
\par
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
(3) For the purposes of this section, the questions
\par
}
}
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
(a) whether the conduct of the victim amounted to provocation under subsection (2),
and
\par
}
}
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
(b) whether the accused was deprived of the power of self-control by the
provocation that he alleges he received,
\par
}
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
are questions of fact, but no one shall be deemed to have given provocation to
another by doing anything that he had a legal right to do, or by doing anything
that the accused incited him to do in order to provide the accused with an excuse
for causing death or bodily harm to any human being.
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
52 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fI find that s. 232 is of no
assistance to Mr. Lavallee for two reasons. First, this provision sets out the
circumstances under which murder will be reduced to manslaughter. A plain reading
of this provision indicates that the statutory defence of provocation applies to
culpable homicide, not to attempted murder. Simply put, provocation, within the
meaning of s. 232, is not a defence to a charge of attempted murder so as to reduce
the offence to a lesser charge. See:
}
{\f2 \b0 \fs20 \cf1 \i1
R. v. Campbell
}}}
}
[
}
1977 CarswellOnt 5
}}}
(Ont. C.A.)], (1977) CanLII 1191 [
}
{\f2 \b0 \fs20 \cf1 \i1
Campbell
}
}
]. Secondly, s. 232 of the
}
{\f2 \b0 \fs20 \cf1 \i1
Criminal Code
}
}
was amended in 2015 to specify that the defence of provocation only applies where
the conduct of the victim constitutes an indictable offence punishable by five or
more years in prison. The 2015 version of s. 232 was in full force and effect at
the time of this offence. There is no evidence and certainly no air of reality to
the assertion that Liza\rquote s conduct constituted \ldblquote an indictable
offence under the
}
{\f2 \b0 \fs20 \cf1 \i1
Criminal Code
}
}
that is punishable by five or more years of imprisonment\rdblquote . Liza\rquote s
conduct may have been a betrayal in the eyes of Mr. Lavallee but it was entirely
lawful.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
53 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fTaking Mr. Lavallee\rquote s
assertion of facts at their highest \u8212\'3f namely that he and Liza were in a
spousal relationship, as noted by the Court in
}
{\f2 \b0 \fs20 \cf1 \i1
S. (M.)
}}}
}
, finding one\rquote s spouse in bed with another lover is not sufficient to
deprive an ordinary adult of the power of self-control. Even relying on the
authorized cites by Mr. Lavallee \u8212\'3f authorities, which must be taken with
caution now that s. 232 has been amended - the facts of this case do not satisfy
the objective test for the statutory defence of provocation within the meaning
ascribed in
}
{\f2 \b0 \fs20 \cf1 \i1
Pappas
}}}
}
and
}
{\f2 \b0 \fs20 \cf1 \i1
Cairney
}}}
}
.
\par
}
}
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i1
Are acts of provocation to be considered in the overall determination of whether
Mr. Lavallee had the specific intent required for attempted murder?
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
54 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fYes. Although s. 232 is not
available to Mr. Lavallee, his state of mind is central to the determination I must
make in these proceedings. As noted by the Court in
}
{\f2 \b0 \fs20 \cf1 \i1
Campbell
}}}
}
, provocative conduct of a victim may be relevant to
}
{\f2 \b0 \fs20 \cf1 \i1
mens rea
}
}
. On the one hand, the victim\rquote s conduct may be seen as the inspiration or
trigger for the accused\rquote s state of mind. On the other hand, it may also be
evidence from which a disturbed state of mind can be inferred.
}
As a result, I will return to this subject later in these reasons for decision when
I make my determination as to whether or not the Crown has met its evidentiary
burden.
\par
}
}
}
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i0
INTOXICATION, MENS REA, AND ATTEMPTED MURDER
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
55 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fVoluntary intoxication may form a
defence in criminal proceedings. Whether it does depends upon the degree of
intoxication, and the nature of the offence charged, including whether the offence
is one of general or specific intent.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
56 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fIn these proceedings, Mr. Lavallee
is charged with attempted murder. To convict, there must be proof beyond a
reasonable doubt of a specific intention; namely the intent to kill. In other
words, the Crown must prove that, at some point during his attack, Mr. Lavallee
meant to cause Liza\rquote s death. As noted, no lesser
}
{\f2 \b0 \fs20 \cf1 \i1
mens rea
}
}
will suffice.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
57 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fIn the case of
}
{\f2 \b0 \fs20 \cf1 \i1
R. v. Daley
}
}
, 2007 SCC 53
}}}
(S.C.C.) at paras 41-44, the Supreme Court of Canada provided helpful guidance to
triers of fact in criminal proceedings where intoxication is raised as a defence.
As noted by the Court, the law recognizes three levels of intoxication:
\par
}
}
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
1. \ldblquote
}
{\f2 \b1 \fs20 \cf1 \i0
Mild intoxication
}
}
\rdblquote , which is characterized by alcohol-induced relaxation of both
inhibitions and socially acceptable behaviour. Intoxication at this level is not
recognized at law as providing a defence to either general or specific intent
offences. It has never been accepted as a defence or excuse to the charge of
attempted murder.
\par
}
}
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
2. \ldblquote
}
{\f2 \b1 \fs20 \cf1 \i0
Advanced intoxication
}
}
\rdblquote , which describes circumstances in which, due to the consumption of
alcohol or drugs, the accused becomes unable to foresee the consequences of his/her
actions. In such circumstances, the capacity for an accused to form a specific
intent may be impaired. As a result, voluntary intoxication in an advanced state
can be a defence to an offence requiring specific intent.
\par
}
}
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
In the case of attempted murder, it is this level of impairment that provides the
threshold for the defence of intoxication, since it may be sufficient to raise a
reasonable doubt as to whether the accused acted with the requisite murderous
intent. However, a high level of intoxication is required to achieve this state. If
there is an air of reality to the accused being in an advanced stage of
intoxication, the Crown must then negate the defence. For example, by proving
beyond a reasonable doubt that the accused had the specific intent to commit the
offence, despite the evidence of advanced intoxication.
\par
}
}
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
3. \ldblquote
}
{\f2 \b1 \fs20 \cf1 \i0
Extreme intoxication\rdblquote
}
}
, which is akin to automatism or insanity. Extreme intoxication may be a defence to
both specific and general intent offences. However, this threshold of intoxication
is not alleged by the accused and is not relevant to these proceedings.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
58 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fIn these proceedings, Mr. Lavallee
asserts that he was in an advanced state of intoxication at the time of the
offence. If there is a reasonable doubt that Mr. Lavallee did not (or could not)
form the specific intent to kill Liza because he was too intoxicated to do so, then
he must be acquitted of the charge of attempted murder.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
59 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fMr. Lavallee testified that he was
both intoxicated and high on acid prior to the incident. However, he did not
testify as to how much he drank or when. He also did not testify as to how much
acid he took and when. Nonetheless, evidence of intoxication need not come directly
from Mr. Lavallee. As a consequence, I have recounted in some detail the evening of
February 26 and the morning of February 27 to aid in determining Mr.
Lavallee\rquote s pattern of consumption and the passage of time.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
60 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fThe evidence that Mr. Lavallee was
intoxicated consists of the following:
\par
}
}
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\u8226\'3f Mr. Lavallee\rquote s testimony, that he was both intoxicated and high
on acid prior to the incident.
\par
}
}
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\u8226\'3f The common evidence of Liza and Alex that Mr. Lavallee began drinking
with them on the evening of February 26, 2016 when they were at Trudeau\rquote s
place. Neither Liza nor Alex testified as to how much Mr. Lavallee drank nor did
they testify as to seeing him take acid.
\par
}
}
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\u8226\'3f The evidence that the group of six individuals consumed 60 ounces of
vodka (or whiskey), together with a mickey (13 ounces) of whiskey and an
unspecified number of beer over a period of approximately 12 to 14 hours.
\par
}
}
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\u8226\'3f The fighting between Liza and Mr. Lavallee about their children, which
Liza testified often occurred when they had been drinking. The fighting culminated
in Mr. Lavallee being asked to leave multiple times, once with physical force.
\par
}
}
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\u8226\'3f Liza\rquote s testimony that Mr. Lavallee was drunk \u8212\'3f albeit
not as drunk as she was.
\par
}
}
{\li800 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\u8226\'3f Mr. Lavallee\rquote s testimony, that his memory of the relevant period
of time was very limited and that he remembers almost nothing after he became
enraged upon finding Liza in bed with Alex.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
61 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fThe Crown submits that the limited
evidence of consumption in this case does not establish an air of reality to Mr.
Lavallee being so intoxicated that he could not foresee the consequences of his
actions. Simply put, the Crown says it is purely speculative to suggest Mr.
Lavallee was in an advanced state of intoxication when he attacked Liza.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
62 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fIn this respect, I agree with the
Crown. I am not persuaded that the evidence in these proceedings provided a
sufficient factual foundation for Mr. Lavallee\rquote s assertion that he was in an
advanced state of intoxication when he attacked Liza.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
63 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fMr. Lavallee\rquote s evidence that
he was intoxicated and took acid was perfunctory. He gave no evidence as to his
drinking pattern. He said he took acid but there is no specific evidence as to what
he took, when he took it or the effect it had on him. While both Alex and Liza
acknowledged that Mr. Lavallee had been drinking, neither Liza, Alex nor Takara
described him as being in an advanced state of intoxication.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
64 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fWhile Mr. Lavallee was disruptive
during the evening and was asked to leave more than once, this evidence is of
limited probative value. The genesis of the disruption was Liza and Mr. Lavallee
fighting over the kids. However, Mr. Lavallee was upset about the kids before he
began drinking at Trudeau\rquote s place.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
65 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fFurthermore, the evidence of
alcohol consumption indicates it was consumed over a prolonged period of time
(between 12 to 14 hours). There is no evidence that Mr. Lavallee consumed any more
or any less than anyone else. Furthermore, there is no evidence that Mr. Lavallee
drank (or took anything) after Takara drove him home. In other words, there was a
period of time (up to three or four hours) prior to the incident where Mr. Lavallee
did not consume any alcohol.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
66 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fOther than his lack of recall,
there is no evidence that Mr. Lavallee exhibited any of the common indicia of
advanced impairment prior to or after the offence. To the contrary, two experienced
police officers who dealt with him three to four hours after the incident did not
report any indicia of impairment.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
67 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fFinally, there is no expert
evidence of the type commonly called to support a defence of intoxication which
typically addresses the time and amount of the accused\rquote s consumption of
alcohol/drugs, projects Mr. Lavallee\rquote s blood alcohol concentration, and
explains the physical effects the alcohol and drugs may have had on his cognition.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
68 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fWhile there is evidence that Mr.
Lavallee consumed alcohol, there is no air of reality to his assertion that he was
in an advanced state of intoxication and thus was incapable of understanding or
foreseeing the natural and probable consequences of his actions.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
69 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fTo the contrary, I am satisfied
beyond a reasonable doubt that the Crown has proven that Mr. Lavallee clearly
understood the nature and consequences of his actions notwithstanding the alcohol
he consumed or the drugs that he said he consumed. In my opinion, Mr.
Lavallee\rquote s actions during the attack shed considerable light on his state of
mind. The attack on Liza was extensive and prolonged. More importantly, the method
of Mr. Lavallee\rquote s attack demonstrates both an awareness of the consequences
and active guidance of his own actions.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
70 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fThe only weapon he had in his
possession was a folding pocket-knife. Mr. Lavallee told Liza he wanted to watch
her bleed out and then he specifically attacked areas of her body to maximize the
lethality of his weapon including her neck, her wrists and her ankles. In my
opinion, the nature of Mr. Lavallee\rquote s attack unequivocally demonstrates an
awareness of the limitations of his weapon and desire to maximize its lethality.
Furthermore, Mr. Lavallee broke off his attack when he heard someone knocking on
the door of Liza\rquote s house. Doing so indicates that he had sufficient
awareness to recognize the potential for detection and avoid discovery.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
71 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fFor the foregoing reasons, I am
satisfied that Mr. Lavallee was not so intoxicated on February 27, 2016 at the time
he attacked Liza that his capacity to understanding and foresee the consequences of
his actions was impaired.
\par
}
}
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i0
CREDIBILITY, MENS REA AND PROOF BEYOND A REASONABLE DOUBT
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
72 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fThe law with respect to attempted
murder and proof of intent was well described in a number of cases, including:
\par
}
}
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Gamble
}
}
, 2010 SKQB 414, 363 Sask. R. 311
}}}
\sb200
(Sask. Q.B.), at para 12 [
}
{\f2 \b0 \fs20 \cf1 \i1
Bluebell
}
}
];
\par
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Carelse
}
}
, 2012 SKQB 475, 407 Sask. R. 223
}}}
\sb200
(Sask. Q.B.), at paras 49 to 59 [
}
{\f2 \b0 \fs20 \cf1 \i1
Carelse
}
}
];
\par
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Bear
}
}
, 2013 SKQB 303
}}}
\sb200
(Sask. Q.B.) [
}
{\f2 \b0 \fs20 \cf1 \i1
Bear
}
}
];
\par
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. McArthur
}
}
, 2013 SKCA 139, 427 Sask. R. 180
}}}
\sb200
(Sask. C.A.) at paras 10 to 13 [
}
{\f2 \b0 \fs20 \cf1 \i1
McArthur
}
}
];
\par
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Kay
}
}
, 2015 SKQB 109
}}}
\sb200
(Sask. Q.B.), at paras 28 to 31 [
}
{\f2 \b0 \fs20 \cf1 \i1
Kay
}
}
]; and
\par
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b0 \fs20 \cf1 \i1
R. v. Bako
}
}
, 2016 SKPC 83
}}}
\sb200
(Sask. Prov. Ct.) at paras 42 to 54.
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
73 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fAs noted from the case law, the
charge of attempted murder is difficult to prove. The
}
{\f2 \b0 \fs20 \cf1 \i1
mens rea
}
}
that must be proven is the specific intent to kill. Intention is about Mr.
Lavallee\rquote s state of mind when he attacked Liza. The determination of intent
may be the subject of direct evidence (such as Mr. Lavallee\rquote s testimony) or
it may be inferred from the totality of the circumstances, including the conduct of
the accused and context within which the violence occurred. For example, when a
weapon is used, the following factors are relevant to determining intent: the
nature of the weapon used including its lethality (
}
{\f2 \b0 \fs20 \cf1 \i1
McArthur
}}}
}
); how the weapon was used including the force with which the wounds were inflicted
(
}
{\f2 \b0 \fs20 \cf1 \i1
Bluebell
}}}
}
); the nature of the wounds and whether they were to a vital part of the anatomy (
}
{\f2 \b0 \fs20 \cf1 \i1
Bear
}}}
}
,
}
{\f2 \b0 \fs20 \cf1 \i1
McArthur
}}}
}
}
{\f2 \b0 \fs20 \cf1 \i1
&
}
}
}
{\f2 \b0 \fs20 \cf1 \i1
Kay
}}}
}
); and the persistence of the attack \u8212\'3f in the case of a knife, whether the
stabbing was repeated (
}
{\f2 \b0 \fs20 \cf1 \i1
Bluebell
}}}
}
). In addition, indications of intent may also be inferred from the nature of the
relationship between the parties and any words spoken by the accused during the
attack (
}
{\f2 \b0 \fs20 \cf1 \i1
Bear
}}}
}
). Finally, indications of intent may be inferred from the conduct of the accused
in the period immediately following the attack, including leaving the victim alone
without calling for medical assistance (
}
{\f2 \b0 \fs20 \cf1 \i1
McArthur
}}}
}
}
{\f2 \b0 \fs20 \cf1 \i1
&
}
}
}
{\f2 \b0 \fs20 \cf1 \i1
Kay
}}}
}
).
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
74 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fDefence counsel asks this Court to
consider the cumulative effect of both provocation and intoxication, together with
Mr. Lavallee\rquote s evidence that he did not intend to kill Liza on February 27,
2016. I agree with counsel that if the cumulative effect of these factors amounts
to reasonable doubt, Mr. Lavallee cannot be convicted of the charge of attempted
murder. Unfortunately for Mr. Lavallee, they do not.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
75 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fFirst, I do not accept Mr.
Lavallee\rquote s testimony that he did not intend to kill Liza as either reliable
or credible. There is an internal conflict in his testimony. On the one hand, Mr.
Lavallee relies on intoxication and provocation to suggest that he did not know
what he was doing at the time of the offence. On the other hand, he remembers some
things that happened, such as sleeping at his parent\rquote s place, waking up and
walking back to Liza\rquote s place, the front door being partially open, and
walking into Liza\rquote s room. He remembers finding Alex in bed with Liza but
very little after that point. While he remembers being furious at Liza, he denies
the intention to kill her. It is illogical that Mr. Lavallee could be in such a
disordered state that he did not know what he was doing but that he could still
have a reliable memory as to his intentions or lack thereof at that moment.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
76 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fSecondly, I do not accept as
credible Mr. Lavallee\rquote s evidence that he and Liza were living together at
the time. There was no evidence to support this suggestion. To the contrary, in his
testimony, Mr. Lavallee referred to his home being with his mom and dad, not with
Liza. The overwhelming weight of evidence was that they were estranged but still
friends. However, even taking Mr. Lavallee\rquote s assertion at its highest, that
they were in a spousal relationship at the time of the offence, Liza\rquote s
conduct did not constitute an insult or wrongful act capable of amounting to
provocation to kill. As noted by Derrick, J. in
}
{\f2 \b0 \fs20 \cf1 \i1
S. (M.)
}}}
}
,
}
{\f2 \b0 \fs20 \cf1 \i1
supra
}
}
, at paras 76 & 77:
\par
}
}
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
[76] I do not find that a suspicion that a girlfriend has been seeing someone else,
or even the fact of it, can be regarded as provocation of the kind that engages the
compassion of the law reducing what otherwise would be a murder to manslaughter.
Feelings of anger and frustration do not constitute provocation of the kind that
will achieve such a result. (
}
40021280d79ee&refType=IC&originationContext=document&vr=3.0&rs=cblt1.0&transitionTy
pe=DocumentItem&contextData=(sc.UserEnteredCitation)" }{\fldrslt
{\f2 \b0 \fs20 \cf5 \i1
R. v. Young
}
}
,
}
{\f2 \b0 \fs20 \cf5 \i1
1993 CanLII 3272 (NS CA)
}
}}}
\sb200
{\f2 \b0 \fs20 \cf1 \i1
,
}
[1993] N.S.J. No. 14 (C.A.)
}}}
;
}
}
}
{\f2 \b0 \fs20 \cf5 \i1
R. v. Lees
}
}
,
}
{\f2 \b0 \fs20 \cf5 \i1
2001 BCCA 94 (CanLII), [2001] B.C.J. No. 249 (C.A.)
}
}}}
\sb200
{\f2 \b0 \fs20 \cf1 \i1
, paragraph 23
}
}
)
\par
}
}
{\li400 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
[77] Permitting a perceived threat to a relationship, or its actual breakdown to
constitute an insult or wrongful act capable of amounting to provocation to kill
\ldblquote ...would set a dangerous precedent...\rdblquote (
}
{\f2 \b0 \fs20 \cf1 \i1
Young, page 4 (Q.L. version
}
}
) It would not accord with the law\rquote s emphasis on discouraging homicidal
violence, an emphasis that must have special resonance in the context of intimate
relationships where women and girls are acknowledged to be particularly vulnerable.
(
}
{\f2 \b0 \fs20 \cf5 \i1
R. v. Lavallee
}
}
,
}
{\f2 \b0 \fs20 \cf5 \i1
1990 CanLII 95 (SCC), [1990] S.C.J. No. 36, paragraph 32
}
}}}
\sb200
{\f2 \b0 \fs20 \cf1 \i1
;
}
}
}
{\f2 \b0 \fs20 \cf5 \i1
R. v. Malott
}
}
,
}
{\f2 \b0 \fs20 \cf5 \i1
[1998] S.C.J. No. 12, paragraph 44
}
}}}
\sb200
: \ldblquote ...the reality of our society is that typically, it is women who are
victims of domestic violence, at the hands of their male intimate
partners.\rdblquote )
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
77 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fThirdly and most importantly, the
overwhelming weight of evidence, including the nature of the attack and the words
Mr. Lavallee spoke to Liza during the attack, is unequivocally indicative of a
murderous intention on his part. On this point I should note that I found the
victim\rquote s evidence regarding the attack to be both reliable and credible.
}
Testifying was clearly difficult for her. Yet her testimony was clear and cogent. I
observed no amplification or obfuscation in any of her evidence. Her evidence as to
the nature of the attack was consistent and corroborated by the medical evidence
presented by the Crown. Furthermore, Liza\rquote s evidence was unshaken under
cross-examination. I also accept as credible and reliable Liza\rquote s description
of the words spoken by Mr. Lavallee during the attack and I do so for the same
reasons.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
78 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fIt would appear that the first
wound Liza received to her neck rendered her largely defenseless. She was bleeding
profusely. She immediately began pleading for her life. Mr. Lavallee responded both
verbally and physically. He told her that he wanted to watch her bleed to death and
then methodically began attacking areas of her body where bleeding could be
anticipated. Furthermore, the attack was both violent and prolonged. He moved up
and down her body inflicting injuries at vulnerable locations. In addition, Mr.
Lavallee stabbed Liza in the eye with sufficient force to fracture the bones around
her eye socket. But for Takara returning to Liza\rquote s place and interrupting
his attack, the logical conclusion of Mr. Lavallee\rquote s actions would have been
Liza\rquote s death.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
79 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fLiza pled for her life. She clearly
thought it was in danger. She grabbed the blade of Mr. Lavallee\rquote s knife with
her bare hand when he placed it to her throat. As soon as Mr. Lavallee left the
room, she tried to crawl out her window. In light of her dire physical condition at
the time, this can only be seen as an act of sheer desperation on her part.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
80 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fThe totality of evidence in these
proceedings demonstrates, beyond any reasonable doubt, that Mr. Lavallee intended
to kill Liza Nelson on February 27, 2016. He not only stabbed her repeatedly with a
knife, the method employed in his attack demonstrates an intention to maximize his
weapon\rquote s lethality by targeting particular areas of Liza\rquote s body.
These actions are entirely consistent with the evidence that he told Liza he wanted
to watch her bleed to death and wholly indicative of a state of mind that is not
only aware of the consequences of his actions but in active command of his actions.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
81 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fFurthermore, there is no doubt in
my mind that Mr. Lavallee intended the natural and obvious consequences of his
actions; namely, to kill Liza. In coming to this conclusion, I am satisfied, beyond
any reasonable doubt, that neither Mr. Lavallee\rquote s state of intoxication nor
the shock of finding Liza in bed with another man was sufficient to rob him of the
capacity for rational thought. To the contrary, in light of the iniquitous,
methodical, and persistent way Mr. Lavallee attacked Liza and his actions in
breaking off his attack to avoid detection, I am left with the inescapable
conclusion that, at the time of the attack, Mr. Lavallee was well aware of the
consequences of his actions and actively in command of those actions. Simply put,
while there is evidence that Mr. Lavallee was drinking, the overwhelming
preponderance of evidence supports the conclusion that he was less drunk than he
alleged and that he was entirely capable of acting rationally at that time.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
82 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fMr. Lavallee\rquote s anger at
finding Liza in bed with another man was clearly the motive for his attack.
However, I am satisfied beyond any reasonable doubt that his state of mind was such
that he understood and could foresee the consequences of his actions. While Mr.
Lavallee may not wish it now, there is no doubt in my mind that while he was
attacking Liza on February 27, 2016, he intended to kill her.
\par
}
}
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\f2 \b1 \fs20 \cf1 \i0
CONCLUSION
\par
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
83 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fFor the foregoing reasons, I find
Mr. Lavallee guilty of the attempted murder of Liza Nelson on February 27, 2016, at
Weyakwin, in the Province of Saskatchewan.
\par
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
84 \u160\'3f\u160\'3f\u160\'3f\u160\'3f\u160\'3fWith respect to the charges set
forth in the Information, I find Mr. Lavallee guilty of attempted murder (count 1).
While Mr. Lavallee has entered a guilty plea to the charge of aggravated assault
(count 2), the
}
{\f2 \b0 \fs20 \cf1 \i1
Kienapple
}
}
principle applies and that charge is subsumed in the conviction of count 1.
Accordingly, I direct a conditional stay on the charge of aggravated assault, such
stay to become absolute at the expiration of any applicable period of appeal.
\par
}
}
}
}
}
}
}
}
}
}
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\*\bkmkstart crsw_disposition_1}{\*\bkmkend crsw_disposition_1}
\par
{\li0 \f2 \qj \b0 \ri0 \fs20 \cf1 \i0
{\li0 \f2 \b0 \ri0 \fs20 \cf1 \qr \i0
{\f2 \b0 \fs20 \cf1 \i1
Accused convicted.
\par
}
}
}
}
}{
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\u160\'3f
}
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End of Document
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Copyright \u169\'3f Thomson Reuters Canada Limited or its licensors (excluding
individual court documents). All rights reserved.
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}\sect }

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