Court of Appeal for Ontario

CITATION: R. v. Phillips, 2012 ONCA 54

DATE: 20120130

DOCKET: C53523

BEFORE: O’Connor A.C.J.O., MacPherson J.A. and O’Connor J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

George Christopher Phillips

Appellant

COUNSEL:

Vanessa V. Christie, for the appellant

David Lepofsky, for the respondent

Heard and released orally: January 26, 2012

On appeal from the decision of Justice Nordheimer of the Superior Court of Justice, dated March 25, 2011.

ENDORSEMENT

[1] The application judge dismissed Mr. Phillips’ application under s. 745.6(1) of the Criminal Code for an order allowing him to proceed to a hearing before a jury for a determination as to whether his period of parole ineligibility should be reduced (a “faint hope hearing”). Mr. Phillips appeals.

[2] Until recent amendments, s. 745.6(1) of the Code set the test to be used on an application of this nature as “whether the applicant has shown, on the balance of probabilities, that there is a reasonable prospect that the application will succeed”.

[3] Mr. Phillips argues that the application judge erred because in applying the section he used the phrase “a realistic probability of success” to describe the “reasonable prospect” test set out in the section. He submits that a realistic probability is a higher threshold than a reasonable prospect.

[4] Mr. Phillips goes on to argue that if we apply the correct test, we should allow his application.

[5] We do not find it necessary to resolve the semantic issue. In our view, Mr. Phillips’ application does not meet the reasonable prospect test set out in the statute.

[6] 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.

[7] 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.

[8] In our view, Mr. Phillips fails to meet the test under s. 745.6(1). He was convicted of a cold-blooded execution style planned and deliberate murder. He has not accepted responsibility for his offence nor expressed remorse. He has been far from a model prisoner. Although in the last few years his conduct has improved, his record while in custody is at best mixed. He has a considerable record of institutional misconduct offences. He has participated in educational programs only sporadically and has made minimal gains in the anger management programs. He has not been transferred down the security ladder below medium security.

[9] In these circumstances, we do not consider that there is a reasonable prospect that Mr. Phillips will be able to convince 12 jurors that his parole ineligibility should be reduced.

[10] The appeal is dismissed.

“D. O’Connor A.C.J.O.”

“J.C. MacPherson J.A.”

“O’Connor J. (ad hoc)”