COURT FILE NO.: CR-20-00000-102-00MO

DATE: 20210511

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

PHILLIP ATKINS Applicant

Maureen Pecknold, for the Crown

Michael A. Crystal, for the Applicant

HEARD: In writing

RULING ON AN APPLICATION PURSUANT TO s. 745.6 OF THE CRIMINAL CODE

B.P.O’Marra J.

overview

[1] On July 29, 2009 Phillip Atkins was sentenced after a jury had found him guilty of first-degree murder, attempt murder and committing offences for the benefit of a criminal organization. He received two concurrent life sentences on the first two counts and a further concurrent term of fourteen years on the third count. On the count of first-degree murder there was also the mandatory order that he would be ineligible for parole for twenty-five years from the date of his incarceration. The offence date on all three counts was March 3, 2004. Phillip Atkins has now been in custody on these charges for seventeen years.

[2] Phillip Atkins 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 his application.

[3] By letter dated August 11, 2020 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 and responding to the application was not completed until April 9, 2021. Counsel for both parties have done an excellent job of presenting the extensive materials required on such an application. There were a series of conference calls involving both counsel and myself to discuss scheduling dates for the filings of materials. My decision is based on a careful review of all of the materials along with the books of authorities filed.

STATUTORY FACTORS

[4] Pursuant to ss. 745.61(2) and 745.63 of the Criminal Code, the screening judge must consider the following factors:

(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 sentence or at the time of the hearing under these sections; and

(e) any other matters that the judge considers relevant in the circumstances.

THRESHOLD AT THE JUDICIAL SCREENING STAGE

[5] In 2011 the Criminal Code was amended to raise the threshold to a “substantial likelihood” that the application will succeed if presented to a jury. In R. v. Dell, 2018 ONCA 674, leave to appeal refused 2018 SCCA No.389 the court considered the retrospective application of that amendment. As a result of that ruling the Crown agrees that the applicant must demonstrate on a balance of probabilities that there is a reasonable prospect that a unanimous jury will conclude that the period of parole ineligibility should be reduced.

[6] Even though this is often referred to as a “faint hope” application the test involves more than simply demonstrating that the case is not hopeless. More is required, otherwise the purpose of judicial screening would be frustrated: R. v. Phillips, 2012 ONCA 54 at para. 6.

[7] In R. v. Morrison, 2016 ONSC 5036 at paras. 36-43, Durno J. outlined the approach at the judicial screening stage. In R. v. Eunick, 2018 ONSC 5971 at para. 6, I summarized that approach, amended slightly in light of Dell 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 CanLII 71 (SCC), [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.

CIRCUMSTANCES OF THE OFFENCE

[8] At about 5 p.m. on March 3, 2004 Brenton Charlton, age thirty-one, and Leonard Bell, age forty-three, were sitting in a blue Chrysler Neon stopped at a red light at a busy intersection in Toronto. A dark SUV pulled up beside them. Its occupants opened fire on Charlton and Bell. Charlton was shot twice and died at the scene. Bell was shot nine times and miraculously survived. Following extensive medical intervention, he still retains bullet fragments in his left lung with permanent numbness on his left side, chronic respiratory problems and occasional severe pain.

[9] The Crown’s theory at trial was that the shooting of Charlton and Bell was a case of mistaken identity in a conflict between rival gangs in Scarborough. The applicant and his two co-accused were members of the Galloway Boyz (“G-Way”) who had a “beef” with the Malvern Crew. G-Way members wanted to avenge the killing of their former leader for which they believed the Malvern Crew was responsible. A sub-group of G-Way, called the “Throw-Backs”, was established to conduct armed “rides” into Malvern territory to hunt for targets. The Crown’s theory was that the applicant and his co-accused set out on one such “ride” on March 3, 2004. The victims Charlton and Bell in fact had nothing to do with Malvern or G-Way. However, the car they were in looked similar to a car used by a known Malvern crew member. Neither of the victims had a criminal record, nor had they ever been associated with criminal gangs or any other criminal activity. They were totally innocent bystanders.

[10] At the trial two G-Way members testified that the applicant and his co-accused each confessed their involvement in the shooting in the hours immediately after it. A considerable amount of circumstantial evidence supported the Crown’s theory, including ballistics and DNA evidence.

ANTECEDENTS AND CHARACTER OF THE APPLICANT

[11] The applicant was born on May 26, 1983. He is now thirty-seven years old. He has a seventeen year old daughter from a prior relationship. He has been involved in a new relationship with a woman since 2014. Both his daughter and his new partner are very supportive of the applicant and look forward to his eventual release. I will refer to their letters of support in more detail later in these reasons.

[12] The applicant has the following criminal record:

1999-09-07 Toronto (Youth Court)

1. Possess property obtained by crime under
2. Uttering threats

12 months probation on each concurrent

2002-05-07 Toronto

Attempt Break and Enter with intent

47 days pretrial custody + 30 days + 18 months probation

2002-12-23 Toronto

1. Fail to attend court
2. Possess property obtained by crime over

62 days pretrial custody on each concurrent

2003-06-24 Toronto

1. Use imitation firearm during commission of offence

2. Attempt obstruct justice

3. 13 months pretrial custody + 12 months + 18 months probation

4. 6 months consecutive

2009-07-29 Toronto

1. First degree murder

2. Attempt murder

3. Commission of offence for criminal organization

4. Life imprisonment

5. Life imprisonment

6. 14 years

[13] The applicant grew up in a low-income community in Toronto with his mother and two siblings. He was at all times particularly close with his mother. She died while he was serving this sentence. He says he became involved in criminal activity by the time he was thirteen years old in order to provide food and other household necessities for his family. At the time he thought that was the right thing to do but now sees that he made poor decisions and should have pursued other options. He claims that he fully accepts responsibility for his actions and how they led to his arrest on the serious charges he faced in 2004. He says he has matured while in prison and is determined to lead a better and more positive life with the support of the many people who have filed letters on this application. He says he has taken all of the programs and workshops available to him in prison in order to better himself. He has avoided violent incidents while in prison and its subculture. He wants to support his daughter and partner when he is released.

[14] The applicant has completed his high school education while in prison. He has been provided with offers of employment upon his release that I will refer to in more detail.

Letter from Richard Sauve

[15] Richard Sauve identified himself as “a lifer” who was granted parole through the “ faint hope” process in 1995. He works in an organization that provides services to individuals serving life sentences. The Break Away program is aimed at assisting individuals whose offences are related to gang activity. That program is not only for those who have been identified as gang members. The applicant became involved in the program. Mr. Sauve was impressed with him to the extent that he foresaw that the applicant could take on a leadership role in the organization. Over time the applicant was asked to speak to members of the Office of the Minister of Public Safety as well as a Senate committee dealing with issues related to the human rights of prisoners in the correctional system. Mr. Sauve is fully supportive of early parole for the applicant.

Support letters from family

[16] Letters from the following family members were filed in support:

1. Sarah Asgari–partner: She has known the applicant since they were children. They lost touch with each other for several years. She visited him after he was sentenced in 2009. By 2014 they were involved in a relationship and hope to carry on as partners after he is released. She is well employed as a professional fundraiser, owns her own home and has an investment property.

2. Savana Nolan–daughter: The applicant has been in prison for much of her life but they have remained in contact as best they can in the circumstances. She is very supportive of him and anxious that they spend important time with each other outside of the prison system.

3. Crystal Urquhart–sister

4. Judy Ericson–aunt

5. Loy Atkins-Little–aunt

6. Christine Halan–aunt

7. Teresa Gourlay–cousin

8. Rochelle Wishart–cousin

[17] All of these family members see the good in the applicant and are hopeful that he can reunited with them.

[18] Letters from the following friends and community members were filed in support:

1. Crystal Skidmore–She has known the applicant for close to twenty-five years.

2. Raynford Hunphrey–He has known the applicant as a friend since childhood and has stayed in contact with him since his incarceration.

3. Kevin Anderson–He is an Intake Investigator with the Durham Children’s Aid. In 2000 when he was a senior staff member at a club for boys and girls in the Galloway area he met the applicant. He was impressed with the applicant as a youth and continues to support him in this application.

4. Brandon Dawson-Jarvis–He met the applicant when they were both inmates at Collins Bay Institution. He saw how the applicant dealt with staff and other inmates in a positive way. He believes that the applicant would be a force for the good if he were to be permitted early parole.

5. Nigel Rambally–He is now a small business owner and the single father of two children. He met the applicant when they were both incarcerated in the years after 2004. He saw the applicant mature into a man who loves his family and is capable of leading a very positive life.

6. Dr. Tanaz Hendin–She is a physician who has known Sarah Asgari since she was fifteen years old. Through her she has learned about the applicant and his relationship with her friend. Dr. Hendin has spoken to the applicant while he has been serving his sentence. She has been very impressed by the strength of the relationship between her friend and the applicant under challenging circumstances. She is very supportive of his application for early parole.

7. Arista Setoodeh–She is an account manager for an international medical company. She came to know the applicant through her best friend Sarah Asgari. She has spoken to the applicant and is impressed with the support and sensitivity he expresses for her friend. She is very supportive of his application for early parole.

8. Sabrina Roy–She became friends with the applicant through her best friend Sarah Asgari. She is the president of a company that works with nonprofits. She is very supportive of his request for early parole.

9. Danny Bugabo–He is a senior account executive for an international software company. He came to know the applicant through his best friend Sarah Asgari. Over time he became friends with the applicant as well. Based on what he has seen of the relationship between the applicant and his friend he supports this application for early parole.

10. Liz. E. Ricci–She has come to know the applicant through her very close friend Sarah Asgari. She is very impressed with the strength of the relationship between her friend and the applicant. She is very supportive of his application for early parole.

Support letters from Correctional Officers and Aboriginal Elder

[19] C. Shanks, Scott Bruce and John Houde are Correctional Officers at Collins Bay Institution who filed letters in support of this application. They all had experience in dealing with the applicant and found him to be courteous and helpful in his role as Unit Representative. That is a position that involves communication between the inmates and staff regarding issues of common interest and concern. They confirm that the applicant has completed his programing and remained employed while serving his sentence.

[20] The applicant does not have Aboriginal ancestry but was accepted as an “honourary member” of the Aboriginal inmate group. Darren Wrightman is an Aboriginal Elder and filed a letter in support of the application. He explained the aims of Aboriginal spirituality and efforts that the applicant took to understand and apply them.

Offers of Employment

[21] Sabrina Roy of Fluid Events, Coline Rennie of C&M Painting and Nessell Beezer filed letters confirming that they could offer employment to the applicant upon his release from prison.

Offender Pay Reviews

[22] Records dated July and October 2010 and January 2011 from Corrections Canada confirm that the applicant performed his assignments in a very positive manner.

THE APPLICANT’S CONDUCT WHILE SERVING HIS SENTENCE

[23] The Crown filed institutional records and reports commencing in 2009 through 2020 inclusive. The chronology of his time in the federal penitentiary service is as follows:

• July 29, 2009–Admission to Millhaven Assessment Unit

• January 25, 2010–Transfer to Millhaven Institution–Maximum security

• February 15, 2012–Voluntary transfer to Warkworth Institution–Medium security

• September 30, 2013–Involuntary transfer to Millhaven Institution–Maximum security

• June 24, 2014–Voluntary transfer to Collins Bay Institution–Medium security

[24] The applicant was interviewed for the initial assessment in 2009. He admitted being a member of a gang but maintained his innocence for the charges that sent him to the penitentiary. It was noted that he appeared very casual about the severity of the charges he was convicted of.

[25] An assessment dated January 22, 2010 refers to a pattern of unsatisfactory institutional adjustment. With the exception of educational upgrading his motivation is noted as low. He remained at risk for crimes of violence without intervention. He now adamantly denied that he was a gang member. The report noted that there was no apparent victim empathy. He felt nothing towards them. He adamantly denied the charges that he had been convicted of.

[26] In a psychological risk assessment in 2012 the applicant denied that he had been a gang member but had simply associated with a criminal crowd.

[27] In an assessment dated May 29, 2014 the applicant said he would not participate in a violence prevention program until his appeals had been dealt with. It was noted that he remained a high risk to public safety based on his gang affiliation, the index offences and his propensity for violence. His reintegration potential, motivation and engagement were rated as low. In July 2014 a psychological assessment included a personality assessment. Clinical scales suggested that he was a person who is impulsive, bitter, lacks empathy, egocentric and angry. This could cause him to lash out impulsively at those he feels have slighted him in some way. He exhibited certain anti-social character traits. However, he did not meet the criteria for the diagnosis of psychopathy. He was in the moderate range of risk for both general and violent recidivism when all variables are considered.

[28] In 2016 his motivation for reintegration potential was rated as low.

[29] In July 2016 a referral decision noted that despite some positive features he still presented as high risk to public safety.

[30] On November 28, 2019 approximately two to three grams of what appeared to be heroin/fentanyl was found in a coat pocket in his cell. The applicant has denied any knowledge or possession of that substance. That matter is yet to be dealt with in court so I will draw no inference against the applicant related to it. Other than that serious but unproven violation the applicant has accumulated various relatively minor breaches of the rules in the penitentiary over the years of his sentence.

[31] The final psychological risk assessment dated June 24, 2020 refers to a moderate risk for future criminal conduct both generally and violently. He continued to deny any involvement in the offences for which he was sentenced. The assessment goes on to note that “it may be better for him to demonstrate improved behavior over a substantial period of time before seeking a conditional release”.

VICTIM IMPACT

[32] Three victim impact statements were read into the record at the time of sentencing.

[33] Uleth Harvey is the aunt of the deceased Brenton Charlton. She identified the remains of the victim to spare his mother (her sister) the anguish of doing so. Brenton was the only child of divorced parents. After his son was murdered Brenton’s father said he had nothing to live for. He became depressed and stopped taking care of himself. He died nineteen months before the verdicts, shortly before the long trial began. Ms. Harvey suffered from anxiety related to her nephew’s violent death. She blamed herself for his death and the pain suffered by her sister.

[34] Valda Williams is the mother of Brenton Charlton. She referred to the memories of her son’s violent death as unbearable. She was haunted by memories of how her son was murdered like an animal on the street. She wondered if there was a friendly face nearby when he took his last breath.

[35] Leonard Bell survived the incident despite being hit with a volley of bullets. He suffered physical and emotional pain as a result. The violent death of his friend Brenton Charlton was another layer of pain for him to endure. The physical injuries have been long lasting and persist to this day and into the future.

THE NATURE OF THE OFFENCE FOR WHICH THE APPLICANT WAS CONVICTED

[36] The applicant was convicted of three very serious offences including first degree murder. The sentence for that offence is mandated by law. The trial judge imposed the maximum sentence for each of the offences. That reflected the high degree of moral culpability involved in their commission. Dambrot J. stated that it was “hard to imagine a more serious example of the crime of attempt murder than the one committed here.” He referred to the “callous indifference” exemplified by the numerous shots directed at Leonard Bell. He also found that there could be no worse example of an offence done for the benefit of or in association with a criminal organization than the first degree murder in this case. The maximum fourteen year sentence to run concurrently with the two life sentences was imposed on the criminal organization charge.

[37] 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 that offence is murder. It is hard to put the loss of a life on a scale and thus suggest that one life lost is somehow more troubling or more shocking or more horrible than another. Nonetheless, this criterion necessitates some such ranking.

[38] As was the case in R. v. Eunick, 2018 ONSC 5971, the applicant in the case before me was a heartbeat away from convictions for two counts of murder rather than one. He was proven to have the specific intent to kill both of the victims. The fact that the second victim survived multiple gunshots is a further serious factor along with the murder in the total circumstances of this case.

[39] 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).

[40] In R. v. Logan, 1990 CanLII 84 (SCC), [1990] 2 S.C.R. 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.

ANALYSIS

[41] Counsel for the applicant has presented an impressive list of letters in support. They include several from family and friends who have known the applicant long before these offences occurred. Others are from successful people who have come to know the applicant through their longstanding friendship with Sarah Asgari. Others are from men the applicant met while in custody, correctional officers and an Aboriginal Elder who was impressed with the way the applicant conducted himself in challenging circumstances. There are offers of employment and support in the community from family, friends and other contacts the applicant has made since 2009. The image of the applicant reflected in all the letters of support and his own words is of person far different than the one sentenced to these lengthy prison terms.

[42] The image of the applicant reflected in the institutional records is less positive. Early on he acknowledged that he had been a gang member. By January of 2010 and thereafter he denied any gang affiliation and proclaimed his innocence of the charges that sent him to prison. The applicant was clearly entitled to pursue any and all appeals for those matters. Those appeals have now been exhausted. An acknowledgement of guilt is not a precondition to a successful application. However, he claims that he accepts his responsibility for his actions and how they led to his arrest without acknowledging the specific conduct that caused death and destruction to two innocent men and their families. He in effect seeks credit for acknowledging bad choices and associations without taking ownership of what he did.

[43] The gang aspect of these crimes was not a peripheral issue. The motive for the shootings was gang related. The jury were satisfied beyond a reasonable doubt that the first degree murder and attempt murder were for the benefit of or in association with the criminal gang. The applicant’s professed acceptance of responsibility is inconsistent with his failure to acknowledge what he did and its connection to the gang activity. In a letter dated February 2, 2020 the applicant adamantly denied his gang affiliation in these words: “I must also say that while I was labelled a member of the Galloway Boys gang I am not. I was not then, I am not now, and never will be.” Yet in that same letter he goes on to say that he takes full responsibility for his actions and mistakes.

[44] At no time has the applicant exhibited empathy for the victims and their families. The closest he comes is in the letter of February 2, 2020 where he expresses sorrow for the pain that he has caused his family, his friends “and everyone affected”. The latter portion can be viewed as a vague and generalized reference to the victims and their families.

[45] In R. v. Banwait, 2019 ONSC 3026, Justice Dambrot dismissed a faint hope application after a conviction for one count of first degree murder. At para. 57 he had this to say on the issue of remorse:

Unquestionably, remorse and accountability must be considered together. Accountability is the handmaiden of remorse. Genuine remorse must begin with the acceptance for the actions in question.

[46] In R. v. Swietlinski, 1994 CanLII 71 (SCC), [1994] 3 S.C.R. 481, 92 CCC (3d) 449 the court stated that the primary purpose of a faint hope hearing is to call attention to changes which have occurred in the applicant’s situation and which might justify imposing a less harsh penalty on the applicant.

[47] The reference in Swietlinski to the primary purpose on a faint hope application must be considered in light of subsequent amendments to the Criminal Code. That case was the first time that the Supreme Court of Canada considered what was then s. 745 of the Criminal Code. There was no specific reference in that section to victim impact as a factor on such applications. The experienced trial judge ruled that victim impact evidence was not admissible. The majority decision in the Supreme Court of Canada held that such evidence was admissible under the factor of the nature of the offence. There were dissenting views in the high court as to the admissibility of victim impact evidence on faint hope hearings.

[48] The current s. 745.63(d) of the Criminal Code specifies that information provided by the victims at the time of the imposition of sentence or at the time of the hearing shall be considered, along with the other enumerated factors and any other matters that the judge considers relevant in the circumstances. The specific inclusion of victim impact in the current legislation makes clear that it is a factor that must be considered and weighed along with the other factors. The changes in the applicant’s situation remain significant but not to the exclusion or diminution of the impact of these most serious crimes on the victims and their families.

[49] I am not satisfied that there is a reasonable prospect that a jury could be unanimous in deciding that the applicant should be eligible for early parole based on a balancing of the relevant factors in the particular circumstances. On the plus side is the declaration by the applicant by his words and actions since 2009 that he is not the man he once was and a determination to live a prosocial life. There is also the impressive support of his partner, family, friends and contacts who attest to his positive prospects. On the negative side there is the lack of remorse and accountability for his actions on behalf of a criminal gang involving the planned and deliberate murder of one totally innocent man and the intention to kill another totally innocent man in a volley of bullets. The impact of these crimes has been and continues to be devastating to those two families. Even though his appeals have been exhausted the applicant seems incapable or unwilling to express any remorse for the death and misery he has caused to the families of the victims. I am not satisfied based on a limited weighing of the relevant factors that the applicant could successfully persuade a unanimous jury that he should be granted early parole.

RESULT

[50] The application is dismissed. I am grateful to both counsel for the thorough materials presented for my review and consideration.

O’Marra J.

B.P.O’MARRA J.

Released: May 11, 2021

COURT FILE NO.: CR-20-00000-102MO

DATE: 20210511

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

PHILLIP ATKINS Applicant

Ruling on an application pursuant to s. 745.6 of the criminal code

B.P.O’MARRA J.

Released: May 11, 2021