Court File and Parties
Court File No.: M105/16 Date: 2017-01-03 Ontario Superior Court of Justice Toronto Region
Between: HER MAJESTY THE QUEEN, Respondent And: ZEKROLLAH WALIZADAH, Applicant
Before: Nordheimer J.
Counsel: J. Neander & L. Jacek, for the respondent A. Craig & E. Taché-Green, for the applicant
Heard: Written submissions
[1] This is an application by Zekrollah Walizadah, under s. 745.6 of the Criminal Code, by which he 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. [^1] 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 Mohammadulah Saighani that occurred on December 30, 1999. The applicant had been having an affair with the victim’s wife. The wife apparently wished the applicant to kill her husband. The applicant obliged. The evidence pertaining to the murder was summarized by the Court of Appeal, in their reasons dismissing the applicant’s appeal from conviction. [^2] In those reasons, MacPherson J.A. said, at para. 4:
On the morning of December 30, 1999, the body of Mohammadulah Saighani, a taxi driver, was discovered in a parking lot behind a warehouse at 37 Iron Street in the west end of Toronto. Mr. Saighani had suffered about fifty stab wounds. His spinal cord was severed and he was nearly decapitated.
[3] The applicant was arrested on September 18, 2000. The applicant was convicted by a jury of first degree murder on April 3, 2003. 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 July 12, 2007, the Court of Appeal dismissed the appeal. On August 14, 2008, the applicant’s application for leave to appeal to the Supreme Court of Canada was dismissed.
[4] This application is governed by s. 745.61(1). That section was amended in 2011. As part of those amendments, the threshold to be applied, at the initial pre-screening stage, was changed. Whereas the threshold had previously been whether “there is a reasonable prospect that the application will succeed”, the section now directs the pre-screening judge to consider:
…whether the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed…
[5] Notwithstanding the change in the threshold to be applied, the criteria to be considered, in determining whether there is a substantial likelihood that the application will succeed, remain the same. Those criteria are set out in s. 745.63:
(a) the character of the applicant; (b) the applicant’s conduct while serving the sentence; (c) the nature of the offence for which the applicant was convicted; (d) any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and (e) any other matters that the judge considers relevant in the circumstances.
[6] The 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”. Many decisions of this court have reached that conclusion. For example, in R. v. Morrisson, 2016 ONSC 5036, [2016] O.J. No. 4515 (S.C.J.), Durno J. said, at para. 43:
In summary, the caselaw supports a finding that the applicant must show the application has real merit and a substantial probability that a jury will unanimously reduce the period of ineligibility: [citation omitted]
[7] One of the consequences of the change in the threshold test is 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 essentially put him/herself in the position of the jury, at least to the extent of being able to gauge whether, on the facts as currently known, there is a substantial likelihood of success. Further, that success must be predicated on the favourable result being the unanimous view of the jury that will hear the matter.
[8] Turning then to the application itself, I will address each of the criteria set out in s. 745.63.
A. Character of the applicant
[9] The applicant was thirty-seven years old at the time of the offence. He is now fifty-five years old. He has been in custody for more than fifteen years. The applicant was born in Afghanistan in 1962. He was originally married at the age of thirteen. That marriage ended in divorce. It appears that there were five children of that marriage, all of whom remain in Afghanistan. The applicant was married a second time. He and his second wife immigrated to Canada in 1991. They have four children, aged seventeen to twenty-five. However, that marriage also led to a divorce after the applicant’s wife became aware, not only of the applicant’s involvement in the murder, but also the infidelity associated with it. The applicant has not had any contact, with his four children who are here, since.
[10] The applicant became a Canadian citizen in 1999. The applicant had no criminal record prior to his conviction for murder. The applicant’s parents still live in Afghanistan. The applicant communicates with them regularly and sends the small income he can earn while in prison to his parents to assist in their financial support. The applicant also has a large number of relatives including his first set of children, along with siblings, grandchildren, nieces and nephews, in Afghanistan. The applicant has the support of his parents and his children who are in Afghanistan.
[11] The applicant denied his involvement in the murder from the outset. He maintained that position for the first twelve years of his incarceration. However, after completing the National Moderate Intensity Family Violence Prevention Program in 2011, his attitude changed. He then acknowledged his involvement in the murder. He asked for the chance, and did speak, to the original investigating officers, and provided details of his involvement. He accepted responsibility for his actions. However, the applicant still maintains that he did not intend to commit the murder. His position in that respect is difficult to reconcile with the fact that he arranged to meet with the victim, that he took a knife to the meeting, and that he inflicted some fifty stab wounds on the victim. Of more importance for current purposes is that his position suggests that the applicant has still not fully accepted his involvement in the murder.
[12] The applicant has been subjected to various risk assessments, while he has been in custody. Some of the early risk assessments were hampered by the fact that the applicant’s English was not good. The applicant has, over the years, worked to improve his English, so that is no longer an obstacle. The applicant’s security level has decreased from the initial high level (that would have naturally flowed from the nature of his conviction), to a medium level in 2009, to a minimum level in 2013. The applicant’s most recent risk assessments suggest that his risk to the public is minimal and that his risk of reoffending is low.
B. The applicant’s conduct while serving the sentence
[13] The applicant began his incarceration at Millhaven Institution, which is a maximum security facility. In December 2005, the applicant was transferred to Fenbrook Institution, which is a medium security facility. In September 2013, the applicant was transferred to Joyceville Institution, which is a minimum security facility.
[14] During his incarceration, the applicant’s behaviour has been almost entirely without incident. He has three recorded institutional infractions, all of which were minor in nature. The last infraction was in June 2009. During his time, the applicant has been employed in various capacities. The applicant’s performance in these various roles has been positive. His supervisors noted that the applicant was responsible and able to work with limited supervision. Similarly positive is the fact that, during all of his time in custody, the applicant has not been involved in any acts of violence.
[15] The applicant has also pursued educational opportunities. He completed his High School equivalency in 2012, with grades ranging from 80% to 99%. His performance was consistently rated as positive. It was also through these efforts that the applicant greatly improved his capability in the English language. He has also earned a number of certificates for his participation in various programs.
[16] In addition, it appears that the applicant has consistently displayed a positive attitude toward institutional staff during his incarceration. A number of complementary comments were made by staff members regarding the applicant.
C. The nature of the offence for which the applicant was convicted
[17] As noted at the outset, the applicant killed the victim by stabbing him multiple times. The victim was nearly decapitated and his spinal cord was severed. There were numerous other sharp force injuries to the victim’s body. The applicant killed the victim simply because he was having an affair with the victim’s wife, and she wanted the victim killed. It is a chilling scenario.
[18] 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. Nevertheless, this criterion necessitates some such ranking.
[19] In this case, the applicant was prepared to kill a person, who he basically did not know, just because he was asked to do it. There is apparently no more compelling motivation than his lover’s simple request that the applicant kill her husband. In addition, we have the incredible level of violence reflected in the nature of the injuries inflicted, including the fact that there were some fifty stab wounds. It is an extremely disturbing event.
[20] Further, the applicant continually lied to the police, both prior to and after his arrest, regarding his affair with the victim’s wife. As I have noted above, the applicant maintained that he had no involvement with the murder of the victim, up until 2012. Even then, his admission of responsibility is limited. He does not admit that the murder was planned and deliberate, nor does he admit the degree of violence that he inflicted on the victim. On the latter point, instead, he claims that he “blacked out” and does not remember what he did.
[21] It should also be noted on this point that, when the applicant spoke to the police in 2009, which was his first conversation with them after his conviction, he claimed that the victim’s wife had committed the murder. It was not until 2012 that the applicant finally admitted to the police that he had committed the murder.
[22] Finally, in 2014, the applicant wrote a letter to the victim’s son-in-law in which he acknowledged his role in the murder and apologized for it. However, the applicant’s description of the murder, in this instance, reflects a claim that the victim attacked the applicant, grabbed the knife, and proceeded to stab the applicant. It was only after the applicant regained control over the knife, he says, that he stabbed the victim. While this description of the murder appears to place self-defence as the motivating factor for the stabbing, not only was that defence not put forward at trial, it is a defence that is difficult to reconcile with the fifty or more stab wounds that were inflicted on the victim. This, once again, suggests that the applicant has not accepted full responsibility for his role in the death of the victim.
D. Any information provided by a victim
[23] The victim had five children who ranged in age, at the time of the murder, from thirteen to twenty-eight. Four of the children provided victim impact statements for this proceeding.
[24] As would be expected, the victim impact statements detail the devastating impact that the loss of their father had on them, individually, and on the family as a whole. They also describe the fear that they have arising from the possibility that the person who killed their father might be released to live in the very city in which they continue to reside. All but one of the children oppose any release for the applicant. The one child, who does not oppose the applicant being released, wants any release to be contingent on the applicant being required to leave Ontario. That condition is not, of course, a matter that a jury, hearing any application under s. 745.61, could impose.
E. Any other matters that the judge considers relevant in the circumstances
[25] It is under this factor that I consider the issue of remorse. The respondent asserts that the applicant has not, to this day, truly acknowledged his actions. Rather, the applicant has given a variety of explanations, over the years, relating to his conduct, none of which constitute a full acceptance of his role in this murder.
[26] As I held in R. v. Phillips, [2011] O.J. No. 1687 (S.C.J.); aff’d. 2012 ONCA 54 (C.A.), an applicant’s lack of remorse is a factor that the pre-screening judge can consider in his or her review of the application. The pre-screening judge is, after all, mandated to consider the very same matters that a jury may ultimately also have to consider. It may be that some of the criteria will be of greater or lesser moment at the pre-screening stage. Some of them may be amplified at the hearing of the application, if it proceeds that far. Nonetheless, they are still matters that must be taken into account at this stage.
[27] The applicant has begun to accept responsibility for his actions. At least he has since 2012. However, to the degree that the applicant is actually remorseful for his actions, it does not appear that the remorse is absolute or unqualified. Put another way, while the applicant may be remorseful for the consequences of his actions, and he may have now accepted that he had a role in those actions, it is far from clear that the applicant fully accepts responsibility for instituting the chain of events that led to the victim’s death. His efforts to diminish his actual role, and to foist responsibility for the death of the victim on the victim’s wife, all suggest that there is still much to be done in terms of the rehabilitation of the applicant.
Conclusion
[28] I acknowledge that there are a number of positives in the applicant’s conduct during the time that he has been incarcerated. His work attitude has been positive. His willingness to participate in treatment and programming has been positive. His avoidance of violent conduct, or otherwise becoming involved in offences within the institution, is positive. His educational efforts, and his efforts to improve his English, are all also positives.
[29] On the other hand, the fact that the applicant is not prepared to stand up and unequivocally admit what he did, remains a serious troubling factor. So is the degree of violence reflected in the murder itself. The nature of the motivation for the killing is an additional troubling aspect.
[30] The nature of the screening process is aptly summarized in R. v. Morrisson, where Durno J. said, at para. 105:
To a significant degree, parole eligibility reduction hearings are based on the community’s assurances that the applicant has changed, that he or she has learned his or her lesson, will be a law-abiding citizen in the future, and that the purposes and principles of sentencing do not require the original period of parole ineligibility to be maintained. In addressing those issues, a jury would be considering the applicant’s credibility and reliability. The applicant’s lies to police and courts started the day after the murder and have continued for over 20 years. From right before the joint trial to this application, his various accounts have been accompanied by requests to assist him in being released from custody before his current parole ineligibility date. That history negatively reflects on his character and taints his otherwise good record while serving his sentence.
[31] In my view, much the same can be said of the applicant. He continues not to be forthright regarding his actions, and that lack of honesty or candour would undoubtedly be very disconcerting to a jury. I recognize, as was also said in Morrisson (at para. 82). that “there is no legal or practical requirement that an applicant accept his or her guilt or the factual basis upon which they were convicted”. However, the fact that there is no requirement to do so does not change the fact that it is a proper consideration, both for a jury, and for the screening judge. It is difficult to see how an applicant, who is not truly remorseful for his/her actions, would likely be able to satisfy twelve jurors that s/he has so changed, from the person who committed a horrific crime, that a reduction in the parole eligibility period would be warranted.
[32] The applicant argues, essentially, that expressions of remorse are all that is important, not the nature of the remorse, or the premise upon which it is based. I do not agree. The fact remains that the applicant has not fully accepted his role in this violent crime. As was noted in Morrisson, the central issue is whether the person has changed; whether they have learned their lesson. A person who is not prepared, more than fifteen years later, to accept the gravamen of the offence, cannot realistically be seen as having changed, at least not in a very fundamental respect. As even the applicant acknowledges, in his reply submissions, a jury may view his refusal to accept that he committed a planned and deliberate murder as indicating “an unchanged criminal mindset”. On this point, it must be remembered that it appears that the applicant was, but for this offence, a law-abiding respectful member of the community. So his continued rule abiding, respectful conduct, while in prison, is not surprising. I say that without intending to diminish its positive reflection on the applicant. But it still may leave a jury wondering “what has really changed?”.
[33] It must also be remembered that a parole ineligibility period of twenty-five years on conviction for first degree murder is the norm. It is not the exception. It is the penalty that Parliament has decreed must be applied to any person who commits the planned and deliberate killing of another human being. Reducing that period of parole ineligibility is something that should only be done where the totality of the circumstances demonstrates that the usual, or default, penalty is no longer appropriate. The purpose of the process was described in R. v. Swietlinski, [1994] 3 S.C.R. 481, where Lamer C.J.C. said, at para. 12(QL):
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.
[34] The test under s. 745 is, and should be, a high threshold to overcome. The fact that it is a high threshold is reflected in the “substantial likelihood” test, that the screening judge must apply, and in the fact that twelve jurors must unanimously agree that the parole ineligibility period should be reduced.
[35] Given all of the matters to which I have referred, I am not satisfied, on a balance of probabilities, that there is a substantial likelihood that twelve jurors would have the level of comfort, in this case, that they would decide, unanimously, that the applicant should be given the opportunity to apply for early parole. There may be a prospect that that would occur, but there is not a substantial likelihood that it would. There is simply, in my view, too little to suggest a significant change in the applicant that would justify that conclusion.
[36] The application is dismissed. In accordance with s. 745.61(3), the applicant may make a further application after the expiration of five years from the date of this decision.
NORDHEIMER J Released: January 3, 2017
Footnotes
[^1]: There was an issue whether the applicant needed an extension of time to bring this application. The respondent does not raise any objection on this basis. Consequently, if an extension of time is required, I would grant it. [^2]: R. v. Walizadah, [2007] O.J. No. 2721 (C.A.)