Court File and Parties

COURT FILE NO.: 5934 DATE: 20170526 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen Respondent – and – Danny George Azzam Applicant

Counsel: Brian White, for the Respondent Philip Casey, for the Applicant

HEARD: In Writing

GARSON J.

Introduction

[1] Danny Azzam (the “applicant”) was convicted of first degree murder on April 4, 2004 in the stabbing death of his step-mother in 2001. He stabbed her with a five-inch kitchen knife a total of 30 times, including 18 wounds to the chest after consuming alcohol and THC.

[2] The applicant’s father passed away in 1999. He became increasingly concerned about how his step-mother was spending the inheritance and his entitlement to any of the estate.

[3] On the date of the murder, the applicant arranged to meet his step-mother behind the community centre and when she did not respond to his concerns, he began to stab her repeatedly to the chest.

[4] The applicant has applied under s. 745.6 of the Criminal Code for a reduction in his 25 year parole ineligibility period. I have been designated by the Chief Justice of the Superior Court of Justice to screen the application and make a determination as to whether it shall be considered by a jury.

[5] The test, as set out in s. 745.61 of the Criminal Code requires that the applicant demonstrate on a balance of probabilities, that there exists a substantial likelihood that the application will succeed.

[6] For the reasons that follow, I conclude that the applicant has not shown, on a balance of probabilities that the application has a substantial likelihood of success at this time.

Materials Filed

[7] The applicant filed an affidavit sworn August 15, 2016, with several attachments [1] relating to his conduct while incarcerated. I will make reference to much of this material during the course of my Reasons.

[8] The Crown filed extensive materials, including a series of exhibits from the trial and a helpful timeline highlighting the various misconduct citations against the applicant during his time in custody.

[9] Correctional Service of Canada filed a Parole Eligibility Summary Report, dated February 14, 2017, alongside various assessments and performance reports and the original trial transcript. [2]

The Test

[10] Section 745.63(1) (a)-(e) of the Criminal Code sets out the criteria that a judge shall consider in determining whether the applicant has met the “substantial likelihood that the application will succeed” threshold. I need not weigh each factor equally. The focus is on changes, if any, since the initial sentence was imposed.

[11] In R. v. Jenkins, 2014 ONSC 3969, 114 W.C.B. (2d) 527, Pomerance J.A. provides some helpful guidance on the central points or test to be relied upon in interpreting the interplay between the concepts of proof on a “balance of probabilities” that a “substantial likelihood” exists that the application will succeed. These points are summarized at para. 14 as follows:

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. Given the breadth of the jury’s discretion, the role of the judge is not so much to assess whether an application will succeed, but rather, whether it should succeed. As I explained in para. 46 of my decision on the constitutional issue:

…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, 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.

e. 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.

The Factors Considered

The Character of the Applicant

[12] I must not only consider the antecedents of the applicant as they existed leading up to the homicide but also any changes to that character that have emerged since incarceration, including the applicant’s remorse and his acceptance of responsibility for the offence.

[13] The applicant’s affidavit expresses remorse for his actions. In addition to characterizing his own behaviour as selfish and callous, he acknowledges the grief and suffering his actions have caused to the family of the victim. [3]

[14] The applicant’s affidavit suggests that he accepts responsibility for his actions. [4] This is in sharp contrast to his initial lying to the police about the offence when questioned. However, after his arrest, he confesses to the offences. Nonetheless, throughout his trial and appeal and continuing to when first incarcerated, he maintained that the offence was not pre-meditated. [5]

[15] A series of reference letters from a priest, a correctional program officer and several correctional employees speak to the applicant’s strong work-ethic, intelligence, pro-social behaviour, and kindness.

[16] The applicant displays a lengthy history of substance abuse tracing back to age 10 or 11 when he began drinking and expanding to marijuana use by the age of 15.

[17] At the commencement of his sentence and for many years thereafter, the authorities documented incidents of possession of brew-like substances and unauthorized pills. [6] To his credit, the applicant completed programs in an effort to combat these addictions.

[18] The applicant showed many signs of depression coupled with a history of self-mutilation and at least one attempted suicide. [7] He began acting out at age 10 and was subsequently sent to an “institution” as a result of his behaviour at age 13. He left the family at age 15. He displayed anger issues as a teenager up to and including the time of the offence. As of 2015, the applicant appears to be coping with his depressive symptoms. His time in custody appears to have tempered his anger issues and he is described as a “polite, cooperative and relaxed person”. [8] His early negative attitude shows significant improvement over time, as his initial plan assessed his anger as highly problematic and his 2015 plan identified him as requiring “a low need for improvement”. [9]

[19] Prior to this offence, the applicant possessed a minor record for the offences of Fail to Appear and Possession of Break-In Instruments.

Applicants Conduct While Serving the Sentence

[20] The records provided to me demonstrate that the applicant has made significant progress in a number of areas during his years of incarceration. These include:

(i) Programs Completed: The applicant has attended AA meetings to address his addiction issues, completed his high school diploma, attended several programs to combat addiction and emotional instability [10], and participated in a number of voluntary programs dealing with peer education, first-aid and alternatives to violence.

(ii) General Attitude: The applicant was initially identified as displaying negative attitudes towards the correctional system. However, with time, he is now seen as polite, courteous and respectful and has made marked improvements in this regard. He appears highly motivated to succeed in his correctional plan and has not been identified as being involved in any organized crime or related issues. He has made substantial progress in dealing with his anger management issues.

(iii) Substance Abuse: The applicant’s early misconduct while incarcerated dealt primarily with addiction and substance abuse issues. Although still classified as requiring a “moderate need for improvement” [11], he has made some progress in this regard.

(iv) Employment: The applicant has held a variety of employment positions while incarcerated and acquired multiple skills-certification coupled with very strong performance reviews.

(v) Institutional Misconduct: The applicant has not done so well in this category. As of 2008, the applicant had 9 institutional charges relating to brew-making, unauthorized possession of pills and positive urinalyses results, of which 5 were deemed serious. [12] By 2015, he had acquired a total of 20 institutional charges, including possession of over 700 loose pills and a positive urinalyses result in 2013 for cocaine and morphine.

(vi) Risk-assessment: In a 2008 report, the applicant was identified as being in the low-moderate-moderate range for general recidivism and the moderate range for violent recidivism. By 2015, a series of tests concluded that he was in the low-moderate risk for recidivism over a 2 year span and was part of a statistical group of which 20% will likely commit indictable offences after release. [13] The applicant currently possesses the skills to cope with his depressive symptoms (such symptoms being rather common for persons serving life sentences). The reports suggest the applicant shows an understanding of the elements of his offence cycle and has taken the necessary steps to address them through programming. [14]

(vii) Outside Community Involvement/Relationships: The applicant has a supportive family and speaks and visits regularly with his older sister, aunts, uncles, cousins and family friends. The applicant has recently married a woman who has a daughter. In light of his consistent and strong employment, his positive community contacts and his participation in recreational activities, the applicant’s “re-integration potential” into the community has been assessed at medium [15] (an improvement from an initial assessment of low).

The Nature of the Offence

[21] As earlier noted, the actions of the applicant were quite shocking and horrendous. The applicant stabbed the victim a total of 30 times. There were numerous defensive wounds to the victim’s left forearm and hand. The appellant rode a borrowed bicycle to the parking lot of the community centre which he had requested the victim to attend. As she sat in the driver’s seat, he inflicted 30 knife wounds, 18 of which were to her chest, with 11 penetrating the chest and vital organs.

[22] After the killing, the appellant threw the knife in a nearby field. He then rode the bicycle to his step-mother’s home where he hid his shoes in a hedge behind her house and hid his bloodstained clothing in a bedroom and in the garage.

[23] In the early morning hours after the killing his girlfriend, initially, and the applicant, subsequently, telephoned the police to report the victim as missing.

[24] Both at trial and during the appeal, the applicant took the position that the murder was not planned and deliberate but rather the product of provocation combined with substance abuse.

[25] The applicant spoke to his girlfriend months before the offence about wanting to kill the victim. His girlfriend testified to this effect. There was also evidence that the applicant intentionally caused the victim to ingest an overdose of sleeping pills in an earlier but unsuccessful attempt to cause her death.

[26] The applicant devised an alibi prior to the commission of the offence.

[27] The victim was the step-mother of the applicant and raised the applicant from the time he was between 2 and 4 years of age until her death. They did not have a good relationship which seemed to only worsen after the death of the applicant’s father (and the thoughts by the applicant that the victim had something to do with his death). Money issues relating to the estate and the spending patterns of the victim appear to have been driving factors in the actions of the applicant.

[28] The applicant was relatively young at the time of the offence (21).

Victim Information

[29] Although victim input was sought for this application by way of a daughter of the deceased, she declined any further input.

Other Relevant Considerations

[30] There is no other information that I consider relevant.

Discussion

[31] The starting point for any discussion is to understand the purpose of s. 745.6 which is to re-examine the earlier sentencing decision in light of new information or circumstances which could not have been known or available at the time. In other words, I must focus on any substantive changes to the applicant’s situation that may justify a deduction from the original penalty: see R. v. Swietlinski, [1994] 3 S.C.R. 481, at para. 14.

[32] There can be little doubt that the gatekeeping function at this juncture is intended to screen out frivolous applications and protect families and society from needless and painful hearings that will likely end in failure for the applicant. Only meritorious applicants should come before juries.

[33] The stringent test places a high burden on the applicant and is intended to ensure that any departures from the mandatory life sentence for first degree murder without parole eligibility for 25 years are warranted.

[34] There are many positives to the conduct of the applicant while serving his sentence. These include:

(i) his steady progression from maximum to medium to minimum security institutions over time; (ii) his current assessment as a low-moderate risk for recidivism; (iii) his successful completion of a series of programs; (iv) his consistent and strong employment experiences while incarcerated; and (v) his expanded and positive family support, including his recent marriage.

[35] These are to be balanced against some negatives including:

(i) an extensive history of institutional behavioral concerns continuing to March 2016 [16]; and (ii) despite some positive efforts to deal with substance abuse issues, a number of failed urinalysis tests, including as recently as March 2016 where he tested positive for the presence of THC. [17]

[36] There can be little doubt that overall, the applicant has done very well in prison. His many improvements and his current motivation for bringing this application (his new wife and her daughter) are commendable. Yet this is but one of the factors to consider.

[37] All first degree murders are inherently brutal, shocking and horrifying. This one is no different. There are a number of specific factors I take into account including:

(i) prior to the murder, the applicant deliberately caused the victim to ingest an overdose of sleeping pills; (ii) using a six-inch kitchen knife, the applicant inflicted 30 knife wounds while she sat in her vehicle trapped by her seatbelt. Eighteen of the wounds were to her chest and the balance were of a defensive nature. The pathologist at trial testified that it would have taken some minutes before the victim succumbed to her wounds; (iii) the applicant was described by a witness as leaving the scene making sounds of a celebratory nature; (iv) the planned alibi and the initial efforts to mislead the police by feigning concern for the “missing victim” and hiding the incriminatory evidence; and (v) the continually changing story about his role in the murder from the first to the second police interview and from the first Criminal Profile Report (2004) to a later Program Performance Report (2012) where he finally acknowledges an element of planning and deliberation to the murder.

[38] Although I accept that he now acknowledges his responsibility for his role in this offence, both the timing and the evolution of this admission are concerning. His initial story at trial was that of provocation coupled with intoxication. It later changes (2004) to include having “blacked out” at the time of the stabbing, and by 2012, introduces the concept of a planned murder seeking revenge for the victim’s perceived role in the death of his father. This theme of premeditation extends to a 2014 comment to Dr. Loza where he admits to having thought about killing his step-mother for two years and then decided to act upon those thoughts. This latest version is a significant change from his earlier factual accounts and must be assessed in this context.

[39] Effectively, I am required to put myself in the shoes of a prospective juror, applying the same test and relying on the same factors that a jury would consider and attempting to predict the outcome.

[40] There is much that the applicant is to be commended for including his numerous and positive steps towards rehabilitation coupled with his recent acceptance of responsibility and expressions of remorse. I accept that he is a different and a better person than the one that appeared at trial.

[41] However, he remains a few steps short of the model prisoner. His institutional behavioral concerns, particularly those relating to substance misuse or abuse, are concerning in light of the role substance abuse played in his life at the time of the murder, and the link between the applicant’s substance abuse and anger and violence.

[42] The law requires a critical analysis and evaluation of the nature of the offence. It is both difficult and unnerving to put the tragic loss of life along a continuum. The level of planning, the manipulation of the trust of the victim and the sheer terror suffered by the victim make this a particularly brutal and despicable act.

[43] This was an out of character act by an individual who has now demonstrated many positive changes to his life and contributed in a significant way to his prospects for rehabilitation. His progress has made his prospects of successfully being released and reintegrated into society more likely to happen. But not now.

[44] In MacMillan v. British Columbia (AG), 2015 BCSC 2298, 126 W.C.B. (2d) 479, the court dealt with a model inmate that had recently begun to accept full responsibility for his actions (while previously placing a degree of blame on the victim) but nonetheless fell short in his application under s. 745.6. Similarly, in R. v. Crick, 2012 ONSC 5695, 103 W.C.B. (2d) 826, the applicant demonstrated good conduct during his incarceration and was deemed a low risk to offend. However, due to the nature and circumstances surrounding the commission of the crime and the failure to acknowledge responsibility (and lack of remorse) the court denied the s. 745.6 application.

[45] His many positives are simply not sufficient to outweigh the excessive and extreme degree of violence reflected in the murder itself, coupled with his on-going struggles to deal with his substance abuse issues and extensive history of institutional misconduct. The nature of this crime and the circumstances surrounding its commission are an important factor for this court to consider.

[46] His various accounts of the events and his lies to both the police and the courts, adversely affect his reliability and his credibility.

[47] I am not convinced that he could convince twelve jurors on a balance of probabilities that his parole ineligibility period should be reduced. That said his progress is commendable and I urge the applicant to remain on the path of improvement.

Conclusion

[48] Having carefully reviewed the evidence on the critical factors enumerated in s. 745.63 of the Code, I am not satisfied that the applicant has met the onus of proving on a balance of probabilities that there is a substantial likelihood that a unanimous jury would agree to award the applicant with early parole eligibility. In the result, the application is dismissed.

[49] In accordance with s. 745.61(3)(a), and in light of the significant progress made by the applicant to date, the applicant may make a further application after the expiration of five years from the date of this decision.

“Justice M. A. Garson” Justice M.A. Garson Released: May 26, 2017

Footnotes

[1] These include a Millhaven Corrections Plan and a Profile Report, dated July 12, 2004 (“MCP”), Psychological Risk Assessments of Dr. Jacqueline Cimbura, dated October 31, 2008 and Dr. W. Loza dated May 6, 2014; a Warkworth Institution Correctional Plan dated May 7, 2015 (which includes excerpts from earlier Warkworth Correctional plans in 2010-2012 and 2014 as well as from Kingston Penitentiary in 2006-2007) (“WCP”), an Ontario Secondary School Diploma and other Awards and Certificates and various letters of reference.

[2] These included Psychological Assessment Reports of October 31, 2008 and May 16, 2014; Performance Reports regarding (i) the Reasoning and Rehabilitation Program (2006), (ii) Anger and Emotions Management (2007), (iii) National Substance Abuse Program (2011), and (iv) Aboriginal Basic Healing Program (2012). The applicant also completed and filed a Relapse Prevention Worksheet.

[3] See WCP at p. 10 which reflects the applicant’s genuine demonstration of remorse.

[4] See also WCP at p. 10 that indicates that the applicant “demonstrates a high level of accountability for his actions”.

[5] See MPR at p.1

[6] See p. 4 of the WCP

[7] See p. 5 of the 2008 Psychological Risk Assessment

[8] See p. 10 of the WCP (2015)

[9] See p. 5-6

[10] Reason and Rehabilitation – 2006, Anger and Emotions – 2007, National Substance Abuse Program – 2011, and Aboriginal Basic healing – 2012

[11] See WCP 2015 at p. 4

[12] See MPR at p. 4

[13] See WCP at p.12

[14] See p. 9-10 and the results of the Statistical Information on Recidivism Scale (SIR) and the Self-Appraisal Questionnaire (SAQ) and the Level of Supervision Inventory (LSI-R)

[15] See WCP p. 11

[16] June, 2001 [EMDC]: An unknown pill hidden in a 35 mm film canister; Sept. 3rd, 2004 [Kingston Penitentiary]: Possession of pills; Dec. 15, 2005 [Kingston Penitentiary]: Seizure of 4 litres of “brew”; Jan. 3rd, 2006 [Kingston Penitentiary]: Seizure of remnants of a brew-like substance; May 16th, 2006 [Kingston Penitentiary]: Failed urinalysis by testing positive for THC; Jan. 2nd, 2007 [Kingston Penitentiary]: Failed urinalysis by testing positive for THC; October, 2010 [Warkworth Institution]: Found to be in possession of over 600 Tylenol and Motrin tablets; Feb 5th, 2011 [Warkworth Institution]: Found to be in possession of 129 orange pills and an additional 638 white pills; Feb 27th, 2013 [Warkworth Institution]: Failed urinalysis where the applicant stated that he had taken another inmates Tylenol 3, and tested positive for codeine/morphine; Aug 5th, 2015 [Warkworth Institution]: loose pills found along with a debt list and other contraband; March 2016 [Warkworth Institution]: Failed urinalysis where the applicant stated that he had taken prescription heartburn medication, but later admitted that the positive test for THC was a “slip” on his part.

[17] The Parole Eligibility Summary Report at p. 17 references a 2014 Psychological Risk Assessment of Dr. Loza that speaks to the applicant benefiting from a “long-term substance abuse program both institutionally and in the community when he eventually achieves a conditional release”.