04/27/2012 11:33 EDT | Updated 06/27/2012 05:12 EDT

Smothering of alcoholic wife called 'mercy killing'

An Edmonton senior smothered his alcoholic wife out of love — to put her out of her misery, the 83-year-old defendant's lawyer said at a sentencing hearing Friday.

"This is not a domestic violence case," said Peter Royal. "This was a mercy killing by a deeply troubled and very fine man."

"She was drinking herself to death," he told the court. "She was literally at death's door."

Noel Lavery was convicted of manslaughter in January in the death of 50-year-old Sherry Lavery on Sept. 27, 2006 when he held a pillow over her face as she lay passed out on the bed.

He will be sentenced June 6th.

'This was an act of love'

"This was an act of love," said Royal. "This is the taking of his wife's life to put her out of her misery."

Royal told the judge Lavery should serve a conditional sentence, without going to jail.

"This gentleman is 83 years of age," said Royal. "Sending him to prison would amount to cruel and unusual punishment. Jail is not appropriate."

"If you send him to jail, it could be a life sentence," he continued. "If you impose any prison sentence, he's going to die in jail."

"He's a bright man who has much to contribute," said Royal. "He could perform significant community service."

Earlier in the hearing, the Crown prosecutor recommended Lavery serve eight years in prison.

Mark Huyser-Wierenga said a message must be sent to society.

"He's a hell of a guy in some respects" who "chose to place a pillow on his victim's face," said Huyser-Wierenga, who called the case one of "near murder manslaughter."

Case compared to Latimer conviction

The Crown said the case can be compared to that of Saskatchewan farmer Robert Latimer, who was convicted of second-degree murder in the death of his daughter, Tracy, who suffered from cerebral palsy.

The prosecutor said he is asking for a harsh sentence to protect other sick, disadvantaged Canadians.

Justice Donna Shelley would not convict Lavery on the more serious charge of second-degree murder because she had doubt that Lavery intended to kill his wife.

Shelley believed Lavery was physically, mentally and emotionally exhausted from caring for his wife, whose condition had deteriorated due to her extreme alcoholism.

Shelley agreed with Royal, who suggested Lavery's depression affected his judgment, clouding his ability to think straight and form the intent to kill.