ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
COURT FILE NO.: M085/13
DATE: 20140227
B E T W E E N:
HER MAJESTY THE QUEEN
C. Pirraglia, for the respondent
Respondent
- and -
ADRIAN CLIVE PAUL
M. Crystal, for the applicant
Applicant
HEARD: written submissions
Nordheimer J:
[1] This is an application by Adrian Clive Paul under s. 745.6 of the Criminal Code by which the applicant seeks 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. Pursuant to s. 745.61, the Chief Justice of the Superior Court of Justice designated me as the judge to review the application and determine whether a jury should be empanelled to consider it.
[2] The applicant was convicted of the first degree murder of Christine Ricketts that occurred on March 4, 1998. On that day, the victim and another person were in an apartment building attempting to sell subscriptions to the Toronto Star. During the course of their activities, the two became separated. The victim disappeared. The police were notified. In the early morning hours of March 5, 1998, the police found the victim in a stairwell of the apartment building. The victim had been strangled and sexually assaulted. DNA evidence eventually linked the attack to the applicant who lived in the apartment building. He was arrested on March 15, 1998.
[3] The applicant was convicted of first degree murder on July 13, 1999. The applicant received the mandatory sentence of life imprisonment with no eligibility for parole for a period of twenty-five years. The applicant appealed. On December 11, 2002, the Court of Appeal allowed the applicant’s appeal, set aside the conviction and ordered a new trial. A second trial was held. On March 29, 2004, the applicant was again convicted of first degree murder. The applicant again appealed. On May 28, 2009, the Court of Appeal dismissed the appeal.
[4] This application is governed by s. 745.61(1). That section was amended in 2011. The threshold at the initial pre-screening stage was changed. Whereas the threshold had previously been whether “there is a reasonable prospect that the application will succeed”, the section now directs the pre-screening judge to consider:
…whether the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed…
[5] Notwithstanding the change in the threshold, the criteria to be considered in determining whether there is a substantial likelihood that the application will succeed, remain the same. Those criteria are set out in s. 745.63:
(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] The applicant accepts that the effect of the change in the wording of the threshold has made the test that the applicant must clear in order for his application to proceed “more stringent”. Other decisions of this court, including my own decision in R. v. Gayle, [2013] O.J. No. 4124 (S.C.J.), have reached that same conclusion. In Gayle, I said, at para. 10:
It seems to me that in amending the section Parliament intended to ensure that only cases with real merit would proceed.
[7] In Gayle, I also held that the change in the threshold test meant that the pre-screening judge must take a harder and more critical look at the evidence as it relates to the criteria set out in s. 745.63. Rather than only having to be satisfied that there was a reasonable prospect that the application would succeed, as was the case in the past, now the pre-screening judge has to put him/herself in the position of the jury and determine whether, on the facts as currently known, there is a substantial likelihood of success. I found that this, in turn, required the pre-screening judge to more critically evaluate the evidence presented in order to determine whether a substantial likelihood of success has been established.
[8] I will add, on the issue of the changed threshold, that it is my view that the threshold of a “substantial likelihood” is a much higher threshold for an applicant to overcome. It moves the requirement away from a balance of probabilities evaluation to something closer to a certainty as to the expected result should a jury consider the matter. Likelihood itself connotes a probability (as opposed to possibility) of something happening. The use of the adjective “substantial” adds a strong or real level of expectation as to the result.
[9] Turning then to the application itself, I will address each of the criteria set out in s. 745.63.
A. Character of the applicant
[10] The applicant was thirty-three years old at the time of the offence. He is now forty-eight years old. He has been in custody for more than fifteen years. The applicant maintains a close relationship with his mother. He has never known his father. The applicant completed grade eleven before leaving school in order to obtain employment and provide financial support for his mother. The applicant’s employment history is spotty. He has worked at a number of different jobs, some of which he lost as a result of his ill-temper and volatile personality. Indeed, the applicant subsequently blamed his problems with employment, including having just been turned down for a job, as the reason why he attacked the victim in this case. The applicant had been unemployed for five years at the time of the murder.
[11] The applicant had a criminal record prior to his conviction for murder. In 1981, at the age of sixteen, the applicant was convicted of indecently assaulting a female. The events underlying the charge might fairly be characterized as minor in that he apparently inappropriately rubbed up against a female in an elevator. In 1996, the applicant was convicted of sexual assault along with other offences. In this instance, the applicant contracted for the services of a prostitute. He drove the prostitute to a parking lot where he demanded that the prostitute provide services for free. When the prostitute refused, the applicant attacked the prostitute including grabbing her breasts, punching her face and eyes and attempting to strangle her. The prostitute was eventually able to escape from the car and she called the police. The applicant was convicted and sentenced to two years less a day and three years probation. The applicant served the custodial portion of his sentence without any issues.
B. The applicant’s conduct while serving the sentence
[12] The applicant has been in Warkworth Institution since his original conviction except for a period of time when he was held in a provincial detention facility pending his second trial. He is desirous of moving to a minimum security institution but that desire has yet to be realized.
[13] In his time at Warkworth Institution, the applicant’s behaviour has been almost entirely without incident. While there are two recorded institutional infractions, they were both minor in nature. During his time, the applicant has been employed in various capacities including working as a unit cleaner, in the paint shop, in the Canteen, in shipping and purchasing, and providing caregiving for inmates in wheelchairs. The applicant’s performance in these various roles has been positive. His supervisors noted that the applicant was responsible and able to work with limited supervision. Similarly positive is the fact that during all of his time at Warkworth, the applicant has not been involved in any violence nor has it ever been necessary to place him into segregation.
[14] Throughout the time that the applicant has been incarcerated, he has been assessed for security classification within the penitentiary system. This is separate and apart from the assessment for re-offending that I will come to shortly. For security classification purposes, an inmate is assessed based on Institutional Adjustment, Escape Risk and Risk to Public Safety. Each element is assigned a rating of low, moderate or high. Based on the overall assessment, a decision is made as to which institution the inmate should be placed in.
[15] In the beginning, the applicant was evaluated as medium security based on individual ratings of moderate for Institutional Adjustment; low for Escape Risk; and high for Risk to Public Safety. Over the next fifteen years, the applicant’s rating for Institutional Adjustment dropped from moderate to low. His rating for Escape Risk remained at low. However, his rating for Risk to Public Safety remained at high.
[16] The applicant has been assessed on a number of occasions regarding his risk of re-offending, both generally and with respect to sexual offences in particular. In 1999, when he was first incarcerated, the applicant was scored in the low/moderate range for general recidivism and in the moderate range for sexual re-offence. In 2004, after his second conviction, the applicant was assessed again. This time, some additional tests were performed “to complement the risk assessment completed in 1999”. These additional tests placed the applicant in the high risk range for sexual re-offending.
[17] As a result of this application, and the applicant’s request to be transferred to a lower security facility, a further assessment was conducted in 2013. In this assessment there is again the reference to the applicant being in the moderate range for both general and violent recidivism. There does not appear to be any fresh evaluation of his risk for sexual re-offending other than the notation in the assessment that the applicant had completed the National High Intensity Sex Offender program in 2013. The report says that, due to the completion of this program, the applicant “has likely reduced his dynamic risk for further sexual offending” but the report does not provide a level for the risk. It is not clear, therefore, that the level of risk has changed. It may be that this is because of the fact that the report goes on to say that this reduction in risk depends:
… on how well he incorporates his acquired skills into his behavioural repertoire.
[18] It is of some importance to note that there appears to be a distinct contrast between the applicant’s behaviour when he is in custody and his behaviour when he is in the community. After his second conviction for sexual offences the applicant received a jail sentence. The applicant’s behaviour while he was incarcerated was positive. However, almost as soon as he was released from custody on that sentence, the applicant engaged in the conduct underlying the predicate offence. In the same vein, while the applicant’s behaviour while in custody for the murder offence has also been positive, it remains the fact that he is assessed at being at a moderate risk of re-offending and at a high risk of sexually re-offending. The only caveat to the latter risk is his recent completion of the National High Intensity Sex Offender program that may have reduced his risk of re-offending depending on how well he incorporates the lessons from that program into his behaviour. I see nothing in the material that suggests that a reduction in risk arising from completion of this program is guaranteed. Indeed, that uncertainty seems to be the reasons why there is a stated need to monitor and reinforce those lessons. Thus, it is recommended in the assessment that the applicant participate in the Sex Offender Maintenance program.
[19] It does appear that the applicant has consistently displayed a positive attitude toward institutional staff during his incarceration. A number of complementary comments were made by staff members regarding the applicant.
C. The nature of the offence for which the applicant was convicted
[20] As noted at the outset, the applicant strangled the victim in the course of sexually assaulting her. The victim was a thirty-one year old mother of two young children. She and the applicant were complete strangers. The only explanation offered by the applicant for his attack on the victim was that he had just received news that he had been turned down, yet again, for a job opportunity. He says that he lost control when he received this news, which happened as he was with the victim, and lashed out at her.
[21] As I have observed in other cases, it is always difficult to be seen as rating the severity of the circumstances of an offence when that offence is murder. It is hard to put the loss of a life on a scale and thus suggest that one life lost is somehow more troubling or more shocking or more horrible than another. Nonetheless, this criterion necessitates some such ranking.
[22] Viewed objectively, this is not the most horrendous instance of the death of another person. Nonetheless, there are aspects of the offence that are particularly disturbing. One is the completely random nature of the crime where a person who simply knocked on an apartment door to try and sell a subscription is sexually attacked and killed. The other is that the applicant committed this offence having just been released from prison on a prior sexual offence and while still on probation for that offence. These two factors render the events deeply troubling. Indeed, I would add on this point that, in his written submissions, counsel for the applicant referred to the offence as “horrific”.
D. Any information provided by a victim
[23] A victim impact statement from the sister of the victim was provided. It attests to the ongoing and devastating impact that will inevitably occur to the family and friends of a deceased as a result of such a sudden and tragic loss. In this case, of course, there are not only those losses but also the permanent damage with which two very young children have had to contend as a result of the untimely loss of their mother.
E. Any other matters that the judge considers relevant in the circumstances
[24] There are no other matters that I consider relevant in the circumstances of this application.
Conclusion
[25] I acknowledge that there are a number of positives in the applicant’s conduct during the time that he has been incarcerated. His work attitude has been positive. His willingness to participate in treatment and programming has been positive. His avoidance of violent conduct or otherwise becoming involved in offences within the institution is also positive.
[26] On the other hand, it remains the fact that the applicant’s score for violent recidivism has remained unchanged at moderate during all of this time. His risk to public safety has been consistently rated at high throughout his time in custody. Neither of those factors bode well for any prognostication of the applicant’s likely conduct if he is released. In addition, his risk for sexual re-offending is also rated at high subject only to the impact that the applicant’s recent completion of the National High Intensity Sex Offender program may have, but that impact is yet to be determined. I note that it was only after all of his appeals were exhausted, more than ten years after the predicate offence, that the applicant began to participate in sex offender programs. There has been relatively little time to evaluate the impact that those programs may have had.
[27] I also note that in the course of the various assessments that have been undertaken regarding the applicant, the prevailing view appears to be that the applicant’s offending conduct relates less to any diagnosed deviancy but rather to the applicant’s significant problems with anger management. It is far from clear that those problems have abated in the time that the applicant has been incarcerated.
[28] I am satisfied that the applicant can moderate his conduct to acceptable norms when he is in a structured setting such as a prison. It is an entirely different matter as to how the applicant will conduct himself when he is once again in the community. It is far from clear that if the applicant faces the same time of frustrations regarding employment and other matters that he was experiencing at the time of the predicate offence, he will not react in the same fashion. It may be that over the next few years, with the benefit of the Sex Offender Maintenance program (if the applicant participates in it), the risks that the applicant poses to the public will be sufficiently reduced to allow for a different evaluation.
[29] However, at this juncture, I am not satisfied, given the uncertainties regarding the applicant’s potential to re-offend and the risk to the public from any further offence, that twelve jurors would have the level of comfort in this case that they would decide that the applicant should be given the opportunity to apply for early parole. There may be a prospect that that would occur but there is not a substantial likelihood that it would. The applicant’s situation is too uncertain, and the risks to the public too high, to conclude otherwise.
[30] The application is dismissed. The applicant may make a further application after the expiration of five years from the date of this decision.
NORDHEIMER J
Released: February 27, 2014
COURT FILE NO.: M085/13
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
ADRIAN CLIVE PAUL
Applicant
REASONS FOR DECISION
NORDHEIMER J.
RELEASED: