ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 332/12
DATE: 20121127
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – LEO HENRY PILOTTE Applicant
Marc Huneault / Alexander D. Kurke, for the Respondent.
Michael S. Mandelcorn, for the Applicant.
HEARD: By way of written submissions.
gauthier, j.
[ 1 ] On October 12, 1997, Leo Henry Pilotte (the Applicant) was convicted of First Degree Murder and Indignity to Human Remains, for which he was sentenced to Life Imprisonment with no eligibility for parole for 25 years. The Ontario Court of Appeal upheld his conviction.
[ 2 ] The Applicant has brought an Application for Review of Parole Ineligibility, for a reduction in the number of years of imprisonment without eligibility for parole imposed upon him on September 11, 1997, at Sudbury, Ontario.
[ 3 ] Such Application was made to the Chief Justice, pursuant to Section 745.6(1) of the Criminal Code , on November 14, 2011.
[ 4 ] The Chief Justice has, pursuant to the provisions of Section 745.61(1) of the Criminal Code , designated me to determine whether the Applicant has shown, on a balance of probabilities, that there is a reasonable prospect that the Application will succeed. I am to consider the Application, any report provided by the Correctional Service of Canada, and any other written evidence presented by the Applicant.
[ 5 ] Section 745.63 of the Criminal Code sets out the criteria to be considered in determining whether there is a reasonable prospect that the application will succeed:
(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.
[ 6 ] Both the Applicant and the Crown agree that the above is the applicable criteria, notwithstanding the amendment to the Criminal Code , on December 2, 2011, which resulted in a new and more stringent test, i.e. “whether the applicant has shown, on a balance of probabilities, that there is a SUBSTANTIAL LIKELIHOOD that the application will succeed” (emphasis added).
[ 7 ] Both sides agree that the Transitional Provision which provides that applications that were made under section 745.6 of the Criminal Code before December 2, 2011, but have not been finally disposed of on that date are to be dealt with and considered in accordance with the criteria set out in paragraph 5 above.
[ 8 ] The first step involves a determination of the appropriateness of empanelling a jury. The applicant must establish, on a balance of probabilities, that there is a reasonable probability that a jury would, after considering the factors set out above, conclude that the period of parole ineligibility should be reduced.
[ 9 ] The Applicant need only establish that there is a reasonable prospect of success.
[ 10 ] The question to be asked, at this screening stage, was framed by Nordheimer J. in R. v. Phillips , 2011 ONSC 1914 , at paragraph 9 :
Is there a realistic probability that the applicant will be able to convince twelve jurors to reach a unanimous recommendation that his parole ineligibility period should be reduced?
[ 11 ] This question must be answered in the affirmative before a panel of twelve jurors is summoned to hear the application, pursuant to Section 745.63 of the Criminal Code .
Character of the Applicant:
[ 12 ] The Applicant is 57 years old and has served 15 years of his life sentence to date.
[ 13 ] The Applicant has always maintained that another member of his group committed the murder, and that his role was to destroy the body which was found in a silo.
[ 14 ] Prior to his murder conviction, the Applicant had been sentenced to five months’ incarceration for Conspiracy to traffic in a narcotic, Trafficking in a Narcotic, Possession of a Narcotic, Careless Storage of a Firearm, and for Failing to Appear in court. He had no other criminal convictions.
[ 15 ] In August, 2011, the Applicant was rated Low for Institutional Adjustment and Escape Risk and Moderate for Public Safety Concerns. He was considered to be within the range of minimum security.
[ 16 ] The documents from the institution housing the Applicant describe him as being a quiet, compliant, and respectful individual.
[ 17 ] On June 23, 2011, the Applicant underwent a Psychiatric Assessment (Dr. Saini) and a Psychological Assessment (Dr. Monkhouse).
[ 18 ] Dr. Saini noted that the Applicant demonstrates some of the antisocial personality traits, but did not meet the criteria for Antisocial Personality Disorder. Dr. Saini opined further that the Applicant’s risk for violent recidivism is in the low to moderate range.
[ 19 ] Dr. Monkhouse found the Applicant to be a low moderate risk for violent re-offending according to one test, and a moderate risk for violent recidivism according to another test administered. Unlike Dr. Saini, Dr. Monkhouse believes that the Applicant does meet the criteria for Antisocial Personality Disorder.
The Applicant’s conduct while serving the sentence:
[ 20 ] The material discloses that the Applicant has conducted himself in a “cooperative and thoughtful manner”, during his incarceration. He is described as having “demonstrated exemplary institutional behaviour free of institutional charges.”
[ 21 ] The Applicant completed the only program he met the criteria for, that is, Cognitive Skills.
[ 22 ] The applicant has demonstrated excellent work performance, and has always been polite and respectful.
The nature of the offence for which the Applicant was convicted:
[ 23 ] The Applicant and the deceased were both involved in the sale of illegal drugs. The cremated remains of the deceased were found in an abandoned silo in or near Oshawa, Ontario. The Crown’s theory was that the Applicant killed the deceased, cut up the body and transported it to Oshawa, where he burned the body in the silo.
[ 24 ] The Court of Appeal summarized the facts and the evidence as follows:
It was the Crown’s theory at trial that the appellant had a motive to kill Leveille for a number of reasons: Leveille was encroaching on the appellant’s sales territory; he was making false claims that the appellant owed him money; he was threatening to destroy the appellant’s racehorses; and finally, the appellant suspected that Leveille was involved in a break-in and theft at the appellant’s home near Sudbury on December 29, 1994. It was the Crown’s further theory that the appellant killed Leveille shortly after Leveille was last seen alive, cut up the body, transported the remains to Russell’s property and burned the body in the silo.
In support of its theory, the Crown relied on the evidence of several witnesses who testified about the appellant’s numerous grievances with Leveille and his plan to get rid of him. This evidence included a recording of a conversation between the appellant and his cousin Joel Pilotte. The Crown also relied on the evidence of Cecil Russell who testified that the appellant brought Leveille’s body to his property in Oshawa, burnt it in the silo, later returned to check the silo, retrieved some of the remaining bones, and disposed of them in a garbage dumpster. Russell also testified that the appellant admitted to killing Leveille. The Crown further relied on the appellant’s admissions to two other witnesses, Joel Pilotte and Martin LaChapelle. Finally, the Crown relied on various pieces of evidence to confirm the testimony of the witnesses Cecil Russell, Martin LaChapelle, and Joel Pilotte; evidence of the appellant’s attempts to dissuade the deceased’s wife from calling the police; and the appellant’s after-the-fact conduct.
The appellant did not testify at his trial. However, the defence called a number of witnesses to challenge the credibility of the Crown witnesses. It was the defence theory at trial that Russell had himself killed Leveille and disposed of his body in the silo or was involved in the murder, and that he was lying about the appellant’s participation in the crime to protect himself. It was the further theory of the defence that none of the three Crown witnesses who testified as to admissions made by the appellant were worthy of belief. Finally, it was the defence theory that the Crown’s case left too many matters unexplained to constitute proof beyond a reasonable doubt.
[ 25 ] As indicated, the convictions for First Degree Murder, and Offering Indignities to Human Remains were upheld by the Court of Appeal.
Information provided by a victim:
[ 26 ] No Victim Impact Statement was filed at the time of the sentencing, and the Crown did not tender any in its Response to the Application.
Other relevant matters:
[ 27 ] The Applicant’s family supports his Application.
[ 28 ] The Crown, in its response submitted that the Court could, based on the material provided by the Applicant, conclude that the Applicant has discharged the minimal threshold requirement imposed upon him at this stage of the proceeding.
Conclusion:
[ 29 ] There are a number of positive aspects to this Application, in particular, the Applicant’s exemplary conduct while serving his sentence. It appears that he has been a “model prisoner”.
[ 30 ] Another positive factor is the strong support from the Applicant’s wife of 38 years, and other members of the Applicant’s family.
[ 31 ] Finally, the Applicant has acknowledged that he was, at the time of the murder, leading a risky lifestyle in the pursuit of wealth. The Applicant appears committed to a pro-social lifestyle with no association with persons involved in criminal activity.
[ 32 ] I conclude that there is a reasonable prospect that a jury would, after considering the factors set out above, conclude that the period of parole ineligibility should be reduced.
[ 33 ] Therefore, the Application is granted.
[ 34 ] I request that a parole eligibility report be prepared in respect of the Applicant, having regard to the criteria referred to in subsection 745.63(1) of the Criminal Code .
[ 35 ] Once the parole eligibility report has been received, I shall convene a management hearing, at which time a hearing date shall be determined.
Madam Justice L. L. Gauthier
Released: November 27, 2012
COURT FILE NO.: 332-12
DATE: 20121127
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – LEO HENRY PILOTTE Applicant REASONS FOR JUDGMENT on initial judicial screening GAUTHIER, J.
Released: November 27, 2012