Court File and Parties

Court File No.: CR-19-00000103-00MO Date: 2019-05-24 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Amandeep Banwait, Applicant

Counsel: Rochelle Direnfeld and Sean Horgan for the Crown Michael Crystal for the Applicant

Heard: In writing

Reasons for Decision

M. Dambrot J.:

[1] The applicant was convicted of first degree murder in 2006 and sentenced to life imprisonment without eligibility for parole for 25 years. He has now served in excess of 15 years of his sentence, and has applied to the Chief Justice of the Superior Court of Justice for a hearing to consider whether or not his period of parole ineligibility should be reduced. I have been designated by the Chief Justice to screen this application.

Background

[2] The applicant was jointly tried with Harjit Matharu and Amar Sandhu by Trafford J. and a jury on a charge alleging that they committed the first degree murder of Raheel Malik. On January 12, 2006, the applicant was convicted of first degree murder and, as required by s. 745 (a) of the Criminal Code of Canada, was sentenced to life imprisonment without eligibility for parole until he has served twenty-five years of his sentence. Matharu was convicted of second degree murder and Sandhu of manslaughter. On appeal to the Court of Appeal the applicant’s conviction for first degree murder was set aside (MacPherson J.A. dissenting), a conviction for second degree murder was substituted and the matter was remitted to the trial judge for sentencing: R. v. Banwait 2010 ONCA 869, 265 C.C.C. (3d) 201. On further appeal to the Supreme Court of Canada the conviction for first degree murder was restored, as was the original sentence. I note that the applicant’s appeal to the Court of Appeal was heard together with Matharu’s appeal from his conviction for second degree murder, which was dismissed.

The Faint Hope Process

[3] By virtue of s. 746 of the Criminal Code, in calculating the period of imprisonment that an offender sentenced to life imprisonment under s. 745 of the Code has served for the purpose of determining the date of their parole eligibility, the period of time that the offender spent in custody between the day of they were arrested and taken into custody and the day their sentence was imposed must be included. As a result, as of July 1, 2018, the applicant had been imprisoned for 15 years.

[4] Section 745.6 of the Criminal Code permits some offenders who have been convicted of murder and have received a life sentence without eligibility for parole until more than fifteen years of their sentence has been served to apply to the Chief Justice of the Superior Court of the Province in which the offender was tried for a reduction of the period of their parole ineligibility period. This section, which came to be known as the “faint hope” clause, has as its purpose the re-examination of parole eligibility in light of new information or factors that could not have been known initially: R. v. Swietlinski, [1994] 3 S.C.R. 481, at para. 12. As a result, the primary purpose of a faint hope hearing is to call attention to changes that have occurred in an applicant’s situation that might justify a less harsh penalty.

[5] Section 745.6 has undergone substantial modification since first enacted in 1976, as have a number of related sections. The original provision gave an applicant an automatic right to have the Chief Justice or her designate empanel a jury to hear the application. In 1997, a judicial screening mechanism came into being. The new s. 745.61(1) provided that a hearing before a jury could only take place if the Chief Justice or her designate first determined, on the basis of written material only, that an applicant had shown, on a balance of probabilities, that there was a “reasonable prospect” of success. In addition, while the jury’s decision to reduce the parole ineligibility period originally could be decided by a two-thirds majority vote, the 1997 amendment required that the vote must be unanimous.

[6] The faint hope clause provisions were amended again in 2011. Faint hope hearings were eliminated for offenders who committed murder after December 1, 2011. In addition, for offenders who committed murder before December 2, 2011, the 2011 amendments imposed a more stringent screening test. Such applicants now have to satisfy the screening judge that there is “a substantial likelihood” that their application would succeed before a jury.

The Application

[7] On September 27, 2018, the applicant brought an application to the Chief Justice of the Superior Court for a review of his parole ineligibility. On October 22, 2018, the Chief Justice of the Superior Court designated me to screen this application and to determine whether the applicant has shown, on a balance of probabilities, that there is a reasonable prospect that the application would succeed, and, should I determine that he has met this threshold test, to empanel a jury to hear the application.

[8] The applicant filed an extensive Record with his application, and on February 8, 2019, he filed a Supplementary Record containing the report of Correctional Services Canada required by s. 745.61(1)(b) of the Criminal Code. On March 27, 2019 the respondent filed its factum. On April 2, 2019, counsel for the applicant advised me that the written material that I am required by s. 745.61(1) of the Criminal Code to consider on this application was complete.

The Offence

[9] The first degree murder of Mr. Malik can be briefly described as follows.

[10] On a summer evening in 2003, the applicant lured the victim, who was unarmed, to the parking lot of the Albion Mall in Toronto where he was attacked by an armed group of young men that the applicant had recruited and organized. The applicant led the attack. He smashed the victim’s skull with a hammer that he had secreted in his clothing, and left him to die in the parking lot.

[11] I borrow the following more detailed account of the offence from the majority judgment of the Court of Appeal:

The Murder

2 On the evening of June 6, 2003, Raheel Malik was attacked by a group of young men in the parking lot of the Albion Mall in the Rexdale area of Toronto. He was hit on the head with various weapons including a hammer, a wooden “two-by-four” and possibly a metal pipe. The attack was over in less than a minute. Following the assault, Malik lapsed into a coma. He never regained consciousness, and died of pneumonia in hospital 20 days later.

Events Leading Up to the Attack

3 Malik was associated with a group of young South Asian men from Rexdale and Banwait with a similar group from Mississauga. The two groups had a history of conflict, and in the months leading up to the attack, Malik and the appellant Banwait developed some form of personal “beef”. In the week before Malik's death, Banwait had been attempting to locate Malik and the two apparently had an altercation at Malik’s place of work a day or two before the attack.

The Day of the Attack

4 Banwait arranged for a group of young men to gather at “Mac's Plaza” in Mississauga. The appellant Matharu was one of the men that Banwait called. Matharu showed up at the plaza in a car driven by his friend Gurpreet Bath. Banwait took over as driver and left the plaza. The group followed in a convoy. Matharu was in the backseat along with another young woman. While driving, Banwait borrowed Bath's cell phone and called Malik. The two exchanged angry words and agreed to meet at the Albion Mall.

5 When he received the call from Banwait, Malik was out with three friends. After the telephone conversation, Malik made his way to the Albion Mall. However, he stopped at a Rexdale home along the way to recruit some people to join him. They refused. Malik then drove to Albion Mall with his three passengers in tow.

6 Banwait’s sister, Daljit, had lived in Rexdale for a couple of years and was present at the Rexdale home when Malik tried to enlist some supporters. Another person at the home heard Malik say things like, “I'm gonna like kill him” and “I'm gonna go myself and finish this business”. Fearing for her brother's safety, Daljit quickly borrowed a car and headed for the Albion Mall before Malik left the house.

The Events at Albion Mall

7 Banwait and his friends arrived at the mall before Malik, at about 9:30 p.m. Most of the group parked near the northern exit of the mall, though others parked a little to the west. Banwait, Matharu and two other young men went to look for Malik in the pool hall. Not finding him there, they went back outside and the two other young men returned to their car.

8 Banwait and Matharu approached two men near the cinema entrance, Mutti-Ur Rehman and Hammad Khan. They were joined shortly by Hammad’s brother, Azzm Khan. Banwait asked the group (all of whom were friends with Malik) if they knew a short guy who worked as a security guard at the mall. The three men immediately recognized this man as Malik.

9 At some point during this discussion, Daljit Banwait arrived and asked her brother what he was doing. He said he was waiting for the security guard to arrive and that he had 25 to 30 men parked in the parking lot, in case something happened.

10 Just as Rehman attempted to reach Malik by cell phone to warn him, Malik drove into the parking lot and stopped his car near Banwait and Matharu. Malik got out of his car, telling his passengers to stay in the car and lock the doors. He and Banwait began to yell at one another. Banwait and Matharu gestured for the group waiting across the parking lot to approach, yelling “come, come”. The group ran across the parking lot towards Malik. Many carried weapons. Banwait pulled out a hammer from his clothing and Matharu pulled out a pipe. Malik backed away from them but was struck on the back of the head with a two-by-four by someone in the approaching group. Banwait then hit Malik on the jaw with the hammer. There was some evidence that Matharu hit Malik with his pipe, though Matharu maintained that he only kicked him.

11 The evidence concerning how many further blows were struck and by whom was conflicting. Suffice it to say that Malik was surrounded and brutally beaten to the point of unconsciousness in under a minute.

12 The group dispersed quickly and ran back to their cars. Banwait remained, shattering the windows of Malik’s car with his hammer before returning to Bath's car.

13 Malik suffered three main head injuries, including fatal skull fractures to the side and back of the head. The forensic evidence was that the injury to the temple was likely caused by a hammer blow, and the injury to the back of the head was the result of a blunt instrument. Malik's third non-fatal head injury was a fracture to the left jaw, also caused by a blunt instrument. He had no other significant injuries.

Events Following the Attack

14 Banwait and Matharu left in Bath's car. Banwait responded to phone calls, telling everyone to meet at Country Style Donuts. According to witnesses, Banwait was rowdy and hyper at the donut shop and he told his sister that he had spoken to his father about sending him to India. Soon after their arrival, Matharu left the donut shop.

15 Banwait was arrested at home early the next morning. Matharu was arrested later that afternoon. He provided a statement to the police in which he initially denied being present at the attack but then admitted he was there and armed with a pipe. He claimed he just waved the pipe at Malik but acknowledged kicking him hard a couple of times in the body. A third man, Amar Gurpreet Sandhu, was arrested several weeks later.

16 All three men were charged with first degree murder. At trial, the Crown alleged that Sandhu was the man who wielded the wooden two-by-four. Sandhu was convicted of manslaughter.

[12] It is noteworthy that while the majority in the Court of Appeal set aside the applicant’s conviction for first degree murder, it was on the basis of a perceived error in the charge to the jury. The majority was satisfied that it was open to the jury to conclude that the applicant was guilty of a planned and deliberate murder, based on the following evidence outlined at paragraph 25 of the judgment:

1. in the week leading up to the attack, Banwait searched for Malik, eventually discovering his telephone number and where he worked;
2. after obtaining this information, Banwait went to Malik's place of employment accompanied by two friends and engaged in a confrontation;
3. within a day or two of the workplace confrontation, Banwait organized a much larger armed group to accompany him to Rexdale for a further confrontation;
4. Banwait started organizing the armed group hours before the attack;
5. although some of the evidence had Banwait speaking of getting “these guys”, other evidence referred to him as speaking of going to see “the Rexdale guy”;
6. an inference could be drawn that Banwait contacted Malik and arranged their meeting in a manner that would limit Malik's ability to organize and recruit supporters for himself — although he had a cell phone, Banwait borrowed Bath's cell phone that had a caller identification blocking feature to call Malik, thus increasing the likelihood that Malik would take the call; further, Banwait made the telephone call only after his group was at or close to Rexdale;
7. although the evidence about Banwait's conversation with Malik was conflicting and somewhat ambiguous, one possible inference was that Banwait chose the location for the confrontation;
8. the assault itself could be viewed as a well-co-ordinated attack initiated on Banwait's signal after Malik arrived and got out of his car — Banwait and Matharu began approaching Malik while signalling and calling to their supporters to join them; Malik was originally struck from the rear as Banwait and Matharu produced their weapons; within seconds, Banwait and his group surrounded Malik, crushed his skull and left him for dead;
9. the speed of the attack was demonstrated by the security cameras — Malik lay fatally injured within a minute of his arrival.
10. all of Malik's injuries were to his head, he had no other significant injuries;
11. all of Malik's head injuries were caused by blunt force weapons applied with considerable force;
12. although the three men at the entrance indicated they were friends of Malik and made some efforts to impede the attackers, none of them was harmed and none of the passengers in Malik's car was harmed; and
13. an inference could be drawn that Banwait was celebrating following the attack — at the Country Style venue, Banwait was observed thanking people as they left, shaking hands and exchanging shoulder bumps — to at least one witness, he appeared rowdy and hyper, making statements along the lines of: “We got him. He’s gone. ... Oh, he is dead. He’s dead. ... We fucked him up; we fucked him up.”

[13] The majority went on to note, at paragraph 26, that particularly in light of the organized nature of the attack, the potential inference that it was planned in a way that would limit Malik’s ability to recruit supporters for himself, the speed and intensity of the blows administered exclusively to Malik’s head and the failure to harm any of Malik’s friends, it was open to the jury to return a verdict of first degree murder against Banwait.

[14] MacPherson J.A. agreed with the majority on this issue, and, as I have stated, the Supreme Court allowed the appeal and restored the conviction for first degree murder. As a result, I take these points into consideration in assessing the seriousness of the offence, and the extent of the applicant’s culpability.

The Test

[15] Currently, at the judicial screening stage of an application under s. 745.6 of the Criminal Code, the applicant must satisfy the screening judge that there is “a substantial likelihood” that their application would succeed before a jury. However, in 2003, when this offence was committed, the applicant would have had to convince the screening judge, on a balance of probabilities, that there was a reasonable prospect that the application would succeed; that is, that a unanimous jury will find that the applicant’s parole eligibility ought to be reduced.

[16] In R. v. Dell, 2018 ONCA 674, 364 C.C.C. (3d) 419, the Court held that retrospectively requiring judicial screening in 2013, when Dell brought her faint hope application as a result of the 2011 amendments to the faint hope clause, in relation to a murder committed in 1995, prior to the enactment of the 1997 amendments that first created the screening process, would violate s. 11(i) of the Charter. Accordingly, the pre-1997 provisions governed, and Dell was entitled to a faint hope hearing with a jury as of right. The present case concerns a murder that was committed in 2003, at a time when the 1997 amendments were in force, and as a result the ratio in Dell is not directly applicable. However the parties agree that the reasoning in Dell is controlling, and that the legislation in force at the time of the murder, specifically the less stringent screening test in the 1997 amendments, is the applicable legislation.

[17] Prior to the decision in Dell, several courts applied the current version of the screening test to applications brought in relation to murders committed before the enactment of the current amendments (see, for example, R. v. Poitras, 2012 ONSC 5147; R. v. Gayle, [2013] O.J. No. 4124 (Ont. S.C.); R. v. Jenkins, 2014 ONSC 3223, 11 C.R. (7th) 346; and R. v. Morrison, 2016 ONSC 5036). These decisions must now be considered with caution. While the matter is not entirely free of doubt, I accept the position of the parties and will apply the test that prevailed at the time of the offence. As a result, the question that I must answer is: has the applicant convinced me, on a balance of probabilities, that there is a reasonable prospect that a unanimous jury will find that his parole eligibility ought to be reduced? I note that B.P. O’Marra J. adopted the same test in similar circumstances, also with the concurrence of counsel, in R. v. Eunick, 2018 ONSC 5971.

[18] A final word with respect to the test: undoubtedly the current version is significantly more stringent than the test that I will apply. That said, I bear in mind that the test that I will apply embodies more than merely showing that a case is not hopeless. Lowering the threshold to having to establish only that a case is not hopeless would frustrate the purpose of the judicial screening stage (see R. v. Phillips, 2012 ONCA 54).

The Judicial Screening Process

[19] Section 745.61(2) of the Criminal Code as enacted in the 1997 amendments provided that in determining whether the applicant has shown at the judicial screening stage that there is a reasonable prospect that the application will succeed, the judge shall consider the criteria set out in s. 745.63(1)(a)-(e) of the Code, with such modifications as the circumstances require. Those considerations, which have not been modified by the 2011 amendments, are:

(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.

[20] In R. v. Morrison, 2016 ONSC 5036, at paragraphs 36 to 43, Durno J. outlined the approach to be taken at the judicial screening stage, albeit in reference to the current test. In Eunick, at para. 6, B.P. O’Marra J. described the outline developed by Durno J. as helpful, amended it slightly in light of the decision in Dell, and summarized it 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.

[21] I adopt this summary of the approach to judicial screening.

[22] Finally, I bear in mind the discussion of the role of the screening judge in Dell, at paragraph 82. The Court noted that ordinarily, a judge reviewing a written record would be hard-pressed to make a reliable assessment of how a jury would react to an offender’s viva voce plea for clemency. It is more accurate to view the screening process as a distinct inquiry intended to limit the jury’s power to extend leniency to applicants. The Court endorsed a comment of Pomerance J. in Jenkins, at para. 46, as capturing the essence of the judicial screening process. In my view, this comment applies equally to both versions of the pre-screening test. Putting the comment of Pomerance J. into my own words, the question is not whether the jury could or would allow the application, but whether a jury should allow the application.

[23] I will now proceed to apply the test in the manner described.

The Application of the Test

[24] The applicant argues that he has met the test. He organizes his grounds for his argument under the headings of remorse, family support, participation in rehabilitative programs, involvement with religion, good behavior, employment, psychological risk assessment and education. The Crown reviews the circumstances of the offender under the headings in s. 745.63(1)(a)-(e) of the Code and argues that the applicant falls far below the standard necessary to justify empaneling a jury.

[25] The difference in the way that the parties have organized their arguments is unsurprising. The areas of inquiry listed in s. 745.63(1)(a)-(e) are not airtight compartments. Some of the matters raised by the parties might fit under more than one heading. For example, both item (c), the nature of the offence for which the applicant was convicted, and item (b), the applicant’s conduct while serving sentence, seem to me to say a great deal about item (a), the character of the applicant. In addition, some of the legitimate considerations raised by the applicant do not easily fit under any of the headings. I will make use of the headings in s. 745.63(1)(a)-(e) of the Code to organize the matters I believe must be taken into account in fulfilling my obligation to screen this application, but I will also do my best to ensure that I consider all of the matters raised by the parties one way or another. This is consistent with the comment made by the majority in Swietlinski, at para. 31, that it is an error to excessively compartmentalize the various factors mentioned in what is now s. 745.63(1).

The Character of the Applicant

[26] It is of course inevitable that anyone who has committed the crime of murder has serious character issues. The focus of the inquiry is whether there has been a meaningful change. However, to determine if there has been a meaningful change in the applicant’s character it is necessary to begin by examining the character of the applicant at the time of the commission of the offence. Only then can there be any yardstick against which to measure change. As noted in Swietlinski, at para. 32, since the purpose of a faint hope proceeding is to reassess the penalty imposed on the offender by reference to the way his or her situation has evolved in 15 years, the judge conducting a hearing with a jury should discuss both the applicant’s past and present character in the charge to the jury. This applies equally to the judicial screening process.

The Nature of the Offence

[27] An examination of the character of the applicant at the time of the commission of the offence begins with a consideration of the offence itself. The applicant in this case committed a planned and deliberate murder. That fact alone says a great deal that is unfavourable about his character at the time of the offence. In this case, I would go further. I have described the offence in detail above. I would characterize this offence, as does Crown counsel, as falling at the severe end of the spectrum. I adopt the Crown’s description of the offence in its factum, which fully justifies this label. The Crown says, at paragraph 49:

49. … The assault itself was a well-co-ordinated attack initiated on Banwait’s signal after Malik arrived and got out of his car. Banwait and Matharu began approaching Malik while signaling and calling to their 25-30 supporters to join them. First, Malik was struck from the rear on the back of his head as Banwait and Matharu produced their weapons. Within seconds, Banwait and his group surrounded Malik, crushed his skull and left him for dead. Banwait then took the hammer that he used to repeatedly strike Malik in the head and smashed the windows of Malik’s car. After the attack, he fled the scene, celebrating his success by shaking his associates’ hands and exchanging shoulder bumps. Thereafter, he contemplated leaving the country in order to avoid prosecution.

50. The impetus for the murder was inconsequential – some prior dispute or “beef” of a very minor nature, in response to which, Banwait organized 25-30 associates to lay in wait for Malik and savagely beat him to death in front of his friends.

[28] I share the view of Nordheimer J. as expressed in Gayle at paras. 29-30, that there is a natural reluctance to rate the severity of the circumstances of an offence when that offence is murder. The loss of one life can never be more horrible than the loss of another. But the nature and circumstance of a particular act of murder can say a great deal about the character of an offender. A man who was capable of organizing a brutal execution such as this one for little or no reason has a deficit of morality and character of shocking proportion. When one begins so low, it seems to me, as it did to Nordheimer J., that a great degree of change would need to be seen in the perpetrator of the offence to justify a departure from the normal terms of the legislated sentence. Before turning to the material concerning change, I will examine the remaining material that is before me that reflects on the applicant’s character at the time of the offence.

Information Provided By Victims

[29] In her Victim Impact Statement, Robina Riaz, the victim’s mother, eloquently expressed the pain she endured as a result of the murder of her son. Raheel Malik was her eldest son. She described him as her best friend, and as someone who was always there for his family and friends. She described the time between the murder and the conviction as agonizing. She woke up each morning with his name on her tongue and his picture in her mind.

[30] The feeling of loss felt by the victim’s family and friends has endured through the years since the conviction. In an updated Victim Impact Statement prepared in March of this year, Mr. Malik’s younger brothers said the following:

There are no words to describe the pain and suffering from the tragic death of Raheel. Many lives were shattered the night he passed away. Amandeep took away the life of a son, a brother, a grandson, a nephew, an uncle, and a friend. Raheel was a loving, caring, kind-hearted, and thoughtful individual. He put the needs of others before his own. Not a day goes by when we do not miss his infectious smile, comforting voice, soothing hug, and, inspiring determination to bring goodness to those around him. His portrait hanging in our living room, is an homage to the person he was in our family – the one who brought laughter in the early morning at breakfast and in the evening around the dinner table, the one who loved to plan family outings and surprise his family with “just because” gifts, the one who his brothers inspired [sic] to be like, the one who we will never get to see again because of Amandeep’s actions.

[31] This information is significant because it contributes to an understanding of the enduring harm caused by the offence, and accordingly its seriousness, and bears on one of the fundamental objectives of sentencing: to denounce unlawful conduct and the harm done to victims that was caused by the offender’s unlawful conduct.

The Age and Antecedents of the Applicant

[32] The applicant was born in Montreal on December 22, 1982, and was 20 years old on June 6, 2003 when he committed this offence and when he was arrested the following day. He was 23 when he was convicted and sentenced and is now 36. He moved to India when he was two years old, and remained there with his grandparents. He grew up with an extended family and apparently had a normal childhood.

[33] The applicant returned to Canada at the age of 12 or 13. His parents had separated by that time, and he initially lived with his mother. He moved in with his father when he was 14 or 15. He attended school in Canada, and his time in school was undistinguished, but uneventful. He quit school in grade 10.

[34] After he left school, he was employed only sporadically (his longest period of employment was four months), and began getting into trouble with the law. He has a modest criminal record, consisting of nine offences as a youth, and one offence as an adult. These offences include forgery, theft, breaking and entering, obstructing a peace officer, failure to appear and failure to comply. He has a poor record of compliance with sentences and dispositions.

[35] The applicant was living with his father, had a girlfriend and was on probation when he committed this murder.

Institutional Conduct – The Defence Perspective

[36] One measure of change in the character of the applicant is his post-arrest institutional conduct. We know something of the conduct of the applicant before this crime, and much about his conduct in committing it. It is helpful to examine his post-arrest conduct, both good conduct and misconduct, for evidence of change. I appreciate the difficulty for any offender to entirely avoid misconduct in the course of long-term imprisonment. There are times when self-protection makes misconduct virtually impossible to avoid. But the nature and extent of both institutional good conduct and misconduct may be very meaningful.

[37] In his application, the applicant points to several considerations that fall under this heading that weigh in his favour, specifically participation in rehabilitative programs, good behavior, involvement with religion and employment. I will examine each of these in turn.

i. Rehabilitative Programs

[38] The applicant completed the Alternatives to Violence Project, Basic Workshop in 2009, and the Second Level Workshop in 2017.

[39] The applicant completed the Violence Prevention Program, Moderate Intensity (“VPP-MI”) in 2012. He was punctual, prepared and participated well, and demonstrated a positive attitude towards learning new ways to think about issues in his life. He provided insights, worked well with others and understood the course material. He was said to have learned several anger reduction techniques and was seen to employ them regularly. He was able to challenge problematic thoughts and more effectively focus on pro-social goals. He vocalized a commitment to living a violence-free life.

[40] The applicant attended meetings of the group Adult Children of Alcoholics and Otherwise Dysfunctional Families in 2016.

[41] The applicant completed the Institutional Management Program in 2018. He was honest and open about his criminal behavior and learned better self-control, especially when his emotions are heightened. His behaviour had improved from his early years of incarceration; he was able to avoid negative influences and altercations; he set goals and was future oriented. He had a good understanding of the flawed thinking he used to employ to justify violence at the time of the offence.

ii. Good Behaviour

[42] In August 2018, the applicant was instrumental in saving a fellow inmate from committing suicide. When he saw the inmate attempt to hang himself, the applicant alerted the guards and held the inmate’s legs until the guards were able to cut him down.

[43] The applicant also says that he has demonstrated “excellent” behavior from 2015 onwards (a recent assessment describes the behaviour, perhaps more realistically, as “predominantly positive”), but concedes that this has not always been the case. I will return to this topic later. The applicant says that he is ashamed of his prior poor behavior, and “took responsibility” for it in his April 2015 Correctional Plan Report.

iii. Involvement with Religion

[44] The applicant is involved in the Sikh religion. He is in touch with the Sikh Chaplain at Beaver Creek twice monthly. The Chaplain supports this application and writes that the applicant demonstrated deep religious faith, practices the Sikh way of life and follows the tenets of Sikhism with great zeal. As a result, the Chaplin believes that the applicant has come to understand that the purpose of his life is to be out in the community as a responsible and understanding individual.

iv. Employment

[45] The applicant has maintained steady employment during his incarceration. He was employed as the Works and Engineering cleaner at Collins Bay, and is currently employed in the textile branch of Corcan. He has received excellent assessments and has been a valued employee in both situations. He also has completed job training in several fields.

Institutional Conduct – The Crown Perspective

[46] In respect of institutional conduct, the Crown takes an entirely different view of the extent of the applicant’s misconduct, and points to a number of indicators relating to the applicant’s level of risk for violent recidivism. I will examine each of these topics next.

i. Institutional Misconduct

I will organize my summary of the applicant’s misconduct institution by institution. The following list of the milestones of the applicant’s institutional history are of assistance in placing the applicant’s misconduct in context.

March 22, 2006 Arrival at Millhaven Assessment Unit October 4, 2006 Placed at Maximum Security Unit, Millhaven Institution November 25, 2008 Transfer to Fenbrook Institution, medium security November 14, 2011 Involuntary transfer to Joyceville Institution, medium security due to involvement in institutional drug subculture February 28, 2013 Involuntary transfer to Millhaven Institution, maximum security due to involvement in stabbing another inmate 9 times. February 7, 2014 Voluntary transfer to Collins Bay Institution, medium security May 24, 2016 Voluntary transfer to Beaver Creek Institution, medium security

Fenbrook Institution

[47] In 2008, after two years at Millhaven Assessment Unit, Banwait was assessed as requiring Medium Security with Moderate Institutional Adjustment Concerns, Moderate Escape Risk and High Public Safety Concerns. He was placed at Fenbrook Institution, a medium security institution.

[48] On June 2, 2010, the applicant hit another inmate in the mouth and kneed him in the head in a bathroom. He admitted committing the offence, received an institutional charge and was placed in segregation for six days.

[49] On November 14, 2011, the applicant was transferred to Joyceville Institution as a result of information obtained by the Security Intelligence Department that the applicant was a substantial participant in the trade of drug contraband and unauthorized tobacco in Fenbrook. An investigation in the institution that included the interception of the applicant’s private communications confirmed this information. In fact, the applicant was the ringleader of a group that was trafficking drugs in Fenbrook, facilitated in part by three-way telephone calls using a special phone number. The applicant was supplying marijuana, a white powdery substance and paper that inmates would burn in a bottle and inhale in order to get high. Information was also uncovered that the applicant was acting aggressively with other inmates over the collection of drug debts.

Joyceville Institution

[50] The applicant’s misconduct continued at Joyceville.

[51] On December 19, 2012, the applicant participated in a physical altercation in the hygiene canteen. He was an “associate” in a 4-on-1 physical assault.

[52] On February 7, 2012, the applicant, who was again involved in the drug subculture in the institution, was one of two instigators in a serious assault on another inmate. The two instigators and a third associate attacked the victim in relation to the collection of a drug debt. The applicant seriously injured the victim with a weapon. He inflicted nine puncture wounds to the victim’s body, including to his chest, head and the back of his neck.

[53] Significantly, in light of the emphasis the applicant places on his successful completion of rehabilitative programs, the applicant became involved in two violent incidents on June 11, 2013, shortly after completing the VPP-MI. It will be recalled that he was said to have learned violence prevention skills in that course that he employed regularly and that he vocalized a commitment to living a violence-free life. These incidents cast doubt on the reliability of that assessment. As a result of his violent behavior, the applicant’s Institutional Adjustment rating was raised from moderate to high, he was reassessed as a maximum-security offender and on February 28, 2013, he was transferred to Millhaven.

[54] The applicant’s assessment dated February 28, 2013 contains several important comments about the applicant’s lack of progress and regression at that time, including the following:

a. Since his arrival at Joyceville, his behaviour has been deteriorating with his recent involvement in physical altercations and charges; b. Although Banwait successfully completed VPP-MI he has failed to incorporate positive behaviour and attitude changes into his lifestyle. Banwait has not demonstrated the progress he learned from the program to address the violent behaviour or willingness to do so; c. At this point, the offender is not engaged, he has been involved in high risk behavior since his transfer from Fenbrook; d. Banwait does not appear to understand his risk factors or offence cycle … he had an opportunity to demonstrate positive behaviour and life choices since his transfer but he is unable to adjust without problems and intervention from management.

Millhaven Institution

[55] During his return to Millhaven in September 2013, the applicant was the subject of three misconducts and three charges, one of which was dismissed. None of these involve acts of violence.

Collins Bay Institution and Beaver Creek Institution

[56] The applicant was transferred to Collins Bay in 2014 and Beaver Creek in 2016. These are both medium security institutions. There is no report of violent conduct by the applicant at either institution, but, notably, after 16 years, he has never been transferred to a minimum security institution.

Remorse and Accountability

[57] In his application, the applicant begins with a discussion of the remorse he says he now feels about the crime he committed. The Crown counters with the applicant’s reluctance over the years of his imprisonment to admit his accountability for his crime. The Crown details the applicant’s history of minimizing or justifying his role in the murder of Mr. Malik. Unquestionably, remorse and accountability must be considered together. Accountability is the handmaiden of remorse. Genuine remorse must begin with the acceptance of responsibility for the actions in question. I will begin with the applicant’s assertion of remorse.

[58] The applicant says that when he committed this senseless act of violence, he was an immature 19-year-old, too wrapped up in the gangster lifestyle and too concerned about his reputation to think for himself. He says he has changed. He is now a mature, independent 35-year-old man who has learned to effectively manage his emotions, think clearly and consider the consequences of his actions. He says that he takes full responsibility for his heinous acts. He points to his 2012 VPP-MI report, his 2017 Psychological Risk Assessment and his 2018 Institutional Maintenance Program report as all indicating that he takes full responsibility for his crime and has made significant positive changes. I note, however, that his only mention of being sorry for his crime in his application was in an attached undated letter he says that he sent to the Warden of Beaver Creek and others. The Crown’s submission tells a different story.

[59] The Crown says that despite the applicant’s very recent expression of remorse, he has consistently minimized or justified his role in the murder, with differing explanations over time.

[60] In a 2007 psychological risk assessment, Dr. Lorenz suggested that the applicant did not take responsibility for the offence. The applicant subsequently explained that he did not do so because he had been advised by his lawyer not to discuss the case. I note that he did discuss the offence in a 2006 preliminary assessment, but in light of his explanation, I will ignore the 2007 report.

[61] In 2012, as part of the VPP-MI, a semi-structured interview was conducted with the applicant. In a final report issued by the program, the applicant was said to have explained that he was asked to intervene when a friend became involved in a dispute with a group of youths with a reputation for violence. He said that he agreed to attend the mall to discuss the issue. He indicated that the victim pulled up in a car and approached him in an aggressive manner, and he used violence to defend himself. In fact, in the interview, the applicant said that the victim pulled a knife and he was going to smash his hand with the hammer and knock the knife out of his hand.

[62] However the undisputed evidence demonstrates, and the trial judge found, that the victim was unarmed and overwhelmingly outnumbered when he attended the Albion Mall, where he was ambushed by the applicant and his associates. There was no evidence of a knife at all. The applicant’s 2012 explanation of the murder is a fabrication, and significantly undermines the indication in the VPP-MI that the offender takes full responsibility for his crime and has made significant positive changes.

[63] In a 2013 psychological assessment, the applicant described the attack on Mr. Malik as a “group fight” — one group of friends against another. The psychologist conducting the assessment observed that the applicant had limited insight into the nature and seriousness of the offence and his role in it, and that he was deflecting responsibility by describing the offence as a “group fight”.

[64] In his 2015 Correctional Plan, the applicant’s rating on Accountability was Moderate. He claimed that he did not intend to kill the victim, but the incident got out of hand, and his subsequent actions were more impulsive than planned.

[65] In a 2017 psychological assessment, when asked for his interpretation of the offence, the applicant said that he accidentally hit the victim with a pipe or a hammer, and the victim died.

[66] In a 2018 Assessment for Decision denying the applicant’s request for a transfer to minimum security, it was observed that although the applicant acknowledged that his actions and those of Matharu and Sandhu caused the victim’s death, he minimized his responsibility for the murder. Specifically, he asserted that his actions were motivated by fear of harm that the victim might cause to him. This stance was viewed as an externalization of blaming the victim and as an indication of a distorted perception of the real dangers that existed in that situation given that the victim was overwhelmingly outnumbered and unarmed.

[67] In an undated letter to his parole officer, the applicant took issue with this characterization of his position about the offence. He insisted that he has taken full responsibility for the murder, and, in support of his position, referred the parole officer to his September 6, 2018 Program Performance Report and his 2012 VPP-MI Final Report. However in the former, his responsibility for the offence was not addressed, and in the latter he minimized his role in the murder and indicated that he was defending himself.

Assessment of Risk

Psychological Assessments

[68] In 2007, based upon actuarial measures and clinical observations, the applicant was assessed as at a moderate level of risk for violent recidivism (44% probability) upon release and a moderate level of risk for general recidivism. In addition to being unwilling to discuss the offence, which I have discounted, he would not discuss his historical offence cycle, and was not forthcoming regarding emotional disposition, thoughts, observations or perceptions about his developmental history or events associated with his criminal history. There was evidence that he was likely to participate in inciting provocative behaviours, and that when provoked, he might act out of proportion to the event or to his apparent psychological temperament or disposition.

[69] Shortly after successfully completing anger management programming in 2012, the applicant was involved in two separate 3 or 4-on-1 physical altercations with other inmates, the second one involving a stabbing over a drug debt necessitating his transfer back to maximum security. When interviewed for his application to transfer back to medium security, he clearly demonstrated a lack of insight and awareness of his personal limitations or continuing connections to criminal subculture, which was impeding his ability to manage and minimize the risks of recidivism going forward.

[70] In 2013, following his transfer back to Millhaven, the applicant was assessed again for the purpose of possibly being transferred back to medium security. He completed the Personality Assessment Inventory (“PAI”). In the assessment, it was observed that he tended to present himself in a generally favourable light and without the typical shortcomings that most people are willing to endorse. As a result, his descriptions of himself might underestimate his actual experience. With respect to anger, for example, he described his temper as within normal range, fairly well-controlled and without apparent difficulty.

[71] Based upon his responses, interview and past criminal history, there was an indication of adherence to criminal sentiments and values on a variety of criminally related topics. His score on the Violence Risk Appraisal Guide (“VRAG”) indicated a 55% probability of violent recidivism within seven years. His score on the Level of Service Inventory – Revised (“LSI-R”) indicated a 48% risk of general recidivism within one year. But when asked about his risk factors for recidivism, he demonstrated no insight, indicating that he had no risk factors. Contrary to expectations, his dynamic risk for further violent offences was not reduced after his recent successful completion of the VPP-MI. He clearly had difficulty consolidating and internalizing the required skills.

[72] A further psychological risk assessment conducted in 2017 at Beaver Creek as part of the applicant’s unsuccessful application to transfer to minimum security revealed a 44% probability of violent recidivism within seven years and a 48% probability of general recidivism within one year. As in 2007 and 2013, the applicant remained within the moderate range for both general and violent recidivism.

[73] Finally, I note the consistent and unwavering opinion of the various professionals who have worked with the applicant throughout his incarceration: that he has a propensity to react with extreme and disproportionate violence to what he perceives to be an insult or disrespect. He has been unable, despite the programming of which he has availed himself, to internalize and utilize the skills he has been taught.

Assessments for Decision/Correctional Plans

[74] In the Assessment for Decision involuntarily transferring the applicant to Millhaven, the applicant’s behavior was considered to be high risk. The applicant did not appear to understand his risk factors or offence cycle, and could be better managed at that time in maximum security. He required heightened structure in order to manage his negative behaviour.

[75] It was noted that the applicant had had an opportunity to demonstrate positive behaviour and life choices after his transfer from Fenbrook to Joyceville, but was unable to adjust without problems and intervention from management. Placement in a medium security institution was not a viable choice at this time. Three requests for transfer to medium security institutions in 2013 were denied. Ultimately, he was transferred to Collins Bay, a medium security institution in 2014.

[76] As recently as 2017, in an Assessment for Decision, the case management team at Beaver Creek noted that the applicant’s continued involvement in the drug subculture was of concern to them as it mirrored his similar behavior at Joyceville several years earlier.

[77] Finally, in a decision dated August 8, 2017, the warden of Beaver Creek expressed substantial concerns regarding lowering the applicant’s Institutional Adjustment level from Moderate to Low and declined to do so. It was her view that there was a strong reason to believe, at that time, that the applicant remained involved in the drug subculture, and therefore a longer period of time without any concerns was necessary in order to lower his Institutional Adjustment level. The applicant denies the allegation that he is involved in the prison drug subculture.

Family Support

[78] The applicant has maintained close relationships with members of his family, who visit him regularly and continue to support him.

Analysis

[79] Having examined the evidence placed before me by the parties, my task is to perform a limited weighing of the evidence in an attempt to forecast the outcome of the application were it to be heard by a jury. I must assess the applicant’s progress by placing my primary focus on changes that have occurred in the applicant's situation that might justify a less harsh penalty.

[80] The test that I must apply at this judicial screening stage is whether, on the material filed, the applicant satisfies me on a balance of probabilities that there is in this case a reasonable prospect that a jury would unanimously reduce his parole ineligibility period. The applicant must show that his current situation justifies a departure from the normal legislated sentence. In other words, he must show that his application has real merit and that there is a reasonable prospect that a jury will unanimously reduce the period of ineligibility.

[81] The applicant committed a heinous crime. It was aptly described by the trial judge in his reasons for sentence (R. v. Sandhu, [2006] O.J. No. 918, at para. 43) as follows:

... You were the principal force behind this tragedy. Your conduct was disgraceful when measured against the norms of our society. It was senseless. The violence that you set into action on June 6, 2003, was grossly disproportionate to any wrong that Raheel Malik may have committed against you in the past. You showed no respect for the inherent worth and dignity of the life of Raheel Malik. The emotional devastation caused by your conduct, whether it be of the deceased's relatives or the relatives of any of the defendants, including you, is immeasurable and permanent. Your conviction for first degree murder is indicative of the moral reprehensibility of your conduct in this case.

[82] As I said earlier, a man who was capable of organizing a brutal execution such as this one for little or no reason has a deficit of morality and character of shocking proportion. The mandatory sentence of life imprisonment without eligibility for parole for 25 years was fully justified for this offence.

[83] The question I must ask myself is whether there has been sufficient change in the applicant and his circumstances to satisfy me on a balance of probabilities that there is a reasonable prospect that a jury would unanimously reduce the ineligibility period. As I also said earlier, when one begins so low, it seems to me, as it did to Nordheimer J. in Gayle, that a great degree of change would need to be seen in the perpetrator of the offence to justify a departure from the normal terms of the legislated sentence. In my view, the circumstances here fall considerably short of the mark.

[84] I take note of the fact that there are some positive things to say about the progress that the applicant has made over the last sixteen years. He has participated in a number of rehabilitation programs, and has for the most part performed well in them. His institutional behavior has improved since 2015, but he has not managed, after sixteen years, to achieve the status of a minimum security prisoner. He has consistently maintained employment. He practices his religion. He maintains the support of his family. He has stated in his application that he has matured, and now takes full responsibility for his heinous acts, as he did on one earlier occasion, but he does not express any remorse.

[85] On the other hand, there is much that suggests that the applicant’s progress over sixteen years has been slow and insubstantial. In Phillips, in explaining why the applicant failed to convince the Court of Appeal that he met the screening test that applies here, the Court used language that comes close to what could be said about the applicant. The Court stated, at para. 8:

In our view, Mr. Phillips fails to meet the test under s. 745.6(1). He was convicted of a cold-blooded execution style planned and deliberate murder. He has not accepted responsibility for his offence nor expressed remorse. He has been far from a model prisoner. Although in the last few years his conduct has improved, his record while in custody is at best mixed. He has a considerable record of institutional misconduct offences. He has participated in educational programs only sporadically and has made minimal gains in the anger management programs. He has not been transferred down the security ladder below medium security.

[86] I begin my discussion of the applicant’s progress with a consideration of character. The material before me suggests that the applicant’s character has changed very little since he was imprisoned. I look first at his institutional behavior.

[87] As in Phillips, it is fair to say that the applicant has been far from a model prisoner. Although in the last few years his conduct has improved, his record while in custody is at best mixed. In fact, in this case, I would go further. For a man hoping to advance an application for a reduction in his parole ineligibility, his conduct has been abysmal. He was the ringleader of a group of inmates who were trafficking drugs in 2011. He was a participant in a 4-on-1 physical assault in 2012. He committed a serious stabbing of another inmate in 2013 in relation to the collection of a drug debt. While he has not participated in acts of violence in the last few years, concerns about his involvement in the drug culture persist. He has never been assessed as lower than a medium security inmate.

[88] I turn next to rehabilitative programming. While the applicant has participated in a number of rehabilitation programs, and has for the most part performed well in them, it is fair to say that his enrolment in such programs has been somewhat sporadic. More importantly, he has not been able to internalize and utilize the skills he has been taught in these programs. The most troubling example of this was his involvement in 2013 in two violent incidents shortly after completing the VPP-MI, a program in which he was taught violence prevention skills that he was said to employ regularly, and during which he vocalized a commitment to living a violence-free life.

[89] Next, I examine remorse and accountability. To repeat, in his application, the applicant states that he has matured, and now takes full responsibility for his heinous acts, as he did on one earlier occasion. It is hard to give him much if any credit for this statement. He does not apologize for his crime, and, as I have outline above, he has consistently minimized or justified his role in the murder of Mr. Malik, providing different and inconsistent explanations over time. In my view, after sixteen years, he has yet to truly accept responsibility for his offence or sincerely express remorse.

[90] Finally, I turn to risk assessment. As I have outlined in detail, the psychological assessments of the applicant have consistently placed him at a moderate level of risk for violent recidivism and an adherence to criminal sentiments and values. He has not developed any meaningful insight into his anger management issues, and continues to have a propensity to react with extreme and disproportionate violence to what he perceives to be an insult or disrespect.

Disposition

[91] In the end, given the foregoing, I conclude that the applicant has failed to meet the test under s. 745.61. His institutional conduct has been largely abysmal. He has not yet truly accepted responsibility for his offence nor sincerely expressed remorse. Despite participating in some rehabilitative programs, he remains at a moderate level of risk for violent recidivism. He has not overcome his propensity to react with extreme and disproportionate violence to what he perceives to be an insult or disrespect. The applicant has not satisfied me on a balance of probabilities that there is in this case a reasonable prospect that a jury would unanimously reduce the ineligibility period. He has not shown that his current situation justifies a departure from the normal legislated sentence.

In their written submissions, counsel for the Attorney General seek an order pursuant to s. 745.61(3)(b) that the applicant not be permitted to make any further application under s. 745.6(1). In light of the limited progress the applicant has made in sixteen years of imprisonment, I was tempted to make such an order. In the end, however, I conclude that I should not entirely shut the door to a further application. Accordingly, pursuant to s. 745.61(3)(a), I order that the applicant may make a further application under s. 745.6(1) at or after six years after the date of release of my determination of this application.

M. Dambrot J.

Released: May 24, 2019