Court of Appeal for Ontario

Date: 2022-10-17 Docket: C69790

Before: Doherty, Benotto and Copeland JJ.A.

Parties and Representation

BETWEEN

His Majesty the King Respondent

and

Phillip Atkins Appellant

Counsel: Richard Litkowski, for the appellant Brett Cohen, for the respondent

Heard: October 11, 2022

On appeal from the judicial screening decision of Justice B.P. O’Marra of the Superior Court of Justice, dated May 11, 2021, with reasons reported at 2021 ONSC 3457.

Reasons for Decision

[1] The appellant was convicted of first degree murder, attempted murder, and the commission of those offences for the benefit of a criminal organization, a street gang referred to as the Galloway Boyz. On the first degree murder charge, the appellant received the mandatory sentence of life imprisonment without parole for 25 years. After serving over 15 years of his sentence, the appellant brought an application for a reduction in his period of parole ineligibility pursuant to s. 745.6(1) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] An application to reduce the period of parole ineligibility involves two steps. First, under the language of the relevant provisions applicable in this case, a judge of the Superior Court, based on the written record placed before him by the parties, must decide whether the appellant has demonstrated on the balance of probabilities a reasonable prospect that a jury would unanimously vote to reduce the appellant’s period of parole ineligibility: s. 745.61. If the application judge is so satisfied, the application proceeds to a hearing before a jury empanelled for that purpose: s. 745.61(5). If the application judge is not so satisfied, the application proceeds no further.

[3] The application judge in this case declined to direct that the application proceed before a jury. The appellant appeals from that decision: s. 745.62.

[4] The determination required of the application judge must be made having regard to the factors identified in s. 745.61(2) and s. 745.63(1). The application judge’s decision is obviously a discretionary one. In some, if not many, cases, different judges, after considering the statutory factors, could reasonably come to different conclusions as to whether there was a “reasonable prospect” that a jury would unanimously vote to reduce the period of parole ineligibility. This court defers to discretionary decisions made at first instance. As long as the application judge did not materially misapprehend the evidence, and considered the applicable principles, the result will stand up under appeal unless that result falls outside of the broad range of reasonableness.

[5] Counsel for the appellant argues that the application judge made three errors. First, the application judge wrongly treated the appellant’s refusal to admit his guilt as a precondition to granting the application.

[6] This submission cannot succeed. The application judge expressly indicated that “[a]n acknowledgement of guilt is not a precondition to a successful application”: at para. 42. The application judge went on to consider the appellant’s refusal to acknowledge guilt in the context of his assertion on the application that he accepted full responsibility for his actions. Not surprisingly, the application judge saw a significant contradiction between the appellant’s purported acceptance of responsibility for his actions and his insistence that he did not commit the crimes for which he had been found guilty.

[7] Nor does a reading of the application judge’s reasons support the contention that the appellant’s refusal to acknowledge his guilt took on a central role in the application judge’s assessment. The application judge treated the appellant’s refusal to acknowledge his guilt as relevant to a determination of whether the appellant was in fact prepared to take responsibility for his criminal conduct. The application judge treated this consideration as one of several factors, some of which favoured the appellant, and some of which did not: see R. v. Morrisson, 2016 ONSC 5036, at para. 82; R. v. Phillips, 2012 ONCA 54, 288 O.A.C. 351, at para. 8.

[8] The application judge tracked s. 745.63(1) in his consideration of the relevant factors. He considered the circumstances of the murder and related crimes, the impact those crimes had, and continue to have, on the families of the victims, and the appellant’s total lack of empathy for the two entirely innocent victims of his crimes. The application judge also, however, recognized the positive changes in the appellant while incarcerated, the strong support he had in the community, and the relatively favourable more recent risk assessments done for the correctional authorities. There was no failure to consider relevant factors and the application judge’s weighing of those factors cannot be criticized as unreasonable.

[9] The appellant next submits the application judge placed “undue weight” on an indication in a 2009 correctional report that the appellant had admitted he was a member of the Galloway Boyz, the gang on whose behalf the appellant murdered one person in cold blood, and attempted to murder another. The appellant submits the application judge failed to place that single comment allegedly made by the appellant beside the appellant’s many other statements over several years denying he was a member of that gang. Counsel submits that the application judge erred in relying on inherently unreliable hearsay evidence concerning the appellant’s membership in the gang found in the 2009 report.

[10] The application judge accurately summarized the evidence relating to the various comments made by the appellant about his membership in the gang. The appellant’s emphasis on actual membership in the gang seems somewhat misplaced. The fact is the appellant acknowledged he engaged in criminal activity on behalf of the gang, and the verdicts demonstrate that whatever the appellant’s formal status within the gang, he was prepared to murder two persons in cold blood for the benefit of the gang.

[11] The application judge viewed the appellant’s insistence that he was not a member of the gang as consistent with his refusal to take full responsibility for his actions. As the application judge observed, the gang connection to these crimes was not a peripheral issue. The appellant’s refusal to acknowledge the direct connection between the murder and attempted murder and the gang, for whose benefit he committed those crimes, was inconsistent with his professed acceptance of responsibility and properly viewed as a negative feature of the appellant’s character.

[12] Finally, the appellant submits that the application judge misinterpreted the Supreme Court of Canada’s judgment in R. v. Swietlinski, [1994] 3 S.C.R. 481. Swietlinski was not concerned with the judicial screening phase of the parole ineligibility review application. That phase of the application process did not exist when Swietlinski was decided. At that time, the application was made directly to a jury empanelled for that purpose.

[13] Swietlinski speaks of the role and function of the jury on its review of an applicant’s parole ineligibility. Furthermore, when Swietlinski was decided, there was some issue as to the relevance of victim impact statements on the application. Those statements are now statutorily recognized as a factor to be taken into account, both by the judge and by the jury if the application gets to the jury: s. 745.63(1)(d).

[14] I see no material error in the application judge’s reference to Swietlinski at paras. 46-47. Nothing the application judge said about Swietlinski diminished his full consideration of the evidence and his application of all of the relevant principles to that evidence.

[15] The application judge made no error in the course of exercising his discretion under s. 745.6(1). The manner in which he exercised that discretion was not unreasonable on the evidence before him.

[16] The appeal is dismissed.

“Doherty J.A.”

“M.L. Benotto J.A.”

“J. Copeland J.A.”