CITATION: R. v. Rowe, 2015 ONSC 2576
COURT FILE NO.: CRIMJ(P)3022/99
DATE: 20150520
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
TYLER SHUSTER, for the Respondent/Crown
Respondent
- and -
MARLON ROWE
FERGUS O’CONNOR, for the Applicant
Applicant
REASONS FOR JUDGMENT
[On Threshold Screening Application pursuant to section 745.61 of the Criminal Code]
DURNO J.
[1] On January 11, 1999, four armed men robbed the Toronto Dominion Bank on Sandalwood Boulevard in Brampton. They terrorized the bank employees and customers. Marlon Rowe was one of the robbers.
[2] In the course of the robbery, Nancy Kidd, a bank employee was shot and killed by Marlon Rowe. At his trial for first degree murder, Marlon Rowe did not testify. With respect to how Ms. Kidd died, his defence relied on statements attributed to him immediately after the robbery – that his gun had accidentally discharged. Twelve jurors were satisfied beyond a reasonable doubt that he had deliberately shot and killed Nancy Kidd. He was convicted of first degree murder on December 19, 2000, and sentenced to life imprisonment without parole eligibility for twenty-five years subject to the right to apply to have that period reduced after serving fifteen years from the date of his arrest.
[3] Mr. Rowe was arrested on January 16, 1999, and has remained in custody since that date. Having served over 15 years from the date of his arrest, he applies pursuant to s. 745.6(1), for a reduction in the number of years of imprisonment without parole eligibility. His current date for full parole eligibility is January 16, 2024.
[4] He also contends that his application should be considered in accordance with the law in relation to parole ineligibility reduction applications as it existed at the time of the offence for those convicted of first-degree murder and not the law as enacted in 2011.
[5] Pursuant to s. 745.61, I have been designated by the Chief Justice to conduct the “judicial screening” of the application. At this first step of the application to reduce the period of parole ineligibility, Mr. Rowe has the onus. The Crown says he has failed to meet the onus. The applicant says he has provided sufficient evidence to meet the required threshold finding.
The Legislation
[6] Since December 2, 2011 s. 745.61 of the Criminal Code provides:
745.61 (1) On receipt of an application under subsection 745.6(1), the appropriate Chief Justice shall determine, or shall designate a judge of the superior court of criminal jurisdiction to determine, on the basis of the following written material, whether the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed: (emphasis added)
a. the application;
b. any report provided by the Correctional Service of Canada or other correctional authorities; and
c. any other written evidence presented to the Chief Justice or judge by the applicant or the Attorney General.
Criteria
(2) In determining whether the applicant has shown that there is a substantial likelihood that the application will succeed, the Chief Justice or judge shall consider the criteria set out in paragraphs 745.63(1)(a) to (e), with any modifications that the circumstances require.
Decision re new application
(3) If the Chief Justice or judge determines that the applicant has not shown that there is a substantial likelihood that the application will succeed, the Chief Justice or judge may
(a) set a time, no earlier than five years after the date of the determination, at or after which the applicant may make another application under subsection 745.6(1); or
(b) decide that the applicant may not make another application under that subsection.
If no decision re new application
(4) If the Chief Justice or judge determines that the applicant has not shown that there is a substantial likelihood that the application will succeed but does not set a time for another application or decide that such an application may not be made, the applicant may make another application no earlier than five years after the date of the determination.
Designation of judge to empanel jury
(5) If the Chief Justice or judge determines that the applicant has shown that there is a substantial likelihood that the application will succeed, the Chief Justice shall designate a judge of the superior court of criminal jurisdiction to empanel a jury to hear the application.
[7] At the time of the commission of the Mr. Rowe’s offence, the legislation was identical with the following important exception:
745.61 (1) On receipt of an application under subsection 745.6(1), the appropriate Chief Justice shall determine, or shall designate a judge of the superior court of criminal jurisdiction to determine, on the basis of the following written material, whether the applicant has shown, on a balance of probabilities, that there is a reasonable prospect that the application will succeed: (emphasis added)
a. the application;
b. any report provided by the Correctional Service of Canada or other correctional authorities; and
c. any other written evidence presented to the Chief Justice or judge by the applicant or the Attorney General.
Criteria
(2) In determining whether the applicant has shown that there is a reasonable prospect that the application will succeed, the Chief Justice or judge shall consider the criteria set out in paragraphs 745.63(1)(a) to (e), with such modifications as the circumstances require.
Decision re new application
(3) If the Chief Justice or judge determines that the applicant has not shown that there is a reasonable prospect that the application will succeed, the Chief Justice or judge may
(a) set a time, not earlier than two years after the date of the determination, at or after which another application may be made by the applicant under subsection 745.6(1); or
(b) decide that the applicant may not make another application under that subsection.
Where no decision re new application
(4) If the Chief Justice or judge determines that the applicant has not shown that there is a reasonable prospect that the application will succeed but does not set a time for another application or decide that such an application may not be made, the applicant may make another application no earlier than two years after the date of the determination.
Designation of judge to empanel jury
(5) If the Chief Justice or judge determines that the applicant has shown that there is a reasonable prospect that the application will succeed, the Chief Justice shall designate a judge of the superior court of criminal jurisdiction to empanel a jury to hear the application.
Parole Eligibility Reduction Hearings
[8] Parole eligibility reduction hearings provide a unique procedure within Canada. While in some circumstances judges can try cases of first-degree murder without a jury, if leave is granted to empanel a jury, this is the only criminal law procedure in Canada that cannot be determined by a judge without a jury.
[9] The purpose of the hearings was set out by the Supreme Court of Canada in R. v. Swietlinski, 1994 71 (SCC), [1994] 3 S.C.R. 481 at para. 12:
… What is important is to understand that the procedure is one for reassessing long-term imprisonment imposed by law (in the case of first-degree murder) or by a judge (in the case of second-degree murder). The purpose of a reassessment procedure, especially when it takes place 15 years after the initial decision, is necessarily to re-examine a decision in light of new information or factors which could not have been known initially. It follows that the primary purpose of a s. 745 hearing is to call attention to changes which have occurred in the applicant’s situation and which might justify imposing a less harsh penalty upon the applicant. …
[10] The hearings were first introduced in 1976 with the abolition of the death penalty and capital murder. Until 1997, there was no judicial screening; upon an application being filed a jury was empanelled. The screening was introduced to ensure that only those meritorious cases resulted in juries being empanelled. R. v. Jenkins, (2014), 2014 ONSC 3223, 310 C.C.C. (3d) 248 (Ont. S.C.) at para. 20.
[11] The judge conducting the s. 745.61 screening application must consider the five areas the jury would consider to decide whether the period of parole ineligibility should be reduced:
i. the character of the applicant,
ii. the applicant’s conduct while serving the sentence,
iii. the nature of the offence for which the applicant was convicted,
iv. any information provided by the victim at the time of the imposition of sentence or at the time of the hearing under this section, and
v. any other matters that the judge considers relevant.
[12] While there are five factors, there is no requirement that each be given the same weight. Each application requires a case-specific determination of the merits of the application. In some cases, one or more factors will be decisive while in others, different factors will be given prominence. What is required is that all factors be taken into account.
[13] In assessing those areas, s. 745.61(1) provides that the screening decision is to be based upon the following written material:
i. the application,
ii. any report provided by the Correctional Services of Canada or other correctional authorities, and
iii. any other written evidence presented to the judge conducting the screening.
[14] On this application I have received and reviewed the Parole Eligibility Summary Report (“PESR”) prepared by Christine Boudreau, a parole officer at Cowansville Institution in Quebec; the applicant’s Application Record, and the Respondent/Crown’s Responding Application Record.
[15] Once the evidence is examined the screening judge performs a limited weighing of the evidence in his or her attempt to forecast the outcome of the hearing before the jury. R. v. Dulay 2009 ABCA 12, [2009] A.J. No. 29 (C.A.) at para. 5.
[16] In doing so, it is important to keep in mind a number of factors. First, anyone convicted for first-degree murder receives a life sentence without parole eligibility for twenty-five years subject the review procedure. The sentence is life imprisonment. As Nordheimer J. put it in R. v. Gayle [2013] O.J. No. 4124 at para. 30, that is the “normal terms of the legislated sentence.” What the applicant has to show is that his or her current situation would justify a departure from that normal legislated sentence.
[17] Second, the primary purpose of the s. 745 hearing is to “call attention to changes which have occurred in the applicant’s situation and which might justify imposing a less harsh penalty upon the applicant.” Swietlinski. As Pomerance J. put it in Jenkins, “[t]he verdict is not a legal conclusion, but rather an assessment of the offender’s progress.”
[18] Third, the jury is given a broad discretionary power – to make a decision as to the minimum length of the sentence that the applicant must serve. Sweitlinski, at para. 14. It is always open to the jury, as a matter of law, to grant the application and reduce the period of ineligibility because of the breadth of the jury’s discretion. While it always remains open to a jury to allow an application, by enacting the screening process Parliament has “stemmed the tide of cases that will make it to that stage” and has “built a judicial dam at the front end of the process.” Jenkins, at para. 46.
[19] Fourth, in attempting to fulfill that onus, the applicant is no longer an accused person, cloaked in the presumption of innocence with the burden of proof on the prosecution. Mr. Rowe has been convicted, sentenced, his appeal to the Court of Appeal for Ontario dismissed and his application for leave to appeal to the Supreme Court of Canada dismissed. It is implicit in the section that an applicant is required to present the bases upon which he or she contends they will succeed before a jury in reducing the period of parole ineligibility.
[20] Four of the issues a jury would consider are the applicant’s rehabilitation, remorse, the applicant’s potential risk to reoffend and whether or not the applicant has accepted responsibility for the offence he or she was found to have committed. However, while they are factors to be considered, no single consideration is in itself determinative.
[21] Fifth, in conducting the preliminary assessment it is important to keep in mind that in order for an applicant to obtain a reduction in his or her parole ineligibility period, the jury must be unanimous. In the result, to meet his onus under the current law, Mr. Rowe must establish on a balance of probabilities that there is a substantial likelihood a jury would unanimously agree to reduce his period of ineligibility.
[22] The determination whether an applicant has satisfied the onus is case specific. Accordingly, while the rulings on other applications are informative, there is no bright line in the sand for when an application will succeed. Obviously, the date on which the previous case was decided is important as the test has changed. Under the “reasonable prospect” test, the issue was whether there was some evidence upon which a reasonable jury could legitimately order a reduction in the period of ineligibility. Under the “substantial likelihood” test, the question is whether there is evidence upon which a reasonable jury would be substantially likely to order a reduction in parole ineligibility. Jenkins, at para. 48.
[23] In R. v. Phillips, 2012 ONCA 54, [2012] O.J. No. 652, the Court of Appeal upheld the application judge’s dismissal of a threshold screening application (2100 ONSC 1914, [2001] O.J. No. 1687), finding the Applicant(’s):
committed a cold-blooded execution-style planned and deliberate murder;
had not accepted responsibility for his offence nor expressed remorse;
was far from a model prisoner;
conduct in jail had been mixed although it improved over the last few years;
had a considerable record for institutional misconduct offences;
participation in educational programs was sporadic;
had made minimal gains in the anger management programs; and
had not been transferred down the security ladder below medium security.
The Constitutional Challenge
[24] Section 11(h) of the Charter states:
Any person charged with an offence if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried for it again.
[25] Section 11(i) of the Charter states:
Any person charged with an offence has the right if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
[26] The applicant submits that the change from having to show on a balance of probabilities that there was a reasonable prospect of success to having to show on a balance of probabilities that there was a substantial likelihood of success violates both provisions of the Charter. Were the new provisions applied he would be punished again and subjected to a punishment that changed after the commission of his offence and after he was sentenced.
[27] The applicant relies on the Supreme Court of Canada judgment in Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392 where the Court found the repeal of accelerated parole after persons were sentenced for their offences breached s. 11( h) of the Charter. Section 11(h) could be engaged even when there was no duplication of proceedings. Retrospective modification of the parole system after an offender was sentenced may have the effect of increasing the offender’s punishment in violation of s. 11(h). While the legislative changes were not in themselves punitive, they can acquire punitive characteristics by being applied retrospectively.
[28] The Supreme Court had recognized in Cunningham v. Canada 1993 139 (SCC), [1993] 2 S.C.R. 143, that not all expectations of liberty in the parole context were constitutionally protected. Some line drawing was necessary as even where changes to the conditions of sentence engage s. 7 of the Charter liberty interests, the changes may nonetheless be consistent with fundamental justice. The same point applies to retrospective changes to the parole system. Some will affect the liberty expectations of the offender while others will not. If the changes have a more limited impact they do not invoke Charter protection. The effect of any retrospective change will be context-specific. However, the dominant consideration will be the extent to which an offender’s settled expectation of liberty has been thwarted by retrospective legislative action. Retrospective frustration of an expectation of liberty constitutes punishment.
[29] The Court referenced a spectrum of changes. At the one end were retrospective changes to the rules governing parole that had the effect of automatically lengthening an offender’s period of incarceration that would amount to additional punishment and offend s. 11(h) of the Charter. A change that so “categorically thwarts” the expectation of liberty of a sentenced offender qualified as one of the clearest of cases of a retrospective change that constitutes double punishment in the s. 11(h) context.
[30] The applicant also relies upon the British Columbia Court of Appeal judgment in Liang v. Attorney General (Canada), 2014 BCCA 190, leave to appeal refused, [2104] S.C.C.A. No. 298, where the Court found a breach of s. 11(i) of the Charter where offenders committed their offences before the abolition of early parole eligibility even though they were sentenced after the amendments. While Whaling examined s. 11(h) the Court was required to determine whether the retrospective changes breached offenders’ right to the benefit of a lesser punishment where the punishment changed between the date of the commission of the offence and the date of sentencing.
[31] Before the amendments considered in Cunningham, an offender who received a penitentiary term was entitled to be released after serving two thirds of his or her sentence. While acknowledging that in Cunningham, the Supreme Court held that the introduction of the potential for detention during the last third of a penitentiary sentence did not violate s. 7 of the Charter, the applicant notes that the Court was not asked to consider s. 11(h) or s. 11(i) of the Charter. In addition, he notes that the Court in Cunningham found it was difficult to dispute that it was just to give the Parole Board a limited discretion for the review of parole applicants who may commit an offence causing serious harm or death if released. The amendment gave the Parole Board discretion accompanied by due process where previously the Board had no authority to extend the detention into the last third of the sentence.
[32] Mr. O’Connor argues that in this application there is no clear public safety interest addressed by altering the threshold test. In either case, regardless of how favourable the result for the appellant, there remains the “safety net of the Parole Board,” and his or her incarceration will continue for life unless the Board is satisfied that the risk is acceptable for release. Rather, than being a minor matter as the Crown may argue, the effect on the applicant and others similarly situated is that it could keep them incarcerated for up to ten years longer. The Crown has provided no evidence to show why the alternative of a prospective change to the test, would have significantly undermined the objectives of the legislation.
[33] The applicant contends that the change so categorically thwarts his expectation of liberty that it qualifies as one of the clearest of cases of a retrospective change that constitutes double punishment in the s. 11(h) context.
[34] The Crown contends there is no Charter violation, relying on the judgment of Pomerance J. in R. v. Jenkins 2014 ONSC 3223; (2014), 310 C.C.C. (3d) 248 where Her Honour found no violation of s. 11(h) of the Charter with the change to the test.
Analysis
[35] There is no dispute that the new test places a higher burden on the Applicant. Jenkins, at para. 1. The question is whether that higher burden is a change in punishment that occurred between the date of the offence and the date of this application or whether the change results in him being subject to additional punishment so as to violate either section of the Charter.
[36] I am not persuaded it is a change in punishment or that it results in the applicant’s potentially being subject to additional punishment so as to offend ss. 11(i) or (h) of the Charter for the following reasons.
[37] First, I adopt the thorough and persuasive reasons of Pomerance J. in Jenkins. Her Honour found the amendment concerned punishment because it addressed the period of parole ineligibility that must be served by an offender. The mandatory period of ineligibility and the prospects of a reduction in that period were part of the original sentence imposed for murder. However, the amendment did not increase or add to the punishment, nor did it fundamentally change the nature of the sentence imposed when the offender was convicted. Nor did it thwart the settled expectation of liberty that “crystallized when the sentence was imposed.” Her Honour found the change was procedural and did not affect substantive rights. Neither s. 11(h) nor s. 7 were violated. Jenkins, at para. 5.
[38] Her Honour examined the test in R. v. Rogers 2006 SCC 15, [2006] 1 S.C.R. 554 and the impact on that decision of the judgment in Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392. In Rogers, the Court held that:
as a general rule … the consequences will constitute a punishment when it forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence and the sanction is one imposed in furtherance of the purpose and principles of sentencing.
[39] However, in Whaling, the Court held that retrospectively imposing delayed parole eligibility on offenders who have already been sentenced constituted punishment and violated the Charter. Pomerance J. held that the additional test in Whaling meant that a breach of the Charter occurred if a retrospective change to the conditions of the sentence resulted in an increase in punishment. at para. 57.
[40] In Whaling, the Court found a dominant characteristic in the assessment was the offender’s expectation of liberty at the time the sentence was imposed. If the change retrospectively thwarted an offender’s settled expectation of liberty, it would be an increase in punishment. At one extreme is a retrospective change that automatically lengthens an offender’s period of incarceration and constitutes additional punishment contrary to s. 11(h) of the Charter. Jenkins, at para. 60, citing Whaling at para. 58 – 60.
[41] When what was changed in Whaling and here are compared, it is readily apparent that the settled expectation in Whaling was very different than the applicant’s at the time he committed the offence or when he was sentenced. Accelerated Parole Review (“APR”) permitted first offenders who had committed non-violent crimes to be released after serving one sixth of their sentence. APR was different from regular parole including that the procedure was simplified, the APR application was automatic. All eligible offenders were automatically referred to the National Parole Board without having to apply. The review was conducted on paper, there was no hearing required. Finally, there was a presumptive standard that was lower than the one applied for regular parole applications. Once the Board found there were “no reasonable grounds to believe that the offender, if released was likely to commit an offence involving violence, the Board had no discretion to decide against releasing the offender.
[42] Whaling found the abolition of APR changed the punishment for those sentenced before the change in the legislation. The effect of the retrospective application of the provision was to deprive offenders of the possibility of being considered for early day parole which was available to them at the time of sentencing. The change extended the minimum period of incarceration for persons who would have qualified for early day parole under the APR legislation. The same cannot be said for those serving life sentences without parole eligibility for over fifteen years.
[43] I agree with Pomerance J.’s analysis at para. 67-76 that the amendment is concerned with punishment. However, that does not end the matter. As Her Honour held, the applicant’s settled expectation with respect to applying to reduce his period of parole ineligibility was that after 15 years from the date of his arrest he could apply for permission to have a jury empanelled to determine if his parole ineligibility period should be reduced. That application would be reviewed by a Superior Court judge who would conduct a preliminary screening on the merits of the application. The criteria the judge would consider are the same criteria an empanelled jury would consider. Those have not changed. Those were the applicant’s settled expectations when he was sentenced.
[44] What has changed is the test the screening judge applies. I agree with Pomerance J. that the applicant’s settled expectation does not encompass the test to be applied by that judge. As screening was in place when the applicant committed the offence and when he was sentenced, he has no legitimate claim to an unfettered access to a jury.
[45] As Pomerance J. noted, this result is consistent with that of LeSage C.J.S.C. in R. v. Chaudhary (1999), 104 O.T.C. 76 where no Charter violation was found where the legislation changed from the requirement for a majority verdict to a unanimous verdict.
[46] I also note that the Quebec Court of Appeal has held that the introduction of threshold screening between the date of the offence and the time of the application did not offend the Charter. Fabrikant v. Canada (Attorney General) 2014 ACCA 240; 2014 QCCA 240, [2014] Q.J. No. 892. Fabrikant committed his offence in 1992. Before the 1997 amendment any offender was entitled to empanel a jury for the application to reduce the period of parole ineligibility. After the amendment, judicial screening was introduced. If that change did not violate the Charter, it is difficult to see how changing the test did.
[47] As the Supreme Court held in Whaling, “[g]enerally speaking, offenders have constitutionally protected expectations as to the duration, but not the conditions of their sentences.” Changes to the management of parole are not punitive despite the fact that they may engage his or her liberty interest by marginally increasing the likelihood of additional incarceration. at para. 57.
[48] As the Supreme Court noted in Cunningham, the Charter did not protect insignificant or trivial limitations on rights. The qualification must be significant enough to warrant constitutional protection. While not every conclusion from the s. 7 analysis in Cunningham applies to s. 11(h) analyses, some do. First, an offender has an expectation of liberty based on the parole system in place at the time of his or her sentencing. Thwarting that expectation may engage a constitutionally protected liberty interest. Some retrospective changes to the parole system affect the sentenced offender’s expectation of liberty to such an extent that they amount to new punishment. Others have a more limited impact and do not engage Charter protection.
[49] What was the applicant’s settled expectation of the duration of his sentence at the time of sentencing? Has that settled expectation been thwarted by the new test? When the applicant was convicted his sentence was life imprisonment without parole eligibility for twenty-five years. That was the mandatory sentence Parliament directed for those convicted of first-degree murder. Mr. Rowe’s settled expectation of liberty was informed by that starting point.
[50] While he was entitled to apply to have a jury empanelled to consider a reduction in his parole eligibility period so that he could apply to the National Parole Board to be released earlier, it cannot be said that he had a settled expectation of liberty at an earlier date. He first had to persuade the screening judge, then the jury and finally the Parole Board that he should be released. That cannot be a settled expectation of liberty at an earlier date. The amendment did not have the effect of automatically lengthening his period of incarceration. Indeed, the period of ineligibility is not delayed by the amendment. Rather, the test at the first of three steps has been changed.
[51] I am not persuaded that the retrospective change to the conditions of the sentence substantially increases the risk of additional incarceration. The sentence is life imprisonment. That has not changed. He is eligible to apply for a reduction below twenty-five years of ineligibility after serving fifteen years from the date of his arrest. That has not changed. I am not persuaded the changed test results in a substantial increase in the risk of additional incarceration. The applicant had no settled expectation of release after fifteen years regardless of what test applied. He continues to have a case-specific opportunity to apply for a reduction in the period of ineligibility despite the changed test.
[52] As regards the applicant’s reliance on the British Columbia Court of Appeal judgment in Liang, initially that judgment was not universally adopted in the Superior Court of Justice in Ontario and elsewhere in Canada. See: Frost v. Canada (Attorney General) 2014 ONSC 5666 and Parent v. Attorney General et al. disagreeing with the judgment while Harris v. Canada (Attorney General), 2015 ONSC 1079 adopted the reasons.
[53] However, the debate in Ontario was resolved by the Court of Appeal judgment in R. v. R.S. 2015 ONCA 291 in which the Court agreed with the decision. In R.S., the Court examined whether an offender who committed offences before the enactment of the Truth in Sentencing Act, S.C. 2009, c. 29, but was charged after its enactment was precluded from receiving the pre-enactment standard two for one credit for days spent in pre-trial custody as opposed to the post amendment maximum of one point five days credit.
[54] Benotto J.A., relied upon the comment in Whaling that the “the greater likelihood of additional incarceration,” the more likely a retrospective change would constitute punishment. The objectively ascertainable effect of extended incarceration constituted the relevant punishment. Relying on Liang, Benotto J.A. found that where the effect of the changes to the parole system “appreciably increases the amount of time an offender would be incarcerated, in comparison to what he or she would have been expected to serve under the prior regime, it will constitute punishment. What mattered was whether the changes “substantially increase the risk of additional punishment,” thereby frustrating an objective expectation of liberty, not whether the subjective expectation of the offender have been dashed. at para. 31. Precluding R.S. from two for one credit resulted in a 15 month increase in his sentence.
[55] Here, there is no greater likelihood of additional incarceration given the offender’s sentence is one of life in prison. That was the sentence when he committed the offence and remains the sentence now. I am unable to see how the change results in a substantial risk of additional punishment.
[56] I am not persuaded the change in the test violated the Applicant’s Charter rights.
The Areas to be Considered
The Test
[57] The onus is on the Applicant to establish that there probably is a substantial likelihood that a jury would unanimously agree to reduce his period of parole ineligibility. Given that the new test has been described as “an awkward formulation” that combines two different concepts of probabilities (Jenkins at para. 27), various courts have attempted to address its meaning. There is no doubt the test is higher than probable success. The issue is, how much higher?
[58] In Jenkins, Pomerance J. described it as requiring the Applicant to “prove, on a balance of probabilities, that there is a concrete or tangible likelihood of success.” at para. 27.
[59] In R. v. Poitras, 2012 ONSC 5147, Rutherford J. found an applicant must now show that it is more probable than not that he or she has a substantial likelihood of success. Applicants must show it is more probable than not that the application has a probability or promise of succeeding.
[60] Nordheimer J. held that Parliament intended to ensure that only cases with real merit would succeed, intending to restrict the process not just to the possible case but to the truly meritorious case. R. v. Gayle [2013] O.J. No. 4142 at para. 10.
[61] Finally, in R. v. Morrison, 2012 ABQB 619, at para. 42, S. Martin J. found that a substantial likelihood meant a real probability or prospect that all members of the jury would reduce the parole ineligibility period. The screening judge was now called upon to determine not just the possibility that a jury may decide in a certain way, but what the jury’s determination is likely to be.
[62] I find that the Applicant must show on a balance of probabilities that the application has real merit and a substantial probability or substantial likelihood that a jury will unanimously agree to reduce the period of parole ineligibility. R. v. Abbott, 2013 ONSC 1213; R. v. Anton Perera, 2014 ONSC 1004.
[63] I turn next to the areas Parliament has directed screening judges to examine in the order in which they are listed in the Criminal Code.
The Character of the Applicant
[64] The applicant is 37 years of age. He was a 20 year old first-offender when he committed the murder. He was born in Jamaica where he was raised by his grandparents for ten years before coming to Canada to live with his father. He went to England in 1991 to live with his mother and then returned to Canada in 1996 and lived with his aunt. He is not a Canadian citizen and is subject to a removal order.
[65] The applicant completed high school in Canada even though he had completed secondary school in England. In England, he also attended Southwark College, obtaining his Business and Technology Education Council first Diploma in science in 1995.
[66] The applicant loves basketball and filed a letter from his time in England showing his interest and proficiency as well as documentation that he took a course that would permit him to coach basketball.
[67] His parents currently live in Maryland and he maintains contact with them and other family members. He is close with an aunt who lives in Sherbrook, Quebec. It was that relationship that prompted his application to be transferred to Quebec to serve his sentence.
[68] Before his arrest, Mr. Rowe worked for 18 months for Steve Blake doing hardwood flooring but had been off work for two months when he committed the murder. While he had no record, he admitted being involved in two other robberies with the same accomplices, including his cousin Dwayne Lawes. While the group, nicknamed by the police as the Van Bandits, is alleged to have committed 11 robberies, it is apparent that the applicant joined the group after their crime spree had started. The applicant notes that he noticed the others were living an “an affluent lifestyle,” asked about it and was told they were doing robberies. Attracted by the easy money and the allure of wealth, the applicant joined them.
[69] The applicant is reported to have a strong spiritual side as he reads religious texts and frequently participates in Bible studies. The Chaplain speaks positively of Mr. Rowe, noting he is responsible and engaged in his Chapel activities. They have developed a good rapport.
[70] As a result of actuarial risk assessments tools, it was determined that Mr. Rowe does not meet the criteria for psychopathy. He has high levels of personality traits but low levels of “historical correlates associated with the psychopathic personality.” He is in the low range for both general and violent recidivism. While the findings do not reflect the seriousness of the offence he committed, they are reflective of his earlier history of community stability. His risk would be further decreased if he continues with his efforts to address his criminogenic factors and continues to be compliant in the coming months.
[71] The PESR summarized the applicant’s mental health status as follows:
We also note a personality disorder not otherwise specified, characterized by anti-social and narcissistic traits. Several antisocial personality traits were identified in the subject, but there does not seem to have been any signs of a behavioural disorder before the age of 15, a required criterion to diagnose a personality disorder. Certain narcissistic personality traits were also identified (for example, significant need to be admired, using others to achieve his ends, arrogant attitude and behaviour), but based on information at our disposal we cannot conclude that the diagnostic threshold has been reached.
[72] The offender’s attitude towards his or her offence is an important factor as well as what steps they have taken to address the causes of their criminal conduct. When first incarcerated in the penitentiary, the Applicant denied committing the offence, stating that he was not at the bank. He refused to participate in programming because he had an appeal pending. His trial counsel wrote to Corrections advising that it was on his advice that Mr. Rowe was not participating. When told that he could participate in programs without discussing his offence, the Applicant continued to refuse to participate. While his final leave to appeal application was dismissed by the Supreme Court of Canada on March 21, 2006, it was not until several years later that the applicant became involved in any counseling.
[73] With respect to remorse, in the 2014 psychological risk assessment, the applicant was asked who was to blame for the offence. He said that it was the people he associated with. In his affidavit in support of this application, the applicant has expressed his remorse that he caused the death of Nancy Kidd. He told Corrections personnel that he understands the loss to the Kidd family and feels sorry for what he has done. However, his remorse is based upon him accidentally shooting Ms. Kidd, not deliberately firing the gun. By the jury’s verdict they were unanimously convinced beyond a reasonable doubt that Mr. Rowe deliberately shot Ms. Kidd. The forensic evidence supported that Ms. Kidd was lying down when she was shot, not standing or being dragged as the applicant contends.
[74] In addition, the PESR notes the author feels that while the applicant verbalizes remorse, she questions whether it is really present. His Correctional Plan notes that he displays chronic anti-sociality and that he has not been free from crime while under sentence.
[75] In his affidavit, the applicant says that he takes full responsibility for causing the death of Nancy Kidd and that he fired the shot that killed her in the course of robbing the Toronto Dominion bank. I do not regard those comments as admitting that he deliberately fired the shot given his earlier comments to Correctional Service of Canada personnel that the discharge was accidental. Any uncertainty on this issue was removed in the applicant’s factum that makes it clear he has “consistently asserted that he did not fire the gun intentionally.”
[76] He also says that he is remorseful for his crime and empathetic to the Kidd family. He wishes he could bring her back.
[77] In these circumstances, I agree with the PESR that the applicant “somewhat accepts responsibility for the offence.” That report notes he needs work before he accepts full responsibility. However, that an applicant takes no responsibility at all for his or her crime does not in itself preclude granting leave to empanel a jury. It is but one factor.
[78] A June 20, 2014 institutional psychological assessment noted:
His family environment seems to have fostered lax moral principles and an egocentric personality with a low tolerance when it comes to satisfying his needs, while his criminal peers seem to have supported his criminal behaviour. The subject may have found that his parents were not compensated fairly or enough for the efforts they put into their work, but he found additional psychological support from his group to adopt anti-social behaviour. By minimizing the responsibility associated with their actions, the group was able to keep any potential feeling of guilt at bay.
[79] The report notes the applicant is a low-moderate risk of violent recidivism, that his capacity for insight is still being developed and that he has only recently shown motivation to undertake a process of change.
[80] I also have a series of letters in support of the application being granted.
[81] Marilyn Eisenstat, a retired secondary school teacher who taught the applicant in his final year of high school, attended his trial, met his family and has continued contact through roughly half hour phone calls with the applicant for the past fifteen years, wrote that she has always found him to be pleasant, respectful, and responsive in their conversations. While in custody he has matured in his outlook on life. She describes his approach as a combination of good deep faith, ability to suffer hardship and frustration with equanimity, and hope. He is hopeful about his future and supported by an exceptionally fine and close family unit.
[82] The applicant’s parents wrote of their raising him to be honest, respectful, caring and law-abiding. He was a model student, had no problems in school and was well-liked by students and teachers. Since being incarcerated, he has grown and matured into a responsible man. He has become very thoughtful and remorseful with a positive outlook on life, affirmative of a change in his maturity level. They are willing and able to continue to give him care and guidance to assist with his transition and return to society. That support includes moral and spiritual guidance, financial, a home to live in, and a job on his uncle’s farm in Jamaica.
[83] Hosea Rowe, the applicant’s father filed an affidavit in which he swore that all of their family are law-abiding and that is how he raised the applicant. While accepting that he does not blame anyone but the applicant for his actions, he notes the influence of Dwaye Lawes, the applicant’s cousin and former co-accused. He wrote that influenced by peers, the applicant, “in one tragic episode in his otherwise good life, got into robberies, took possession of a gun and became responsible for the death of Nancy Kidd.” Despite the terrible crime, the applicant has remained the same friendly popular and well behaved person he has been throughout his life.” When he visits the applicant he is very remorseful, feels sorrow and empathy for Ms. Kidd and her family and expresses great shame and regret for the pain he has caused to his own family. He notes that the applicant continues to have a strong supportive network of law-abiding people to assist and monitor him in Jamaica.
[84] The applicant’s aunt, Annette Turner, who lives in England wrote that he is a young man of integrity. He is honest, dedicated and respected by those who know him. She knows he has developed his Christian faith and as a dedicated and established member of her church, she will be able to give him moral and religious support to further develop the positive change in his attitude and behaviour. She says that one unfortunate day sent him to prison. He is very remorseful and deeply regrets his action.
[85] Claudio Seivwright, an aunt living in Jamaica, wrote that the applicant is a loving, caring and sociable person. She regards the offence as out of character for the applicant. She feels he has matured while in jail and become focused on developing himself morally. She along with other family members will assist the applicant when he is released.
[86] The applicant’s older brother, Shane Rowe, who lives in England, wrote that while the applicant is not eligible for programs under the criteria of the Correctional Services of Canada, he “has acknowledged the importance of such programs to overall rehabilitation and has tried on numerous occasions to be included on programs”. Shane Rowe is prepared to support, advise and provide guidance to the applicant in whatever way possible to help with his successful reintegration into society and to build a productive and rewarding future.
[87] Shane Rowe’s wife, Erica McQueen-Rowe, wrote that the Applicant is known to her to be a kind, caring and thoughtful person with much to give and much potential. She is confident that upon release he will be a law-abiding citizen and comply with any and all conditions of his release.
[88] The applicant’s grand-uncle, Malcolm Johnson, who lives in Jamaica, acknowledges that the applicant is now a man and that he cannot guarantee Marlon Rowe will listen to him. However, he is willing to offer him advice and to help him through life should he be released. Family members have reported to Mr. Johnson that the applicant has “amended” his ways and is ready for a different lifestyle and a different circle of friends.
[89] Esther Bell, a relative from Jamaica, is willing to give the applicant her moral support and guidance if he is released. She played an integral part in his upbringing in Jamaica.
[90] The applicant’s grandmother, Dowygat Bell, wrote that she knew the Applicant to be a considerate, caring and very affectionate child before he left Jamaica.
[91] Reverend N.B. Currie of the Church of Our Lord Jesus Christ in Jamaica has known the applicant since he was a child and pledged to offer him spiritual counselling and guidance when paroled.
[92] Gerald Frankson, a cousin of one of the applicant’s parents, has known the applicant since he was a child in Jamaica. He has noted the applicant’s “constant reformed behaviour” while incarcerated and is willing to help the applicant financially and in any other way he can if he is released from custody.
[93] Tatarah Griffiths has known the applicant for over 15 years, having first met when they were in secondary school. She has always found him to be dependable, reliable, hard-working, conscientious, honest, peace-loving and courteous.
[94] Sandra Murray, a friend of the applicant’s mother, wrote that he is very repentant about his actions. Trusting people led to his downfall but he has learned his lesson, is now more mature and realizes that he has to take responsibility for his actions.
[95] Kwasi Gyimah, a close friend of the Rowe family, has known the applicant since he was 13. He regards the applicant as his younger brother. He senses the applicant is a humble man, regretting his actions. As time has gone by, he has become a man with a positive frame of mind, looking forward and putting God first. The applicant is prepared and ready to join society, willing and “very much disciplined in mind, body and soul.”
[96] Johny Brown, an uncle who lives in Jamaica, wrote that he is willing to receive the applicant when he arrives in Jamaica and supply him with “all the needs, shelter, food, monies to spend plus good guidance, counselling and a job on [his] farm.”
[97] Lenford Rowe, the applicant’s uncle who lives in England, wrote that he has been pleased with the applicant’s responsible and positive attitude in life; his determination to make his mark in society and to be an upstanding and law-abiding citizen. His outlook has changed and he continues to turn his life around.
[98] Isoline McDonald wrote that the applicant’s relatives in Jamaica are “highly ambitious persons who [are] all law-abiding and thrive to be successful in their different careers and vocations.” The applicant has cousins who are junior or senior personnel in the Jamaica Constabulary.
[99] There is also a letter from Scott Guthrie who ran a basketball program, Toronto Youth for Christ, in 1997 and met the applicant when he attended the program. He hopes that when released, Marlon Rowe will become a man of great love and of great service.
[100] The applicant’s cousin, Nichola Wilson of Florida, wrote that she has always known him be mild-mannered, kind-hearted and well loved by all. He has grown and developed to be an outstanding and always positive individual who offers advice and a word of encouragement, despite his situation. She is willing to offer moral and financial support when he is released.
[101] The applicant’s cousin, Denise Nicholson, wrote that for the past fifteen years he has become more spiritual with knowing the word. He has matured over the years getting to know himself and his family better.
The Applicant’s Conduct while serving the sentence
[102] The Applicant commenced his federal sentence at Millhaven for assessment and was placed at Millhaven Maximum Security based largely on his terrible institutional record while at Maplehurst Correctional Centre before his trial. He had incurred seven segregation placements while awaiting his trial. At Maplehurst he “demonstrated frequent and major difficulties causing serious institutional adjustment problems and requiring significant or constant management intervention.”
[103] His first period at Millhaven, between January 5, 2001 and October 18, 2002 when he went to Joyceville Medium security, involved no programming as he was refusing to participate, citing his pending appeal. As a result of an allegation of a shank being found in his cell, he was involuntarily transferred back to Millhaven from September, 2004 to January, 2005. He was then returned to Joyceville for seven years. He engaged in institutional upgrading at Joyceville and completed a vocational training program in Food Safety.
[104] The PESR indicates that there were serious institutional adjustment problems in February of 2006. The applicant was placed in administrative segregation as his behavior was believed to be linked to the assault of a guard and a fellow inmate. He was suspected of muscling and intimidation. Just under a month later, he was counselled and cautioned regarding his behavior and released from segregation.
[105] In January, 2012, he was again placed in administrative segregation based on his possible participation in an assault on another inmate. A report at that time noted that over the past year the applicant had been disrespectful towards officers, refusing to even acknowledge their direct orders, let alone follow them. He claimed he was being discriminated against because he is black. He had attempted to incite other inmates. He stole from the kitchen and was caught attempting to take an exacto knife from the hobby area. He had repeatedly demonstrated his inability to follow simple rules.
[106] In May, 2012 he was involuntarily transferred back to Millhaven. In August, 2012, he applied to be transferred to Quebec and in December, 2012 was transferred to Donnacona Maximum Security Institution. While there until June, 2013, he did not participate in any correctional programs or other personnel development endeavors. He did benefit from an employment related program, Preparation for the Labour Market Program, which he completed in two months.
[107] In June, 2013, the applicant was transferred to the medium security Cowansville Penitentiary. On August, 1, 2014, the applicant requested psychological counseling and said that he was now prepared to discuss the facts of his case. He has been learning French, working as a cleaner, has started criminological counseling and is regarded by the staff as polite and cooperative. He works as a trained tutor with the Yamaska Literacy Program and helps other inmates learn English.
[108] The PESR notes under Offender’s Progress that the applicant requires a high level of intervention with both static and dynamic factors including his attitude, personal/emotional orientation and associates/social interactions. While no programming has been completed to date, he does not meet the criteria for any Correctional Services of Canada programs. In that situation, the PESR notes that he would benefit from criminological and psychological counselling. However, the Applicant had never requested it until recently. That raised doubts about his motivation for change. When that issue was raised, the applicant said he was unaware of the programs. The author was skeptical because in 2008 a psychological assessment was conducted. At that time, Mr. Rowe refused to discuss his offence because of his pending appeal. His last appeal, an application for leave to appeal to the Supreme Court of Canada, had been dismissed in March of 2006.
[109] The applicant’s accountability and motivation are both listed as medium. His behaviour has improved and there are currently no concerns from the Security Intelligence Office. He has only two serious charges noted since March, 2010.
[110] The applicant’s reintegration potential level is noted as low although the Psychological Risk Assessment concluded he poses a low risk of both general and violent recidivism and his risk of recidivism rate (SIR) of +9 suggests that four out of five offenders will not commit an indictable offence after release. However, there was no documented evidence of progress or reduced risk within the dynamic factors domain identified at intake.
[111] The report notes the applicant has a considerable attitude problem. His disciplinary record included intimidation of other inmates, inappropriate behaviour towards staff, and involvement in mass protests. However, he had shown that he was capable of behaving in maximum and medium security settings.
[112] The penultimate paragraph of the PESR notes:
Finally, Mr. Rowe tells us that he wishes to partake in correctional programs, particularly violence prevention programs, believing that he does in fact meet the criteria for such interventions and that they could be beneficial to him. He would also like to participate in Psychological therapy and continue his counselling with his Case Management Team (“CMT”). He is however unable to clearly explain why he feels these particular needs at this stage other than stipulating that they would be beneficial in expanding his perceptions. He notes that he did not request, specifically psychological services and counseling with his CMT, since 2006, (time that his appeal was dismissed) as he was unaware of these options. Although he has yet to complete any interventions in order attend to his risk factors, he stipulates that he has progressed throughout his incarceration and feels emotionally stable at this time as well as confident in his ability to remain stable in the future. He stated that he gained a great deal of maturity and as such is prepared for release and has therefore requested a Judicial Review of his case.
[113] A 2011 Assessment from Joyceville concluded the applicant was a “high profile offender,” the case received extensive media attention, his institutional adjustment level was moderate and had increased, his escape risk was moderate and a public safety rating as high. The final rating appears to be based primarily on the nature of the offence for which the applicant was sentenced.
[114] The 2014 assessment noted as follows:
Subjects reintegration into the community will likely include a very gradual release plan consisting of ETA’s (escorted temporary absence), UTA’s (unescorted temporary absence) and eventually Day Parole when eligible pending his deportation status. He is encouraged to contact half-way houses and community facilities and develop on-going contact for the purposes of re-integration.
[115] As summarized in the affidavit of Detective Todd Leach in the respondent’s material, institutional records show the applicant involved in 61 incidents while serving his sentence: two minor disturbances at Donnacona, twenty-four at Millhaven, and thirty-five at Joyceville.
[116] The applicant’s affidavit notes that he has been willing to take any and all programs recommended by Correctional Service Canada (“CSC”) and has requested programming. However, he does not meet the national guidelines for CSC programs because he is assessed as a low risk offender. He has completed a number of medical Escorted Temporary Absences with good behaviour. He is not eligible for any other form of release.
[117] In 2005, Mr. Rowe worked as a cleaner in the gym and received an excellent rating. From 2007 to 2011, he was involved in educational efforts and tutoring, receiving positive assessments. He has also worked as an institutional photographer in 2009 with an excellent assessment including that he was a very respectful man who was doing a great job and got along with staff. He worked in the hobby craft in 2010 and 2011, being noted as a good worker, always on time and doing more than he was asked. The applicant has also studied Zen meditation and yoga for eight weeks in 2007, again in 2008 and three times in 2010. Since his transfer to Quebec, he has continued his education.
[118] With respect to his disciplinary issues, the applicant admits to having difficulties with certain individuals and occasionally smoking pot although he has abstained for years. The reports filed show that in March, 2010, his urinalysis was positive for THC and he was found with a small amount of THC in the same month.
[119] He swears that he has never assaulted anyone but has had two fights in over 15 years: one in Millhaven in early 2004, an unprovoked attack upon him that resulted in his being hospitalized and another in 2007 in Joyceville where he agreed to fight an inmate who had challenged him to a fight in the yard. When he went to the fight location, he was attacked with a knife and injured by the brother of the person who challenged him.
[120] The applicant states that he was falsely accused of misconduct on a number of occasions and placed in segregation. He denied all the allegations and submitted a grievance. He swears that he engaged in non-violent protests over conditions of confinement with the general inmate population because to not participate would have put his life in danger. While accused of possession of contraband “from time to time,” he had never knowingly had any weapon in his cell. He has never been found with and has never had any weapon on his person.
[121] The applicant notes that he has been active as a range representative in inmate committee activity. As such, he has spoken up from time to time against officers who, in his opinion, abused their authority. As a result he has been labelled as defiant of authority. However, the applicant notes he has been a peace-maker and encouraged others to be peaceful.
[122] When released, the applicant states that he will be law-abiding. His grandmother and other relatives in Jamaica are willing and eager to assist him in reintegrating. He is ready and able to move there when released. He intends to spend the rest of his life in a peaceful, honest and law-abiding fashion.
[123] The applicant has been a student at Cegep Marie-Vicotin College since September, 2013 and has passed all of his courses as reflected in his marks appended to the letter from the college.
The Nature of the Offence for which the Applicant was convicted
[124] The trial evidence showed that four robbers entered the bank; all were armed and wearing black wool balaclava masks. They yelled to “get down on the floor.” One robber jumped the counter, two stayed by the door. When a customer entered during the robbery, she was told to lie down on the floor and one of the robbers at the door took $1600 cash from her purse.
[125] The staff were crying. A robber near the vault called out for the manager. As the manager was not in on that day, Connie Lowry decided to identify herself as the manger. When she told the robber that there was a timer on all the safe combinations, he struck her in the jaw with the butt-end of the shotgun. He pulled her by her ponytail to the vault. She told the robber the combinations were in her office. He ran and dragged her to her office. After she got the combinations, he dragged her back to the vault. She tripped while going back and he then dragged her on her knees while striking her head and neck with the shotgun. When she went by Nancy Kidd’s desk, she saw her lying face down on the floor.
[126] As she was spinning the combination, she saw another robber standing next to Nancy Kidd’s desk. He yelled into the vault, “They don’t think we mean business. You’d better hurry up or your friend out here is going to get it.” Fifteen to twenty seconds later, Ms. Lowry heard a shotgun sound. The robber who was near Nancy Kidd’s desk yelled into the vault, “Tell them I’ve just shot their friend out here.” The robber inside the vault repeated that they had just shot their friend and “You are next if you don’t hurry up.” While a second employee, Joanne Wylie, was spinning the combination the robber in the vault said that he was going to kill all of them if she did not hurry up. She pleaded with the robber not to kill her.
[127] When a drawer opened but contained no money, the robber in the vault beat and kicked the employees who were on their knees in the vault. Another employee then gave her teller float of $15,000 to $20,000 to the robber inside the vault. He then ran out of the vault. When Ms. Lowry left the vault, she saw Nancy Kidd lying face down behind her desk with lots of blood around her neck. The robbery lasted roughly five and one half minutes. The shot was fired about half way through that time period.
[128] In his charge to the jury, the Honourable R.G. Thomas outlined the cause of death evidence including that Nancy Kidd died from exsanguination (loss of blood) secondary to a gunshot wound lacerating her left carotid artery. Following the shot, she would have survived for no more than three to five minutes. The entrance wound was in the upper left back, sixteen centimetres from the base of the neck, less than one inch from the midline.
[129] After the verdict Mr. Justice R.G. Thomas, one of the most experienced trial judges in this region, described the offence as follows:
It is almost two years since Nancy Kidd was killed in this brutal bank robbery where courageous women were brutalized, pistol-whipped and terrorized. Some of them have never recovered. Nancy Kidd met her death in a senseless, brutal homicide.
[130] Before and after the offence, the applicant spoke with Ryall Carty, a self-professed con-man or charlatan who offered services he could not deliver. Persons involved in criminal activity would ask for his protection, he would offer that service and receive money for his efforts. The applicant and Dwayne Lawes met him the day before the robbery and sought his protection as they were going to rob a bank in Brampton the next day. The day after the robbery, the applicant sought Carty’s help to get out of the country. In the course of a tape recorded conversation with Carty, the applicant said the gun had accidentally discharged and that he did not know the safety was off of the gun when Ms. Kidd was shot. He said he had a woman on the floor and “I cocked it and the bullet flew out. I didn’t even know that the safety was off at that time. Then boom the bullet in her in the chest. I got freighted then boom. It was the woman that got killed.”
[131] The applicant said he brought her to come open the safe. As he was pulling her, the gun went off. He did not know why the shot went off and thought it had gone into the air. Even after the shot they remained in the bank because “it’s the money we went in there for.” The applicant told Carty that Ms. Kidd had the safe key. He had her in his hand and boom, she just dropped. He was shocked when he realized he had shot her because he thought the shot went into the ceiling.
[132] After the robbery the applicant went to the home of Jacqueline Thompson where she overheard him telling one of the other robbers, “The fucking lady didn’t want to open the safe.” When she made inquiries, the applicant admitted that he had shot Ms. Kidd accidentally and that he hoped she did not die.
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
[133] The PESR outlines some of the comments in the Victim Impact Statements (“VIS”) filed by Nancy Kidd’s husband, four bank employees and a bank customer. Since Justice Thomas imposed the mandatory sentence immediately upon the jury returning its verdict, there were no VIS filed on sentencing. However, the file contains statements from Nancy Kidd’s husband, who wrote of his and their two children’s anguish at the loss of their wife and mother. He wrote of Nancy Kidd’s nature and the type of individual she was. He also wrote of the unfairness of the sentence imposed on the applicant, one that would allow for his release after 25 years, at the same age as his wife when she was murdered.
[134] The other statements showed the difficulties other bank employees encountered such as one who suffered from Post-Traumatic Stress Disorder, others wrote of long-term fear, depression, stress, anger, hostility, guilt, inability to feel safe, problems maintaining employment, flashbacks, difficulty trusting others, being startled easily and numerous physical apparitions inherent to all of these problems.
Any other matters that the judge considers relevant in the circumstances.
[135] The applicant is not a Canadian citizen. He is subject to a removal order from Canada when released. The initial order was made on October 24, 2002 and it was renewed by the Canada Border Service Agency on May 27, 2013.
[136] The applicant states in his affidavit that he will go to live in Jamaica when paroled. He says that he wishes to avail himself of resources and community contacts relevant to his family roots there. Since he has been incarcerated, he has been in touch with a “broad network of friends and relatives, all of whom are willing to assist and monitor [him] on a volunteer basis when he is reintegrated into the community.
[137] What is the relevance of the applicant’s immigration status? In R. v. Gayle [2013] O.J. No. 4124, Nordheimer J. held that an applicant’s pending removal from Canada was irrelevant to the threshold determination. His Honour concluded there was nothing in the factors set out in s. 745.63 that logically or rationally suggested that deportation should be a factor that would lead to a reduction in the period of ineligibility. at para. 38.
[138] In that case, it was the applicant who advanced the removal order as a factor in support of granting the application. In effect, the argument was that once the applicant was removed from Canada that he would no longer be Canada’s problem. It was very much an “ends justify the means” form of argument.
[139] Nordheimer J. referred to R. v Pham 2013 SCC 15, [2013] 1 S.C.R. 739 where the Supreme Court held that immigration consequences were a relevant consideration in fixing a sentence although as a general rule the sentence must be fit having regard to the crime and the offender. Collateral immigration consequences can be considered “provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[140] Nordheimer J. held that the reasoning that leads to a consideration of immigration issues on sentence did not transfer well into the context of an application to reduce parole ineligibility. Parliament had provided a “narrow window of opportunity to reduce the twenty-five years parole ineligibility in special cases where an applicant could demonstrate that he or she was a very different person from the one who committed the offence. There was nothing in s. 745.63 that logically or rationally suggests that deportation should be a factor that would lead to a reduction in parole ineligibility.
[141] While I agree with Nordheimer J.’s analysis of that applicant’s argument, I find that the immigrations status has some relevance in another way as “any other matters the judge considers relevant” for the following reasons.
[142] First, in other applications an applicant’s plans for when he or she is released from jail play can play an important role in the decision. What community resources and members of the community are going to assist the applicant in his or her re-integration into society? Here, the applicant has a number of relatives and friends who are prepared to assist him in Jamaica. That is to his credit.
[143] Second, when a life sentence is imposed the offender is subject to the supervision of the National Parole Board for the rest of his or her life. That expectation includes that if the offender breaches any of the terms of his or her parole that they can be re-incarcerated at any time. There is nothing to indicate that that safety net would be in place here as the applicant will be removed from Canada and sent to Jamaica. While he will have community support there, despite being subject to a life sentence with the attendant ability of the Parole Board to require monitoring subject to the ever-present risk of being re-incarcerated at any time for non-compliance, there are no such restrictions in Jamaica.
[144] Here, the applicant argued that even if a jury were to reduce the period of ineligibility, there remained the “safety net” of the Parole Board who would determine whether the applicant should ever be released. In these circumstances, it is appropriate to take into consideration as one factor only that there is nothing to suggest that the life-long safety net of the Parole Board would be available when the applicant was living in Jamaica.
[145] This is not to suggest that offenders who are subject to deportation order “need not apply” for reductions in their parole ineligibility. It is but one factor, particularly when the applicant relies on the safety net of the Parole Board in support of his application to reduce the period of ineligibility.
[146] The safety of the community is an important consideration in assessing parole. What supervision there would be to ensure a parolee abides by his or her conditions of release is a relevant factor to consider. Those same concerns apply to the residents of other countries where the applicant would live. It would be inappropriate to simply say, what he does when released is irrelevant because he will be Jamaica’s problem and not Canada’s.
The Positions of Counsel
[147] The applicant submits that the offence was out of character for him. Before the offence and two robberies within weeks of the death of Nancy Kidd, he had lived a crime-free and productive law-abiding life. He has a broad support network in Jamaica. He is not mentally ill or afflicted with any addictive problems. The offence stands out as a “unique episode in an otherwise generally pro-social life.” He has been assessed as a low risk to re-offend. Accordingly, the inability to order supervision in Canada should he be granted full parole will not mean undue risk. Further, the question of ultimate release remains with the Parole Board of Canada.
[148] While every first-degree murder is a very serious crime, the applicant’s character is very positive compared to most criminal offenders, his conduct while serving his sentence has been “very good in all the circumstances,” and despite the terrible crime, regardless of the wording of the threshold test, the prospects are good that a jury will reduce the period of parole ineligibility.
[149] The Crown submits that the applicant has failed to meet his onus.
Analysis
[150] I am not persuaded the applicant has met his onus for the following reasons. First, while there has been some improvement in his conduct and efforts towards his rehabilitation in the recent past, put simply, he has not come far enough that a jury would unanimously reduce his period of ineligibility. The offender initially refused to even acknowledge he was in the bank when he arrived at Millhaven. His refusal to talk of his offence, participate in counselling or to get any assistance because of his pending appeals, may have been valid until 2006 when his leave to appeal to the Supreme Court of Canada was refused. From that date to 2012, there is no explanation for why he would not participate in counseling other than his dubious claim to be unaware of the availability of counseling despite having undergone a psychological assessment. Counseling has now been started but there has been relatively little time to assess what impact these steps have had. At this time, his recent efforts could be precipitated more by this application than a genuine effort to change.
[151] Second, while the applicant has expressed some remorse, it is qualified. His post-offence statements that “she would not open the vault” and “she had the keys” are not in accord with the trial evidence. Ms. Kidd did not have the key and could not open the vault. The applicant’s comments shortly before the shooting, in which he threatened to shoot Ms. Kidd, were prophetic and belie his assertion that it was an accident as do his comments after the shooting. This would be a formidable obstacle before any jury that was empanelled.
[152] Third, the offence for which he was sentenced was a brutal and horrific crime that shocked the community. The violence was gratuitous and serious. The robbers terrorized those in the bank. Even the shooting of an innocent employee did not deter them from their goal of getting more money. The impact on the Kidd family, the other bank employees and the community cannot be underestimated.
[153] I agree with the comments of Nordheimer J. in R. v. Gayle [2013] O.J. No. 4124 at para. 29 and 30 and R. v. Paul 2014 ONSC 1285, [2014] O.J. No. 896 at para. 21 and 22, that it is always difficult to be seen as ranking the severity of the circumstances of a murder. It is hard to put the loss of life on a scale and to suggest that somehow one life lost is somehow more troubling, more shocking or more horrible than another. However, Parliament has directed that the nature of the offence for which the applicant was convicted is a relevant consideration, thereby necessitating some comparison between cases.
[154] The offence here is well along the scale towards the most severe end. Many aspects of the offence are disturbing. Ms. Kidd was shot in the back as she lay on the floor unlawfully confined by a group of armed robbers. Her husband and daughters lost their loving and caring wife and mother. The applicant announced that he might shoot Ms. Kidd. Even after shooting her, he continued on, apparently totally unfazed by the fact that he had shot a woman in the back. The applicant was there to get money, and a shooting was not going to deter him.
[155] Fourth, the applicant in over fifteen years in jail has been back and forth between maximum and medium security institutions, never being assigned to a minimum security jail. While not a prerequisite to empanelling a jury, his failure to move to a lower classification in 16 years, is telling.
[156] His conduct in jail has improved but looking at the entire time in federal jails, he cannot be described as a model prisoner, one who has been compliant and made strides towards his rehabilitation and reintegration in to society. The reports noted the problems that he has caused within the institutions.
[157] Fifth, that the Applicant will be removed from Canada and the supervision of the Parole Board is a factor to consider.
[158] Sixth, no doubt the offender is a low-risk to re-offend and as such not eligible for programming through the Correctional Service of Canada. These are positive considerations but factors that have to be viewed in the context of the offence. The robbery was not an isolated incident in his life as he had committed two other robberies as well as his conduct at Maplehurst and in the federal institutions.
[159] Seventh, while the applicant has shown some remorse, it is neither absolute nor unequivocal. He has shown qualified remorse for an accidental shooting.
[160] I am not satisfied that 12 jurors would have any comfort level that would permit them to conclude that the applicant should be given the opportunity to apply for early parole. There might be a prospect or some chance of success but I am not persuaded that probably there is a substantial likelihood a jury would unanimously recommend a reduced period of ineligibility. While there appears to be some change, an even greater degree of change would have to be shown to justify empanelling a jury. It cannot be said that the applicant has become a very different person on this record.
[161] I would add that even applying the former test, I am not persuaded that the applicant has shown on a balance of probabilities that he would probably succeed on the application. He has made some progress but it is relatively recent and not such that he would probably succeed. That progress has to be viewed in the context of the offence and all of his conduct in jail.
[162] The final issue for determination is whether the applicant should be able to make a further application. Pursuant to s. 745.61(3)(a) I can set a date not sooner than five years from the date of this determination for the applicant to make a further application or direct that no further application could be brought.
[163] I find that the steps the applicant has recently taken are such that he should be permitted to make a further application in five years from this date, May 20, 2020.
Conclusion
[164] The application is dismissed.
DURNO J.
Released: May 20, 2015
CITATION: R. v. Rowe, 2015 ONSC 2576
COURT FILE NO.: CRIMJ(P)3022/99
DATE: 20150520
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
TYLER SHUSTER, for the Respondent/Crown
– and –
MARLON ROWE
FERGUS O’CONNOR,
for the Applicant
REASONS FOR JUDGMENT
Durno J.
Released: May 20, 2015