Court and Parties
Date: 20190531 Ontario Superior Court of Justice
Between: Her Majesty The Queen – and – Ricci Lee Abram
Counsel: Natalie C. Kuehn, for the Respondent Michael A. Crystal, for the Applicant
Heard: In writing
Ruling Re: Judicial Screening of an Application Under S. 745.6 of the Criminal Code
Judge
Pomerance J.:
[1] In 2005, Ricci Abram was convicted of the first degree murder of his 17 month old step-son, Riley Talon Blackbird-Riley (Riley). He received the mandatory sentence of life imprisonment with no parole eligibility for 25 years. Having now served more than 15 years of his sentence, Mr. Abram applies for a hearing before a jury – a faint hope hearing - where he will ask that his parole ineligibility period be reduced. The Criminal Code, R.S.C. 1985, c. C-46, s. 745.61, requires that such applications be screened for merit before a jury hearing is granted. Chief Justice Heather Smith designated me as the judge with authority to screen this application. Having reviewed the record, I am satisfied that the threshold test is met and that a jury should be empanelled.
[2] Were the crime the only consideration, the application would have to fail. The murder involved a brutal and sustained assault on a helpless child in the applicant’s care. The victim’s family continues to be deeply affected by trauma. However, other factors must be considered. People are not exclusively or indefinitely defined by the crimes that they committed, however serious those crimes may be. Faint hope is predicated on the notion of redemption and the capacity of human beings to change. As stated by Lamer C.J.C. in R. v. Swietlinski, [1994] 3 S.C.R. 481, at p. 493: “the primary purpose of the 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 in original).
[3] In this case, the applicant has effected dramatic change through his rehabilitative efforts. The prospect of success is reasonable when one considers the applicant’s present character, his institutional history, his adherence to indigenous traditions, and his ongoing commitment to personal growth. He has worked hard to reform himself, fueled by remorse and acceptance of responsibility for the predicate offence. He is described in glowing terms by institutional officials, who support his application. He is seen, not only as a “model inmate”, but as someone who will thrive outside the institution, in the indigenous community that is waiting to welcome him home.
[4] It is impossible to precisely predict what a jury will decide. It enjoys a broad discretion in faint hope cases. It does not apply a concrete legal standard. Its task is more akin to an exercise of clemency. As I put it in R. v. Jenkins, 2014 ONSC 3223, 310 C.C.C. (3d) 248, at para. 46:
[I]n faint hope cases, it is always open to the jury, as a matter of law, to allow an application. This flows from the breadth of the jury’s discretion. The question for the screening judge is not whether it is open to the jury to reduce parole ineligibility. That option is available in every case. Nor is the question what a jury will actually do in a given case. That requires a level of prescience that no judge can claim. What we are really asking as judges is whether a jury should allow the application. It remains open to a jury in any case to allow an application, but Parliament has stemmed the tide of cases that will make it to that stage. It has built a judicial dam at the front end of the process. [Emphasis in original.]
[5] On the record before me, a jury could reasonably decide to reduce the applicant’s parole ineligibility period. While not the only possible outcome, this decision falls within the range of reasonable outcomes, and therefore qualifies as a reasonable prospect of success.
[6] I will elaborate on this conclusion in the reasons that follow.
Statutory Factors
[7] Pursuant to ss. 745.61(2) and 745.63 of the Code, the screening judge is to consider the following matters:
(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
Standard to be Applied
The Impact of R. v. Dell
[8] Section 745.61 of the Code currently provides that the applicant is only entitled to a hearing if a judge is satisfied “on a balance of probabilities, that there is a substantial likelihood that the application will succeed”.
[9] The section did not always read this way. When first enacted, there was no judicial screening. An offender had an automatic right to a jury hearing. In 1996, Parliament introduced judicial screening, providing that only those cases with a “reasonable prospect of success” would make it to a jury hearing. Later, in 2011, the section was further amended to impose the current, more stringent test at the screening stage.
[10] In R. v. Dell, 2018 ONCA 674, 364 C.C.C. (3d) 419, leave to appeal refused, [2018] S.C.C.A. No. 389, the Court of Appeal for Ontario ruled that retrospective application of the current law to Ms. Dell violated the Charter. At the time of Ms. Dell’s offence, there was no screening of faint hope applications. At the time of her application, the 2011 amendments were in force, requiring that she show “on a balance of probabilities, that there is a substantial likelihood that the application will succeed”. Doherty J.A. writing for the Court of Appeal, ruled that the retrospective application of the 2011 screening standard violated the applicant’s rights under s. 11(i) of the Charter and could not be saved under s.1 of the Charter. Ms. Dell was entitled to the benefit of the law as it existed at the time of her offence: the right to a jury hearing without judicial screening.
[11] This case is different than Dell. When Mr. Abram committed his offence, the Code provided for judicial screening, but on the lower standard of “reasonable prospect of success”. The question is whether, in the wake of Dell, Mr. Abram is constitutionally entitled to the screening standard in place at the time of his offence, rather than the stricter standard now in place. In R. v. Jenkins, decided before Dell, I ruled that the move from no screening to screening could implicate Charter interests, but not the move from a lower to a higher screening standard. It is not clear whether Jenkins is still good law, but I need not decide that issue. The Crown has fairly acknowledged that, given the uncertainty in the law, Mr. Abram should be given the benefit of the lower screening standard. I accede to that concession and have screened Mr. Abram on the basis of whether there is a “reasonable prospect of success”.
What is a Reasonable Prospect of Success?
[12] For a time, some courts treated the “reasonable prospect of success” test as a low threshold, akin to asking whether the application was hopeless. If the application was “not hopeless”, it was placed before a jury for its consideration. This approach seemed to flow from a concern not to usurp the role of the jury on a review.
[13] In R. v. Phillips, 2012 ONCA 54, 288 O.A.C. 351, the Court of Appeal for Ontario clarified its view of the reasonable prospect test, ruling that the “not hopeless” standard was incorrect. As the court stated at paras. 6-7:
We agree with the application judge that the statutory test embodies more than merely showing that a case is not hopeless. The normal meaning of the words suggests a higher test. Moreover, as the application judge pointed out, lowering the threshold to having to establish only that a case is not hopeless would frustrate the purpose of the judicial screening stage.
In passing, we note that it is generally preferable when a court is applying a statutory test to use the language in the legislation. Inserting what are considered to be synonymous words or phrases into an analysis often tends to confuse rather than clarify.
[14] By the time Phillips was decided, the 2011 amendments were in force, and the stricter standard was in place. Courts were no longer called upon to interpret the reasonable prospect standard. I will abide by the Court of Appeal’s direction to be guided by the statutory language, which is, on its face, self-explanatory. It asks whether it is reasonable to expect that a jury might reduce the parole ineligibility period. This need not be the only rational or reasonable outcome available on the record. If it falls within a range of reasonable outcomes, it qualifies as a reasonable prospect of success.
[15] I also adopt the principles set out by Durno J. in R. v. Morrison, 2016 ONSC 5036, helpfully summarized by B. O’Marra J. in R. v. Eunick, 2018 ONSC 5971, at para. 6, as follows:
- All of the factors set out in s. 745.63 (1)(a)-(e) inclusive must be considered. There is no “score card” that gives each factor equal weight. Each application is a fact-specific determination.
- Once all 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. The primary focus of the hearing is to “call attention to changes which have occurred in the applicant’s situation that might justify a less harsh penalty”: R. v. Swietlinski, [1994] 3 S.C.R. 481, at p. 482. The jury’s verdict, in effect, is an assessment of the offender’s progress: R. v. Jenkins, 2014 ONSC 3223, 11 C.R. (7th) 346, at para. 17.
- In order to reduce the period of ineligibility, the applicant must satisfy all twelve jurors. Accordingly, the test at the judicial screening stage is whether on the material filed the applicant satisfies the judge on a balance of probabilities that there is (in this case) a reasonable prospect that a jury would unanimously reduce the ineligibility period.
- The mandated sentence for first degree murder is life imprisonment without parole eligibility for 25 years. The applicant must show that his current situation justifies a departure from the normal legislated sentence: R. v. Gayle, [2013] O.J. No. 4124 (S.C.J.), at para. 30.
- The applicant is no longer presumed innocent. He must provide all the available evidence that would support his application at the time of the threshold screening.
- The applicant must show that the application has real merit and in this case a reasonable prospect that a jury will unanimously reduce the period of ineligibility: R. v. Rowe, 2015 ONSC 2576, 324 C.C.C. (3d) 57, at para. 62.
The Gladue Principle
Does Gladue Apply to Faint Hope?
[16] Section 745.61(2) require the screening judge to consider “any other matters that the judge considers relevant in the circumstances”. In this case, a relevant factor is the applicant’s indigenous status and his connection to his heritage and traditions.
[17] R. v. Gladue, [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, set out important principles relating to indigenous offenders who interface with the criminal justice system. Originally conceived as a sentencing principle, the Gladue framework has broad application to other adjudicative contexts. The framework is designed to recognize and, to the extent possible, ameliorate, the impact of historical disadvantage, discrimination and colonialization of Canada’s First Nations peoples. Judges are to take judicial notice of: “such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples” (Ipeelee, at para. 60. Of course, the historic mistreatment of indigenous persons in Canada is well documented in various sources, not least of which is the Report of the Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa: Truth and Reconciliation Commission of Canada, 2015).
[18] The trial judge did not consider Gladue, no doubt, because the sentence was mandatory. There was no judicial discretion. The situation is different now. As the judge screening a faint hope application, I have a modicum of judicial discretion conferred upon me. I believe that the discretion must be exercised in manner consistent with the dictates of Gladue and Ipeelee.
[19] I say this for various reasons. First, the Gladue principle, as originally conceived, was a principle of sentencing. The faint hope process is itself an integral part of the sentencing process. It is concerned with whether the sentence, imposed 15 years ago, should be modified.
[20] I am aware that in R. v. Poitras, 2012 ONSC 5147, 103 W.C.B. (2d) 1024, Rutherford J. was ambivalent about the application of Gladue in this context. As he put it at para. 30:
I am not sure what, if any, effect to give to the Applicant’s aboriginal ancestry on this initial judicial screening. While a faint hope clause application is obviously connected to the sentencing of an offender, it is not, specifically, a sentencing. A faint hope clause jury is not a sentencing judge. In Vaillancourt v. Canada (Solicitor General), 43 C.C.C. (3d) 238 (H.C.), 1988 CarswellOnt 85, Callaghan A.C.J.H.C., at para. 19, said of a faint hope clause hearing:
[T]he jury determines whether or not present circumstances justify leniency and an early consideration of the applicant's case by the parole board. The review contemplated under s. 672 is a process distinct and apart from the sentencing process that took place at the conclusion at the trial. It is to be noted that the jury has no power to increase the penalty imposed at trial, but only has the power to recommend a reduction in that penalty. Accordingly, I must conclude that the review process provided for in s. 672 does not contemplate a proceeding which is part of the sentencing process, nor does blameworthiness fall to be determined again in the course of that review. [Emphasis added.]
[21] He nevertheless noted given the mandatory “one size fits all” life sentence, if aboriginal background or connection was to be given any consideration, it would have to be in connection with parole ineligibility: Poitras, at para. 31. Justice Rutherford did not have the benefit of the recent decision in R. v. Dell, in which Doherty J.A. found that the faint hope process is part of the sentencing process for the crime of murder. As he explained in para. 39:
Sentencing for murder involves a unique two-step process. The first step is taken when the sentence is imposed and the second occurs if and when an application for a reduction of the period of parole ineligibility is made. Even though the second part of the process occurs after the person has served at least 15 years of her sentence, for the purposes of s. 11(i), I think the “time of sentencing” can encompass both steps in the process. On this approach, s. 11(i) allows the appellant to compare the “faint hope” provisions as they existed when she brought her application for a reduction in her parole ineligibility in 2013 with those provisions as they read when she committed the offence in 1995. If the 1995 provisions provided for a “lesser punishment” than the provisions as they read in 2013, the appellant is entitled to the application of the 1995 provisions, subject to s. 1 of the Charter.
[22] Gladue factors are relevant in determining the period of parole ineligibility in second degree murder cases, where the period can be anywhere from 10 to 25 years. It would seem to follow that it is relevant in determining whether parole ineligibility should be reduced, or more accurately in this case, whether the applicant should be entitled to ask that it be reduced by a jury.
[23] Even if faint hope is not a part of sentencing, Gladue is still pertinent. Gladue has been applied in various non-sentencing contexts, including bail, extradition, and Ontario review board hearings orders. As Epstein J.A. put it in R. v. Hope, 2016 ONCA 648, 133 O.R. (3d) 154, quoting from United States of America v. Leonard, 2012 ONCA 622, 112 O.R. (3d) 496, at para. 60:
Gladue stands for the proposition that insisting that Aboriginal defendants be treated as if they were exactly the same as non-Aboriginal defendants will only perpetuate the historical patterns of discrimination and neglect that have produced the crisis of criminality and over-representation of Aboriginals in our prisons…[B]oth Gladue and Ipeelee …emphasize that consideration of the systemic wrongs inflicted on Aboriginals does not amount to discrimination in their favour or guarantee them an automatic reduction in sentence. Instead, Gladue factors must be considered in order to avoid the discrimination to which Aboriginal offenders are too often subjected and that so often flows from the failure of the justice system to address their special circumstances.
[24] Most recently, in R. v. Barton, 2019 SCC 33, Moldaver J. stressed the need for the criminal justice system and all participants within it to “take reasonable steps to address systemic biases, prejudices, and stereotypes against Indigenous persons — and in particular Indigenous women and sex workers — head-on.” He recommended an instruction to jurors in sexual assault trials, alerting them to the systemic discrimination of indigenous persons, and directing them to reject myths and stereotypes relating to indigenous women and girls. More generally, he observed the following in para. 199:
Furthermore, this Court has acknowledged on several occasions the detrimental effects of widespread racism against Indigenous people within our criminal justice system (see e.g., Williams, at paras. 54 and 58; R. v. Gladue, [1999] 1 S.C.R. 688, at para. 65; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 59-60 and 67; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 57). For example, in Williams, this Court recognized that Indigenous people are the target of hurtful biases, stereotypes, and assumptions, including stereotypes about credibility, worthiness, and criminal propensity, to name just a few (para. 28). Moreover, in Ewert, this Court stressed that “discrimination experienced by Indigenous persons, whether as a result of overtly racist attitudes or culturally inappropriate practices, extends to all parts of the criminal justice system, including the prison system” (para. 57). In short, when it comes to truth and reconciliation from a criminal justice system perspective, much-needed work remains to be done.
[25] There would seem little doubt that, in principle, an offender’s indigenous status is relevant at the screening stage of a faint hope application.
Does Gladue Apply in this Case?
[26] The Gladue framework calls for assessment of:
A. The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and B. The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.
[27] In the normal course, a judge who is sentencing an indigenous offender will be assisted by a Gladue report. I did not request one in this case because the necessary information was contained in the institutional records. Those records confirm that, as an indigenous offender, Mr. Abram has experienced the inter-generational effects of systemic discrimination against Aboriginal communities. One of his parents had substance abuse problems; he never knew his other parent; he witnessed family violence, and was sexually abused by a babysitter. According to the applicant’s parole officer at the Kwìkwèxwelhp Healing Village minimum security institution in British Columbia:
Mr. Abram has been negatively impacted by the systemic injustices toward Aboriginal people by the Government of Canada, including the negative impact related directly or indirectly of Residential Schools, the 60’s Scoop, raised on a Reservation with a history of child abuse, early Substance Abuse, many poor role models and family members involved in Substance Abuse, who have and continue to suffer from these injustices.
[28] This was confirmed by Kimberly McClinton, Aboriginal Correctional Program Officer at Warkworth Institution. In her letter of January 31, 2018, she also addressed the applicant’s commitment to aboriginal culture and traditional ways:
…despite being a child born as part of a systemic marginalized group Mr. Abram has shown resilience and has embraced his Aboriginal heritage. Mr. Abram has participated in traditional sweat ceremonies and other cultural activities while I was employed as the Aboriginal Liaison Officer. He demonstrated a daily commitment with regards to Aboriginal culture and traditional ways.
[29] Gladue calls for a contextualization of systemic and background factors. It requires consideration of the deleterious effects of historic discrimination and the salutary benefits of exposure to indigenous practices and traditions. It calls for recognition of indigenous programming that can address needs and mitigate risk in a culturally appropriate manner. The latter has already taken place within the penitentiary system, for which Correctional Services Canada (CSC) should be commended. The applicant has been able to access indigenous programs in various institutional settings, and has participated in off-site ceremonies during his temporary escorted absence. The ultimate question, to be determined by the parole board at some point in the future, is whether the applicant is ready to transition to a non-custodial environment, where immersion in his culture can be more meaningful and complete.
[30] The applicant’s immersion in indigenous traditions is well documented. He has benefitted from his embrace of indigenous traditions and healing practices. It is within those traditions that the applicant has found a strong sense hope and healing. The consensus of those in the correctional system is that exposure to indigenous culture has had a powerful influence on the applicant. His strong connection to his culture and spirituality has led him to internalize teachings of respect, humility and courage. He is said to be dedicated to following the path, and to pass the teachings on to others. Upon release, he proposes to live in an indigenous community anxious to assist in continued healing and growth.
[31] It is not clear whether, and to what extent, Gladue principles should be considered by jury empanelled to hear the faint hope application. That is a matter to be determined at the hearing, after hearing submissions of counsel. Suffice to say, for present purposes, Gladue bears on the question of whether the applicant should have the right to make application before a jury.
Circumstances of the Offence
[32] The Crown opposes the application for a hearing, arguing that the dominant factor in this case should be the nature and circumstances of the offence committed by the applicant. I agree that the gravity and nature of the offence weighs against the prospect of success.
[33] Riley’s mother, Natasha Peters, married the applicant on October 25, 2002. The applicant, who was 27 years old at the time, lived with Ms. Peters and her three children. Riley had various health issues, including eczema. He was seen by day care staff to have various bruises in December 2002 and January 2003. On February 4, 2003, Ms. Peters went out with the other children, leaving the applicant alone with Riley. The applicant got up at about 10:30 a.m. and took Riley into the shower with him. In his statement to police on February 11, 2003, the applicant said that he dropped Riley in the shower, which caused the infant to cry. He was angered by the crying, and this caused him to squeeze, scratch and grab the infant’s penis and testicles. He also digitally penetrated Riley’s anus out of anger. The baby continued to cry. The applicant responded with a series of violent actions. He “body slammed” Riley onto the floor; he struck Riley across the body with the handle of a broom; he pushed Riley’s face into the floor, he grabbed him by the throat, and punched him in the mouth and side of the head. He body slammed him a second time at which time Riley stopped breathing.
[34] The applicant put Riley back into his crib, as if he was sleeping. Ms. Peters came home at around 12:10 p.m. She saw Riley in the applicant’s arms but did not look closely at her son. The applicant made no mention of any concerns. He put Riley into his crib. Ms. Peters asked about Riley on various occasions throughout the afternoon. The applicant went into the child’s bedroom three or four times, reporting on each occasion that the child was still sleeping and was fine. At approximately 4:30 p.m., Ms. Peters went into the bedroom to check on Riley herself. She immediately noticed that something was terribly wrong. Riley’s eyes were puffed, his face was pale, and he would not wake up.
[35] The murder of an infant is, in any instance, a horrendous crime given the vulnerability of the victim. Children depend on others for their care and protection. In this case, the applicant was in a position of trust vis-à-vis Riley. He had a duty to keep the child safe and instead subjected him to extended and gratuitous violence. While all murders are serious offences, the crime in this case was particularly horrific and aggravated by the brutality of the applicant’s conduct, the helplessness of the victim, and the applicant’s failure to seek medical care or allow others to discover and tend to the victim’s injuries.
Victim Impact
[36] No victim impact statements were filed at the time of the applicant’s sentencing in 2005, given the mandatory nature of the sentence. However, several victim impact statements were obtained for purposes of this application. These statements represent the first opportunity for family and community members to formally express their loss and grief over the death of Riley. I will not describe all of them at length. Suffice to say that they describe, in poignant terms, the impact that the crime has had on the family and broader community. The Crown aptly described the loss as “shattering”. The emotional anguish persists, despite the passage of time. As Riley’s grandmother, Barbara Peters, put it in her statement: “There’s so many tears. Still crying. Still crying to this day”.
[37] Riley’s biological father, Shawn Riley, died in a motorcycle accident in August 2002, shortly after he and Natasha Peters had separated. After Riley’s death in February 4, 2003, Natasha Peters struggled with mental health issues, including depression and substance abuse. She died in a fire in June 2013. This only compounded the sense of guilt and grief experienced by family members. It left Riley’s siblings without a mother and with feelings of abandonment. It resulted in further dysfunction and rupture of the family unit.
[38] Leah Riley was just four years old when Riley died. As she put it in her victim impact statement: “it’s evil that someone would take away someone from people who’ve already loss (sic) so much”. There is no doubt that the death of Riley had a ripple effect, triggering other casualties in its wake. The Crown argues that the applicant should be seen as responsible for Natasha Peters’ death, as it was an event that he should have foreseen. This, it is said, “makes the applicant’s conduct even more morally blameworthy”. The Crown asserts that circumstances of Ms. Peters’ death “largely suggest [it] was a suicide” and that “evidence suggested that the fire was deliberately set by Natasha, by lighting papers on a desk”.
[39] There can be no doubt about the tragedy associated with Natasha Peters’ death, or the impact that Riley’s death had upon her. This is part of the constellation of events that must be considered by the court in assessing victim impact. It is, however, subject to some qualifications. First, it is not clear that Ms. Peters died by suicide. The Coroner found that manner of death was undetermined:
Immediate cause of death was determined to be smoke inhalation and carbon monoxide toxicity. It could not be determined if the fire was intentionally set or the result of a smoking accident. The manner of death is therefore undetermined.
[40] Secondly, the court must be careful to distinguish those acts for which the applicant is directly responsible. He is not directly responsible for the death of Ms. Peters, though his actions obviously contributed to her emotional and physical decline.
[41] It is understandable that those who grieve the loss of Riley are concerned about the applicant’s release, and fear that he poses a risk to others’ safety. As will be noted below, correctional officers, who have had ongoing contact with the applicant and who are specially trained in matters of risk assessment, take a very different view.
Community Impact: Muncey Delaware Nation
[42] Chief Roger Thomas of the Muncey Delaware Nation was chief at the time of the murder. He provided a community impact statement in which he observed that: “it was devastating to our community for a lot of years and it still is.” The Chippewas of the Thames First Nation passed a resolution May 7, 2018, declaring that “the impacts of Mr. Abram’s (sic) offence have had and will have everlasting affects (sic) on citizens of Chippewas of the Thames First Nation” and resolving that
…this Council unequivocally states that our citizens’ safety is paramount, and Mr. Ricci Lee Abram is an undesirable individual that is not welcome in our community.
Character of the Offender and Conduct in the Institution
[43] The applicant was born to his mother when she was just 18 years old. He had no contact with his biological father. His mother had a criminal record involving drugs and assaults, with the last conviction taking place in 1994. The applicant was largely raised by his grandparents in a First Nations community where he lived until he was 20 years old. He has since resolved issues of conflict with his mother.
[44] The applicant had two prior interactions with the criminal justice system. The first was for assault of his girlfriend in 1995, when he was 20 years old. He received a suspended sentence and one year probation. In 2002, the applicant was charged with assaulting his mother, and uttering death threats. The charges were withdrawn and a charge of impaired driving causing bodily harm was dismissed.
[45] The applicant self reported that at the time of the predicate offence, he was hung over following a night of heavy drinking. Prior to his incarceration, he had a significant problem with substance abuse. The correctional plan in 2005 noted that there was a “longstanding alcohol problem”. Since that time, institutional reports and psychological assessments are unanimously positive. The applicant is reported to have taken real and significant steps towards rehabilitation. He is described as a model inmate and has the strong support of correctional officials. He has eagerly availed himself of programs, including all of those in his correctional plan and many others beyond that. He has accepted responsibility for his actions and has used his remorse as a powerful motivation for positive change and personal development. Psychological assessment reports of March 2007, February 2013, May 2015, and September 2017 all reported that the applicant presented with a low risk of recidivism. He is often described as having made “excellent progress”, through “excellent participation”. He earned the right to a private family visit in 2014 and was approved for an escorted temporary absence in 2017. He has no record of infractions during his 15 years in custody. Two charges of misconduct were laid but each was withdrawn.
[46] The applicant is currently housed at the Kwìkwèxwelhp Healing Village minimum security institution in British Columbia.
[47] One of the striking features of this case is the level of unqualified support offered by correctional officials toward the applicant. In addition to the many positive endorsements in the institutional records, three correctional officers have written personal letters in support of the application for a jury hearing.
[48] Trent Tinney is an Institutional Parole Officer with Kwìkwèxwelhp Healing Village. On February 1, 2018, he wrote a letter in which he noted that, in his 24 years with the Correctional Service of Canada, he has never supported an offender for this type of review. He was moved to do so for the applicant. According to Mr. Tinney, the applicant has participated in all aspects of his correctional plan, he has been assessed as a low risk to public safety, leading him to be in minimum security institutions since January 2016. He is said to carry a great deal of remorse for the index offence. Mr. Tinney observed that:
As a result of his efforts to make positive changes in his life and demonstrating this on a daily basis for an extended period of time the writer and Case Management Team are supportive of Mr. Abram moving forward to a successful reintegration into the community as soon as possible.
As Mr. Abram’s Institutional Parole Officer and considering his assessed risk the Public Safety being Low, I am mandated and will continue to advocate for him and work with him towards a positive return to the community as a pro-social member of society when possible. Mr. Abram has expressed a desire to give back to the community and be a productive member of society both while incarcerated and upon release to the community. When assessing his current risk to society, there are no indicators that he is not sincere in his desire to reside in the community as a pro-social and contributing member of society.
[49] Kimberly McClinton, the Aboriginal Correctional Program Officer at Warkworth Institution stated in her letter of January 2018:
Mr. Abram always presented as a conscientious man who demonstrated pro-social behavior in every interaction I had with him. I facilitated several Correctional Programs with Mr. Abram as a participant. He successfully completed each one. He demonstrated an ability to internalize skills and to apply them in his daily life… A file review indicates Mr. Abram has not been found guilty of an institutional charge during his 15-year incarceration. He was always open about his crime and presented as being very remorseful for his actions, always using his Victim’s name when speaking about the hurt he had caused.
If I were to be asked as a mother of three and being a grandmother if I would feel safe or if my children, grandchild would be safe in a community in which Mr. Abram resided, I would say yes. Mr. Abram appears to understand the importance of the steps he has taken and continues to in which to prove that he has made the changes to reintegrate into the community in a healthy way.
[50] Finally, in her letter of February 9, 2018, Chantal Sandback, parole officer at Warkworth Institution spoke about her supervision of the applicant from June, 2009 until October, 2012. Her comments include the following:
In all, Mr. Abram made significant progress while on my caseload, for which I can take little credit. It was all due to his own hard work. He was self-motivated and determined to follow his Correctional Plan, and to make changes to himself and to his lifestyle to ensure that he did not offend again, and in an effort to repair some of the harm he had caused. I have little doubt that Mr. Abram continues to progress at this time and I am glad to hear he is seeking an application under Section 745.6 of the Criminal Code of Canada.
Remorse/Acceptance of Responsibility
[51] The Crown argues that the applicant has failed to accept full responsibility, because he is unwilling to enrol in treatment programs aimed at sex offenders. I do not agree. There is no question that the assault committed by the applicant on Riley was a sexual assault. The use of force on the child’s genitals and anal cavity violated the child’s sexual integrity (see R. v. Chase, [1987] 2 S.C.R. 293, at p. 302). However, the applicant was not motivated by a desire for sexual gratification. This point was made by the Court of Appeal for Ontario when it decided the applicant’s appeal. In R. v. Abram, 2009 ONCA 723, the court stated in para. 2:
The appellant contends that the trial judge did not adequately explain the difference between intent and motive in relation to the sexual component of the appellant’s assault on Riley. We disagree. The trial judge specifically instructed the jury about the appellant’s intent or purpose in sexually assaulting Riley. He also carefully reviewed the evidence, including in detail the appellant’s explanation that the assault on Riley’s genitals was to inflict pain, not for any sexual gratification. [Emphasis added.]
[52] The assault was a sexual assault even absent a desire for sexual gratification. In this regard, it was similar to R. v. V. (K.B.), [1993] 2 S.C.R. 857, where a father disciplined his son by grabbing his genitals. The absence of sexual motivation did not affect the characterization of the crime. It does, however, bear on whether the applicant requires treatment as a sex offender. Professionals within the correctional system have concluded that there is no need for such treatment. They are in the best position to assess the situation. The applicant cannot be faulted for abiding by the recommendations of institutional officials.
[53] The Crown further argues that the applicant has not accepted full responsibility for the offence because during a 2007 psychological assessment, he said that he only wanted the baby to stop crying and he “flipped”. The report went on to say that the applicant “did not blame his actions on the substances and admitted to being responsible for the death of the baby. Mr. Abram stated that he was appealing his sentence as he did not feel the first degree murder conviction accurately portrayed what had gone on”. The Crown argues that, by saying this, the applicant is only acknowledging guilt for manslaughter, not murder.
[54] The statement in question was made 12 years ago, before his appeal was heard. It does not reflect the applicant’s current conceptualization of his crime. More recent reports would indicate that the applicant’s remorse is both significant and genuine. The applicant self reports that, each morning, he writes Riley’s name on a piece of paper and carries it with him “to ensure that I do not forget him or what I have done and to remind me of the commitment I have made to myself and to the Creator that I will commit no harm ever again”. This practice was confirmed in the applicant’s November 2015 Correctional Plan progress report, which asserts that “his remorse for his crime is genuine” and that he “has a strong understanding of the consequences of his actions to the victim’s mother, his family and to the community”.
[55] This was the subject of comment in the applicant’s Correctional plan of 2013 which reported that:
Abram takes complete responsibility for his index offence, demonstrating remorse and victim empathy in various ways – he verbalizes his remorse and indicates frequently that he lives and behaves in such a way as to honour his victim. This is clear through his ability to discuss his offence and his eagerness to complete programming. Abram approaches programming not as a means to an end, but wholly embracing the opportunity to learn from the content and the facilitators. His excellent institutional adjustment denotes a respect for others and himself, and his willingness and ability to communicate honestly and openly with his CMT allows for a dialogue wherein Abram is able to demonstrate the knowledge and skills he has gained as well as the understanding and insight he has acquired into his offence. He is well able to identify his risk factors, and expresses a commitment to relapse prevention through programming, Elder counselling and maintaining a communicative relationship with his CMT. Abram is able to seek support and ask for help when needed, and maintains close ties with his family supports. Overall Abram’s level of accountability is assessed as HIGH by the current CMT. He is an offender who “…accepts responsibility for his/her actions and recognizes his/her problems. Willing to self disclose, displays guilt and victim empathy with evidence indicating a low level of cognitive distortions…”
[56] Many of the correctional records report that the applicant has a deep understanding of what he did, and a compelling need to make amends by becoming a better person.
Support of the Oneida Nation of the Thames
[57] While the applicant is not welcome in the victim’s community, his own community - the Oneida Nation of the Thames – is anxious to have him return. Various members of that community have expressed their strong support of the applicant. Family members have written letters about their observations of the applicant’s progress and his embrace of native culture and religion. Other members of the community share this view, pledging to help the applicant continue with his rehabilitation. He will have access to supports, traditions and healing programs, as well as an offer of employment. The consensus is that the applicant has much to give back to the community and that he will have a positive influence on the development of others.
Conclusion
[58] This case represents two extremes. On the one hand, it is difficult to contemplate the brutality of the crime committed by the applicant. On the other hand, it is difficult to imagine a more positive record of rehabilitation, personal improvement and commitment to change than that demonstrated by the applicant in the years since the offence.
[59] I am aware that a jury hearing might be a difficult event for Riley’s family. However, I must adopt a holistic approach in measuring whether there is a reasonable likelihood of success. The impact of the crime on those who loved Riley may never dissipate. It, and the horrible nature of the crime, will have to be considered by the jury. They will have to consider the man who committed that crime. They will also have to consider who the applicant is today. The evidence would indicate that the applicant of today is a changed man who has much to offer the community and whose community has much to offer him. The application of Gladue principles fortifies this conclusion, as the applicant’s indigenous heritage has figured prominently in his transformation.
[60] In the result, I find having balanced the various factors, that there is a reasonable prospect of success, and that the applicant Ricci Lee Abrams is entitled to a hearing before a jury to request that his parole ineligibility period be reduced.