COURT FILE NO.:

DATE: 2012/07/11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

M. Potter, for the Crown

• and -

MELVIN FLORES

G. Cudmore and J. Dean, for the Accused

HEARD: April 16, 18, 19, 23, 24, 25, 2012

RADY, J. (Orally)

INTRODUCTION

[1] Mr. Flores is charged with second degree murder in connection with the death of Cindy MacDonald on June 3, 2006. Mr. Flores was previously convicted of second degree murder by Justice Hockin sitting with a jury. The verdict was appealed and the case remitted by the Ontario Court of Appeal for a new trial.

[2] At the opening of trial, Mr. Flores indicated that he wished to re-elect the mode of his trial to judge alone. The Crown consented and accordingly the matter proceeded before me without a jury. Mr. Flores entered a plea of not guilty to the charge. At the outset, Mr. Cudmore on behalf of Mr. Flores, admitted date, time and identity. The defence conceded that Ms. MacDonald died as a result of multiple stab wounds, Mr. Flores inflicted those wounds and his conduct constitutes culpable homicide. The sole issue for trial was whether Mr. Flores is guilty of second degree murder or manslaughter.

[3] At the opening, Mr. Cudmore advised the court that he had arranged for Spanish language interpreters to be available but they would only be needed in the event Mr. Flores decided to testify. The Crown began to lead evidence.

[4] The following day, I indicated to counsel that I wanted to be assured that Mr. Flores understood the evidence. As a result of my questions to Mr. Flores, I thought it would be prudent to have the assistance of an interpreter throughout the trial and those arrangements were made. Through the interpreter, I questioned Mr. Flores about his re-election of the mode of his trial and satisfied myself that Mr. Flores understood the choice that he had made.

[5] Before leaving the issue of language, a couple of further observations must be made. Mr. Flores was born in El Salvador in 1967. He came to Canada in 1985 via Texas where he had lived for three or three-and-a-half years. He became a Canadian citizen in 1997 or 1998. He came to London in 2000. He obtained his Grade 12 equivalency from Wheable and began to work in a factory.

[6] As is apparent from his videotaped interviews, Mr. Flores speaks very accented English. However, he is understandable and it is apparent that he understands English at considerably better than at a rudimentary level. He is appropriately responsive to questions and he appears to understand what is being asked of him. I was advised by Mr. Cudmore that he communicates with his client in English. The first trial was conducted in English and there was never any suggestion that Mr. Flores required an interpreter. Mr. Flores’ then trial counsel is a senior and experienced member of the criminal defence bar. No issue was raised on appeal with respect to Mr. Flores’ ability to understand and communicate in English. Mr. Flores’ appeal was handled by a senior and very well respected criminal defence specialist.

[7] The defence did not require that a voir dire be conducted respecting the admissibility of Mr. Flores’ various statements or utterances to police. The voluntariness of his statements was conceded and no charter application was brought by the defence seeking to exclude the statements. All of this satisfies me that Mr. Flores understands and is conversant in the English language and the presence of the interpreters was to ensure Mr. Flores clearly understood more technical language and nuance.

THE LEGAL FRAMEWORK

[8] I begin by instructing myself as I would instruct the jury that Crown counsel bears the onus to prove Mr. Flores’ guilt beyond a reasonable doubt. In particular, the Crown must prove beyond a reasonable doubt that Mr. Flores caused Ms. MacDonald’s death; that he did so unlawfully; and that he had the state of mind required for murder. In this case, issues of intoxication and provocation are raised. Mr. Cudmore, on behalf of the defence, concedes that Mr. Flores unlawfully caused Ms. MacDonald’s death. He also concedes that Mr. Flores’ level of intoxication, taken on its own, would not be sufficient to reduce second degree murder to manslaughter. However, it is submitted that when all of the circumstances are considered as a whole, Crown counsel has not proved that Mr. Flores had the required state of mind for second degree murder and as a result, he is guilty of manslaughter.

[9] Mr. Flores testified in his defence, and the transcript of Dr. Hirst’s evidence from the first trial was filed on consent. As a result, I instruct myself on the principles set out in R. v. W.D. If I believe Mr. Flores’ evidence that he was provoked, I must find him not guilty of second degree murder but guilty of manslaughter. If I do not believe Mr. Flores’ evidence, if it leaves me with a reasonable doubt about his guilt (or an essential element of the offence charged), I must find him not guilty of second degree murder and guilty of manslaughter.

[10] Even if Mr. Flores’ evidence does not leave me with a reasonable doubt about his guilt, I may only convict him of second degree murder if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

[11] The same instruction applies to the evidence of Dr. Hirst. His evidence respecting Mr. Flores’ level of intoxication at the time of the offence may raise a reasonable doubt about Mr. Flores’ guilt of second degree murder.

[12] I also caution myself that I am to consider the cumulative effect of all of the evidence, including evidence of provocation and of alcohol consumption, in deciding whether Mr. Flores had the state of mind required for second degree murder.

[13] On the issue of provocation, I remind myself it is not for Mr. Flores to prove that he was provoked but rather for the Crown to prove that he was not acting under provocation when he killed Ms. MacDonald. If I have a reasonable doubt about whether Mr. Flores was acting under provocation, he would be guilty of manslaughter and not second degree murder.

[14] There are four components to the partial defence of provocation. They are as follows:

• a wrongful act or insult;

• the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control (the objective element);

• the wrongful act or insult must have caused the accused to lose self-control and act out of control (the subjective element); and

• suddenness, namely that the killing must be in response to a sudden act of provocation and the accused’s acts must occur on the sudden before he or she has time to regain self-control.

[15] The Supreme Court of Canada in a recent decision, R. v. Mayuran, has emphasized the importance of the objective element. In that case, the trial judge had not left the defence of provocation to the jury, reasoning that there was no air of reality to it. The Quebec Court of Appeal ordered a new trial. It felt that the fact there were 45 stab wounds supported the inference that the murder “occurred in the heat of passion caused by sudden provocation”. The Supreme Court of Canada disagreed and restored the conviction. The Court referred to R. v. Tran and noted the following:

Personal circumstances may be relevant to determining whether the accused was in fact provoked – the subjective element of the defence – but they do not shift the ordinary person standard to suit the individual accused. In other words, there is an important distinction between contextualizing the objective standard, which is necessary and proper, and individualizing it, which only serves to defeat its purpose. [Emphasis added; para. 35]

[16] In this case, I am satisfied that there is an air of reality to the defence and accordingly will deal with it in due course.

[17] The Supreme Court of Canada also said in R. v. Tran that:

The requirement of suddenness was introduced into the defence as a way of distinguishing a response taken in vengeance from one that was provoked. Therefore, suddenness applies to both the act of provocation and the accused’s reaction to it. The wrongful act or insult must itself be sudden, in the sense that it ‘must strike upon a mind unprepared for it, that it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame’ (R. v. Tripodi, [1995] S.C.R. 438, at p. 443). Further, the intentional killing must have been committed by the accused ‘before there was time for his passion to cool”: s. 232(2) of the Criminal Code.’

[18] Suddenness is essential to both the insult and the reaction to it.

[19] In R. v. Taylor, the Supreme Court of Canada adopted The Oxford Dictionary definition of the word “insult” as “…an act, or the action, of attacking or assailing; an open and sudden attack or assault without formal preparations; injuriously contemptuous speech or behavior; a scornful utterance or action intended to wound self-respect; an affront or indignity”. Those are largely the words used in the Watt pattern charge to the jury.

[20] The definition of “wrongful act” has been set out by the Court of Appeal for Ontario as an act “which, if considered objectively without any regard to the peculiar rights of the parties involved, could be wrongful.” In R. v. Galgay, Kelly J.A. in considering “wrongful act”, posed possible meanings of “illegal” or “unjustly, unfairly or harmfully”. In Watt, it is defined as an act that is contrary to law in the circumstances in which it occurred. In this case, we are concerned with an insult because there is no suggestion that Ms. MacDonald engaged in a wrongful act. An abortion is not a wrongful act.

The Facts

[21] Mohammed Selim was the first Crown witness. He is a taxi driver who was dispatched to pick up a fare in the Hamilton and Trafalgar Rd. area of London. He picked up Mr. Flores whom he described as appearing as if he had had a few drinks. He was carrying a backpack which Mr. Selim thought might be holding bottles of liquid. He could hear glass clinking and later discovered a wet area in the back seat of the cab that smelled like beer.

[22] Mr. Flores began to speak on his cell phone with a woman. Mr. Flores was unable to provide the address of his destination so Mr. Selim spoke to the woman on the other end of the cell phone. He was told where to take Mr. Flores. At one point, Mr. Selim heard Mr. Flores say words to the woman to the effect “people you love, you put them in jail”.

[23] En route, they stopped at a gas station where Mr. Flores made a purchase.

[24] They arrived at the destination on Chiddington Ave. A young woman was waiting outside. Mr. Selim asked Mr. Flores if she was his girlfriend. He responded “yeah”. Mr. Selim described the woman as having her arms out as if to hug Mr. Flores, who reacted by backing up. The woman put her hands up as if shrugging. At the preliminary hearing, however, Mr. Selim testified that the couple were hugging one another.

[25] I heard next from Renee McLean and Jeff McLean who were neighbours of the deceased’s father, in whose home the killing occurred. Ms. McLean described how she heard a female voice screaming “help me”. She looked out her bedroom window and saw a man on his knees above another person who was on the ground. The male on top was raising and lowering his hand from the head level, in an up and down movement. She could not see if there was something in his hand.

[26] Mr. McLean’s testimony was very much to the same effect. He heard a woman screaming “help me”, and observed a larger male on top of another person who was on the ground. The man was raising his hand from above the shoulder in an up and down movement. He could see that the figure was holding what appeared to be a long blade, which was going into the victim’s torso area. Both witnesses agreed, in cross-examination, that it happened very quickly and Mr. McLean agreed that it looked like a frenzied attack.

[27] Norman Corrin, also a neighbor, testified. He described how he heard odd cries from outside. He went to the MacDonald’s house and described how he found Ms. MacDonald, in distress, semi-seated on the ground. He said that her denim pants were down at her knees and she was wearing a bra and no shirt. He saw a knife handle protruding from her back. The handle, but little of the blade, was showing and he could see the tissue of her chest tented out by the blade. He described a wound on the right side of her neck. He tried to stop the bleeding and to comfort her.

[28] Scott Johnson was the paramedic who was dispatched to the scene. He described how Ms. MacDonald was lying in a semi-lateral position with a knife in her back and its blade tenting out the skin through the breast. She was described as clothed. She appeared to be vital signs absent and resuscitation was started. Ms. MacDonald was transported to the closest emergency room located at Victoria Hospital on Commissioners Road.

[29] Gary Bezaire, who was then a patrol officer with the London Police Service, was dispatched to the scene. He arrived and went into the residence to “clear” it with another officer. He described the scene as “horrendous” and “the worst I’ve seen”. He said that the back entranceway was broken and the back door was open. The stove burner was on and water was boiling. There was blood in the house which he was careful not to step in. The main and upper levels and the basement were cleared. No one was found. He exited the front door and noted blood in that area. He could not remember where the other bloody areas were and does not remember how much blood there was.

[30] I heard from Matthew Drake, the 911 dispatcher who took a telephone call from Mr. Flores, who identified himself and reported that he had killed Ms. MacDonald. He was at the Shoppers Drug Mart where he wanted police to pick him up.

[31] Officer Derek Hardman was dispatched to apprehend Mr. Flores. He arrested him at the Shoppers Drug Mart for murder. Mr. Flores was cooperative during the arrest. Officer Hardman detected the odour of alcohol from him. He did not believe Mr. Flores had difficulty walking. He thought his behavior was “erratic”, with “mood swings” and Mr. Flores was muttering something he could not understand.

[32] Officer Angus Campbell was dispatched to assist Officer Hardman. He described Mr. Flores as having a lot of blood on his clothing but no apparent injuries. He detected a strong odour of alcohol. He described Mr. Flores as intoxicated and in a high state of excitement, “almost delirious”.

[33] Then Sergeant, now Inspector, Lynn Sutherland was the cell sergeant who handled Mr. Flores’ intake. Mr. Flores told her he had consumed 13 drinks. She could smell the odour of alcohol but described it as minimal. She marked Mr. Flores on the intake form as intoxicated.

[34] Gordon Brook, the lead forensic officer, described the examination of Mr. Flores incident to arrest. Mr. Flores had dried blood on his hands and arms. He had scratches on his wrists, elbows, the top of his back and neck, but no cuts or serious injuries.

[35] He agreed that Mr. Flores was very cooperative and compliant, that he was at times crying and distraught and that he appeared to be cowering, with his hands clasped in front of his chest.

[36] Officer Peter Paquette testified that he was placed in cell #19 next to Mr. Flores who was in #20. Officer Paquette was what is described as a cell plant. He recorded the dialogue that occurred between him and Mr. Flores in his duty book. Mr. Flores said the following, among other things:

• I just killed my girlfriend;

• I fucking just killed her;

• I fucking stabbed her;

• I killed her and called the cops;

• I found out she had an abortion three months ago;

• I hit her all over with a knife in the kitchen;

• you do not fuck with a Latino;

• I stuck a knife in her heart and neck;

• she had a knife too;

• she used to beat me up but not this time;

• going to ask for the death penalty

• it’s a miracle if she lives.

[37] He considered Mr. Flores to be sober; his sentences were full and complete; he did not slur; his words were relevant and he did not go off on tangents.

[38] A further exchange occurred later, which the officer recorded:

• I lost my love;

• I am “kinda” hungover;

• watch out for the women;

• it was not self-defence;

• she did not want my baby;

• I did not want to do it;

• she made me do it;

• she said the other guy had a bigger dick than me;

• I did not plan to do it;

• I just did it;

• I’m not violent – she made me do it;

• she called me and asked if I loved her; I said “of course”; we were talking nice;

• she knew I was going to kill her; she wanted me to do it.

[39] Detective Andrew Whitford conducted an interview of Mr. Flores on June 3, 2006. Prior to it commencing, a breath test was administered. A second test followed the interview. Mr. Flores had the following to say:

• I love her;

• she made me do it;

• I have to die too;

• she invited me to her house;

• I had been to see the police in May because she was trying to get me in trouble;

• I knew I was on probation and I wanted to take a risk (by going over);

• she wanted me to smoke crack with her;

• we were talking nice and then she had a big knife;

• I asked her why. She said it was in case I wanted to do something;

• I said to her, ‘If you want, I can kill you for love.’;

• she said she had been fucking this guy and that he got her pregnant. Then I went crazy;

• I said, ‘Why do you want this baby? I got you pregnant and why you went to get abortion or whatever – I say oh you lost my baby…’

• that is why I went crazy;

• And you go to kick me out I say I don’t want to fuck you I said. Why? Because you stink first of all and then I don’t know you have (inaudible) baby.

• Oh and she’s, after I don’t know I went to the kitchen I saw a knife and then she say what are you [doing]? What have you done? She knew there was a knife in the kitchen.

• Okay because I, I went and grabbed the knife and I put a knife in here I hide it here okay (motioning to his pants waistline).

• You know? And she say Melvin what are you doing? Will you grab something from the kitchen? I say no. You know and then she start to search me then you know that guy is going to come in and fuck me.

• Then I went crazy. I think I went crazy! I am sorry but I went crazy. I went crazy and then she was search me for the knife and I have the knife here (motioning to waistline).

• ….like between the belt you know.

• …and then I just went boom.

• You call the cops on me I have a good job I have a good life and everything I don’t have nothing for you because you call the cops and everything and me I have nothing I say I have nothing;

• When she was on the floor I was on the floor with her.

• …and she was bleeding and I just cut her here you know (motioning her forehead) and I say look and I wipe it with my hat it a hat a black hat in there and I wipe at it with my hat. Look you bleeding now.

• And after I went crazy because she said to me she told me never come back I going to have the baby

• we were fighting. She scratched me. She was screaming;

• I brought five beers over and bought cigarettes;

• I had been drinking;

• had first beer at 4 o’clock;

• I had two beers at my house;

• I was not drunk;

• she said this guy had a big dick;

• I said why didn’t you keep my baby;

• she beat me up before

• I don’t know if she was pregnant or if she was just lying;

• I don’t know if she said that to me to make me yell I don’t know but that is what she say. You know what I mean? That piss me off and I went Boom!

• …we had an argument I went to the kitchen and I saw that knife there and then she knew. What do you have from the kitchen? I said nothing and then I had the knife right here. She knew, she knew, she knew.

• I grab the knife you know. Because she had a knife a big knife on the couch. But they grabbed the knife and I had no intention to do nothing to her. But she came to the kitchen then it was in my mind. I say well tonight I want to get a knife because she said to me get out of the house. Then I say you call me I am nice to you and everything I bring you beer and I bring you cigarettes. And you kick me out? Oh she say I am tired and get out.

• yeah, I hit her head boom, okay she was bleeding and then I went my my, my cap get my hat and I wipe her and I say look your [sic] bleeding.

• …and I said look your bleeding. Then she said I want to call the police. Ah, that was it;

• well she say well she say I want to call the cops. No, and everything then I went crazy and then I went boom;

• ...yeah she went boom slap me….and then she was running you know boom I went like this and that was it. And she running I grab her and then boom;

• she went running to the back door;

• She was searching me. Searching me okay so then I was trying to hide and then I said no, not but then uh, I say yeah I have a knife. What? And then we start to argument. You have to get out of here. If you don’t get out I am going to call the cops on you. So and then I came in here I grab her and I throw her to the floor here you know.

• ….then she was crying downstairs you know to open these windows to open these doors here.

• …oh and she start to scream and screams and that made me make and everything and I knew the police were going to come and I knew myself at by that time I had no choice. I knew because she want to call the cops and they going to put me in jail;

• So, we were here and then I give it to her. Boom;

• She went outside and she started screaming;

• I stabbed her more outside;

• I didn’t plan it;

• I was not real drunk.

[40] Detective Whitford conducted a further interview of Mr. Flores on June 13 at 9:51 a.m. at Elgin Middlesex Detention Centre. The interview lasted about 30 minutes. It was videotaped. Mr. Flores had this to say:

• it was not planned;

• Cindy had a knife;

• the knife was there (i.e. at the MacDonald residence);

• he first hit her with a knife in the head and then he took off his hat;

• Cindy was yelling things to him for about ten minutes after;

• he first hit her;

• he “got panic”;

• he called Ontario Works and left a message that Cindy did not live at 607 Commissioners Rd. anymore and not to send cheques there. She was kicked out by her father because she is a crack head;

• Cindy called him and left a message that she was going to call the police because he was harassing her and he was playing games;

• he loved her.

[41] Jonathan Leahy was the breath technician and he testified about the results of the breath tests. At 10:31 a.m. Mr. Flores’ BAC was 119 mg in 100 ml of blood. At 11:37 it was 90 mg. He agreed in cross-examination that if Mr. Flores’ elimination rate was 15 mg/hour his BAC at 6:30 a.m. might have been 60 mg higher. In re-examination, he agreed that he was not a toxicologist qualified to give expert evidence.

[42] Dr. Edward Tweedie is the forensic pathologist who conducted the autopsy. Ms. MacDonald had nine stab wounds and five incised wounds. The majority, eight, were on the back of the neck, six stabs and two incisions. She had a significant cut to the jugular vein on the right side of the neck (stab #1) that could result in death if bleeding was not stopped.

[43] There was another cut (stab #4) through the jugular on the left side of the neck. It caused life threatening injury. Neither Stab #1 nor Stab #4 would interfere with her ability to speak.

[44] There was a knife wound (stab #11) in the back. The knife passed through the right chest, entered the upper lobe of the lung, cut through the trachea and bronchus. It was lodged in the windpipe, occluding it to some degree. It could cause lung collapse. This wound could have affected her ability to speak. She had defensive wound on the palm of her left hand.

[45] The cause of death was multiple stab wounds. Any one of #1, 4 and 11 could have caused death.

[46] Brian Allen, a now retired sergeant with the London Police Service, testified about blood stain pattern analysis. He took a number of photographs of the scene. Based on his inspection of the crime scene, he came to a number of conclusions that may be summarized as follows:

1. Ms. MacDonald was in the area of the doorway between the family room and laundry room and remained there for a period of time.

2. She moved or was moved from the family room to the laundry room where she remained for a period of time.

3. While she was shedding blood and after, there was movement in the area between the family room and the laundry room.

4. A person wearing a sock stepped into blood between the family room and laundry room.

5. Ms. MacDonald received more than one blow while her head and back were between 6” and 34 1/2” from the floor.

6. A source bearing Ms. MacDonald’s blood came into contact with the north/south doorframe between the family room and the laundry room.

7. A source bearing her blood cast off onto the south end of the couch in the family room.

8. Ms. MacDonald was at one point above the two boards separating the family and laundry rooms while she was bleeding.

9. Those boards were moved during and/or after the blood shedding occurred.

10. Ms. MacDonald’s head contacted the south wall of the laundry room below the milk chute.

11. A finger bearing her blood contacted the inside surface of the exit door of the laundry room.

12. Ms. MacDonald’s head contacted the east wall of the laundry room 22.8” up from the floor.

13. She received a minimum of one blow while in the laundry room.

14. The door of the dryer was partly open during the blood shedding.

15. A person bearing her blood contacted the dryer.

16. A source wearing a sock bearing her blood moved from the doorway between the family and laundry rooms to the front door.

17. A source bearing her blood contacted the door handle of the front door.

18. A hand bearing her blood contacted the banister in the main entrance to the main level.

19. A source bearing her blood contacted the carpeted area between the top of the front entrance stairs and the kitchen.

20. Mr. Flores was in close proximity to Ms. MacDonald when she received a blood letting blow.

[47] In cross-examination, Mr. Allen agreed that there was a cat in the house and it could have come in contact with the blood, although he observed no blood on it. In reply, he said the presence of the cat did not alter his conclusions.

[48] Mrs. Valerie MacDonald’s evidence from the first trial was read into the record pursuant to s. 715 of the Canadian Criminal Code. She has since died. Mr. Cudmore did not oppose, conceding the elements of necessity and reliability.

[49] Mrs. MacDonald was Cindy’s aunt. They enjoyed a close relationship. She met Mr. Flores on three or four occasions and spoke to him on the telephone six or seven times. She described the couple as getting along well but she viewed Mr. Flores as a little bit possessive.

[50] She learned that Ms. MacDonald and Mr. Flores had broken up in May. Mr. Flores called her several times after that, telling her that he loved Ms. MacDonald and that he wanted her, her husband and Ms. MacDonald’s grandmother to speak to her and persuade her to marry him.

[51] Sometime in late May, Ms. MacDonald played a telephone message left for her by Mr. Flores. Mrs. MacDonald described his tone of voice as very loud and very angry.

[52] He told Ms. MacDonald that she was a fucking bitch and a crackhead, that she killed his baby and if he couldn’t have her, nobody would. He said that she killed his blood and he was going to kill her.

[53] Mrs. MacDonald testified that she had made arrangements for Ms. MacDonald to have an abortion, perhaps in April. Following the abortion, she said she spoke to Mr. Flores who said Cindy killed his blood, she didn’t want him and if he didn’t have her, nobody would.

[54] Mr. Flores testified in his defence. I set out relevant excerpts of his evidence as follows:

In chief:

• Q. When did you say that you found out she became pregnant?

• A. In December also. No, excuse me, in January.

• A. I was at home and I received a call from her and she said, “Melvin, you know what? I lost my baby.”

• A. She told me she had had a miscarriage.

• A. When she called me to tell me that she had lost the baby, I told her how was it that you lost the baby? She told me at home I didn’t have any food for a week.

• Q . Did you and Cindy every [sic] fight?

• A. In words, yes.

• A. One time she tried to hang me. [He later said this was in jest]

• A. Around four in the afternoon I was in my apartment and I decided to go buy a 24 (of beer).

• A. Around 10 or 10:30 I went to the Latino Fiesta, which is on Wellington and York.

• A. I stayed until the end of the end of the party, about two in the morning.

• A. I decided to walk [home].

• A. I called the welfare office. I don’t know [why]. I was drunk, not mad at Cindy.

• Cindy called and asked me to bring beer and cigarettes over to her house.

• I was happy because I was going to see the woman I loved very much.

• I took a cab. Cindy gave the driver the address.

• I stopped to buy cigarettes.

• I arrived.

• A. I grabbed my beer. And she was there. She was waiting for me. We hugged each other, we kissed each other. We say hi to each other. We were happy.

• We had some beer.

• A. After a few minutes, she said, “You have to go to Shoppers Drug Mart,” and I said, “Why?” I have to buy a douche. But while we were talking like that, I noticed on the table – by the table that on the floor there was a knife.

• A. When I saw the knife there, I asked, “Cindy, why is the knife there?” And she said, “The knife is here in case you want to do something against me.”

• A. I told her, “Cindy, you know that I love you very much. I know that – you know that, so I won’t do anything against you. And if I wanted to do something against you I could have done it a long time ago”.

• Did not have thoughts of hurting her.

• A. When I got out to the bathroom after peeing I saw that Cindy picked up the knife and put it on the side of the sofa.

• A. I noticed that she picked up a knife and she put it near her at the corner of the sofa.

• A. [She said] Melvin, do you remember that I told you that I lost the baby to natural causes?” Yes,” I (have) told her, “I remember that you told me that.” She says, “That was a lie. It was an abortion that I had. And another thing,” she says, “before you came here I was fucking this guy,” she told me. “This man has a big dick,” she says. “And I think I’m pregnant.” And she told me she didn’t want to have my child that’s why she went to get an abortion. And if she was pregnant and that he wanted to have his baby, and continued provoking me, telling me that the man had made love to her and that he had a big dick.

• I learned of the abortion that night for the 1st time.

• A. I remember when she started provoking me, telling me all these things, I became crazy. I got up from the sofa, I went to the kitchen. There was a knife in the kitchen. I didn’t know she was – she followed behind me. I took the knife. At the moment, at the moment when I was grabbing the knife she told me, “Melvin, what are you doing?” And I was trying to – to put the knife in my – between the belt in my pants. And she said to me that you are trying to – I was trying to hide the knife. And she grabbed me and she grabbed the knife. And then from there we fell on the ground, she fell on top of me. And she had the knife and we were like fighting. And then I turned around and I got on top of her. And I don’t know if it was from the fall, but she got cut here on the forehead.

• A. I told Cindy, “You’re bleeding.” I took off my hat and then I have my knife – the knife in my hand. We got up and were on our feet. And we were a couple seconds without saying anything. And she started provoking me again, telling me that I had to leave because this man was coming to fuck her. And he had a big dick. And she didn’t want my baby. And about the abortion and I went – I went crazy. I went crazy, I lost my way of thinking. My mind became black. Like a black wall, a black out. I went crazy.

• A. I heard a – I heard she was screaming. She started running and started provoking me again. And I went, I went crazy, I was crazy.

• A. She wanted to go to the door. She pushed me. And she again started telling that she was going to call the police, told me to go away because the man was coming – was going to come and fuck her. And then we went outside and I was crazy and I couldn’t see what I was doing. It was like a dream or a movie. It was like I was looking at something that was pushing my hand. And I looked at her back and I saw that she had a knife there. And then I from there I got more afraid and I started running.

In cross-examination:

• Q. And do you recall Valerie telling us that you had called her when you wanted to tell her that Cindy, Cindy should love you more?

• A. Yes, but that conversation never took place.

• A. She called me in February – she called me in February telling me that she had lost the baby.

• A. I never knew that she had had an abortion or she had told me anything about that, until that night at home I never knew.

• Q. Do you remember when Valerie MacDonald testified that she had listened to a message that you had left for Cindy?

• A. That message never existed. We never had the conversation with Valerie. That message never existed anywhere.

• A. That conversation – that – that message never happened. That message does not exist. That message never happened.

• A. No, no, I didn’t tell Valerie anything about getting married, no.

• Drank a fair bit every weekend.

• A. At home I drank 13 beers. When I went to the Latina bar I drank five rum and cokes.

• Q. You weren’t supposed to be going to Cindy’s house that day in June, correct?

• A. Yes, correct.

• A. Yes, I called the welfare (office). I don’t know why. I said it without bad intention.

• A. I will like to remind you that when I made that call I was drunk, I wasn’t in my full mind.

• Q. Valerie MacDonald testified that she had a message played for her by Cindy where you called her names and accused her of killing your baby?

• A. No, that never took place.

• MS. POTTER: And Your Honour I’m referring to page 461 of the trial transcript, starting at line five.

• Q. Mr. Flores, I’m going to ask you whether you recall these questions and answers during your trial. “Did you leave Cindy a message at some point calling her names?” Answer: “Ah, one time, yes.” Question: “Did you call her a fucking bitch?” Ah, one time, yes. Question: “Did you say that she was a crack head?” “Ah, no, no.” Question: “And did you say in the message that Cindy had killed your baby?” Answer: “Yes.” “Okay. And did you say that the baby that had been killed was your blood?” Answer: “No, no, no. Never said that, no.”

• A. That message was a little conversation we had with Cindy, but it’s not, but it’s not that I was threatening her, I was drunk also.

• Q. Question: “So you agree you were nasty in the message?” Answer: “Yes.” Question: “And you agree that you had said Cindy had killed your baby?” Answer: “Yeah.” Question: “Okay. Can you tell us then what is your testimony about the message you left? Tell me about the message.” Answer: “I said to her, um, you, you are, are a bitch. I said F-bitch. I said you are F-Bitch I said. And then you, you kill my baby. But I didn’t, I didn’t said it like I didn’t threat her no. No.”

• Q. continuing on. Question: “And, sir, you said that Cindy killed your baby because you knew she’d had an abortion, right?” Answer: “No. By that time no. No, no, no.”

• At that moment I didn’t know she had an abortion.

• Q. Were you at some point that evening kissing and hugging Cindy on the couch?

• Q. And she asked you – or she told you she wanted to have sex with you, correct?

• A. Yes, yes.

• A. When I got there and we sat on a sofa she told me that I have to go to Shoppers Drug Mart because I had to – I had to douche. And that’s when I smelled the bad odour. And I told Cindy she smelled. And she said let’s go to Shoppers Drug Mart and when we come back I’ll tell you.

• Q. So she had made sexual overtures to you and you turned her down?

• A. Yes. I told her no.

• Q. Are you able to tell us, Mr. Flores, how Cindy’s pants came to be down from her waist when she was found?

• A. I don’t know how that – I don’t know how it happened. I don’t know.

• Q. When you came back from the drugstore and you went to the bathroom you saw that Cindy had picked up the knife and put it beside the sofa?

• A. Yes.

• Q. And you said you didn’t do anything?

• A. No, I didn’t do anything because I didn’t put any importance to it.

• A. She told me that before I got there that she was fucking this guy. And she told me that this guy had a big dick. And she said, “You know what, Melvin? You remember I told you I lost the baby?” She told me this was a lie. “I went to get an abortion,” she said. That’s when I went crazy.

• Q. Do you agree with me that five minutes earlier you and she had been close emotionally and physically?

• A. Yes.

• A. I went crazy with the provocation that she told me.

• A. Yes, I was hiding [the knife] in the kitchen. I grabbed the knife to hide in the kitchen.

• A. Yes, to hide the knife here between the belt and the pants. I don’t know [why].

• A. I was crazy because of the provocation she told me.

• Q. Do you recall after you noticed that she was cut, initially, you took your hat and wiped the blood off?

• A. Yes, for a few seconds, yes.

• Q. And after you had wiped up that blood, you and she stopped struggling for about five minutes?

• A. As I said before, I don’t know. But at that moment, I don’t know if it was a matter of seconds or minutes. I was out of my mind.

• A. I heard that she was screaming. She started provoking me again. She wanted me to get out of the house because that man was going to come and he was going to fuck me she was saying. That he had a big dick. And that’s when I got crazy with all this provocation and boom, boom, boom.

• A. If I went crazy it was because of this provocation.

At the first trial he testified as follows:

• A. I, I put, I put her arm like that on the floor. And then she still had the knife. And I said, “Listen. Look. You cut yourself I said.” And then I took my hat and I wipe her off, the blood, and then after we stopped for, for five minute and we were standing up still in the living room.

• A. The fact that things went very quickly, went very quickly. More quickly [than what was said during the first trial].

• Q. When you and Cindy were arguing, she told you to get out, right?

• A. Yes, yes.

• Q. And that made you angry, right?

• A. It didn’t bother me, it turned me crazy.

• Q. And she told you that if you didn’t get out she was going to call the police?

• A. Something like that.

• Q. And you know that if she called the police you were going to be in trouble?

• A. I didn’t take it seriously and it didn’t matter to me.

• Q. You didn’t want that to happen though, did you?

• A. No.

[55] Dr. Hirst also testified at the first trial and a transcript of his evidence was filed as Exhibit 24 during this trial. He gave his expert opinion respecting the absorption and elimination of alcohol; its effects on the body; and the calculation of blood alcohol levels. Dr. Hirst was aware of Mr. Flores’ blood alcohol readings taken after his arrest. He testified that based on those readings, Mr. Flores’ blood alcohol concentration would have been as high as 245 mg of alcohol in 100 ml of blood at 6:10 a.m. He also testified that if Mr. Flores had consumed thirteen beers after 4:00 p.m. on June 2, ten ounces of rum after 10:30 p.m. and then a further three beers after 2:00 a.m., his blood alcohol level would have been as high as 180 mg at 6:00 a.m. on June 3. He described Mr. Flores’ alcohol elimination rate as high. He said that Mr. Flores would have had to consume more alcohol than that to get the reading of 245 mg.

[56] He also spoke about the effects of alcohol consumption, causing depression in a neurological sense and impairing motor skills and memory. He said that someone who drinks on a regular basis has a higher level of tolerance.

ANALYSIS

[57] There are remarkable similarities and consistency between what Mr. Flores told police and his testimony at trial that permit the Court to get an idea of what happened between Mr. Flores and Ms. MacDonald that early morning in June.

[58] There seems little doubt that there was some sort of exchange between Mr. Flores and Ms. MacDonald after they returned home from Shoppers Drug Mart. It is possible that Ms. MacDonald directed some hurtful words his way. It seems more likely that she asked him to leave. Mr. Flores acknowledged that she did so at some point. He knew that he was not supposed to be with her. He was concerned about going to jail if she called the police.

[59] Mr. Flores is adamant that he did not know about the abortion until that time. This seems contrary to Mrs. MacDonald’s evidence about the message that he left for Ms. MacDonald, although even in that message, he does not say abortion but rather she killed his blood. I suppose he could have been blaming her for the miscarriage. Assuming that Ms. McDonald disclosed the abortion and the fact that she was pregnant with another man’s child, the issue is whether her words amounted to provocation at law.

[60] Based on Mr. Flores’ testimony, I find that after Ms. MacDonald said something to him, Mr. Flores went to the kitchen and retrieved a knife. He was followed by Ms. MacDonald. However, he did not use the knife immediately. He attempted to hide it between his belt and pants. Some sort of physical altercation followed, during which Ms. MacDonald fell to the floor and either cut her head or received a cut to her head from the knife. Mr. Flores saw this and said: “You are bleeding.” He removed his hat and dabbed the blood. Nothing further happened for either a few seconds or a few minutes. Mr. Flores said minutes or seconds during this trial and five minutes during the first. But importantly, there was some passage of time whether seconds or minutes between this event and what followed.

[61] There was some sort of further verbal exchange and it was then that Mr. Flores stabbed Ms. MacDonald. The blood evidence shows that there was pooling of blood between the family room and laundry room, consistent with Ms. MacDonald having been there for a period of time while bleeding. She received a number of blows while in the doorway between the family room and laundry room. She received more than one blow when her head and back were between 6” and 34 ½” from the floor. There was at least one blood letting blow in the laundry room. There was blood on the walls of the laundry room and there was further blood pooled in areas of the backyard.

[62] I am satisfied beyond a reasonable doubt that Mr. Flores was not provoked, bearing in mind the legal definition of provocation requiring both suddenness of the act of provocation and the accused’s sudden reaction to it, with no chance for his passion to cool.

[63] I come to this conclusion for a number of reasons:

1. The circumstances in which he took the knife and hiding it in his pants.

2. The statement that he made in his message to Ms. McDonald that she killed his blood and he would kill her. There is no reason to doubt Mrs. McDonald’s evidence on this issue. She was credible and had no reason to be untruthful particularly since the family liked Mr. Flores and all agreed that this seemed out of character.

3. He told the police words to the effect that you don’t fuck with a Latino.

4. The twelve or thirteen times that Mr. Flores said in his testimony that he was provoked seems contrived and rehearsed and undermines his credibility entirely.

5. Mr. Corrin testified that Ms. McDonald’s pants were at her knees. Mr. Flores did not deny this but said rather that he did not know how this happened.

[64] In this case, even if Ms. MacDonald spoke insulting words suddenly, Mr. Flores did not react suddenly. He went to the kitchen, took the knife but did not use it immediately, attempting rather to hide it in his pant waistband. He was acting in a deliberate as opposed to a sudden fashion. Ms. MacDonald followed him to the kitchen and asked him what he was doing and attempted to search him or to take the knife.

[65] There followed a skirmish during which Ms. MacDonald was cut on the forehead either by the knife or by her falling to the floor. Mr. Flores stopped, observed the blood, removed his hat and attempted to dab the blood. Some time, whether it be seconds or minutes, passed. This too was indicative of a deliberate mind and a break in the chain of events, showing beyond doubt that Mr. Flores was in possession of his faculties. He clearly had an opportunity for his passion to cool and I find that it did.

[66] Even if Ms. MacDonald renewed her insulting words thereafter, they can no longer be said to be sudden, striking upon a mind unprepared for them. By then, Mr. Flores had heard those words already and reacted as he had. As a result, the words can no longer be characterized as sudden. Nor can Mr. Flores’ act of stabbing Ms. MacDonald multiple times suggest that he acted in the heat of passion.

[67] Even taking into consideration the evidence of Mr. Flores’ consumption of alcohol and the evidence of Dr. Hirst and all of the circumstances, the analysis does not change. He did not act suddenly to sudden words directed to him.

[68] For these reasons, I find Mr. Flores guilty of second degree murder.

Released: ( Orally) July 11, 2012