ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
COURT FILE NO.: M335/13
DATE: 2015-08-21
B E T W E E N:
HER MAJESTY THE QUEEN
D. Fisher & J. Strasberg, for the respondent
Respondent
- and -
ERROL ANTHONY BROWN
M. Mandelcorn, for the applicant
Applicant
HEARD: written submissions
Nordheimer J:
[1] This is an application by Errol Brown 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 Barrington Robinson that occurred on February 6, 1998. The evidence at trial revealed that the applicant and two other males were lying in wait for the victim when he and his wife returned to their apartment. The three males (two of whom were masked including the applicant) confronted the victim and his wife. All three males were armed with handguns.
[3] The three males demanded drugs and money from the victim. Early on in the confrontation, one of the males shot the victim in the leg, apparently as a way of attempting to force the victim to comply with the males’ demands. Despite being shot, the victim did not reveal the location of any drugs or any money. Meanwhile, the victim’s wife, who was kept in a separate room, pleaded with the males that they did not have any drugs or money.
[4] Both the victim and his wife were tied up with duct tape. The victim’s apartment was searched. Apparently nothing was found. Eventually, the victim was dragged bleeding through the apartment and, outside of his daughter’s bedroom door, he was shot in the head at close range. The three males then left the apartment. The events took a matter of minutes to occur from start to finish.
[5] The applicant was the only person charged arising out of these events. It is clear that the applicant was not the person who fired the fatal shot. It is much less clear whether the applicant was the person who fired the earlier shot. In any event, there is no doubt that the applicant was an active participant in the events. His fingerprints were found on the roll of duct tape that was used to tie up the victim and his wife. Another fingerprint was found on a plastic garment bag under the body of the victim. Also, the victim’s wife positively identified the applicant as one of the three males including being the male who tied her up with duct tape. Further, a note was found in the applicant’s home that linked him to the victim.
[6] The applicant was convicted of first degree murder and sentenced on December 9, 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 June 17, 2002, the Court of Appeal dismissed the appeal. A further application for leave to appeal to the Supreme Court of Canada was dismissed.
[7] 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…
[8] 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.
[9] 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 decisions in R. v. Gayle, [2013] O.J. No. 4124 (S.C.J.) and in R. v. Paul, 2014 ONSC 1285, [2014] O.J. No. 896, have all 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.
[10] In both Gayle and Paul, 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.
[11] I also said in Paul that, on the issue of the changed threshold, 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 in terms of the application of the test.
[12] Turning then to the application itself, I will address each of the criteria set out in s. 745.63.
A. Character of the applicant
[13] The applicant was thirty-two 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 has been in a number of relationships that have led to him having four children. The applicant has maintained contact with his children and has provided financial support to them when he is able to do so.
[14] The applicant had a criminal record prior to his conviction for murder. That record, which began when he was nineteen, is as follows:
1986
Assault causing bodily harm
1987
Attempted fraud
1990
Assault police officer
1991
Trafficking in a narcotic
1992
Obstruct police officer and Failure to comply with recognizance
1995
Obstruct police officer
1996
Possession of an unregistered restricted weapon
B. The applicant’s conduct while serving the sentence
[15] The applicant is currently in the Bath Institution which is a medium security prison. He began his incarceration at Joyceville Institution, which is another medium security prison. During his incarceration, the applicant’s behaviour has been entirely without incident. The applicant has received excellent reports from all staff who have had to deal with him. His file contains numerous letters of support from various people. At the same time, the applicant has expressed his respect and gratitude towards staff over the years. In addition to his exemplary conduct, the applicant has also completed the Cognitive Skills Program and the Anger and Emotions Program. The applicant has also kept in contact with his family during his time in custody and has received visits and support from them.
[16] During the course of his incarceration, the applicant has been assessed for psychological purposes. There is a consistent report that the applicant attempted to present himself in the best possible light during these assessments. I am not particularly surprised that he would do so given his situation. However, that conduct does suggest a possible lack of insight into issues that the applicant may have and that underlie his past criminal activity. It may also skew somewhat the results of the testing done as part of those assessments.
[17] Of some importance is that the applicant’s predicted recidivism rate has remained virtually the same throughout his incarceration. He is assessed at the low end of moderate for general recidivism and also at the low end of moderate for violent recidivisim. In addition, all of the reports express two ongoing concerns. One concern is the fact that the applicant has still not accepted his actual role in the murder. He continues to downplay or limit his involvment even though the evidence at trial, and the jury’s verdict, clearly establish that his involvement was much more central than he is prepared to admit.
[18] The other concern is that the applicant has steadfastly refused to identify his two accomplices in the murder. Indeed, the applicant has gone farther than just refusing to name the other two males. He has gone to the extent, recently, of denying that he actually knew the two men, insisting, instead, that he only met them just before the murder took place. This is a marked shift from his prior position that he would simply not reveal the names of the other two males. That shift in position is, itself, concerning. It will be obvious, given the planning that went into the attack on the victim and his wife, and the actions of the three males during the course of the murder, that this current explanation, that the applicant only met these two men just before the murder, is one that is inherently incredible.
C. The nature of the offence for which the applicant was convicted
[19] As noted at the outset, the applicant participated with two other males in the extortion and eventual murder of the victim over drugs and money. There was evidence that would suggest that the applicant knew the victim, had earlier drug related activities with him and was owed money by the victim. That evidence would logically place the applicant at the centre of the plan that eventually led to the attempted robbery and ultimately the murder of the victim.
[20] 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.
[21] Viewed objectively, this was a horrendous instance of murder. The assault included not only the victim but his wife as well. The initial shooting of the victim in order to compel his cooperation with the demands of the three males was particularly odious, akin to an act of torture. The brutal nature of the events is completed with the execution style killing of the victim, outside his daughter’s bedroom door, and within earshot of the victim’s wife.
D. Any information provided by a victim
[22] As I have already mentioned, the victim was married. He had three children: a son who was ten; a daughter who was seven and another son who was three. Victim impact statements have been provided for the purposes of this application by the victim’s wife; his daughter, one of his sons and the victim’s brother. As would be expected, these statements all attest to the ongoing and devastating impact that the family and friends of the victim have suffered as a result of the sudden and tragic death of the victim. In this case, of course, there are not only those losses but also the permanent damage with which three very young children had to contend as a result of the untimely loss of their father.
E. Any other matters that the judge considers relevant in the circumstances
[23] The other matters that I consider relevant in this case are the facts, referred to earlier, that the applicant has not accepted his actual role in the murder nor has he ever identified his two accomplices. This means that any remorse that the applicant has expressed for his role in the murder is of limited value. His failure to accept responsibility for the offence and the resulting failure to express remorse for his actual involvement are properly recognized as negative factors in the necessary analysis under s. 745.6: R. v. Phillips, 2012 ONCA 54, [2012] O.J. No. 652 (C.A.) at para. 8.
[24] In my view, these matters are particularly troublesome facts in this case. The first fact is troublesome because it suggests that the applicant does not have the level of remorse for his participation in the murder of the victim that one would expect to see from someone who has truly come to realize and appreciate the wrongful nature of his actions. The second fact is troublesome because it suggests that the applicant has not really divorced himself from his past criminal associations and inclinations. It suggests that the applicant remains of the view that it is appropriate for a citizen, and member of our community, to continue to hide and protect persons, who have committed the most serious criminal offence that our law knows, from being called to account for their actions. That lack of respect for the criminal justice system raises obvious concerns regarding the willingness of the applicant, if granted parole, to conform his actions to our laws and community standards.
Conclusion
[25] I acknowledge that there are many 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. His relationships and attitudes towards staff, and his efforts to assist community endeavours, are commendable.
[26] On the other hand, it remains the fact that the applicant’s score for general and violent recidivism has remained unchanged at the low end of the moderate range. The psychological assessments all express concern regarding the applicant’s failure to identify his accomplices as evidencing a lack of sincere remorse and acceptance of responsibility for his actions. Despite his positive conduct, he remains in a medium, as opposed to minimum, security facility.
[27] The applicant’s conduct, while he has been incarcerated and viewed in isolation, could lead to the possibility that a jury might consider reducing his period of parole ineligibility. That aspect of the applicant’s past behaviour is but one aspect of the overall consideration, however. While that aspect might be received favourably by a jury, I do not see any realistic prospect that a jury would reach a unanimous and favourable conclusion once they were advised of the facts that the applicant has continued to deny his full involvement in the murder and has continued to shield the identity of this two accomplices, such that they remain unprosecuted for their roles in the death of the victim. I believe that any reasonably minded juror would be seriously bothered, if not outright offended, at the failure of the applicant to assist the police to identify those individuals so that they could be arrested and prosecuted for this brutal murder. The applicant’s refusal to provide that information is made only that much worse by his shifting story regarding his knowledge of these two men. In light of that refusal, I do not think for a moment that twelve jurors would agree that the applicant should be given the opportunity to apply for early parole.
[28] The application is dismissed. Mr. Brown may make a further application after the expiration of five years from the date of this decision.
NORDHEIMER J
Released: August 21, 2015
COURT FILE NO.: M335/13
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
ERROL ANTHONY BROWN
Applicant
REASONS FOR DECISION
NORDHEIMER J.
RELEASED: