COURT FILE NO.: 99 - G19274
DATE: 2015/08/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ADI ABDEL HUMAID
Applicant
Julie C. Scott, Assistant Crown Attorney
Michael A. Crystal, for the Applicant
HEARD: In writing.
REASONS FOR INITIAL JUDICIAL RULING
Mr. Justice Rutherford
[1] On October 14, 1999, Adi Abdel Humaid was arrested in Ottawa and charged with the first degree stabbing murder of his wife, Aysar Abbas. On March 16, 2002, a jury found him guilty as charged and he was sentenced to life imprisonment without parole eligibility for 25 years. His parole eligibility date is October 14, 2024.
[2] Mr. Humaid now applies for relief by way of a reduction in the period of parole ineligibility. Such relief is available through what is often referred to as the “faint hope” clause found in s. 745.6 of the Criminal Code, R.S.C. 1985, c. C-46, as amended. [Code]. In Ontario, an application under the faint hope provision is made to the Chief Justice of this Court. Pursuant to s. 745.61 of the Code, the application involves an initial judicial screening by the Chief Justice or her designate. The initial judicial screening is to determine whether, on the basis of the materials filed, the applicant shows, “on a balance of probabilities, that there is a substantial likelihood that the application will succeed.” That “the application will succeed” means that a jury empanelled to hear the application will terminate, or at least reduce, the 25 year parole ineligibility period.
[3] On November 14, 2014, Chief Justice Heather Smith designated me, in writing, to make this initial screening determination and, in the event that I find a substantial likelihood of success, to empanel a jury to hear the application. Mr. Crystal prepared and delivered an Application Record to the Court dated September 19, 2014. A Parole Eligibility Summary Review prepared by Parole Officer Susan Hazel on behalf of the Correctional Service of Canada and dated January 19, 2015 was filed. Ms. Scott filed a Respondent’s Application Record on February 25, 2015. Mr. Crystal filed a brief Reply dated March 25, 2015. Subsequently, Ms. Scott filed copies of Victim Impact Statements from a number of the victim’s family and relatives and Mr. Crystal filed further case-law.
[4] On this initial judicial screening I am directed by s. 745.61(2) of the Code to consider the following factors.
(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.
[5] I shall summarize what the materials show in relation to each factor.
The Character of the Applicant
[6] Mr. Humaid was born in Jordan in 1953. Now 62 year of age, he has four brothers and four sisters. He apparently enjoyed a healthy and happy childhood. He lived at home until he was 19 years of age, apart from one year when he was 14 during which time he was separated from his family by war. He did well in school, completing his grade 12 in Jordan in 1973. He went on to complete his Bachelors of Science degree in civil engineering at the University of Baghdad in 1978, and worked as a civil engineer for 20 years prior to his offence.
[7] Mr. Humaid and his wife, Aysar, and their three children became Canadian landed immigrants in 1994 and Canadian citizens in 1998. After that, it would appear that both he and his wife (also a civil engineer) travelled on business and were residing in Dubai just prior to the murder. He had no criminal history prior to his index offence. He never abused drugs or alcohol and there is no indication of psychological or psychiatric abnormality.
The Applicant’s Conduct While Serving the Sentence
[8] By all reports, Mr. Humaid has behaved in a very positive manner as a prisoner. He moved from maximum to minimum security institutions, descending quickly down the security classification ladder between 2002 and 2010. He has been steadily employed as a teaching assistant, tutoring other prisoners in mathematics, and is actively involved with religious groups. He is at Pay level A, and has excellent reviews from teachers. A letter of support from a teacher at the Joyceville Minimum Security Unit reports:
I have known Mr. Humaid for at least twelve years. When I first met him, I hired him as a mathematics tutor in my class at Kinston Penitentiary. After a few moves to other institutions, he made his way to Joyceville Minimum Unit (formerly Pittsburgh Institution) where I have been for the past five years.
Mr. Humaid has been an exemplary tutor and mentor to many of the Muslims in several institutions. He has led Friday prayers and has organized many religious events over the years. He makes sure that the younger inmates learn that Islam is a religion of peace. He has been a remarkable role model for them.
If anyone could be considered a good candidate for being successfully reintegrated back into society, I would highly recommend that Mr. Humaid be given that chance.
[9] A 2013 Psychological Assessment Report indicates that Mr. Humaid is in the low range of risk for both general and violent recidivism. The report concludes that “[t]he results of the current assessment would support Mr. Humaid for Temporary Escorted Absences” (Tab 8, p.7).
[10] Mr. Humaid has successfully completed the rehabilitative programs available to him, including, in particular, the Family Violence courses and those involving rehabilitative reasoning. Reports reflect that he is was well motivated and participated appropriately and cooperatively. He has made beneficial progress in moderating certain views and attitudes towards such things as the role of women, responses to concerns about infidelity, and tolerance for deviations from his own value system.
[11] The assessments and reports while in prison have reflected concern, however, over his version of the crime. According to the Assessment Report, at the time of Mr. Humaid’s incarceration his version of what happened was different than the official version. He admitted that he killed his wife but maintained that he “saw black” before stabbing her multiple times. He denied that he planned the murder, claiming to be a smarter man who would have planned a far better cover up, and not in the presence of witnesses (Tab 8, p. 2-3). However, a 2011 Correctional Report states that “Humaid accepts full responsibility for his offence. He indicated that he not only took [his wife’s] life and destroyed his own, but also irrevocably impacted the lives of family members and friends” (Tab 7, p.34).
The Nature of the Offence
[12] The facts and circumstances of the offense are set out by the Court of Appeal in R. v. Humaid (2006), 2006 12287 (ON CA), 81 O.R. (3d) 456 from paragraphs 13 - 42.
13 The appellant and Aysar were both engineers. She was much more successful than was the appellant. Aysar earned over $500,000 a year, while the appellant worked sporadically and was unemployed for at least a year prior to Aysar’s death.
14 The appellant had an affair with the family maid in 1996. Aysar found out about the affair and subsequently transferred funds from a joint bank account with the appellant to an account in her name only. Aysar controlled most of the family finances from that time forward. Aysar and the appellant separated for a time in February 1997 after she found out about the affair. The appellant testified that he made a pilgrimage to Mecca to atone for the affair. After he returned from Mecca, he and Aysar decided to give their marriage a second chance, and the appellant moved back into the family home in April 1997.
17 Aysar left Dubai on a business trip to North America on October 3, 1999. She was accompanied by a friend and business associate named Hussein. Aysar planned to be in the United States on business until October 9, and then to travel to Ottawa to visit Saif (their oldest son, who was in first year at the University of Ottawa). She was to return to Dubai from Canada on October 14. The appellant knew Aysar’s travel plans when she left on the business trip.
18 On October 5, two days after Aysar left on her business trip, the appellant bought a return airline ticket to Canada. He was scheduled to arrive in Canada on October 9 and return to Dubai on October 14. When Aysar left Dubai on October 3, she did not know that the appellant would be in Ottawa at the same time that she was there. The appellant testified that he made a decision to go to Ottawa on October 5, immediately after he received word that Saif was using marijuana.
19 After the appellant had purchased his ticket to Canada, he told friends that he was going to Europe on a job interview. He maintained this ruse when he called his brother-in-law from Ottawa on October 9 and told him that the scheduled meeting in Europe had been cancelled and that he might go on to Ottawa to see his son. The appellant testified that he lied to his friends and relatives because he did not want them to know that his son was using drugs.
20 The night before the appellant left for Ottawa, he attended a small party in Dubai. He was withdrawn and distracted. Seemingly out of the blue, he told one of the men at the party that he would like to slaughter a sheep at an upcoming feast. He inquired as to the fastest way to kill an animal so that it would suffer as little as possible. His friend showed him how to cut the vein on the side of the sheep’s neck to minimize its suffering.
21 The appellant acknowledged that he may have asked about slaughtering a sheep, although he could not remember the context. The upcoming feast was several months away and the appellant’s family had always hired a butcher to prepare the sacrifice. The appellant said that he was considering doing it himself on this occasion.
22 The appellant stabbed Aysar in the neck at least 19 times.
23 The appellant testified that he spoke to his wife a few days before he left Dubai on October 9 and told her that he would see her in Ottawa. He did not tell her about his concern that their son was using drugs. The appellant arrived in Montreal on October 9 and took a bus to Ottawa. He went to the hotel where Aysar was staying and checked in.
24 The appellant testified that while in Ottawa, he, Aysar and Hussein went out together to eat, shop and visit friends. He, Aysar and Saif looked for a new place for Saif to live while Saif was attending the University of Ottawa. The appellant and Aysar met with an accountant to discuss the purchase of some property in Ottawa.
25 On the appellant’s testimony, he and Aysar got along well between October 9 and October 14. The appellant testified, however, that he became concerned when he was out with Aysar and Hussein that Aysar treated Hussein more like her husband than she did the appellant. Aysar would do things while Hussein was present, such as trying on clothing, that the appellant believed Aysar should do only in private or in his presence.
26 On the morning of October 14, the appellant drove Saif to school. He returned to the hotel and convinced Aysar to accompany him on errands he had to run that morning. They planned to meet Hussein later that afternoon at a shopping plaza and then visit their accountant and some friends. The appellant was driving a vehicle he had rented when he arrived in Ottawa on October 9. He was scheduled to return that vehicle that afternoon, leave Ottawa by bus at 4:30 p.m. and return to Dubai on a flight from Montreal that evening. Aysar and Hussein were scheduled to leave for Dubai a few hours later that same day.
27 The appellant testified that Aysar decided to drive shortly after they left the hotel. They intended to go to the shopping plaza where they were to meet Hussein later that afternoon, but got lost. They eventually found themselves parked on a relatively isolated dead end road. The appellant testified that he had no idea where they were when they parked. This road was nowhere near the shopping plaza. It was, however, on a map marked with a piece of paper in a book of maps of the Ottawa area found in the appellant’s hotel room.
28 The appellant testified that he and Aysar sat and talked, mostly about their children. They decided to go for a walk and have a cigarette. As the appellant was about to get out of the car, Aysar reminded him that he had put a knife in the glove compartment of the rented vehicle. She told him that he should take the knife out of the glove compartment so that he would not forget it when he returned the vehicle that afternoon. The appellant testified that he had undergone extensive dental work and had a very sore mouth. He used the knife to cut fruit into small pieces so that he could eat it. The appellant testified that he removed the knife from the glove compartment and stuck it in his pocket just before he and Aysar walked away from the vehicle. The appellant used the knife, a steak knife with a 3-inch blade, to stab Aysar to death.
29 The appellant described how he and Aysar walked from the car arm in arm. She asked him what was bothering him and a discussion ensued about her relationship with Hussein. Aysar chided the appellant for being jealous, but acknowledged that she admired Hussein. Aysar and the appellant both became angry as they discussed Aysar’s relationship with Hussein. The appellant told Aysar that he would be concerned about her fidelity if he did not know that she was having her menstrual period. The appellant did not think that Aysar would have sex while she was having her period. Aysar smirked and said that “a little pill would make a whole big difference - a little pill can make many things.” The appellant understood this to be a reference to a birth control pill and that by taking a birth control pill, a woman could prevent the onset of her menstrual period. The appellant took Aysar’s comment as an admission that she was having sexual relations with Hussein. The appellant testified that he blacked out immediately after Aysar made the “little pill” comment. He has no recollection of chasing Aysar along the road and repeatedly stabbing her.
30 A man named Kirkpatrick happened to be driving along the road where the appellant and Aysar had parked the vehicle. He saw Aysar running along the side of the road looking over her shoulder at the appellant, who was chasing her. Mr. Kirkpatrick turned his vehicle around. He saw Aysar lying on the ground. The appellant was straddling her and flaying his arms in her direction. Mr. Kirkpatrick called 911 at 11:56 a.m. He watched the appellant get up, return to his vehicle and drive away, leaving Aysar on the ground. Mr. Kirkpatrick reported the licence number to the police. The police traced the vehicle and arrested the appellant when he turned up at the car rental agency about two hours later.
31 The post-mortem examination revealed that Aysar had been stabbed 19 times on the right side of her neck. She had also been stabbed through the heart and suffered several defensive injuries to her hands.
32 The police did not find a wallet, purse or any identification at the scene. They later found Aysar’s personal papers in a zippered compartment inside a briefcase found in the appellant’s hotel room. It was the Crown’s theory that the appellant took Aysar’s personal papers from the scene of the homicide, hoping that it would delay the identification of her body long enough for him to get out of Canada and return to Dubai.
33 The appellant drove from the scene of the homicide to a prearranged meeting with his accountant. The accountant was expecting both the appellant and Aysar, and inquired as to her whereabouts. The appellant said that she had gone shopping and named a plaza where Aysar had gone. This was the plaza that the appellant and Aysar had arranged to meet Hussein at later that afternoon. The accountant testified that the appellant seemed normal. It was the theory of the Crown that by telling the accountant that his wife was at the plaza where they planned to meet Hussein, the appellant hoped to cast suspicion on Hussein when his wife’s body was eventually found.
34 After a short visit with the accountant, the appellant drove to the home of some family friends. This was also a prearranged meeting and his friends were expecting both the appellant and Aysar. When the friends asked where Aysar was, the appellant once again indicated she had gone shopping at the named plaza. The appellant visited with his friends for about 30 minutes, eating sweets and drinking coffee. According to his friends, the appellant acted normally.
35 Before returning the rental car, the appellant drove back to the hotel and changed his clothes. A pair of jeans and a shirt, both stained with Aysar’s blood, were found in the appellant’s suitcase.
36 The appellant arrived at the car rental outlet at about 2:00 p.m. The police were waiting for the appellant and arrested him. They examined the inside of the rented vehicle, but found only small traces of blood on the door handle and the floor mat. It was the Crown’s contention that the absence of any significant amount of blood in the car indicated that the appellant had acted in a careful and deliberate way to avoid getting any blood in the car.
37 The police searched the area where Aysar’s body was found and discovered the knife in a ditch about half a kilometre from her body. The blade was markedly bent.
38 The appellant testified in great detail about the events leading up to the stabbing of Aysar, but insisted that he had no recollection of the stabbing and very little recollection of the subsequent events. He testified that he could remember certain things after he read about them in the newspaper. He described these as “dream like” recollections.
42 The appellant adamantly denied that he placed the knife in the car as part of a plan to kill Aysar. He said that if he had planned to kill his wife, he would have used a much bigger knife.
[13] The trial judge left the defence of “provocation” to the jury, but the Court of Appeal held that “there was no air of reality” to such a defence, going on at paragraph 87 to say,
Even if there was an air of reality to the provocation defence, any error in respect of the instructions on that defence could not have affected the verdict. In convicting the appellant of first degree murder, the jury must have been satisfied beyond a reasonable doubt that Aysar’s murder was planned and deliberate. The jury instruction on planning and deliberation was accurate, balanced and thorough. No exception was, or could, be taken to that instruction. There was also ample evidence to support the jury’s finding that the murder was planned and deliberate.
Information Provided by Victims at the Time of Sentencing
[14] Victim Impact Statements, in Arabic, handwritten by the members of Aysar Abbas’s family in 2002, have been included in the materials filed with me. It is unclear whether they were translated into English at the time of sentencing, but the Crown Attorney’s Office has since prepared and filed English translations. The members of Aysar Abbas’s family who prepared statements were:
Samira Kassem (mother of Aysar and guardian of her 3 year old daughter, Samar)
Sarah Humaid (daughter)
Maysaa’ Kamal (sister)
Ibtesam Abbas (sister)
Mohamed Abbas (brother)
Aseel Rasheed (sister-in-law)
Laith Nasif (cousin)
[15] These statements by members of Aysar Abbas’s family paint a consistent picture of their anguish over the death of Aysar. They describe Aysar as a vibrant, energetic, loving member of the family, whose support and generosity touched them all in their times of need. Her loss is felt keenly by them and their suffering over her brutal murder is palpable and enduring.
[16] Aysar’s mother’s Victim Impact Statement is particularly scathing in its description of the applicant as a husband and father, indicating that she was strongly opposed to her daughter marrying him in the first place.
Other Relevant Matters
[17] The application includes eleven letters speaking well of the applicant and supporting the granting of relief. I will briefly mention all of them.
i. Saif Humaid, the son of the applicant and the deceased, described the applicant as a father who strove, amid hardship, to give him the best he could as he was growing up. His letter includes the following.
The day I received the news about my parents’ incident was devastating. I just realized that I lost both parents in one day…It was the worst thing that had ever happened to my family. I was in disbelief and total shock when I heard the story and couldn’t comprehend or make sense of what happened knowing the kind of person my father was. The details of the incident and the description given to me at the police station didn’t fit his profile and was completely out of character. It was the worst thing that had ever happened to my family.
…My father showed great remorse and guilt for what happened and realized the magnitude of the damage that was done. Not only did he lose his life, but also lost his wife of 20 years, the only love he ever had.
As the years passed I continued to speak to my father, as well as arrange weekend visits with him. The image he created of himself from that horrific day, he has worked so hard to change. I still saw the caring, loving, sensitive person he has always been. He has spent his time behind bars trying to give back by tutoring math, learning the English language better, taking computer classes, participating in workshops and most importantly getting to god. Furthermore, during my visits I met inmates and prison guards who praised him and respected him as much as I did. Many sought his advice as he was known to be the best problem solver. A few have even contacted me after their release just to ask how Adi was doing.
He even calls on my mother’s birthday and the anniversary of that tragic day to ask for his forgiveness and tell me how regretful he is…He continues while behind bars to better himself and help those around him. The mistake he made 15 years ago will never be forgotten, but can be forgiven. As the son of both parties I plead for mercy on my father. I ask that he be given a second chance in life and the opportunity to share his life with his three children and extended family.
ii. In a letter written by Sarah Humaid, the elder daughter, but signed as well by Samar, the younger daughter, Sarah writes,
I’m writing this letter today to express my support for my father Adi Humaid …Today I raise my voice in support of him and second chances. I remember my father as a gentle, loving, supportive man who put his family first and foremost…Even with all the obstacles we have faced as a family I continued my education in the medical field and recently graduated. And I couldn’t have done it without my family’s support, especially my father Adi. I struggled when the tragedy hit my family. I couldn’t believe what I heard and I was too young to comprehend how someone can make a mistake so big and then regret it. However, when I first started to talk to him, I realized that he is the same father I knew and I loved. I had the opportunity to finally see him 2 years ago. It was a very difficult day for me, I was so mad at him for what he had done, but yet knew I would forgive him and that people make mistakes. Although I lost my mother, I couldn’t imagine also losing my father. The first words that he said to me were, “I am sorry for what I did, and I know that these words can’t change anything, and every single day I regret what happened.” …
My little sister Samar was very young when things happened, so she did not know or have any kind of relationship with our father…When we traveled to see him, it was the first time she met her father, and since then they have created a strong bond…We were both left trying to understand and believe someone like Adi could commit such a crime. Fifteen years later, I write this letter hoping it will lighten the sentence on my father and ask for mercy on him. My sister and I strongly support and stand by him and believe everyone deserves a second chance, especially our dad.
iii. The applicant’s younger brother, Kahlid, one of 9 children, writes how he came to Canada and took the applicant’s son, Saif, back to Dubai where the extended family took care of and raised the three children whose mother had been murdered. He notes that Saif is now an engineer and IT specialist, Sarah is a medical doctor, and Samar has just graduated from high school. He has kept closely in touch with the applicant and speaks with him by telephone weekly, as do other members of the family. He writes,
His mission in life is to care for his children. He feels he deserted them because of what he did. I can see the sadness and deep, painful regret in his eyes every time I meet him. He aged very quickly He is heartbroken and in pain. He is incarcerated away from his family and friends. His son and I are the only two relatives who live in the US. The rest of the family, including his daughters, live in the Middle East thousands of miles away. It is not easy for many of them to get visas to Canada to visit him…
I know his children have forgiven him. I saw that with my own eyes when they met, hugged, and wept when they saw their timeworn, old, and sad father…I supported Adi financially while he was incarcerated and will continue to support him if he gets out. Please give Adi another chance!
iv. Supportive letters come as well from his oldest brother, Osama, his youngest sister, Abeer, his youngest brother, Fatin, his older brother Ma’ath, his sister Hanan, his neice Manal, his 84 year old mother, Amneh Saleh and his brother-in-law Leith El-Taylor (married to Aysar’s sister).
v. John Rives, Peer Leader at the St. Leonard’s Society ‘PeerLife Transition Services,’ has been connected with the applicant for over a decade. PeerLife Transition Services members help prisoners serving life sentences focus on release planning and preparation for eventual transition from prison to the community. Of the applicant, he writes,
…Adi has consistently presented as open and honest to my colleagues and myself and highly motivated to address his correctional plan. The documentation I have reviewed supports this progress particularly in regards to the key area of Marital/Family Relations, but it is my personal observation which gives me the confidence to recommend him for a reduction in his full parole eligibility date.
Mr. Humaid is a humble and straightforward individual. It should be noted that prior to his index offense, he had significant achievements scholastically and in business. Nevertheless, Adi recognized that he needed to make changes in his way of thinking and way of life. He now has the confidence to ask for advice and a willingness to take direction. However, he is not one to do so blindly. Through programming and reflection he has learned not to act out of impulse or preconception but to weigh all salient factors before coming to a decision.
Most of all, the Adi I know feels a great sense of remorse for the murder of his wife. His readiness to take personal responsibility for the sum of his abusive actions, understanding the specific needs for change and his demonstration of these gains are the hallmarks of his preparation for an eventual release…Given his progress and the level of support he has attained both in the institution and the community, I believe Adi Humaid has earned the privilege of a reconsideration and significant reduction of his parole ineligibility.
vi. Paul Delmas, a retired economist and an ordained Deacon in the Anglican Church of Canada, encountered the applicant as a volunteer with the Catholic Chaplaincy at the Ottawa Regional Detention Centre in the late 1990s. He has kept up contact with the applicant and some members of the applicant’s family ever since. He reports that the applicant acknowledges the great harm he did in killing his wife, does not blame anyone else, and accepts without anger his years in prison. Mr. Delmas is of the view that there is nothing in the applicant’s behavior that would pose a problem for the public should he be granted parole.
The Positions of the Applicant and of the Crown
[18] While the applicant contends that in all the circumstances, there is a substantial likelihood that a jury would grant him some measure of relief by way of reduction in his period of parole ineligibility, the Crown Attorney holds a contrary view. In the conclusion of the Responding Submissions the Crown contends that
…despite whatever gains he may or may not have made while serving his sentence, if the Applicant’s matter were to proceed to hearing, the degree of probability that he would be able to unanimously persuade all 12 members of a jury that he should have his parole ineligibility period reduced is not very high. In fact, the Respondent would assess it as being quite low.
Judicial Consideration and the Law
[19] The Code provides in s. 745.6 for a person convicted of a murder committed prior to December 2, 2011, and sentenced to life imprisonment without eligibility until more than 15 years of their sentence has been served, to apply for a reduction in that period once at least 15 years has been served. This provision is often referred to as the “faint hope clause” in that it offers some hope to such an offender that after 15 years in prison, he or she might become eligible to be considered for release on parole earlier. The applicant, Adi Humaid, is such a person. He was sentenced to life imprisonment without eligibility for parole for 25 years for the October 14, 1999, first degree murder of his wife, Aysar Abbas. He was arrested on the day of the murder and has remained in custody from that date. Therefore, pursuant to s. 746 of the Code, the applicant’s 25 year parole ineligibility period began to run on October 14, 1999. By November 14, 2014, the date his application was received by the Court, he had served just over fifteen years of that period.
[20] The faint hope clause process can lead to a hearing in which a 12 person jury can review the circumstances of the case and determine whether to advance the date at which an offender can be eligible to be considered for parole. However, before any such jury hearing can take place, the Code provides for the initial judicial screening I referred to in paragraph 2 at the outset. That is my function at this point in this case.
[21] Before amendments to the Code in 2011, the test for the judge on initial judicial screening was whether the applicant had shown, “on a balance of probabilities, that there was a reasonable prospect that the application would succeed” (underlining added). The 2011 Code amendments included a new, more stringent test for an applicant to meet in order to proceed to a jury hearing. The more stringent test now required is whether the applicant has shown, “on a balance of probabilities, that there is a substantial likelihood that the application will succeed” (underlining added). This newer and more stringent test has been the subject of a number of decisions in this and other courts, including R v. McAuley, 2012 ONSC 3732; R v. Poitras, 2012 ONSC 5147, 103 W.C.B. (2d) 1024; R v. Gayle, 2013 57631 (Ont. Sup. Ct.); and R v. Morrison, 2012 ABQB 619, 551 A.R. 149. In a thoughtful consideration of what she called “The Difficulty of Screening an Act of Clemency” (which is in essence what the faint hope clause is), Pomerance J. in R v. Jenkins, 2014 ONSC 3223, 310 C.C.C. (3d) 248 observed as follows.
41 The nature of the jury’s role poses challenges for the judges who screen these applications. As noted above, jury determinations of faint hope are rooted more in conscience than law. Judicial screening is an awkward fit in this context. It asks the judge to apply a legal standard in predicting a decision that is not, itself, governed by a legal standard.
42 Screening is difficult because, in this context, merit is not a function of sequential logic. One cannot say: if “a”, then “b”. Merit is a matter for the jury to determine by means of its own subjective calculus. Given the almost unfettered discretion of the jury, can it ever be said that it has reached an incorrect or erroneous decision? Or does a case have merit because a jury has decided that it does? How does one predict a likelihood of success when success is based on a standard that is not defined? Is it possible to apply standards of probability without usurping the role of the jury, except, perhaps, in the most obvious of cases? Parliament has never repealed the jury, nor expressly altered its function. The judge is presumably not to substitute his or her view for that of the jury, as that would render the jury to be superfluous. Yet, how can a judge decide if there is a substantial likelihood of success without usurping the jury’s broad discretion to grant a remedy as it sees fit?
43 The jury may consider all five criteria equally; it may place greater weight on one than others; it may base its decision on testimony from a single witness; or the collective impact of many. The jury may choose to give an offender the benefit of a significant doubt, or may err on the side of public protection. The evidence may elicit a sense of compassion, horror, outrage or forgiveness.
44 It is difficult for a judge to gauge the emotional impact of evidence, all the more so given that the jury will hear oral testimony, while screening is based on a written record. Whittman J. adverted to this in R v. Oczko, 2012 ABQB 121, 535 A.R. 59, at para. 35:
One of the difficulties faced by a screening judge in assessing whether it is more probable than not that there is a reasonable possibility the application will succeed, is that it is a virtual certainty that Oczko would give evidence before a jury and that the Victim Impact Statements could be read aloud by the victims to, or at least reviewed by, the jury. That evidence, especially the testimony of Oczko, in my view, is likely to have a significant effect upon the jury. The impact is difficult to predict on written materials. Notwithstanding this difficulty, the screening judge is bound to proceed only on the basis of written materials, but in applying the standard of proof, is also bound to consider as best as he or she can, how a jury would react and assess the evidence anticipated to be before them.
45 Therefore, judicial screening in faint hope cases is different than judicial screening in other legal contexts. In other contexts, the question is whether a particular outcome is open to the jury as a matter of law. At a preliminary inquiry, the judge must assess whether there is some evidence which, if accepted, would allow for a finding of guilt. Absent evidence on each of the essential elements, there cannot be a committal to stand trial, because there is no evidence that could lawfully ground a conviction. A similar analysis is carried out by a judge faced with a motion for a directed verdict of acquittal.
46 By way of contrast, in faint hope cases, it is always open to the jury, as a matter of law, to allow an application. This flows from the breadth of the jury’s discretion. The question for the screening judge is not whether it is open to the jury to reduce parole ineligibility. That option is available in every case. Nor is the question what a jury will actually do in a given case. That requires a level of prescience that no judge can claim. What we are really asking as judges is whether a jury should allow the application. It remains open to a jury in any case to allow an application, but Parliament has stemmed the tide of cases that will make it to that stage. It has built a judicial dam at the front end of the process.
[22] Those observations were made by Pomerance J. in her pre-screening ruling in Jenkins on the constitutional validity of applying the new, more stringent screening threshold in cases in which the sentence was imposed prior to, and often many years prior to, the enactment of the new threshold. After upholding the constitutional validity of such retrospective application, she then went on to do the screening of the application. In R v. Jenkins, 2014 ONSC 3394 following paragraph 14, she made these further comments on the threshold provision, with which I am in general agreement.
a. A substantial likelihood of success is a more stringent standard than a reasonable prospect of success, though it is difficult to concretely define the difference between the two;
b. In applying the standard, the judge must take into account that, while screening is based on a paper review, the jury will be presented with oral testimony, which tends to be more evocative than documentary evidence;
c. The judge must consider the broad discretion of the jury to grant clemency. The jury is to consider the five statutory criteria, but is not to apply any specific legal standard in assessing whether the period parole ineligibility should be reduced;
d. Under the old “reasonable prospect” test, the question was whether there was some evidence on which a reasonable jury could properly reduce the offender’s parole ineligibility period. Under the new test, the question is whether there is evidence on which a reasonable jury, acting judiciously, would be substantially likely to reduce the offender’s parole ineligibility period.
[23] Is this a case that should go to a jury? Is this a case in which a reasonable jury, acting judiciously, would be substantially likely to reduce the offender’s parole ineligibility period? Those are very difficult questions. The Crown Attorney’s Office says “no, no.” In the Responding Submissions at paragraph 31, relying on some language at paragraphs 93 and 94 of the Court of Appeal’s decision in the applicant’s appeal against conviction (cited above at paragraph 12) the Crown says,
The Applicant’s motivation at the time of the killing and what he continues to believe as mitigating his actions is premised on the notion that women are inferior to men and that violence against women is in some circumstances accepted if not encouraged. These beliefs are antithetical to fundamental Canadian values, including gender equality. Courts have repeatedly commented that the Criminal law simply cannot accept or condone a belief system which is contrary to those fundamental values. Because this murder was motivated by a value system antithetical to fundamental Canadian values the Applicant’s moral culpability is especially high.
[24] Wife-murder may seem especially repugnant to our Canadian value fabric when cultural considerations that are contrary to our Canadian values figure prominently. However it must be borne in mind here that the Court of Appeal found “no air of reality” to the applicant’s claim that religious and cultural beliefs resulted in his being severely provoked by what his wife said to him. At paragraph 82, the Court of Appeal noted that there was no evidence that the applicant shared the religious and cultural beliefs attributed to Muslims in general by expert witness Dr. Ayoub. As the Court of Appeal observed at paragraph 90 of its judgment herein,
…The jury was clearly satisfied beyond a reasonable doubt that the appellant did not kill on the sudden as a result of Aysar's allegedly provocative comment made as they walked along the road, but rather that he killed pursuant to a plan formulated and deliberated upon before the appellant and Aysar left the vehicle.
[25] Odious as Aysar Abbas’s murder was and is, it stands on a similar footing with first degree murders of many kinds. All planned and deliberate murders are odious. That is why a conviction carries our greatest penalty. However, Parliament created the faint hope clause remedy for such crimes, and the evidence is that, as of 2010, juries had granted relief by reducing the parole ineligibility period in 145 out of 178 cases that had been allowed to proceed to jury determination (R v. Poitras, at para 18). That success rate of over 81% shows that Canadian juries have found, not infrequently, that there are circumstances involving reformation, redemption and renewal in which an up-to-date review of all the circumstances and the application of the limited clemency held out by the faint hope clause are appropriate.
[26] In the case at hand, Mr. Humaid has a very positive record over his almost 16 years’ imprisonment. He contributes to the well-being and education of his fellow inmates and has taken and successfully completed all the courses and programs in his correctional plan. He has been assessed as having modified his thinking about the respective roles of men and women in society and appears to be very remorseful about killing his wife. He has kept up his family relationships and appears to have restored relations with his children, all of whom support his application. Refusing the statutory hope of some possible clemency for a prisoner who has served some 16 years in prison already, is remorseful, well-motivated, and has clearly made positive strides while imprisoned, strikes me as retrograde penal policy.
[27] One foreseeable problem that is not addressed in the application is that the supportive members of Mr. Humaid’s family live outside of Canada. I am unaware whether supervision by the Parole Board of Canada can accommodate a parolee living outside Canada. If not, the lack of local community support capacity may hinder release planning when the time for that arises. That, however, is a matter for a later stage of Mr. Humaid’s sentence administration. I do not see it as weighing heavily at this stage where the timing of initial parole eligibility is what is at stake.
Conclusion
After considering all the circumstances of the case, I have concluded that, on the balance of probabilities, there is a substantial likelihood that a jury, acting reasonably, would grant some degree of relief to Mr. Humaid and reduce the period of time during which he remains ineligible to apply for parole.
[28] Having determined that Mr. Humaid’s application passes this initial screening, my directions are to empanel a jury to hear the application. I am prepared to proceed to do this at a date to be scheduled by counsel in consultation with the Trial Co-ordinator. This application should be added to the Criminal Assignment Court list on Friday September 4, 2015, to set a date for the hearing. The applicant need not be brought in for Assignment Court. Indeed, until applicant’s counsel requires Mr. Humaid to be available for preparation for the hearing, it is probably best for him to remain in the federal institutional setting rather than be brought into detention centre facilities. If counsel wish confer with me about the timing of a hearing, I would be amenable to that.
Rutherford J.
Released: Tuesday August 25, 2015
R v Humaid, 2015 ONSC 5345
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
ADI ABDEL HUMAID
Applicant
REASONS FOR Initial judicial screening Ruling
Mr. Justice Rutherford
Released: Tuesday August 25, 2015