COURT FILE NO.: CR-19-114-MO
DATE: September 12, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
Derek Zuraw, for the Crown Attorney
- and -
ANTHONY MCPHERSon
Applicant
Michael Aaron Crystal, counsel for Anthony McPherson
HEARD in writing
ENDORSEMENT
The Honourable Mr. Justice H. S. Arrell
INTRODUCTION:
[1] On October 23, 2007, Mr. McPherson was found guilty of the first-degree murder of his common law wife. He was sentenced that day to life imprisonment with no eligibility to apply for parole for 25 years. The Court of Appeal for Ontario dismissed his appeal on March 26, 2014 (see Regina v. McPherson, 2014 ONCA 223, [2014] O.J. No. 1415). There has been no application to the Supreme Court of Canada to seek leave to appeal that decision.
[2] Mr. McPherson will be eligible to apply for parole on June 23, 2028. He has brought an application before this court, pursuant to s. 745.6 of the Criminal Code, R.S.C. 1985, c. C-46, for a review of his parole ineligibility period. The Crown opposes this application.
[3] I was designated by the Chief Justice of the Superior Court pursuant to s. 745.61 of the Criminal Code to preside over this application. Having reviewed the record, I am satisfied that the threshold test is met and that a jury should be empaneled.
FACTS:
[4] The circumstances of the offence were summarized by the Court of Appeal for Ontario at paragraphs 5 to 22 of their decision. They do not need to be repeated at length here.
[5] It would appear that the applicant and the victim lived in a common law relationship for several years and had a child together. In March 2003, after having separated from the applicant, the victim met another gentleman whom she began dating.
[6] Mr. McPherson was not happy about this turn of events, and the fact that the victim had become more religious and was intending to be baptized.
[7] On June 22, 2003, the applicant confronted the victim at the home she had moved into with her two children. He and she went into the kitchen and in front of witnesses, he pulled a semi-automatic pistol from his pants and shot her at point blank range five times. He then left the scene, leaving the weapon on the front lawn.
[8] The applicant was arrested shortly after the murder and has been in custody ever since.
[9] The applicant advanced a defence of mistaken identity at the trial. He did not testify. The Crown took the position that the killing was planned and deliberate. The jury agreed and entered a conviction of first-degree murder.
[10] On appeal, the applicant conceded liability for second-degree murder but alleged that the trial judge erred in her charge relating to first-degree murder. That argument was rejected by the Court of Appeal for Ontario, which found no errors by the trial judge.
THE LAW:
[11] Section 745.6 of the Criminal Code has undergone substantial modification since first enacted in 1976, as have a number of related sections: see R v. Dell, 2018 ONCA 674, [2018] O.J. No. 4094. In 1997, a judicial screening mechanism came into force. The new provision 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 before a unanimous jury that parol ineligibility would be reduced.
[12] In 2011, the “faint hope” legislation was amended again. Parliament repealed the judicial screening provision set-out above and replaced it with a provision that allowed the application to go to a jury only if the judge was satisfied, on a balance of probabilities, that there was “a substantial likelihood” that the application would succeed before a jury. Further, faint hope hearings were eliminated for offenders who committed murder after December 1, 2011: see s. 745.6 (1) (a.1) of the Criminal Code.
[13] The first step in an application such as this is a written application known as “the screening” step. As a result of the 2011 amendments, the test to be applied at the screening stage is more stringent today than that which would have applied in 2003 when this offence was committed.
[14] In R v. Dell, 2018 ONCA 674, leave to appeal refused, [2018] S.C.C.A. No. 389, the Court of Appeal for Ontario ruled that retrospective application of the current law to Ms. Dell violated section 11(i) of the Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. At the time of Ms. Dell’s offence in 1995, there was no screening of faint hope applications. At the time of her application, the 2011 amendments were in force, and she was required to show on a balance of probabilities, that there was “a substantial likelihood” that the application would succeed. The court held that Ms. Dell was entitled to the benefit of the law as it existed at the time of her offence.
[15] The present case is different. It concerns a murder committed in 2003, at a time when the screening stage was already in force, albeit at a lower standard of “reasonable prospect of success”. The applicant submitted that in light of Dell, he should be given the benefit of the lower screening standard. The Crown, on the basis of the standard in place in 2003, and fairness to the accused, agreed.
[16] Several courts have responded to Dell by applying the version of the screening test that was in force at the time of the offence, rather than the current test: see R. v. Eunick, 2018 ONSC 5971, R. v. Banwait, 2019 ONSC 3026, and R. v. Abram, 2019 ONSC 3383.
[17] I am in agreement that I will apply the test on this screening of whether the applicant has shown on a balance of probabilities that there is a “reasonable prospect” that the application to reduce his parole ineligibility would succeed before a unanimous jury.
[18] If I determine that there is a reasonable prospect of the applicant succeeding, then I shall empanel a jury for a full hearing.
[19] Section 745.61(2) of the Criminal Code provides that the screening judge is to consider the same five criteria that would guide a jury at a hearing:
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, [2016] O.J. No. 4515, at paragraphs 34 to 36 and 38 to 41, Justice Durno provided a helpful outline of the approach to be taken at the judicial screening stage:
[34] While the wording of the legislation has undergone some change since “faint hope” applications were enacted in 1976, the purpose of the hearings remains as expressed by the Supreme Court of Canada in R. v. Sweitlinski, 1994 CanLII 71 (SCC), [1994] 3 S.C.R. 481 at para. 12:
…What is important is to understand that the procedure is one for reassessing long-term imprisonment by law (in the case of first-degree murder) or by a judge (in the case of second-degree murder). The purpose of a reassessment procedure, especially when it takes place 15 years after the initial decision, is necessarily to re-examine a decision in light of new information or factors which could not have been known initially. It follows that the primary purpose of a s. 745 hearing is to call attention to changes which have occurred in the applicant’s situation and which might justify imposing a less harsh penalty upon the applicant. …
[35] From 1976 to 1997, there was no threshold screening. The offender was entitled to have a jury empaneled. Threshold screening was enacted to ensure that only meritorious applications proceeded: Jenkins, at para. 20. While a jury would have a broad discretion to decide whether to reduce the period of ineligibility, by enacting judicial screening, Parliament has “stemmed the tide of cases that will make it to that stage” and “built a judicial dam at the front end of the process:” Jenkins, at para. 46.
[36] Conducting the screening, the judge considers the above noted factors as would an empaneled jury if leave were granted. As with the jury, all of the factors must be considered. There is no “score card” that gives each factor equal weight. Each application is a fact-specific determination. One or more factors may be decisive one way or the other. Different factors will receive different weight depending on all of the circumstances and evidence.
[38] Once all of the evidence has been examined, the screening judge preforms 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. In doing so, first, it must be kept in mind that the primary focus of the hearing is to “call attention to changes which have occurred in the applicant’s situation that might justify imposing a less harsh penalty”: Sweitlinski, at para. 12. The jury’s verdict, in effect, is an assessment of the offender’s progress: Jenkins, at para. 17.
[39] Second, when conducting the assessment, it is important to keep in mind that in order to reduce the period of ineligibility, the applicant must satisfy all jurors. Their verdict to reduce the ineligibility period must be unanimous. Accordingly, the test is whether on the material of this application, the applicant has satisfied me on a balance of probabilities that there is a substantial likelihood a jury would unanimously reduce his ineligibility period.
[40] Third, the mandated sentence for first-degree murder is life imprisonment without parole eligibility for 25 years. The applicant must show that his or her current situation justifies a departure from the normal legislated sentence: R. v. Gayle, [2013] O.J. No. 4124, (S.C.J.) at para. 30.
[41] Forth, having been convicted, the applicant no longer enjoys the benefit of the presumption of innocence with the burden of proof on the Crown. He had to provide all the available evidence that would support his application at the time of the threshold screening.
(A) THE CHARACTER OF THE APPLICANT:
[21] The applicant was born in Jamaica on August 22, 1969. He is currently 50 years of age. He is a permanent resident of Canada. There is a deportation order outstanding for him upon his release from custody.
[22] He is presently detained at Collins Bay Minimum Security Institution. He has been there since November 2017.
[23] From February 2017 to November 2017 he was housed at the Joyceville Minimum Security Institution.
[24] From March 2010 to February 2017 he was at Beavercreek Medium Security Institution.
[25] From October 2007 to March 2010 he was at Millhaven Institution. From the date of arrest until the completion of his trial he was in various detention centers.
[26] The applicant incurred a relatively minor criminal record between 1992 and 1995. This record did however indicate some assaults and possession of a prohibited weapon, which I believe was a knife. He received fines, probation, and some minor custodial time in a provincial institution. There were no convictions between 1995 and the murder in 2003. At the time of that offence, he was under a weapons prohibition. It also appears clear in the material filed that at least one of the applicant’s prior assaults, as well as a criminal harassment conviction, were against an intimate partner.
[27] The applicant has family in Jamaica. He also has a sister and a daughter in Ontario, both are very supportive of the applicant and this application. Both have written letters to the court.
[28] The applicant’s daughter states that she was ten years of age when her father was incarcerated and that he has made a substantial effort to maintain the father daughter relationship. She states that the man who was incarcerated 16 years ago is not the same man as today. She further states that he has not only attempted to turn his own life around but has ensured that she learn from his mistakes. In the last few years, they speak at least once a week and she intends to support him in any way she can when he is eventually released.
[29] I received a similar letter of support from his sister.
[30] There are multiple reports in the years of custodial records that have been provided to me attesting to the applicant’s remorse and his accepting of responsibility for his actions. One author stated that the applicant’s “expressions of remorse are presented in a poignant, sincere manner” and he demonstrates a “willingness to self-disclose, displays guilt and victim empathy, with evidence indicating a low level of cognitive distortions”.
[31] Although this court notes that the applicant appealed his conviction of first-degree murder, that appeal was based on the fact that he did not believe the murder was planned and deliberate. He candidly admitted to the Court of Appeal of Ontario that he was responsible for killing his estranged common law wife.
(B) THE APPLICANT’S CONDUCT WHILE SERVING THE SENTENCE:
[32] The Crown quite accurately concedes that the applicant has made significant progress in the prison system since his conviction in October 2007.
[33] The applicant’s security classification has been reduced from maximum to minimum as of February 2017.
[34] The applicant initially incurred a number of misconduct charges while in various remand institutions awaiting trial. That does not strike me as unusual given the circumstances surrounding various remand institutions. Once the applicant went into the prison system, there were relatively few and very minor misconduct incidents. During the last few years of incarceration, he has had virtually no misconduct charges.
[35] The applicant has received consistently and robustly positive commentary on his efforts toward upgrading his education. He obtained his Ontario Secondary School diploma while incarcerated.
[36] In 2013, the applicant successfully completed the Moderate Intensity Family Violence Prevention Program. He attended all of the program’s group sessions as well as three individual sessions. According to the instructors, he demonstrated motivation to participate in the program, proving himself a cooperative group member who excelled in role playing. He was described as being “open and transparent during group discussions” and he “made candid comments about his past while listening to other group members speak about the ways they would approach a high-risk situation in the future.” The instructor said “he was receptive to constructive criticism and provided feedback to other group members.” The report summarizing his participation in the program is extremely positive and the author noted “Mr. McPherson demonstrated gains in all areas targeted”. Post testing results for Mr. McPherson were as follows; “the Interpersonal Relationship Scale and Anger and Other Emotion showed meaningful difference in all categories. The Abusive Relationship Scale showed meaningful difference in legal entitlement.” This Court understands that Mr. McPherson is not presently involved in a relationship and although he has acquired the necessary skills, he still needs to put them into practice.
[37] The applicant has also successfully completed a number of skills training programs including Personal Fall Protection, Working Safely with Hand and Power Tools, Making Safety Work, and Workplace Hazardous Materials Information Systems. His January 2016 correction plan states “It is to be noted that Mr. McPherson has taken every opportunity available to him to promote self-improvement in the area of personal and marketable skills.”
[38] The applicant has received largely favorable reports regarding his employment while in the prison system and has been consistently employed.
[39] In 2016, a psychological risk assessment indicated the applicant was at low to moderate risk for general recidivism and violent recidivism. I note his 2010 risk assessment was somewhat higher, which leads me to conclude that the progress he is making, and has made, is working.
(C) NATURE OF THE OFFENCE:
[40] In R v. Brown, 2015 ONSC 5264, [2015] O.J. No. 4388 at paragraph 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 life on a scale and thus suggest that one life lost is somehow more troubling or more shocking or more horrible then another. Nonetheless, this criterion, necessitates some such ranking.
[41] The Crown submits that the particular facts of this murder, although not at the most severe end of the spectrum, do fall close to such severity.
[42] There is no doubt that the murder of a common law spouse by way of five gun shots is severe. It is a statutorily aggravating factor under the Criminal Code when a domestic partner is murdered. It must be noted however, that as despicable as the offender’s actions were, this Court has seen fact situations more serious and especially more violent with long term trauma, pain and suffering experienced by the victim; which were not present here.
[43] It is noted that Mr. McPherson was upset that his former common law spouse was moving on with her life both by way of dating a new gentleman and pursuing her religious beliefs. Needless to say, no one in our society should ever have to fear violent reprisals for such actions.
[44] The actions of the victim in this case were not in any reasonable sense aggravating to any normal person. The victim was innocent and totally unable to defend herself. She had no warning that such barbaric action would be taken against her by Mr. McPherson.
[45] As found by the jury and the Court of Appeal for Ontario, in bringing a concealed and loaded handgun to the victim’s home, the applicant’s actions were planned and deliberate. He trapped her in her kitchen and ruthlessly executed her. Further, he was bound by a firearms prohibition at the time he committed this crime.
(D) INFORMATION PROVIDED BY A VICTIM:
[46] The father of the victim has submitted a very short victim impact statement. He indicates, understandably, that he and the family have struggled with their emotions over this incident. His statement tells me little and there is nothing from any other family member.
(E) RELIGIOUS INVOLVEMENT:
[47] The applicant appears to have found, as he says, some comfort and guidance in religion while incarcerated. He is a regular participant in the Alpha course which involved exploring the Christian faith through discussion and inquiry.
[48] The Regional Director for the New Life Prison Ministry and the Facilitator of the Alpha group states “In my interaction with Anthony, he has been respectful of myself and others in the program and chapel services. He displays sincerity and a willingness to learn and grow as a pro social individual.”
[49] Reverend Sharon Dunlop, Chaplain at Collins Bay Institution, wrote:
I have known Mr. McPherson for some time through several programs offered in the chapel. He attends weekly chapel services on a regular and consistent basis. Mr. McPherson has always been polite and respectful anytime I have met with him and in his conversations with the other Chaplains and volunteers who visit here. He appears to be dedicated to putting his time here to good use toward successful reintegration into the community.
[50] The Rastafarian Chaplain at Collins Bay Institution has also written that Mr. McPherson has been a regular participant in his program. He contributes actively and positively to good discussions and worship activities. “Mr. McPherson has expressed a sincere commitment to improving himself, and his relationships with others in the larger community while in prison and on his release from the institution. Mr. McPherson has shown a lot of growth personally and spiritually within the program. I am confident he will set positive goals for himself upon release.”
ANALYSIS:
[51] Counsel agree that the test on this screening should be whether the applicant has shown on a balance of probabilities that there is a “reasonable prospect” that the application to reduce his parole ineligibility would succeed before a unanimous jury. This is a less stringent test than is currently in place which imposes that there must be “a substantial likelihood that the application will succeed”.
[52] The change in the test, in my view, is significant. As Justice Durno pointed out in
Morrison at para. 43, the current test is more stringent. “[T]he caselaw supports a finding that the applicant must show the application has real merit and substantial probability that a jury will unanimously reduce the period of ineligibility”. Further, at para. 41 of R v. Morrison, 2012 ABQB 619, 551 A.R. 149, Justice Martin stated:
Likelihood may also mean a probability or prospect of success, which may not necessarily involve being more probable than not. Given the various factors at play I believe that substantial likelihood means a real probability or prospect that all members of the jury will reduce the parole ineligibility period. A probability that tips the balance of probabilities will certainly meet this test. However, one that falls below, but is close may also be sufficient if the applicant presents a case of some real merit.
[53] As was stated in Dell the changes to the definition of the test over the years by amendments to the Criminal Code have by and large limited an offender’s chances of obtaining a reduction in the period of parole ineligibility.
[54] In Phillips, at para. 8, the court set out the facts which led to the dismissal of that application, which in my view were quite different from the case at bar;
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.
[55] In R. v. Humaid, 2015 ONSC 5345, [2015] O.J. No. 4473, the accused brutally stabbed his wife who he suspected was having an affair. The court stated the following at paras. 25 and 26, which I conclude is applicable to this case;
Odious as Aysar Abbas’s murder was and is, it stands on a similar footing with first degree murders of many kinds. All planned and deliberate murders are odious. That is why a conviction carries our greatest penalty. However, Parliament created the faint hope clause remedy for such crimes, and the evidence is that, as of 2010, juries had granted relief by reducing the parole ineligibility period in 145 out of 178 cases that had been allowed to proceed to jury determination (R. v. Poitras, at para 18). That success rate of over 81% shows that Canadian juries have found, not infrequently, that there are circumstances involving reformation, redemption and renewal in which an up-to-date review of all the circumstances and the application of the limited clemency held out by the faint hope clause are appropriate.
In the case at hand, Mr. Humaid has a very positive record over his almost 16 years’ imprisonment. He contributes to the well-being and education of his fellow inmates and has taken and successfully completed all the courses and programs in his correctional plan. He has been assessed as having modified his thinking about the respective roles of men and women in society and appears to be very remorseful about killing his wife. He has kept up his family relationships and appears to have restored relations with his children, all of whom support his application. Refusing the statutory hope of some possible clemency for a prisoner who has served some 16 years in prison already, is remorseful, well-motivated, and has clearly made positive strides while imprisoned, strikes me as retrograde penal policy.
[56] In R. v. Wong, 2015 ONSC 3106, [2015] O.J. No. 2560 and R. v. Ali, 2013 ONSC 5551, both jurists found that despite the horrific crimes committed of murdering their respective wives, both offenders had made substantial strides in prison to better themselves. They had changed their way of thinking about women, expressed real remorse, and accepted responsibility for their acts. Under those circumstances, both courts, using the current more stringent test than what I have agreed to apply, found the offenders had “a substantial likelihood” of being successful in having a unanimous jury reduce their parole ineligibility and granted the applications.
[57] The test the applicant must meet, as agreed to by counsel and myself, is significantly lower than the test in Humaid, Wong and Ali. He must establish only that there is a reasonable prospect of success before a unanimous jury that his parole ineligibility period will be reduced.
[58] The Crown has really only pointed to one main reason why Mr. McPherson should not succeed on this application; that being the planned and deliberate violent murder of his former domestic partner. I accept that that is so. Were the crime the only consideration, the application would have to fail. However, I must also consider the other criteria set out in the Criminal Code and all of those in my view are positive, some extremely so. None is necessarily more important than another. (See: Morrison at para 38).
[59] This offender has received glowing reports from the Family Violence Program completed in 2013. The final report stated, “His ability to be effective and personify the female’s perspective was astounding. His homework was completed on time and he demonstrated an understanding of the skills and how to apply them to his real-life situations”.
[60] The applicant has also demonstrated good behavior throughout his incarceration in the federal system. He has received his secondary school diploma and maintained steady employment with very positive reports. In addition, he has completed numerous skills training programs and become a regular religious participant.
[61] The applicant has served 16 years and is now 50 years of age. As a result of his positive behavior, he has reduced his level of security within the system from maximum to minimum. He has maintained the relationship and support of his daughter and sister throughout his years of incarceration.
[62] He has accepted responsibility for his actions and shown real and genuine remorse based upon the accounts of a number of institutional personnel who have interacted with him over a number of years.
CONCLUSION:
[63] I conclude that the applicant has met the test that there is a reasonable likelihood that he will be successful in unanimously convincing a jury that his parole ineligibility period should be reduced.
[64] Further, I also conclude, based on my earlier reasons in this decision, that even if this court were to apply the current, more stringent test, the facts of this case would warrant a finding that on the balance of probabilities, there is a substantial likelihood that the application would succeed before a unanimous jury.
[65] The application is allowed, and a jury shall be empaneled to consider the application. My office will arrange a telephone conference with counsel to set a schedule for the hearing of this matter.
Arrell, J.
Released: September 12, 2019
COURT FILE NO.: CR-19-114-MO
DATE: September 12, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ANTHONY MCPHERSON
ENDORSEMENT
HSA
Released: September 12, 2019