Superior Court of Justice
COURT FILE NO.: CR-11-1263 DATE: 20160826
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN TONY MacKINNON, for the Respondent/Crown Respondent
- and -
DAVID MORRISSON FERGUS (CHIP) O’CONNOR, for the Applicant Applicant
Reasons for Judgment
Threshold Screening Application pursuant to s. 745.61 of the Criminal Code
DURNO, J.
[1] Shortly after 9:00 p.m. on November 25, 1993, Stewart Weston went for a walk with his friend, Blair Smith, along their regular route in Burlington. As they approached a truck parked at the side of the road, a man jumped out from behind a tree and fired one shot hitting Weston and a second striking Smith.
[2] Weston was shot in the face and died from a combination of gunshots and blunt force injuries to his head that were likely caused by a combination of pistol whipping and kicks. He received ten or eleven blows after he was shot and before he died. Two different types of footwear, one hard and the other soft could have caused the injuries.
[3] Smith was struck in the left shoulder blade leaving him paralyzed from his armpits down. While he lay on the ground, he heard the footsteps of two individuals. He also heard two more shots fired and kicking sounds for about 30 seconds followed by the sound of two individuals returning to the truck before it was driven away.
[4] On November 26, 1993, David Morrisson’s counsel contacted police and arranged for them to meet his client. At that meeting, Morrisson told the officers that he went to the area where Weston and Smith were attacked to pay a drug debt to Weston. When he stopped to get out of his truck to pay Weston, an unknown male jumped out from behind a tree and shot Weston and Smith. Morrisson told the police that he had nothing to do with the shootings and did not know the shooter.
[5] On February 15, 1995, Morrisson was arrested and charged with first-degree murder and attempted murder. He was released on bail on March 15, 1995 and remained on the release order until it was revoked on June 10, 1998 during his trial. He has remained in custody since that date.
[6] Robert Pollock was also arrested and charged with the same offences.
[7] On July 15, 1997, shortly before their trial, David Morrisson agreed to be interviewed by the police and gave a sworn KGB statement in which he named Pollock as the shooter but insisted he had nothing to do with the murder. He hoped that the prosecution would accept his version of the events and withdraw the charges against him. The police and Crown did not accept his account as accurate.
[8] At the trial, Morrisson testified that Pollock fired the shots, that he did not realize Pollock had a gun and that he thought they were meeting Weston to repay him some money. He said he had lied to police the day after the shooting because he was fearful of Pollock. He spoke to Terry MacLean, the drug dealer he worked for, after the murder and was told that he told Pollock to murder Weston.
[9] Morrisson was shown two letters addressed to Pollock in which the writer encouraged Pollock to admit he shot Weston only intending to rough him up so as to avoid a murder conviction and either of them doing 25 years plus. Morrisson denied he had written the letters.
[10] Pollock did not testify.
[11] On June 27, 1998, Morrisson and Pollock were found guilty of first-degree murder and attempted murder and sentenced to life in prison on both counts. There were ineligible for parole for 25 years for the murder and for 10 years for the attempted murder.
[12] Both appealed to the Court of Appeal. Morrisson’s appeal was dismissed. Pollock’s appeal was allowed on the basis that Morrisson’s counsel conducted the defence with an “unrelenting attack on Pollock’s character.” The Court found that his counsel inadmissible and highly prejudicial evidence despite the objections of Pollock’s counsel, resulting in an unfair trial for Pollock: R. v. Pollock and Morrisson (2004), 187 C.C.C. (3d) 213 (Ont. C.A.).
[13] Before Pollock’s re-trial, Morrisson told investigators hired by Pollock’s counsel that Tom Carr, then deceased, had been with Pollock and him on the night of the murder and that Carr, not Pollock, fired the shots.
[14] When being interviewed by the Crown and police in preparation for his trial evidence, Morrisson asked that the Crown not to oppose his parole reduction application. He was given no promises and told to tell the truth. At the interview, he said that Pollock had shot Weston and Smith, not Carr.
[15] At Pollock’s re-trial, Morrisson testified for the Crown that en route to the meeting, Pollock told him for the first time that he was going to rob Weston of the drugs he was to get from him. While Pollock showed Morrisson a gun, Morrisson did not know that any shots would be fired.
[16] Pollock, who did not testify, was convicted of first-degree murder, appealed and later abandoned the appeal.
[17] While in custody, Morrisson has progressed to a minimum security level, been assessed to be a low risk to re-offend, taken programs and worked regularly. With the exception of some minor disciplinary matters, he has not had serious difficulty while serving his sentence.
[18] Having served over fifteen years of his sentence, Morrisson applies pursuant to s. 745.6(1) of the Criminal Code for a reduction in the number of years he should serve before being eligible for full parole. Currently, the eligibility date is May 6, 2023.
[19] I have been designated by the Chief Justice to conduct the “judicial screening” of the application pursuant to s. 745.6(1) under which the applicant has the onus of establishing that a jury should be empaneled to determine if his period of parole ineligibility should be reduced. The applicant submits that he has met his onus. The Crown disagrees.
[20] The applicant submits that the screening should be conducted according to the legislation in force at the time when the offence was committed because the 2011 amendments to the Criminal Code are not retrospective. He contends the applicable test is that he must show on a balance of probabilities, a reasonable prospect the application will succeed: per s. 745.61(1) at the time of the offence.
[21] The Crown submits the new legislation applies and the applicant is required to show, on a balance of probabilities that there is substantial likelihood that the application will succeed: per s. 745.61(1) as currently worded.
[22] The review, conducted according to the new legislation, is dismissed for the following reasons.
The Constitutional Challenge: Reasonable or Substantial Likelihood?
[23] Section 11(h) of the Charter states that any person charged with an offence, has the right if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.
[24] Section 11(i) of the Charter states that any person charged with an offence, if found guilty of the offence and if punishment for the offence has been varied between the time of the commission of the offence and the time of sentencing, to the benefit of the lesser punishment.
[25] The applicant submits that applying the amended section to his application breaches his s. 11(h) and (i) Charter rights because to do so would be a change in the punishment for the offence. He would now be subject to punishment that was not applicable at the time of the offence.
[26] He relies on Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392 where the Court held that retrospective modification of the parole system after a sentence was imposed may have the effect of increasing the punishment already imposed. It was the retrospective frustration of an expectation of liberty that constituted punishment. Automatically lengthening the offender’s time in custody constitutes additional punishment and offends s. 11 (h).
[27] He also relies upon the British Columbia Court of Appeal judgment in Liang v. A.G. (Canada), 2014 BCCA 190 where the Court examined the impact of repealing accelerated parole for those who offended before the amendment but were sentenced after it with regards to ss. 11(h) and (i). The Court concluded applying the new legislation violated s. 11(h) rights of offender’s who were sentenced after the amendment but offended before the change.
[28] These issues were raised in R. v. Rowe (2015), 2015 ONSC 2576, 324 C.C.C. (3d) 57 (S.C.J.) where I found that the new legislation applied: at para. 24 – 56. The judgment has not been appealed to my knowledge. To date, I am not aware of any judgment that has found the former legislation applied to an offence committed before 2011. In these circumstances, it is not necessary to reiterate the full reasons in Rowe. The following summary will suffice.
[29] The new legislation requires the applicant to meet a higher burden than would have applied on the date of the offence: Rowe, at para. 35. While the amendment to s. 745.6(1) relates to the punishment of an offence by addressing the parole ineligibility period, it does not increase or add to the punishment, nor does it change the nature of the sentence. Furthermore, it does not thwart the applicant’s settled expectation of liberty that crystallized when he was sentenced: Rowe, at para. 37, relying on R. v. Jenkins, 2014 ONSC 3223.
[30] The applicant’s settled expectation at the time he was sentenced included that he had the right to apply to reduce the period of ineligibility after serving 15 years, that he had to apply for permission to have a jury empaneled and that a Superior Court judge would determine whether a jury should be summonsed: Rowe, at para. 43, relying on Jenkins. The applicant had no claim to unfettered access to a jury: Rowe, at para. 44. His settled expectation did not include the test the screening judge would apply: Rowe, at para. 44. Nor could it have included a settled expectation of liberty at a date earlier than 25 years as the applicant had to persuade the screening judge, the jury and then the National Parole Board that he should be released early: Rowe, at para. 50.
[31] The applicant is required to establish on a balance of probabilities that there is a substantial likelihood the jury will unanimously agree to reduce his period of parole ineligibility.
The Applicable Legislation
[32] Section 745.6(1) of the Criminal Code states:
(1) On receipt of an application under subsection 745.6(1), the appropriate Chief Justice shall determine, or shall designate a judge of the superior court of criminal jurisdiction to determine, on the basis of the following written material, whether the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed:
a. the application; b. any report provided by the Correctional Service of Canada or other correctional authorities; and c. any other written evidence presented to the Chief Justice or judge by the applicant or the Attorney General.
Criteria
(2) In determining whether the applicant has shown that there is a substantial likelihood that the application will succeed, the Chief Justice or judge shall consider the criteria set out in paragraphs 745.63(1)(a) to (e), with any modifications that the circumstances require.
Decision re new application
(3) If the Chief Justice or judge determines that the applicant has not shown that there is a substantial likelihood that the application will succeed, the Chief Justice or judge may
(a) set a time, no earlier than five years after the date of the determination, at or after which the applicant may make another application under subsection 745.6(1); or (b) decide that the applicant may not make another application under that subsection.
If no decision re new application
(4) If the Chief Justice or judge determines that the applicant has not shown that there is a substantial likelihood that the application will succeed but does not set a time for another application or decide that such an application may not be made, the applicant may make another application no earlier than five years after the date of the determination.
Designation of judge to empanel jury
(5) If the Chief Justice or judge determines that the applicant has shown that there is a substantial likelihood that the application will succeed, the Chief Justice shall designate a judge of the superior court of criminal jurisdiction to empanel a jury to hear the application.
[33] The criteria to be examined are found in s. 745.63(1)(a) to (e):
(a) the character of the applicant; (b) the applicant's conduct while serving the sentence; (c) the nature of the offence for which the applicant was convicted; (d) any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and (e) any other matters that the judge considers relevant in the circumstances.
Parole Ineligibility Reduction Hearings
[34] While the wording of the legislation has undergone some change since “faint hope” applications were enacted in 1976, the purpose of the hearings remains as expressed by the Supreme Court of Canada in R. v. Swietlinski, [1992] 3 S.C.R. 481 at para. 12:
... What is important is to understand that the procedure is one for reassessing long-term imprisonment imposed by law (in the case of first-degree murder) or by a judge (in the case of second-degree murder). The purpose of a reassessment procedure, especially when it takes place 15 years after the initial decision, is necessarily to re-examine a decision in light of new information or factors which could not have been known initially. It follows that the primary purpose of a s. 745 hearing is to call attention to changes which have occurred in the applicant's situation and which might justify imposing a less harsh penalty upon the applicant. ...
[35] From 1976 to 1997, there was no threshold screening. The offender was entitled to have a jury empaneled. Threshold screening was enacted to ensure that only meritorious applications proceeded: Jenkins, at para. 20. While a jury would have a broad discretion to decide whether to reduce the period of ineligibility, by enacting judicial screening, Parliament has “stemmed the tide of cases that will make it to that stage” and “built a judicial dam at the front end of the process:” Jenkins, at para. 46.
[36] Conducting the screening, the judge considers the above noted factors as would an empaneled jury if leave were granted. As with the jury, all of the factors must be considered. There is no “score card” that gives each factor equal weight. Each application is a fact-specific determination. One or more factors may be decisive one way or the other. Different factors will receive different weight depending on all of the circumstances and evidence.
[37] The evidence on this application includes the Parole Eligibility Summary Report for the Purposes of Judicial Review [1], prepared by Susan Mazel, Parole Officer, Joyceville Institution; the Psychological/Psychiatric Assessment Report, prepared by Charlene Winkworth, Program Delivery Officer, Warkworth Institution; the applicant’s affidavit; the letters from the applicant’s sister, Angela Marlin, and brother-in-law, Garry White; the various documents included in the Applicant’s Record and his written submissions; the Crown’s written response, the various trial transcripts filed by the Crown and the synopsis of the applicant’s 2015 interview with Halton Regional Police officers.
[38] Once all of the evidence has been examined, the screening judge performs a limited weighing of the evidence in an attempt to forecast the outcome of the application if it was heard by a jury: R. v. Dulay, 2009 ABCA 12, [2009] A.J. No. 29 (C.A.) at para. 5. In doing so, first, it must be kept in mind that the primary focus of the hearing is to “call attention to changes which have occurred in the applicant’s situation that might justify imposing a less harsh penalty”: Sweitlinski, at para. 12. The jury’s verdict, in effect, is an assessment of the offender’s progress: Jenkins, at para. 17.
[39] Second, when conducting the assessment, it is important to keep in mind that in order to reduce the period of ineligibility, the applicant must satisfy all jurors. Their verdict to reduce the ineligibility period must be unanimous. Accordingly, the test is whether on the material on this application, the applicant has satisfied me on a balance of probabilities that there is a substantial likelihood a jury would unanimously reduce his ineligibility period.
[40] Third, the mandated sentence for first-degree murder is life imprisonment without parole eligibility for 25 years. The applicant must show that his or her current situation justifies a departure from the normal legislated sentence: R. v. Gayle, [2013] O.J. No. 4124 (S.C.J.) at para. 30.
[41] Fourth, having been convicted, the applicant no longer enjoys the benefit of the presumption of innocence with the burden of proof on the Crown. He has to provide all the available evidence that would support his application at the time of the threshold screening.
[42] The current wording of the onus has been described as an “awkward formulation” that combines two different concepts of probabilities – balance of probabilities and substantial likelihood: Jenkins, at para. 27. Courts have struggled to define what it means to establish a substantial likelihood of success on a balance of probabilities. In Jenkins, Pomerance J. described this as requiring the applicant to “prove, on a balance of probabilities, that there is a concrete or tangible likelihood of success:” at para. 27. In R. v. Poitras, 2012 ONSC 5147, Rutherford J. held that the applicant must show it is more probable than not that the application has a probability or promise of succeeding. In R. v. Gayle, [2013] O.J. No. 4124, at para. 10, Nordheimer J. found that the applicant had to show the application had real merit, that it was a truly meritorious case.
[43] In summary, the caselaw supports a finding that the applicant must show the application has real merit and a substantial probability that a jury will unanimously reduce the period of ineligibility: Rowe, at para. 62.
The Positions of Counsel
[44] The applicant submits that the offence was out-of-character. He has never before or after exhibited any other violence or violent tendencies. He has upgraded his education while in custody and plans to pursue his education. When released, he intends to seek employment. His background shows that he can maintain employment. His sister and brother-in-law are supportive and will assist him in re-integrating into the community. He was on pre-trial release before his trial and continued on bail until near the end of the trial. He has demonstrated good behaviour while in jail.
[45] The applicant has progressed to a minimum security jail and has done well there since 1998. He is a low risk to escape, a low risk to public safety, and shown positive institutional adjustment. On at least four occasions, he has successfully completed escorted temporary absences from the penitentiary. He submits that he “has demonstrated a continuous resolve to make the best use of his time in prison and has expressed his intention to continue to do so.”
[46] The Crown submits that a central issue on the application is the “large number of untruthful statements” the applicant has made regarding his involvement in and knowledge of the offence. He has lied over and over to police, under oath before courts and out of court. At Pollock’s re-trial, he admitted he committed perjury at his own trial. In his affidavit on this application and post-affidavit statement to Halton police officers, he has admitted committing perjury at Pollock’s re-trial. His willingness to lie is relevant to significant aspects of the application: his character, his conduct while serving his sentence, his sincerity, including his professed remorse, whether he has accepted responsibility for the offence, and the reliability of any risk assessment.
[47] The Crown submits that a review of events beginning with the applicant’s statement the day after the murder to his 2015 interview with the police, shows that he is a person who will lie if it suits his circumstances. With this application pending, it is not surprising that his level of involvement has evolved with increasing admissions of responsibility.
[48] Despite his recently professed involvement in a contract killing, the applicant still does not admit his physical involvement in beating Weston despite Smith’s evidence that both persons were involved, the medical evidence that the injuries were consistent with two types of shoes being worn by the assailants, his recent admission that he did take the floor mats out of his truck after the murder, and that he wiped down the inside of the truck including the steering wheel and washed his clothes before they were given to the police. If he did not get close to where Weston and Smith were shot, it is unclear why he would have washed his clothing, thrown out both floor mats and wiped the steering wheel clean.
[49] With regard to the applicant’s character, he was “significantly immersed in the drug culture in Halton region and beyond” at the time of the offence. His repeated perjury cannot be ignored as he turns to the same criminal justice system in a prayer for leniency when he contemptuously lied again and again in that same system. His conduct while serving his sentence includes his perjury at Pollock’s re-trial. It also includes his “shenanigans then and now relating to his professed interest in bartering various versions of the homicide as consideration for the Crown’s consideration on the instant application.”
[50] The 2016 Psychological Risk Assessment and the 2009 Correctional Plan Progress Report upon which the applicant relies must be viewed in the context of the minimization of his role and his presentation of false versions of the events. When testifying at Pollock’s re-trial in 2008, the applicant swore that he was finally providing the whole truth.
[51] The ‘nature of the offence’ factor now includes his admission that this was a paid execution of one person with the second victim left paralyzed from the armpits down. The evidence of Smith and the pathologist show that two persons were involved in the beating, a beating the applicant continues to claim he did not participate in.
The Factors to be Considered
The Character of the Applicant
[52] The applicant is 51 years old. He is diabetic but otherwise in good health. He was born in Toronto and spent most of his childhood with his parents in Brantford. Both parents have passed away. His only sister, Angela Marlin, is a registered nurse and married to Garry White, a retired private investigator. Both are supportive of the applicant.
[53] Ms. Marlin wrote that her younger brother was involved in street drugs sales when he was younger. However, he maintained a deep love for his two children. She remains in contact with the applicant and visits him when she is able to do so. She regards him as very intelligent and capable of completing university. She regards him as having a “lifer’s wall” around him, as a mechanism for surviving in prison. Her husband and her will provide whatever support he needs to successfully reintegrate and re-establish himself.
[54] Garry White wrote that despite the applicant’s involvement in the drug culture before his arrest, he was a dedicated father and husband. He concealed his illegal activities from his neighbors and family, appearing to be a “normal, wholesome and caring family man.” Mr. White regarded those as accurate descriptors of the applicant, except for his involvement in drug dealing. He was very good at keeping secrets from many people, including his mother who moved in with the applicant and his family after the applicant’s father died in 1993. Mr. White feels that the applicant wishes he could go back in time and redo his life over. He says the time in prison can have a tremendous psychological impact on a person. He feels the applicant would be “ecstatic about having the chance to become a useful and productive member of society.” He and his wife are committed to helping the applicant as life can still have some meaning for him.
[55] At age 17, the applicant joined the military and served from 1981 to 1985. During that time, he worked on his high school education. He was with the Airborne Regiment for 13 months. During his five years in the military, he spent time in Norway, Scotland, Portugal and Australia. He told the Parole Officer who prepared the report for this application that while in the military he was charged with two narcotics offences when he was found with some seeds in his car. He had a courts martial trial, was found guilty and then released from the military when he was roughly 22 years old.
[56] After leaving the military, he worked for CN Rail in track maintenance for five years. For over a year before his February, 1995 arrest, he worked at Dachem in Brampton. Before that he worked as regional manager of marketing and sales for Ontario Energy.
[57] The applicant was married in 1985 and had two children with his wife Kim, Christopher, born in 1985 and Ashley, born in 1990. The applicant has no contact with his wife or children and did not want them contacted for this application.
[58] The applicant had no prior record at the time of the commission of the murder and attempted murder. After the homicide, his home was searched and about an ounce of hashish located. He was charged with possession for the purpose of trafficking but was found guilty of possession and received a $1000 fine.
[59] Upon arrival in the penitentiary system the applicant scored ‘post high school’ on the Canadian Adult Achievement Test. A 2009 transcript showed he acquired his Ontario Secondary School Diploma. While serving his sentence, he finished his first year at Queen’s University. However, the program was discontinued and was no longer available to the applicant. Accordingly, he has not completed the degree.
[60] At Beaver Creek, he enrolled in school, completed his secondary school diploma, was helpful to other students and worked well without supervision. He was hired as a full-time tutor and received excellent work reports. No preventative security was noted. However, he no longer tutors as some inmates refused his assistance, on the applicant’s account, because they knew he testified against Pollock. He obtained employment as his unit’s shopper/cleaner and was reported to be doing an excellent job. From June 2014 to mid-October, 2014, he worked for Ornamental Grounds until he was injured on a tractor.
The Applicant’s Accounts of the Events of November 25,1993
[61] The character of the applicant includes his credibility and reliability. As indicated earlier, he has provided numerous accounts of the events of November 25, 1993, starting the day after the shooting and ending during his interview with Halton Police in the Fall of 2015. That interview was initiated by the applicant in anticipation of this application.
[62] In summary, the night of the murder he went home, said nothing to his wife and went to the store to get her a soda and a lottery ticket. The day after, he told police that he knew nothing about the homicide committed by a stranger who jumped out from behind a tree. At the joint trial, he said he drove Pollock to the scene where Pollock surprisingly shot Weston. The planned murder that MacLean had directed Pollock to commit was completely unknown to him. The applicant said he was afraid of Pollock who put the gun to his side after the murder and told him to drive away.
[63] Before Pollock’s re-trial he told investigators hired by Pollock that Tom Carr shot West. At Pollock’s re-trial, he testified that it was only en route to meet Weston that Pollock showed him a gun and told him that he was going to rob Weston of the cocaine he was to provide.
[64] While in custody during a 2007 program, the applicant said that a large shipment of marijuana had been seized by authorities. That led to buildup stress, helplessness and frustration to the point that threats were exchanged with “his victim,” who he believed was not doing anything to repay the $1.2 M he felt he owed him. This led him to tell his criminal associates of the problem and the homicide ensued.
[65] When interviewed in 2015, he said that MacLean told him to tell Pollock that MacLean wanted him to kill Weston and gave him $2500 to give to Pollock. The applicant drove Pollock to murder Weston. The motivation behind the homicide was MacLean owned Weston twenty-three or twenty-four thousand dollars and refused to pay him. The applicant denied being involved in the beating. He told the correctional officer who prepared the report that he contacted Halton Police about a year previously to confess to what actually happened in order to “get it off of his chest” as “it was time.” He told the Halton police officers that he spoke to them in an attempt to further this application.
The Psychological/Psychiatric Report
[66] In the 2008 report, the offender was found to have genuine remorse and to have gained insight into the nature and origin of his criminal history. There was no evidence he was trying to present himself in a more favourable light. Intellectually, he functioned in the superior range, scoring significantly above the average range for both vocabulary and abstract reasoning measures. He was motivated with a positive attitude. Actuarial testing and the PCL-R results showed he was a low/moderate risk of general recidivism and low for violent recidivism. There were no significant concerns for his psychological functioning.
[67] A 2016 Risk Assessment conducted by Dr. Mandelzys found the applicant was a bright and articulate man, able to talk about his life in a logical and persuasive manner, expressing remorse for his crimes, and appearing sincere. He had no noted difficulties in the area of anger management. He has a pragmatic outlook. If his application fails he will just soldier on, noting it was a “roll of the dice, but one I have to take.” He just wants a quiet life with his family members. He now tries to live the way he should have lived. While in custody he began practicing the Wiccan faith.
The Applicant’s Conduct While Serving his Sentence
[68] The applicant has done very well in prison. After being classified at Millhaven for 90 days, he spent one year at Joyceville and ten years at Warkworth Institution before being transferred to Beaver Creek minimum security in 2009. Since that time he has maintained classifications of low risks to public safety, low risk of escape and positive institutional adjustment.
[69] At Warkworth, his work reports were positive. He was employed as a cleaner in the reception range and also worked in the Corcan Paint Shop where his evaluations were positive. He attained the highest pay level. There were two suspensions; a five days suspension in 2001 for “taking a piece” out of the work area to his cell, and a suspension in 2008 from Corcan for poor attendance.
[70] He has completed Phases 1 and 2 of the Moderate Intensity Violence Prevention Program and the Workplace Hazardous Materials Information System course.
[71] His most serious misconducts appear to be related to his cigarette smoking and efforts to continue smoking after it was prohibited in the institution. Since 1993, he has been clean and sober of all drugs and alcohol with his urine analysis results showing negative. He has never assaulted anyone or in any way been involved in assaultive behaviour. The applicant has never been in possession of contraband or any weapon.
[72] While in jail he has played sports, umpired softball and helped with other recreational activities. He has been a range representative on the inmate committee. He has received commendations from Codrington Community Recreation Association for a stereo cabinet built at Corcan Industries and for his contribution to the Warkworth baseball team. He also received commendations from the Oriental Friends Association and Camp Trillium to the Lifers at Warkworth. He has been active in the Jaycees Service Club.
[73] The applicant has been granted Perimeter Security Clearance for his employment with the Works Department at Beaver Creek. The report that gave him clearance noted his positive institutional adjustment, as well as his employer finding that he was easy to get along with and “works excellent with others.” He is a responsible and an excellent employee.
[74] The applicant is “deemed a low risk regarding public safety and escape.” There are no indicators that would suggest he could be a risk for escape from minimum security. He was on bail for two years pending trial and has had four medical escorted temporary absences without any concerns. He was assessed as having a “medium level of motivation to actively participate in his Correctional Plan as well as a medium accountability level.” Based on those findings, the report concluded that the applicant was “engaged in his Correctional Plan.” Clearance required to fulfill his daily duties would not pose a risk to the public or the community as it was manageable under the supervision of Works Department staff.
The Nature of the Offence
[75] As the applicant submits, all first degree murders are extremely serious as reflected by the mandatory sentence that must be imposed. Yet Parliament permitted an application to reduce the period of ineligibility for offenders who committed murder at the time of this offence. The applicant submits that without minimizing the seriousness of the offence, the applicant was not the shooter. With no record at the time of the commission of the offence and only a possession of a controlled substance after the murder, it is submitted that the offence was out of character for the applicant.
[76] The Crown takes a different view, noting the nature of the offence as stated earlier and this offender’s involvement as reflected in his current position. Unlike the applicant’s current position, the Crown maintains that two persons were involved in the beating of Weston.
[77] Undoubtedly, a contract murder that included shots fired and a vicious beating of Weston after he had been shot is most aggravating. While I appreciate that the attempted murder sentence parole ineligibility is not part of this application, that Smith suffered the injuries he did in the course of the of the murder of Weston is relevant.
Information provided by the victim at the time of the imposition of sentence or at the time of this application
[78] There is no evidence regarding information from Mr. Weston’s family or friends at the time of sentencing or on this application.
Any other matter the Judge Considers Relevant
[79] There is no other information that I consider relevant.
Analysis
[80] The comments of Lamer J. in Swietlinski at para. 14 bear repeating to place the analysis in context.
The purpose of a reassessment procedure, especially when it takes place 15 years after the initial decision, is necessarily to re-examine a decision in light of new information or factors which could not have been known initially. It follows that the primary purpose of a s. 745 hearing is to call attention to changes which have occurred in the applicant's situation and which might justify imposing a less harsh penalty upon the applicant. [emphasis added]
[81] In Jenkins, Pomerance J. found that a jury’s verdict would be an assessment of the offender’s progress. Accordingly, the focus of the applications are on what has changed since the sentence was imposed in relation to the four areas screening judges must examine, including the applicant’s progress.
[82] First, there is no legal or practical requirement that an applicant accept his or her guilt or the factual basis upon which they were convicted. That an applicant denies the offence or the details alleged against him or her is but one factor to consider but cannot in itself be determinative. Screening applications have been allowed where the applicant denies committing the offence. Juries have reduced ineligibility periods for some who did not admit their guilt.
[83] Turning next to what Parliament has directed be addressed on the threshold ruling, I am not persuaded there has been enough or indeed any progress with regards to the applicant’s character. When the offence occurred, he was heavily immersed in the drug culture in Halton Region. I appreciate that at the time of the offence he had no record, but he was far from a law-abiding citizen. He was working for a major drug dealer and keeping his own secret life hidden from his family and others. He did not permit others to know the complete picture or his life or livelihood.
[84] The day after the incident he provided a false story to the police about an unknown man jumping out from behind a tree and shooting Weston and Smith.
[85] Before his trial, he attempted to have the charges dropped by providing a partially accurate account of the murder, adding that it was Pollock who fired the shots. That account was wisely rejected by the police and prosecutors. It was misleading and woefully incomplete.
[86] At his trial, he provided an account that was partially accurate but again omitted parts of the story that implicated him. He embellished his story by adding that Pollock pointed the gun into his side. He now says that never happened. He said he feared Pollock. Now he says that was false. He lied about when he took the mats from his car. He perhaps told a partial account of his post-murder meeting with his boss. His trial evidence was rejected by the jury who must have been satisfied beyond a reasonable doubt that he was a party to first degree murder and attempted murder. With Pollock’s re-trial approaching, in 1998, he told private investigators that Carr, a man who had subsequently died, had also been with him and Pollock. It was Carr who fired the gun. He did so to try to help Pollock and because it was what he was expected to do as a federal inmate.
[87] After giving that statement and before the trial, he met with the Crowns and police officers and told them that account was false. He provided a new account. He learned for the first time that Pollock intended to rob Weston when he was driving Pollock to the meeting with Weston. When he provided that account, he said that he was telling the truth and wanted the assistance of the Crown in not opposing this application.
[88] When he spoke to the police, he said that he could not give all the details as long as he was in jail. He wanted out. Perhaps that was because he could not name MacLean as the mastermind behind the contract killing. If that was his rationale, it fails to account for the fact that at the joint trial, the applicant testified that MacLean admitted to him the next day that he had Pollock kill Weston. Specifically, the applicant testified MacLean paid, ordered, or instructed Pollock to kill Weston. It was already disclosed in a public courtroom that MacLean arranged the murder.
[89] During an interview before the second trial, the applicant asked the Crown not to oppose this application. He was told that there would be no promises and that he was to tell the truth at the trial. He told them that he was not going to lie.
[90] At the re-trial, the applicant testified that he intended to convey to the police in that interview that he wanted to get the whole story off his chest and finally tell the truth about what happened. He swore that everything he told the jury was true. He had not lied. He was being honest about his part in the offence. He really meant what he said, no longer being prepared to lie. He was there to take responsibility or tell his part in what happened. The only thing he could do to get his liberty back was to tell the truth.
[91] At Pollock’s re-trial, the applicant agreed that “in the past” he had a habit of “making it up” as he went along and that in his initial police statement he was “desperately trying to spin a web of deceit and lies and throw the officers off.”
[92] At the re-trial he testified:
Q: So finally at last you can tell somebody and get this off your chest? A: You know what? In 1993, I agreed to participate in a crime. I have spent the last 15 years trying to lie, hide from it, cover it up, distance myself from it, you name it. Enough is enough. Q: So finally, finally you decided to tell somebody and the people that you tell are Sergeant Perrin and Mr. Apel? A: Correct
[93] In 2015, for the purpose of this application, he has provided a new account because it was ostensibly time to tell the truth. Whether this version of events accurately sets out the events before the confrontation is uncertain. At Pollock’s re-trial, he testified that his credibility was “on thin ice.” That could be regarded as a generous view of his credibility.
[94] It is questionable whether there has been any change or progress in his character on this record. If there has been and the current account might be getting closer to the truth, the progress is minimal.
[95] With regards to the applicant’s progress in the penitentiary, he has done very well. I do not regard the institutional record as detrimental to his application as much of it relates to him being a smoker and trying to continue his habit in light of changes in the rules. He has been in the federal system for 18 years and generally abided by the rules. He has been a good worker, tutored other inmates, taken courses within the penitentiary system and upgraded his education. He presents a low risk to re-offend.
[96] With respect to the psychological/psychiatric report from 2008, it noted the applicant had genuine remorse and gained insight into the nature and origin of his criminal history. There was no evidence he was trying to present himself in a more favourable light. Given the applicant’s latest version of the events, those findings would have to be either reconsidered or viewed with some caution.
[97] The 2016 Risk Assessments described the applicant as a bright and articulate man who expressed remorse for his crimes and appeared sincere. While admitting that it was a contract killing, he told the doctor that Pollock had a grudge with the victim. The applicant “accepted responsibility for his involvement in the murder.” It is not clear which account of his involvement he was accepting.
[98] I agree with the respondent that at least the first report has to be regarded with some skepticism to the extent it was based on genuine remorse and having insight into the nature and origin of his crimes.
[99] He has support in the community from his sister and brother-in-law who would assist in his reintegration into society. He is an intelligent man who does not suffer from any mental health diagnosis that would make him dangerous to the community. He has progressed to minimum security and done well in that setting. Finally, he has been approved for Private Family Visits which indicates that he does not pose a risk for domestic violence.
[100] Setting aside the applicant’s numerous versions of the events of November 25, 1993, all but two given while serving his sentence, his time in the penitentiary system would support granting this application. However, those numerous versions cannot be swept aside. Nor can the fact that he committed perjury in Pollock’s first-degree murder trial while he was serving the sentence.
[101] The third area for consideration is the circumstances of the offence. In most threshold applications, the circumstances of the offence would not change since the date of the offence. Here, the applicant’s involvement has evolved and increased over the years to the extent that in 2015 he admitted that his role facilitating a contract murder. With regards to the applicant’s role in the offence, it is greater now than at the time of trial. While it is a change, and assuming it is the truth or closer to the truth, this admission came 17 years after the sentence and because of this application. It is not a change that merits support of the application given the history of his accounts.
[102] It is difficult to characterize one case of first-degree murder to others. On the applicant’s latest version of the events, the offence was a planned and deliberated upon contract murder. That he was not the shooter does not mitigate his culpability. If that logic was persuasive, Maclean would be less culpable than Pollock; on the applicant’s latest account of the incident.
[103] The applicant drove the shooter to the scene knowing he was going to execute Weston. The shooter was paid. The applicant gave him the money. Whether or not the applicant participated in the gratuitous beating of Weston, he was a party to that conduct. The expert evidence and Smith’s testimony would strongly suggest that the applicant was involved in the beating. While it is not an offence that is subject to the application, the fact that another person was left paralyzed from the armpits down cannot be ignored when considering the seriousness of the offence.
[104] In summary, notwithstanding the positive elements to the application, I am not satisfied Mr. Morrisson has met his onus. Indeed, I find that he would have failed under the old legislation because there is no reasonable likelihood that he would persuade all the jury members to reduce the period of ineligibility.
[105] To a significant degree, parole eligibility reduction hearings are based on the community’s assurances that the applicant has changed, that he or she has learned his or her lesson, will be a law-abiding citizen in the future, and that the purposes and principles of sentencing do not require the original period of parole ineligibility to be maintained. In addressing those issues, a jury would be considering the applicant’s credibility and reliability. The applicant’s lies to police and courts started the day after the murder and have continued for over 20 years. From right before the joint trial to this application, his various accounts have been accompanied by requests to assist him in being released from custody before his current parole ineligibility date. That history negatively reflects on his character and taints his otherwise good record while serving his sentence.
[106] The applicant relies on the numerous reports and assessments. To a large extent those reports and opinions are based upon what he told parole officers, correctional officers, doctors and others. Were he to testify before a jury, his credibility and reliability would be at the forefront of the jury’s considerations. Even applying a reduced test or ‘likelihood’ instead of ‘substantial likelihood,’ an application to reduce the ineligibility period that relies upon the applicant’s credibility and reliability has no likelihood of success.
[107] The applicant has not shown on a balance of probabilities that there is substantial likelihood his application would succeed. The application is dismissed.
[108] Section 745.61(3) provides that the screening judge may set of time, not earlier than five years from the date of this ruling, at which time a further application could be brought or decide that the applicant may not make another application. If no order is made under ss. (3), the applicant may make another application in five years: s. 745.61(4).
[109] Neither counsel addressed this issue in their material. On this record, I decline to make any order under s. (3).
DURNO, J. Released: August 26, 2016
Footnote
[1] The report notes incidents before and after the homicide for which the applicant was a suspect or that he was suspected of involvement in illegal activities. In the absence of any admission or findings of guilt in relation to those incidents, they have been ignored for the purposes of this application.
