ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 92-G18897-01
DATE: 20120626

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – BONNIE MCAULEY Applicant

Stephen J. Donoghue, for the Crown

Jill R. Presser and Lucy Saunders, for the Applicant

REASONS On Initial Judicial Screening

RATUSHNY J.

[ 1 ] On December 22, 1995 the applicant was convicted of the first degree murder of her husband William McAuley and sentenced to life imprisonment without eligibility for parole for 25 years.

[ 2 ] On February 17, 2012 the applicant applied in writing under s. 745.6(1) of the Criminal Code , R.S.C., 1985, c. C-46, as amended, for a reduction in the period of her parole ineligibility.

[ 3 ] The first step in these “faint hope” clause applications, as they have been informally called, is an initial judicial screening under s. 745.61 of the Criminal Code . On March 8, 2012 Chief Justice Heather J. Smith designated me as the judge in this case to determine if the applicant meets the threshold test to allow the empanelling of a jury to hear the application.

[ 4 ] The threshold test under s. 745.61 that must be met for this application is whether on the basis of the materials filed “the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed”. This new test is the result of provisions proclaimed in force on December 2, 2011 (S.C. 2011, c.2), amending sections 745.6(1) , 745.61 and 745.63 of the Criminal Code .

[ 5 ] If the applicant succeeds in meeting the test it will mean I have determined that she has shown there is a substantial likelihood her application will succeed before a jury and pursuant to s. 745.61(5), a jury is to be empanelled to hear the application. As Rutherford J. of this court stated in R. v. Rochon , 2011 ONSC 5061 , at para. 2, “success” means that a jury empanelled to hear the application will terminate or at least reduce the 25 year parole ineligibility period.

[ 6 ] The written materials before me on this initial screening are the applicant’s Notice of Application dated February 17, 2012 together with an Application Record comprised of 25 volumes of supporting materials and written argument. The Crown filed its Response dated April 22, 2012, opposing the application. The applicant filed her Reply dated May 25, 2012. There are no other materials before me in respect of this initial screening determination. These materials include criteria that must be considered pursuant to s. 745.61(2).

The New Test under s. 745.61

[ 7 ] The old test under the former s. 745.61 was whether on the basis of the materials filed the applicant has shown on a balance of probabilities that there is a “reasonable prospect that the application will succeed”. The new test, therefore, replaces “reasonable prospect” of success with “substantial likelihood” of success.

[ 8 ] The reasonable prospect test under the former s. 745.61 was considered in R. v. Phillips , 2012 ONCA 54 . In that case, the appellant had appealed the application judge’s dismissal of his faint hope clause application. The appellant argued the application judge had erred when he had described the reasonable prospect test as amounting to a test of “a realistic probability of success”. The Court of Appeal responded (para. 5) that it was not necessary to resolve the semantic issue as in their view the application did not meet the reasonable prospect test. It agreed (para. 6) with the application judge who had disagreed with earlier jurisprudence as to the meaning of reasonable prospect ( R. v. D.E.K ., 2001 MBQB 350 , at para. 44 ) and that the statutory test of reasonable prospect embodied more than merely showing that a case is not hopeless; the normal meaning of the words suggested a higher test.

[ 9 ] However, it is para. 7 of Phillips that applies to the new test and to the present case,

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.

[ 10 ] In the present case the Crown submits the new test means the applicant must establish that she has a very high degree of probability of succeeding in unanimously persuading all 12 members of the jury that she should have her period reduced and that “likelihood” suggests a probability of success in excess of 50% and “substantial” suggests a standard considerably beyond mere likelihood.

[ 11 ] In the present case the applicant disagrees with the Crown’s enunciation of the new test and submits the new test simply means the application has to be shown to have some merit and that setting the threshold test too high would prevent applications with merit from reaching the stage of a jury hearing. The applicant adopts the description of the substantial likelihood test applicable to the determination of bail, as amounting to “a slightly enhanced balance of probabilities standard”: R. v. Wong , [2008] O.J. No. 5189 (S.C.J.), at para. 15 .

[ 12 ] It is tempting to try to define the statutory test of substantial likelihood in other terms. I note that the New Shorter Oxford English Dictionary , 5 th edition, defines substantial as “solid”, “real” or “having substance”, and likelihood as “probability” or “prospect of success”.

[ 13 ] Parliament has seen fit, however, to define the new test by using the words “substantial likelihood” and not by including any of these synonymous descriptors. I find these alternate definitions do little to advance the determination of whether the written evidence meets the statutory test and, as stated in Phillips at para. 7 , synonymous words have the potential to confuse rather than clarify.

[ 14 ] With the Phillips caution in mind, therefore, it is only the statutory words of the new test that I apply to the evidence before me on this initial screening, without resort to synonymous words to explain the statutory words. Having said that, there is, however, one general observation able to be made regarding the new test without straying into alternate descriptions of it. When the plain meaning of the words “reasonable prospect” under the old statutory test and the plain meaning of the words “substantial likelihood” under the new statutory test are considered, I think it clear the new test is more stringent and, therefore, imposes a higher threshold to be met than under the old test. This observation does not affect the application of the new statutory test to the materials presented on the threshold application. That new statutory test simply has to be met.

[ 15 ] The new test is, therefore, whether on the written materials before me including the criteria referred to in s. 745.61(2), the applicant has shown, on a balance of probabilities, that there is a substantial likelihood she will persuade all 12 members of a jury that she should have her period of parole ineligibility reduced.

The Written Materials

The Applicant’s Materials

[ 16 ] The applicant states in her materials that the jury convicted her in 1995 as a woman who had conspired with her son to murder her abusive husband for revenge and insurance proceeds. She had been with her husband for 18 years. Just before the murder in 1993 she had complained to her son Jason Rochon that William McAuley had physically abused her again and she was going to leave him. Rochon and his friend Gerald Sheppard then got together, put on dark clothing, gloves, brought a baseball bat and a kitchen knife to William McAuley’s home and waited for him to return. When William McAuley returned, Rochon violently killed him by hitting him on the head three times with the bat and stabbing him in the chest 8 times. After the murder, the applicant, Rochon and Sheppard fabricated an alibi to try to evade liability. The applicant and Rochon were convicted of first degree murder. Sheppard was convicted of second degree murder but was himself murdered in the penitentiary in 1998.

[ 17 ] Rochon’s faint hope clause application passed the initial judicial screening phase (the old test of “reasonable prospect” was applicable: Rochon , at para. 2) and a jury was empanelled (the “Rochon Jury Hearing”). On April 17, 2012 the jury decided Rochon could apply and be considered for parole immediately rather than waiting for his statutory parole eligibility date in 2020.

[ 18 ] The applicant summarizes the evidence in her materials as overwhelmingly supporting the conclusion that in the 17 years since her sentencing she has clearly demonstrated she has been a successful inmate in every way. She has taken advantage of every program, opportunity and resource to rehabilitate herself, to remain connected to the community and her family, to enhance her education and to prepare herself for successful reintegration into the community. She says that even given the more stringent new statutory test, she is the person that s. 745.61 exists to assist. I agree that her materials regarding her conduct as an inmate bear this out.

[ 19 ] There is also evidence that Ms. McAuley is not in the best of health, with some of her problems being potentially life threatening.

The Crown’s Materials

[ 20 ] The Crown takes no issue with the evidence from the applicant as to her exceptional behaviour in custody over the last 17 years.

[ 21 ] The essence of the Crown’s opposition to the application is its submission that notwithstanding whatever gains the applicant may or may not have made while serving her sentence, she is not the person she claims to be or to have been and she continues to lie about her involvement in the murder.

[ 22 ] The applicant has always maintained that her husband physically abused her throughout their marriage, leading to her exposing her children including Rochon to the abuse and consequently leading to the murder, and that over the last 17 years of incarceration she has learned how to better deal with issues arising out of her abusive past.

[ 23 ] However, based on the Agreed Statement of Fact filed at the Rochon Jury Hearing as well as on the testimony of Sharon Gleeson and Walter Craig at that same hearing, the Crown does not accept the applicant’s assertions that William McAuley was abusive of her throughout their marriage.

[ 24 ] The Agreed Statement of Facts filed at the Rochon Jury Hearing paints a picture of the applicant planning her husband’s murder, taking out life insurance policies on him before his death and forging his signature on them, trying to hire someone to commit the murder for her and then manipulating her own 19 year old son Jason Rochon by lying to him about being continuously abused by the victim in order to entice him to kill her husband for her and then planting a final seed by once again falsely suggesting to him that she had been assaulted, before staging her own alibi to divert suspicion from herself.

[ 25 ] Ms. Gleeson had been a friend of the applicant for many years. She testified at the Rochon Jury Hearing that while she had initially understood William McAuley had been violent towards the applicant, after the murder she came to understand and believe that this had not been the case for years leading up to the murder. She testified that her conversations with the applicant after the murder led her to believe, instead, that the applicant had planned to use her son to kill her husband and have him take full blame for the crime while not mentioning her role in the murder.

[ 26 ] Mr. Craig is the victim’s father. He testified at the Rochon Jury Hearing as to the applicant’s bad character after the murder, saying that because of her refusal to tell him and his wife, now deceased, where their son was going to be buried they had missed out on his funeral. Their son’s murder, understandably, has had devastating and life long consequences for them.

[ 27 ] The Crown states that if this same evidence from the Rochon Jury Hearing were placed before a jury empanelled for the present application, the applicant’s credibility would be significantly undermined and considering her character, the brutal nature of the offence and its devastating consequences on the victim’s family, there would be no substantial likelihood her application would succeed despite whatever gains she may have made while serving her sentence.

The Applicant’s Reply Materials

[ 28 ] The applicant denies Ms. Gleeson’s allegations. She has always maintained that William McAuley physically and psychologically abused her until the day he died. She intends to testify before the jury if one is empanelled. Her daughter Sharon McAuley testified at the murder trial and she will again testify before the jury, if one is empanelled, of the continued abuse inflicted by her father against her mother.

[ 29 ] The applicant points to the 2006 decision of the National Parole Board that accepts she had been an abused woman who had participated in the murder of her abusive husband and who had gained insight into her offence and accepted responsibility for her role in it.

[ 30 ] The applicant also denies Mr. Craig’s allegations regarding the funeral arrangements and points to his different testimony at the murder trial where he gave detailed evidence that both he and his wife were at the memorial service.

[ 31 ] In summary, the applicant submits that the evidence from the Rochon Jury Hearing is not credible or reliable and may well be rejected by a jury at a hearing. The jury will also hear from Sharon McAuley and from other members of her family as to her character. The jury will be presented with the substantial evidence of the applicant’s exceptional behaviour in custody over the last 17 years. The applicant submits that on the written materials before me, there is a substantial likelihood the jury will accept that the applicant was an abused woman as she has maintained and will grant her a reduced period of parole ineligibility.

Analysis

[ 32 ] I first deal with the evidence of the applicant’s character, a critical factor in her meeting the threshold statutory test on this application.

[ 33 ] The materials before me from the applicant and the Crown point to contradictory portrayals of the applicant’s character both at the time of the murder and in the 17 years of her incarceration.

[ 34 ] There is strong evidence in the applicant’s materials, including from the murder trial and from other witnesses willing to testify before another jury should one be empanelled on this application, that the applicant was and is the person she has maintained she is – a woman abused by her husband from 1982 up to the time of his murder and who has gained insight since that time.

[ 35 ] The evidence contradicting this assertion comes primarily from the Agreed Statement of Fact filed at the Rochon Jury Hearing and from the testimony of Ms. Gleeson. It does not assist the applicant that her own son Jason Rochon agreed for the purposes of his hearing, particularly at paras. 13 and 15 of the Agreed Statement of Fact, that there was evidence at the murder trial from witnesses indicating there had been no evidence of physical abuse for a least eight or nine years before the murder and that the last documented incident of physical abuse was the assault on the applicant by the victim, of which he was convicted in 1982. These paragraphs imply the applicant had manipulated Rochon into murdering the victim.

[ 36 ] However, the Agreed Statement of Fact was an assembly of relevant facts for the purposes of the Rochon Jury Hearing that was and is not agreed to by the applicant. The applicant’s role in the murder did not mirror Rochon’s role in the murder. Rochon committed the actual murder. The applicant did not. The applicant disputes the implication in the Agreed Statement of Facts that she had been lying about being abused. There are witnesses who have said in the past and who will testify again in support of the applicant’s allegations that there had been continuing abuse. These same witnesses contradict Ms. Gleeson’s evidence. In her reply materials the applicant points to evidence that may serve to cast doubt on Ms. Gleeson’s credibility. I agree with the applicant that the mere fact the Crown intends to call Ms. Gleeson as a witness should a jury be empanelled does not mean that this new jury will accept her evidence, given the other evidence in the case.

[ 37 ] I do not think that Mr. Craig’s evidence, as sympathetic as it is, will be at all determinative before the jury on the issue of whether the applicant is of good character.

[ 38 ] This issue of the applicant’s character and whether she has been truthful regarding her circumstances at the time of the murder amounts to an assessment of the credibility of all of the various witnesses to be called. The materials from the applicant on this issue are strong. The contradictory evidence needs to be tested. It was not tested for the applicant at the Rochon Jury Hearing. That evidence was directed towards the issue of whether Rochon should have his period of parole ineligibility reduced based on all of his circumstances. At a future hearing for the applicant the jury may reject that evidence. Even if the jury accepts that contradictory evidence, even if the jury is able to conclude that the applicant’s evidence of abuse is suspect or even rejects that she was abused, on the basis of all of the other evidence and particularly the applicant’s excellent conduct over the last 17 years and her now failing health, I find there is a substantial likelihood they will decide to reduce her period of parole ineligibility.

Conclusion

[ 39 ] My consideration of all of the materials as summarized above and as those materials relate to the relevant factors – the applicant’s character, her conduct during her incarceration, the nature of the offence, the information from the victim’s family including from his parents and his children and the state of the applicant’s health – all leads me to conclude that the applicant has shown on a balance of probabilities that there is a substantial likelihood she will persuade all 12 members of a jury that she should have her period of parole ineligibility reduced.

Orders

[ 40 ] I order, therefore, that the application is allowed to proceed and that a jury be empanelled to hear the application to have the applicant’s number of years of parole ineligibility reduced. Counsel are advised to contact the Trial Co-ordinator to fix dates for the empanelling of a jury and the hearing. I have been designated as the presiding judge at that hearing.

[ 41 ] I also order a publication ban on these Reasons until after the jury has granted or dismissed the application. This is because I have performed a limited weighing of the evidence from the written materials filed on this initial screening, as indicated in these Reasons. Of course, it will be for the jurors to independently assess all of the evidence before them so that I think it improper for them to know of my assessment of some of that same evidence. I recognize that counsel have not had the opportunity to make submissions in this respect. If any counsel disagrees with the publication ban they are invited to forward written submissions to me before the expiry of 30 days after the release of these Reasons

The Hon. Madam Justice L. Ratushny

Released: June 26, 2012

COURT FILE NO.: 92-G18897-01

DATE: 20120626

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – BONNIE MCAULEY Applicant REASONS ON INITIAL JUDICIAL SCREENING Ratushny J.

Released: June 26, 2012