Court File and Parties

COURT FILE NO.: 17-00000382-000 DATE: 20181012

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – GARY EUNICK Applicant

Counsel: Robin Flumerfelt, for the Crown Michael A. Crystal, for the Applicant

HEARD: Written submissions

B. P. O’Marra J.

REASONS FOR JUDGMENT

THRESHOLD SCREENING APPLICATION PURSUANT TO SECTION 745.61 OF THE CRIMINAL CODE

OVERVIEW

[1] On May 29, 2004 the applicant was found guilty of first degree murder and attempt murder. On June 8, 2004 he was sentenced to life imprisonment without parole eligibility for 25 years on the murder conviction, and a concurrent life imprisonment term for the attempt murder. The Court of Appeal dismissed his appeal of the convictions on May 12, 2009. The Supreme Court of Canada denied his leave application on December 13, 2012. He will not be eligible for parole until July 6, 2024. He has applied pursuant to s. 745.6 of the Criminal Code, R.S.C., 1985, c. C-46, for a reduction of his parole ineligibility. The Crown opposes this application.

[2] By letter dated October 3, 2017 I was designated by the Chief Justice pursuant to s. 745.61 of the Criminal Code to preside over this application. The filing of materials in support of and responding to the application was not completed until August 2018. There were a series of conference calls involving both counsel and myself up to and including September 4, 2018. Appendix A to this judgment sets out the materials filed on this application.

CIRCUMSTANCES OF THE OFFENCES

[3] The Crown summarized the circumstances of the offences based on references to the trial and appellate record as follows at paras. 10 – 15 inclusive of his written submissions:

PART I – FACTS

10. The victim, Colin Moore, and his wife Jennifer ran a charity event called, "First Fridays." This was a get-together that attracted a more "sedate, middle-aged crowd." After paying for the food and music, the remaining proceeds would be used to assist a member of the community in need.

11. On July 5, 2002 the event was held at a restaurant/nightclub called "HHMS" near Victoria Park Road and Eglinton Avenue in Toronto. Mr. Eunick arrived at the restaurant with his girlfriend and others, unaware of the special event and displeased that there was a charge at the door to cover the food and music inside.

12. An argument over the cover charge escalated very quickly into a physical confrontation. Eunick and his associates left the club but returned within minutes armed with handguns. Eunick carried a semi-automatic firearm. Eunick and an associate made their way through the panicked club to the kitchen area behind the bar where they cornered Colin and Roger Moore and began firing. A bullet grazed Roger Moore's head but he miraculously escaped death. Colin Moore was shot eight times. Colin's wife, Jennifer, was in the kitchen and witnessed his execution.

The licence plate of the Applicant's getaway car was provided to police who set up surveillance on the home of the registered driver (the Applicant's girlfriend, Lisa Hay, who had been at the club with Eunick). At noon the following day, Lisa Hay emerged from the house and prepared to clean the getaway car. A police tactical team moved in to effect Eunick's arrest. While his co-accused complied, Eunick refused verbal commands and was ultimately arrested by tactical officers who located him hiding in the house.

In a bag hidden behind the home, forensic officers located the orange blood-covered vest worn by Eunick and identified by eyewitnesses. It contained gunshot residue. His running shoes were found hidden in the home as well. They contained glass from the restaurant door that Eunick had kicked in to gain entry and commit the murder.

As noted by the sentencing judge:

[T]heir actions were planned and deliberate. It follows that the attempt to murder Roger Moore was also planned and deliberate. Only fortune separated the fate of Roger Moore from that of his late brother, Colin. The offence of attempting to murder Roger Moore, like the first degree murder of Colin Moore, was of the most extreme gravity. Nothing can responsibly be said in mitigation of either crime.

THE THRESHOLD

[4] This application was commenced before the decision in R. v. Dell, 2018 ONCA 674 was released. I sought input from counsel as to the impact of that decision on this proceeding. By letter dated September 4, 2018 I confirmed that both counsel agreed that the test to be applied at this judicial screening stage will be as set out before the amendments to the Criminal Code in 2011. Specifically, it was agreed that I should consider whether the applicant has shown on a balance of probabilities that there is a “reasonable prospect” that the application would succeed before a unanimous jury.

CRITERIA TO BE CONSIDERED AT THE JUDICIAL SCREENING STAGE

[5] Section 745.61(2) of the Criminal Code provides that at the judicial screening stage the following criteria contained in s. 745.63(1) (a)-(e) shall be considered:

(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] In R. v. Morrison, 2016 ONSC 5036, at paras. 34-43 inclusive Durno J. provided a helpful outline of the approach to be taken at the judicial screening stage. It can be summarized as follows:

1. All of the factors set out in s. 745.63 (1)(a)-(e) inclusive must be considered. There is no “score card” that gives each factor equal weight. Each application is a fact-specific determination.
2. Once all the evidence has been examined the screening judge performs a limited weighing of the evidence in an attempt to forecast the outcome of the application if it was heard by a jury: R. v. Dulay, 2009 ABCA 12, [2009] A.J. No. 29 (C.A.), at para. 5. The primary focus of the hearing is to “call attention to changes which have occurred in the applicant’s situation that might justify a less harsh penalty”: R. v. Swietlinski, [1994] 3 S.C.R. 481, at p. 482. The jury’s verdict, in effect, is an assessment of the offender’s progress: R. v. Jenkins, 2014 ONSC 3223, 11 C.R. (7th) 346, at para. 17.
3. In order to reduce the period of ineligibility, the applicant must satisfy all twelve jurors. Accordingly, the test at the judicial screening stage is whether on the material filed the applicant satisfies the judge on a balance of probabilities that there is (in this case) a reasonable prospect that a jury would unanimously reduce the ineligibility period.
4. The mandated sentence for first degree murder is life imprisonment without parole eligibility for 25 years. The applicant must show that his current situation justifies a departure from the normal legislated sentence: R. v. Gayle, [2013] O.J. No. 4124 (S.C.J.), at para. 30.
5. The applicant is no longer presumed innocent. He must provide all the available evidence that would support his application at the time of the threshold screening.
6. The applicant must show that the application has real merit and in this case a reasonable prospect that a jury will unanimously reduce the period of ineligibility: R. v. Rowe, 2015 ONSC 2576, 324 C.C.C. (3d) 57, at para. 62.

CHARACTER OF THE APPLICANT

[7] The applicant was born on March 11, 1975. He is currently detained at Beaver Creek Medium Security Institution in Gravenhurst, Ontario. Since his arrest he has been detained at the following institutions:

• Toronto West Detention Center (Don Jail)
  • July 2002 to July 2004
• Millhaven Institution
  • July 2004 to October 2009
• Beaver Creek Medium Security Institution
  • October 2009 to present

[8] The applicant had a criminal record before the murder and attempt murder charges arose. On November 23, 2000 he was convicted of a number of firearm and ammunition offences. He was sentenced to 14½ months in jail. He was also placed on probation for three years, and prohibited from possessing any firearms or ammunition for five years. On February 2, 2000 he was convicted of failing to comply with a recognizance. He received 30 days consecutive to time being served. When he murdered Colin Moore and attempted to murder Roger Moore by shooting them he was still on probation and still prohibited from possessing any kind of firearm or ammunition.

[9] The applicant has been in a common law relationship for almost ten years. He and his spouse are the parents of a five-year-old daughter. His spouse and daughter visit him on a regular basis. In support of his application he has also submitted letters from the following persons:

• Marva McGregor (mother-in-law)
• Shantelee Eunick (sister)
• Melissa Anderson (cousin)
• Kevin Anderson (second cousin)
• Reverend Dexter Miller
• Abraham Yonas (Chaplain)
• Richard Scott (former employer)
• Dereck Payne (former co-worker)

[10] The applicant’s common law spouse has believed from the outset that he was innocent and wrongfully convicted. Her letter dated April 21, 2017 includes the following:

I still remember the night the tragic incident happened, the early morning of July 6, 2002, it was the night of my parents anniversary (July 5) and the morning of my Dad’s birthday (July 6). When I heard on the news that Gary was arrested for such a crime, I couldn’t believe it. Word quickly spread in the neighbourhood and city that the wrong two people were in custody and everyone that knew the truth actually expected that during the trial the truth would be revealed, no one was actually even thinking about the real possibility of a conviction. Of the two people that were on trial, one person was in their bed sleeping and the other did not make it past the front door, in our minds it was just not possible. . . Fast forward two years to 2004, the complete opposite of what we all expected would happen, happened, both Gary and Leighton were convicted and sentenced. A lot of additional people were devastated.

Gary still remains, serving time for a crime that many of us know he did not commit . . . caught up in an unimaginable life journey that we wouldn’t wish upon no one.

Some people may wonder why a girl like me with so much going for herself would chose to embark on such a journey, being in a relationship with someone who is incarcerated. My answer is and will always be that, I do it because of my faith in God and out of genuine love for myself, the person that I know Gary to be and the fact that I know the truth about Gary’s innocence.

THE APPLICANT’S CONDUCT WHILE SERVING THE SENTENCE

[11] While incarcerated the applicant graduated from high school. He also worked as a cleaner, a recreation worker, and served on an inmate committee.

[12] A Correctional Plan was prepared that tracked his progress through his time in the federal penitentiary system.

[13] The initial assessment upon intake was that he had “considerable difficulty”. His current assessment is “moderate need for improvement”. At the beginning of his sentence, the applicant displayed problems related to discipline and following orders. Upon transfer to medium security he continued to display those attitudes, but improved somewhat.

[14] In recent years his attitude has improved and negative reports have become rare.

[15] In terms of associates, his antecedent profile was that of a gang member and drug dealer. It appears that in recent years he has tried to avoid that subculture. His gang member status was changed to “inactive” in 2017.

[16] Counsel agree that his application to minimum security has been denied by the Warden for reasons that include his lack of remorse and accountability.

[17] The most troubling aspect of his presentation in prison has been his lack of accountability. He is rated “low” on this factor, which is the lowest possible score. He maintains his innocence and a lack of remorse for the death and injuries caused by his actions. The applicant claims that he is assessed as “moderate” on accountability. Counsel have agreed that in fact his accountability assessment by his case management team and parole officer is “low”. It is also agreed that his motivation is assessed at “moderate” and not “high” as the applicant claims.

[18] The applicant remains in the moderate range for non-violent recidivism, and the low/medium range for violent recidivism.

THE NATURE OF THE OFFENCE FOR WHICH THE APPLICANT WAS CONVICTED

[19] In R. v. Brown, 2015 ONSC 5264, at para. 20, Nordheimer J. (as he then was) commented on the challenge of grading the level of severity of the circumstances of a murder:

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 the 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.

[20] The applicant was a heartbeat away from conviction on two counts of first degree murder rather than one murder plus an attempt murder. He had the intent required to murder two men but one miraculously survived. That Roger Moore survived was not for a lack of trying by the applicant.

[21] There was overwhelming evidence that the applicant murdered one man in cold blood. In order to convict on the second count of attempt murder the jury had to be instructed that nothing less than an intention to kill had to be proven beyond a reasonable doubt. The fact that a second victim was shot and survived is a further serious factor along with the murder in the total circumstances of the offence.

[22] If the second victim had not survived the applicant would not even qualify to request the opportunity to seek earlier parole eligibility: Criminal Code, s. 745.6(2).

[23] In R. v. Logan, [1990] 2 SCR 731, at pp. 742-743, the court referred to the notion of a “lucky” murderer where an attempt murder is proven:

Such a conviction reveals that although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less a killer than a murderer: he may be lucky – the ambulance arrived early, or some other fortuitous circumstance – but he still has the same killer instinct. Secondly, while a conviction for attempted murder does not automatically result in a life sentence, the offence is punishable by life and the usual penalty is very severe.

[24] The murder of Colin Moore was the brutal and senseless execution of a good citizen, husband, and father.

ANY INFORMATION PROVIDED BY A VICTIM AT THE TIME OF THE SENTENCE OR AT THE TIME OF THE HEARING

[25] The following victim impact information was tendered at the sentence hearing and is excerpted at paras. 48-50 inclusive of the Crown’s written submissions on this application.

48. As noted by the sentencing Judge, the victim impact statements in this case revealed with great power the anguish that Mr. Eunick caused. [The victim’s] daughter Alicia Moore wrote:

My father was a great man. He was the most caring and loving man that I have ever met, and I would even say that many others have ever met. ... He had many graduations to attend and two very important weddings. You have taken away the man that would have given me and my sister away at our weddings. You have made future would-be joyous events sad. You have taken away something that could never be replaced.

49. His daughter Jaleesa wrote:

If there were a father of a lifetime award, my dad would've gotten it. I think I can speak for my sister and I when I say he was the best dad ever .... He loved to hear me sing, he always said, "She sings like an angel." Who would've ever thought the last time he would hear me sing would be at his funeral.

50. Finally, his wife Jennifer, who witnessed his murder, said the following:

May 9th, 1978 was the first day of the rest of my life. This was the day I met Colin Moore.

From the inception I knew he was special, the kindest and most humble person I had ever met. A good man, he always had a smile and a hug for everyone. He was a devoted husband and father whose first commitment was to his three girls. He was also compassionate, dependable and a pillar of the Guyanese community. Colin was godfather to 10 children; this was a man whom parents wanted to have as a role model in their children's lives.

On July 6th, 2002 Colin's life ended and in a strange way so did mine.

[26] The widow and two daughters filed the following letters in response to this application:

Jaleesa Moore

My name is Jaleesa Colleen Washington. My maiden name is Moore. My father was Colin Martin Moore and he was the true definition of what a father, a husband, a brother, an uncle, and a friend should be. When I was 14 years old, my father was gunned down over a $10 cover charge, and honestly, I haven't been the same since. The man who took me to every appointment I ever had was gone. The man who brought me lunch every single Thursday, was gone. The first man to ever love me unconditionally and show me how my future husband should treat me, was gone. Do you have any idea what that does to a young girl? How she feels like she will never know that love again because it was stolen from her? My life shattered. Everything I knew was taken and turned upside down. I saw my mother turn into a shell. He was murdered the summer I was going into the 9th grade.

Alicia Moore

16 years later, I still miss my father very much. My family has been robbed of so many moments with him. I wish he were here to have attended my law school graduation. I wish he were here to see the woman I have become. I wish he were here to walk me down the aisle at my wedding. I wish he were here to know my awesome nephew, Chase. I wish he were here so that my mother wouldn't be alone. I wish he were here so that my sister wouldn't have had to have gone through what she did at such a young age. I just wish he were here.

When my father died, a part of me died along with him. I am not the same person I was - none of us are. We were and are a very close family. To have lost a member so suddenly and so brutally was devastating for all us and has been something that has been very difficult for all of us to deal with. The wounds we have suffered are deep and have not completely healed to this day. The reality is that I suspect they never will.

Jennifer Moore

My name is Jennifer Moore and I am the wife of Colin Moore. July 6, 2002 is the day my life as I knew it ended. My soul mate, my best friend, the love of my life, my loving husband and my children's amazing Dad was taken away from us. Reliving what has been bottled inside for the last 16 years is so painful, it is making it so hard to continue writing this.

My first thought was, I can't go on, I was in a state of shock and stupor. My only thought was I need to be with him, there is no way I could live without this man who has brought us so much joy over the almost 25 years we were together. I was put on suicide watch for the first two weeks. Went through the next few months in a zombie like state and then took a spiral for three years, just laying around not able to function, not even to provide for our 14-year-old daughter who needed me more than anything.

The hardest thing I ever had to do was to tell our 14-year-old daughter Jaleesa her Dad is never coming home. I could still hear the scream that she let out. Our eldest daughter was in the US at University, making that phone call was heart wrenching. She flew home within hours and proceeded to plan her Dad's funeral.

Although, life goes on, it doesn't, every day I relive watching my husband gunned down for something so trivial. Firecrackers set me off, cars back firing set me off, it's like a panic attack waiting to happen.

I listen to my girls speak of their Dad and at times it is with so much love it fills my heart, and other times it is with so much pain, it breaks my heart.

We were a loving, happy family, Colin was the mainstay, the rock, the gentle giant. He was loved by everyone, this was evident in the funeral he had.

Our immediate family, along with his extended family have been served such an injustice with him being taken from us.

CONCLUSION

[27] The applicant’s behaviour while in jail has improved. He is more positive, polite, and hard working. He appears to be as good a spouse and father as possible in the circumstances.

[28] I have no reason to doubt the sincerity of those family, friends, spiritual advisors, and former co-workers who support the applicant. They have seen the personality he chose to present to them since his conviction. I assume they are all aware that he was convicted of first degree murder and attempt murder. However, there is no indication that they knew the specific brutal circumstances of these crimes and the overwhelming evidence of his guilt. He has continued to deny his guilt to prison authorities. It can be safely assumed he has also denied his guilt to those who now support him in this application.

[29] The applicant’s failure to accept responsibility for the offence and his lack of remorse are negative factors that are relevant to this application: R. v. Phillips, 2012 ONCA 54, 288 O.A.C. 351, at para. 8. The sheer brutality of the crime and the devastating and continuing impact on the widow and daughters of the victim are particularly significant. Based on all of the information and evidence provided I am not satisfied on a balance of probabilities that there is a reasonable prospect that the applicant could unanimously convince twelve jurors that his parole ineligibility should be reduced.

[30] The application is dismissed.

B. P. O’Marra J.

Released: October 12, 2018