R. v. Poitras, 2012 ONSC 5147

COURT FILE NO.: 96-G8027

DATE: 2012/09/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JEAN PAUL POITRAS

Applicant

Robert Wadden, for the Crown, Respondent

Fergus J. (Chip) O’Connor, for the Applicant

HEARD: In writing.

REASONS FOR JUDGMENT on Initial judicial screening

Mr. Justice Douglas Rutherford

[1] The Applicant was arrested on January 8, 1996, and charged with the first degree murder of Clifford Blake. On May 22, 1998, he was found guilty as charged and sentenced to the mandatory life imprisonment, without eligibility for parole for 25 years. Mr. Blake’s common-law wife, Colette Nelson, was tried with the Applicant and she was found guilty of being an accessory after the fact to that murder. The Applicant now applies for relief by way of a reduction in the period of parole ineligibility. Such relief is available through what is often referred to as the “faint hope” clause found in s. 745.6 of the Criminal Code, R.S.C. 1985, c. C-46 [Code].

[2] In Ontario, an application under the faint hope provision is made to the Chief Justice of this Court. Pursuant to s. 745.61 of the Code, the application involves an initial judicial screening by the Chief Justice or her designate. The initial judicial screening is intended to determine whether, on the basis of the materials filed, the applicant shows “on a balance of probabilities that there is a substantial likelihood that the application will succeed.” That “the application will succeed” means that a jury empanelled to hear the application will terminate, or at least reduce, the 25 year parole ineligibility period.

[3] On April 11, 2012, Chief Justice Heather Smith designated me, in writing, to make this initial screening determination and, in the event that I find a substantial likelihood of success to have been demonstrated, to empanel a jury to hear the application. Mr. O’Connor prepared and delivered an Applicant’s Application Record to the Court on August 3, 2012. Mr. Wadden responded and filed a Respondent’s Application Record on August 30, 2012. Mr. O’Connor filed a brief Reply on September 10, 2012.

The Offence

[4] On May 22, 1998, in imposing sentence on the Applicant, Kealey J. said

Mr. Poitras, the jury has convicted you of first degree murder in taking the life of Clifford Blake. You were motivated perhaps by love or money. We may never know. What we do know is that your actions and conduct in committing this crime were calculated, coldblooded, and extremely gruesome. Indeed, it would stretch anyone’s imagination to envisage a murder which could be more so. As prescribed by our law, I hereby sentence you to imprisonment for life, without eligibility for parole until you have served 25 years of this sentence... (R. v. Poitras, [1998] O.J. No. 5631, at para. 1)

[5] The circumstances surrounding Mr. Blake’s murder are reflected in this passage from the judgment of the Court of Appeal in R. v. Poitras (2002), 2002 23583 (ON CA), 57 O.R. (3d) 538, at paras. 2-8:

The appellant, the deceased Clifford Blake, and Mr. Blake's common-law wife, Colette Nelson, lived together in September 1995. In early December 1995, Ms. Nelson decided to end her relationship with Mr. Blake, left the home and travelled to Welland, Ontario to stay with her sister.

The appellant and Ms. Nelson were in close contact in the two weeks following her departure. There was evidence from which it could be inferred that the appellant and Ms. Nelson were romantically involved when she left for Welland. The appellant and Ms. Nelson testified and denied both any romantic involvement prior to late December 1995 and any involvement in Mr. Blake's death.

Mr. Blake was last seen alive on the evening of December 14, 1995. He was with the appellant. A cloth soaked in Mr. Blake's blood was found on December 22. On January 2, 1996, parts of his dismembered body were found in the bush. Various parts of his body were found in different locations in the following days. The forensic evidence established that Mr. Blake was shot in the head three times in what had all of the appearances of an execution-style killing. The killing occurred in the home that had been shared by the appellant, Mr. Blake and Ms. Nelson. The appellant's rifle was identified as the probable murder weapon. The forensic evidence also revealed that Mr. Blake was lying on the floor of the bedroom in the home when at least one of the three shots was fired into his head. One of those shots came from very close range. Ammunition located in the home was consistent with the ammunition used to fire the fatal shots. A large quantity of Mr. Blake's blood was found in the back of the appellant's truck. The cloth soaked in Mr. Blake's blood that was found on December 22, 1995 was an exact match to cloth seized from the appellant's garbage.

Within about a week of Mr. Blake's disappearance, Ms. Nelson returned from Welland and she and the appellant began to live together. The appellant used Mr. Blake's credit cards, bank card, and forged cheques in his name on numerous occasions between December 15 and January 3. In the last week of December, the appellant and Ms. Nelson did an extensive clean-up of the house where Mr. Blake had been killed. They cleaned and shampooed the rugs, repainted walls, and reupholstered chairs and a couch. The appellant also pressure cleaned the inside and the outside of his truck, even though it was the dead of winter.

A few weeks prior to December 14, 1995, the appellant and Ms. Nelson told Mr. Blake's sister that he was planning to go to Timmins and would be gone for good. On December 15, the appellant told a friend that he had taken Mr. Blake to the bus station on the evening of December 14 and saw him board a bus marked "Timmins". There was no evidence that Mr. Blake ever went to Timmins and there was evidence that no bus marked "Timmins" left the bus station on December 14, 1995.

The circumstantial evidence pointing to the appellant as the killer was overwhelming. There was also ample evidence to support the Crown's theory that the appellant decided to kill Mr. Blake so that he and Ms. Nelson could live together as man and wife. That evidence included the following:

Ms. Nelson wanted out of her relationship with Mr. Blake who she knew to be a violent and possessive person.

The appellant and Ms. Nelson were romantically involved before Mr. Blake was killed.

The appellant and Ms. Nelson spread a false story that Mr. Blake was intending to go to Timmins and the appellant told a friend that Mr. Blake had gone to Timmins on December 14.

On the evening of December 14, the appellant spoke with Ms. Nelson twice on the telephone.

Within days of the disappearance of Mr. Blake, the appellant and Ms. Nelson were living together.

The appellant denied that he shot Mr. Blake, and testified that he let him off at the bus station on the evening of December 14, 1995, and never saw him again. He believed that Mr. Blake was going to Timmins, Ontario to live.

[6] Notwithstanding the characterization of the case against him as “overwhelming,” the Applicant has never accepted responsibility for the murder of Mr. Blake. He has maintained his claim to innocence throughout all these years.

The Submissions of the Applicant

[7] The Applicant is now 63 years old. In his application, he describes himself as, “of native origin, descended from the Algonquin Indian people.” Born in North Bay, he was the youngest of seven children. He has two grown children as a result of a 15 year marriage and his children appear supportive of their father. He also has the support of a North Bay area woman, with whom he enjoys a close and long-term relationship. She has offered him a place to live when released. His employment history is varied. He worked as a mechanic for many years, including as a service manager for Sears Canada Inc.; operated a horse ranch for some time; was a cook for a few years; and was a maintenance man. In 1990, he suffered a serious back injury and received Ontario Disability Support Program benefits for approximately four years.

[8] Notwithstanding this positive employment record, the Applicant also has a criminal record of some 20 or more previous offences, committed in the 1978-1988 period, in and around the North Bay area. The offences consist of thefts, possession of stolen property, false pretences, driving while disqualified, carrying a concealed weapon, unemployment insurance fraud and uttering a forged document. Most convictions resulted in fines, although the Applicant was twice gaoled for seven days for driving while disqualified. There is no indication of violence in the Applicant’s criminal record prior to Mr. Blake’s murder. The Applicant was conviction-free for almost eight years prior to the murder of Mr. Blake.

[9] The Correctional Service of Canada (“CSC”) records pertaining to the Applicant’s years in prison, reflect well on him as a serving offender. A 2007 report, while the Applicant was in medium security at Bath Institution, remarked: “Mr. Poitras’ institutional behaviour since his incarceration has been excellent...Mr. Poitras has shown a pattern of above satisfactory adjustment requiring no special management. Mr. Poitras presents as a ‘model’ offender.” From late 2008, the Applicant has been serving his time at Wakesun Healing Centre, a federal minimum security institution in Quebec. At Wakesun, the Applicant has continued his good behaviour, taken all programs recommended by CSC and made available to him, and has been “written up for positive observations, especially concerning his positive, proactive attitude and initiatives.” At one point, the Applicant was of particular assistance to CSC staff in dealing with a serious incident. In doing so, the Applicant is said to have shown both integrity and courage. Over the short and long term, his risk for escape and violent recidivism has been rated as low.

[10] A January 2010 Parole Board decision rejected an institutional recommendation for eligibility for Escorted Temporary Absences, citing the Applicant’s continued denial of responsibility for a gruesome crime that was proven beyond any reasonable doubt. The Board concluded about the Applicant:

[His] risk remains undue even in ETA’s because it could not observe that you have identified and worked on the specific risk factors and behaviours that could have brought you to commit that murder. Consequently, the Board does not approve the ETA’s recommended program.

The Applicant was, however, granted an Escorted Temporary Absence to attend his mother’s funeral in early 2012. His behaviour and conduct was appropriate throughout the absence.

[11] While in prison, the Applicant has diligently pursued self-improvement and betterment programs. The following list of certificates of achievements (as well as their copies) appear in the Applicant’s Application Record:

1. Engine disassemble, Joyceville Penitentiary, November 12, 199& .

2. Transportation technology Joyceville Penitentiary, November 12, 1998 .

3. Service and Maintenance of small engines, Joyceville Penitentiary, December 10, 1998.

4. Small engine accessories, Joyceville Penitentiary, December 12, 1998

5. Panel dent Repair, Joyceville Penitentiary January 14, 1999

6. Welding, Joyceville Penitentiary January 14, 1999

7. Panel Metallurgy, Joyceville Penitentiary February 18, 1999

8. Fibre Glass Repair, Joyceville Penitentiary March 18, 1999

9. Frame and Unibody Repair and Theory, Joyceville Penitentiary March 18, 1999

10. Painting, Prep, and Clean up, J oyceville Penitentiary April 21, 1999

11. W.H.M.I.S. safety training, Carcan wood shop, Bath Institution, July 9, 2003

12. Safety Break training, Corcan wood shop, Bath Institution, July 9, 2003

13. Reasoning and Rehabilitation, March 4th, 2005 (Bath Institution)

14. In Search of your Warrior, Waseskun Healing Center, April 30th, 2009

15. Funding approval for heavy machinery course, June Attestation for successful completion of 160 hour course on said heavy machinery, September 21, 2009

16. Health Services attestation for peer counselling on HIV aboriginal program, Mars 2010

17. Introduction to Computer Skills, June 23, 2010 Successful completion of “Ie COUTS SSGCC...d’une duree de 30 heures I repond aux exigencies de I’ A.S.P. Construction”, 27 janvier 2012.

The Submissions of the Crown

[12] In response to the application, at para. 15 of the Crown’s written submission, the Crown contends that:

[T]here is no substantial likelihood that the Applicant will persuade a jury to reduce his parole ineligibility period. The Applicant has made positive strides throughout his incarceration, however the Respondent submits that the brutal nature of the murder combined with the Applicant’s consistent denial of guilt overshadow these positive steps and prevent this application from meeting the standard of substantial likelihood.

[13] At para. 22, the Crown’s submission continues:

The Respondent recognizes that the Applicant has made positive strides during the time he has been incarcerated. His participation in correctional programming and positive reports from correctional staff are well documented. However, it is the position of the Respondent that the Applicant’s prosocial behaviour while in prison is a factor which does not outweigh the negative aspects of the application, namely the brutal nature of the offence and the Applicant’s consistent denial of guilt.

The Initial Screening Threshold

[14] The faint hope provision was recently altered by Parliament through Bill S-6, An Act to Amend the Criminal Code and another Act. The Act received Royal Assent on March 23, 2011, and the provisions affecting faint hope clause applications came into force on December 2, 2011. Applications made after that date (including this application by the Applicant) face an amended threshold test at the initial judicial screening stage. The new test is whether the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed. Prior to the amendment, the test was whether the applicant has shown, on a balance of probabilities, that there is a reasonable prospect that the application will succeed (emphasis added).

[15] In considering the former threshold, Oliphant A.C.J.Q.B. made these observations in R. v. D.E.K., 2001 MBQB 350, 161 Man.R. (2d) 111, at paras. 43-44:

I view s. 745.61(1) as being an attempt by Parliament to implement a screening process that would enable a judge to stop obviously hopeless applications for a reduction in the period of ineligibility for parole from going to a jury. It is interesting to note that the term “faint hope clause” is that most commonly used by politicians, the media and members of the public when reference is being made to the sections of the Criminal Code that provide for a reduction in the period of ineligibility for parole.

In my opinion, for a judge to dismiss any application that is not hopeless, at the initial step of the proceeding is tantamount to usurping the function of the jury. I think Parliament intended that a jury, not a judge, should decide whether an offender should be given an opportunity to apply for early release in all cases except those where there is no reasonable prospect of success before a jury.

[16] In R. v. Rochon, 2011 ONSC 5061, a former threshold case, guided by the above passage in D.E.K., I concluded my ruling on the initial judicial screening, as follows:

In light of the information filed, I am unable to conclude that this application is hopeless. While the murder was violent and brutal, Jason Rochon’s relative young age, the role his mother played in enlisting him to get rid of William McAulay, and the considerable correctional plan progress he has made lead me to conclude on the balance of probabilities that a reasonable jury, properly instructed, might find it appropriate to reduce the parole ineligibility period. I cannot rule it out. In short, the application has a reasonable prospect of success. [Rochon, at para. 12]

The jury empanelled to determine the Rochon application unanimously determined, after quite brief deliberation, that Rochon should be eligible for parole consideration immediately.

[17] The Ontario Court of Appeal in R. v. Phillips, 2012 ONCA 54, 99 W.C.B. (2d) 698, set the former threshold bar higher than “not hopeless,” stating, at para. 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.

[18] The Parliamentary record is replete with expressions, on behalf of the government, that the new threshold for the initial judicial screening, introduced by Bill S-6, was intended to raise the bar and only allow cases of substantial merit to go forward to consideration by a jury. In the Library of Parliament Legislative Summary (Robin MacKay, Bill S-6: An Act to amend the Criminal Code and Another Act, Legislative Comment on Pub. L. No. 40-3S6-E (April 6, 2011)), the Parliamentary Information and Research Service said of the new revised threshold, at p. 8: “This change in language sets a more stringent requirement for proving the possible success of the application.” That publication provided figures showing that, as of April 2010, juries had granted relief by reducing the parole ineligibility period in 145 out of 178 cases that had been allowed to proceed to jury determination. That success rate of over 81% suggests that there is only a small margin remaining, in which initial screenings could improve upon the number of applications found lacking in merit. In other words, on initial screening, judges had approved applications that juries recognized as meritorious in a very high percentage of cases.

[19] So how much greater merit does an application with a “substantial likelihood” of success have than one with a “reasonable prospect” of success? To answer that question requires a semantic exercise in giving meaning to a somewhat odd coupling of the terms “substantial likelihood” with “balance of probabilities.” Lawyers and judges deal with the latter term in civil trials. A balance of probabilities threshold is one in which it must be shown that something is more probable than not. So a faint hope applicant must now show that it is more probable than not that the application has a substantial likelihood of success. The Oxford Dictionary (Toronto: Oxford University Press, 1998) defines the word “substantial” as “of real importance, value, or validity.” The word, “likelihood” is defined as a “probability” or a “promise of success.” Thus, a faint hope applicant contends with a threshold showing of it being more probable than not that the application has a probability or promise of succeeding. That is, the likelihood is of substance; of real value; or valid. A case of some real merit, or some substantive merit, has a substantial likelihood of success.

[20] In R. v. McAuley, 2012 ONSC 3732, Ratushny J. said, at para. 14: “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.”

[21] I agree with Ratushny J., but how much higher is the threshold? It is difficult to describe a theoretical point such as this threshold with precision. Juries hear all the facts and apply their common sense to the evidence. According to the Library of Parliament Legislative Summary, referred to above, juries granted relief in over 81% of the faint hope clause applications judges sent on to full hearings under the old threshold. This suggests a real danger in setting the bar so high, under the new threshold, that a case which a jury might find meritorious may not be heard.

Is This an Application with Substantial Likelihood of Success?

[22] The task on this initial judicial screening is to determine whether the Applicant has a substantial likelihood of success, a case of substance, a case with real merit. According to s. 745.63(1) of the Code, a jury empanelled to determine such application is to consider:

(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.

[23] The Applicant’s character, apart from his having murdered Mr. Blake and his continued denial of responsibility, is a mixture of positive and negative features. There is his record of non-violent criminality in the 1978-88 period, followed by seven or eight years of an apparently productive and law-abiding lifestyle. His employment history is generally good and he enjoys the support of members of his family and others. In one particular episode, detailed in his Application Record and in the institutional records, he demonstrated extraordinary integrity.

[24] As described above, at paragraph 9, the Applicant has been a “model” prisoner. He presents as a low security risk for misconduct or offence, either in or out of custody. He has taken advantage of the programs and courses available to him within the prison system for educational, training, and self-betterment. He has been recommended, institutionally, for Escorted Temporary Absences, and has successfully completed one.

[25] The nature of the murder for which he was found guilty certainly weighs against the Applicant in this application. It was a brutal killing for love or money or both, and was obviously planned and deliberated over some considerable period of time. The dismemberment of Mr. Blake’s body and its parts strewn around the eastern Ontario bush land reflects a callous, insensitive, and hardened disregard for decency and social order.

[26] There was no particular victim information provided at the time of sentencing. The Applicant’s reply to the Crown’s response on initial judicial screening suggests that there may be some such information to put before a jury, should the application be approved for such a hearing.

[27] Two other factors may be of some relevance to my determination. The first is that the Applicant is now 63 years old. If not eligible for parole consideration until 2021, he will be well into his 70s before it is likely that he will be granted full parole. Even if granted earlier parole eligibility, the granting of parole is a gradual process that normally involves escorted temporary absences, then unescorted temporary absences, halfway housing and ultimately full parole. That process takes time, possibly three or four years. The passage of years will certainly militate against the probability of the Applicant having much opportunity to establish a self-sustaining lifestyle in which he can make much of a contribution to family members or others around him. I think it can be said that, apart from other factors, there is social merit to the re-integration of a prisoner into the community while there is still time for him to become a useful part of it, as opposed to being only a neutral, or worse, a burden on it. By that, I do not suggest that all those in their mid-seventies or older are, at best, social neutrals or burdens. Emerging from more than 25 years in prison at that stage of life, however, may present additional challenges to both the individual and the community.

[28] The other factor, raised by counsel for the Applicant, is the Applicant’s native or aboriginal background. Precious little detail of what that entails is revealed in the application materials. Born and raised in the North Bay area, there is no suggestion that the Applicant personally endured an impoverished, isolated or dysfunctional youth. Counsel for the Applicant does refer, however, to s. 718.2(e) of the Code, as well as to R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13, 428 N.R. 1, in favour of the application. Section 718.2(e) provides:

A court that imposes a sentence shall also take into consideration the following principles: all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[29] In Gladue, at para. 93, the Supreme Court summarized a number of items discussed in its judgment, including that:

Section 718.2(e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider:

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.

The Ipeelee case was one in which the Supreme Court discussed the application of the Gladue principles as a tool for sentencing judges when sentencing aboriginal offenders.

[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), 1988 7121 (ON SC), 1988 CarswellOnt 85, 43 C.C.C. (3d) 238 (H.C.), 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.]

[31] It is debatable whether, or to what degree, principles derived from s. 718.2(e) might apply in a faint hope clause hearing. Moreover, the evidence in the present case as to the Applicant’s aboriginal connection, its relevance, or its significance to his circumstances, is nothing more than a mere mention. On the other hand, the sentence imposed on the Applicant was the mandatory “one size fits all” life sentence, with no eligibility for parole for 25 years. If an offender so sentenced is to be given any consideration at all for an aboriginal background or connection, it would have to be in connection with his parole eligibility. There is evidence in the Application Record of the Applicant’s affiliation, while in prison, with his aboriginal heritage. This evidence could be, directly or indirectly, of some significance to a jury, particularly insofar as it is relevant to the level of risk or danger the Applicant might pose to public safety, upon his release into the community.

Disposition

[32] In light of all the circumstances, it is my view that it is more probable than not that there is substance, validity or value to the likelihood that the Applicant would, in some measure, succeed on this application. That substance lies in his exemplary behaviour during the more than 16 years he has been confined in various penal institutions; his having taken advantage of the educational, vocational, and personal development programming available to him; and the fact that at an advancing age, he poses little risk to public safety, and has the support of family members and others ready to assist him when ultimately released by parole authorities into the community. I do not lose sight of either the Applicant’s period of previous criminal misconduct or in particular, the nature of the murder of Mr. Blake, and the Applicant’s refusal to accept responsibility for his role in it. I think, however, that this is a proper case for a jury to weigh and determine, whether, and in what degree, the relief sought should be granted.

[33] Accordingly, I will empanel a jury to hear this application at the earliest practicable time. Counsel should confer as to when that can best be done and what amount of time will be required. In these applications, it is usual to require the Correctional Services authorities to prepare a comprehensive parole eligibility report for use with the jury. Counsel should consider a joint book of documents to include, such a parole eligibility report and any other documentary evidence they will want to place into evidence. I will arrange a case management conference with counsel at their earliest convenience to deal with these matters and assist them in scheduling and readying the application for hearing.

Order accordingly.

Rutherford J.

Released: September 12, 2012