COURT FILE NO.: 374/20-00MO
DATE: 2021/05/18
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen, Respondent
– and –
Elizabeth Gatenby, Applicant
Counsel:
P. Vadacchino, for the Respondent
J. Marshman, for the Applicant
REASONS FOR JUDGMENT
THRESHOLD SCREENING APPLICATION
SECTION 745.61 OF THE CRIMINAL CODE of Canada
CORRECTED DECISION – May 27, 2021
Para. 93 – Correction – “accept” changed to “accepted” in first sentence. No other changes.
THE HONOURABLE JUSTICE J. R. HENDERSON
INTRODUCTION
[1] Bruce Firman was the 72-year-old common-law partner of the applicant’s mother, Margaret Benesch. On November 27, 2001, pursuant to a plan that had been formulated and organized by the applicant, Mr. Firman was murdered in his residence by two young men, the applicant’s son Byron Gatenby (“Byron”), and Brendan Warken (“Brendan”).
[2] The applicant was convicted by a jury of the first-degree murder of Mr. Firman on May 17, 2006. Thereafter, the applicant was sentenced to imprisonment for life without eligibility for parole for 25 years.
[3] The applicant brings this application pursuant to s.745.6 of the Criminal Code for a reduction in the number of years of imprisonment without eligibility for parole. I have been designated by the Chief Justice to conduct the judicial screening of this application pursuant to s.745.61(1). If the applicant passes the judicial screening, a jury will be empaneled to hear the application.
THE RELEVANT LEGISLATION
[4] The Criminal Code mandates that offenders who have been convicted of first-degree murder shall be sentenced to imprisonment for life without eligibility for parole for 25 years. However, an offender who has been convicted of murder, sentenced to life imprisonment without eligibility for parole for at least 15 years, and served at least 15 years of the sentence, may apply for a reduction in the number of years of parole ineligibility pursuant to s.745.6. This has been called the “faint hope” clause.
[5] Prior to 1996 all faint hope applications were heard by a jury; there was no requirement for any preliminary proceeding or application. In 1996 Parliament amended the Criminal Code by introducing judicial screening for faint hope applications. Section 745.61(1) required the Chief Justice or a designate to screen the application to determine whether the applicant had shown, on a balance of probabilities, that there was a reasonable prospect that the application will succeed before a jury. If the application did not pass judicial screening, a jury would not be empaneled, and the application would be dismissed.
[6] A second significant amendment occurred in 2011 when Parliament raised the threshold for judicial screening by changing s.745.61(1) such that the screening judge was required to determine whether the applicant had shown, on a balance of probabilities, that there was a substantial likelihood that the application will succeed before a jury.
[7] In R. v. Dell, 2018 ONCA 674, the Ontario Court of Appeal found that the retrospective application of the 2011 amendments constituted an unjustified violation of the Canadian Charter of Rights and Freedoms. See Dell at para. 87 and paras. 100-102.
[8] Accordingly, in the present case, the parties submit, and I agree, that the relevant legislation is the version of s.745.61(1) that existed as of November 27, 2001, the date of the offence. I must conduct this judicial screening as if the 1996 amendments, but not the 2011 amendments, were in place. That is, I must determine “whether the applicant has shown, on a balance of probabilities, that there is a reasonable prospect that the application will succeed.”
[9] In conducting this judicial screening, I must consider the criteria that the jury would be required to consider if a jury were empaneled. Section 745.63(1) requires the jury to consider the following:
(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.
GENERAL PRINCIPLES AND THE PURPOSE OF THE LEGISLATION
[10] Life imprisonment without eligibility for parole for 25 years is a mandatory sentence for the offence of first-degree murder. To succeed on a faint hope application the applicant must therefore show that his or her circumstances justify a departure from the normal mandated sentence. See R. v. Swietlinski, 1994 71 (SCC), [1994] 3 S.C.R. 481, and R. v. Gayle, [2013] O.J. No. 4124 at para. 30.
[11] In Swietlinski, at para. 12, Lamer C.J. commented on the purpose of the faint hope clause as follows:
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.
[12] In R. v. Jenkins, 2014 ONSC 3223, at pars. 33 and 37, Pomerance J. wrote the following, which I accept and adopt, about the role of the jury in faint hope applications:
The task of the jury in faint hope applications is different than any other task assigned to juries in Canadian law. Within this context, the jury is, fundamentally, a tool of clemency. Its task is more akin to an exercise of mercy than it is an application of law.
Thus, the decision of the jury has an amorphous quality. It does not fit neatly into traditional decision making structures. The verdict is not a legal conclusion but rather an assessment of the offender's progress. There is no specific threshold that must be satisfied before an offender can receive a reduction in parole ineligibility. It is for the jury to determine, using its best judgment, whether the offender is deserving of leniency.
[13] Regarding the judicial screening provisions, in his analysis of the 1996 amendments in the Dell decision, at para. 20, Doherty J. wrote the following:
The purpose of the provision was twofold. First, to save friends and relatives of the victims of the murders the needless pain and anguish of going through a “faint hope” hearing before a jury when the applicant had no realistic chance of success. Second, the screening process was intended to avoid wasting jurors’ time and judicial resources on hopeless applications.
[14] The judicial screening provisions were also considered in R. v. Morrisson, 2016 ONSC 5036, in which Durno J. observed at para. 36 that all of the factors set out in s.745.63(1) must be considered by the screening judge as would an empaneled jury if leave were granted. However, there is no “score card” that gives each factor equal weight. Each application is a fact-specific determination.
[15] Further, the screening judge must perform some limited weighing of the evidence as the section directs the judge to consider the possible outcome of the application if it was heard by a jury. See R. v. Dulay, 2009 ABCA 12, at para. 5.
[16] Some courts have recognized that is a difficult task for the screening judge to accurately predict the outcome of a jury deliberation. In a faint hope hearing the jury has a virtually unfettered discretion to allow or deny the application as it sees fit; the jury is not confined or structured by legal principles or findings of fact. A jury makes a subjective assessment, gives the relevant factors whatever weight it deems appropriate, and decides what the offender “deserves”. See the Dell decision at paras. 80-81, and Jenkins at para. 46.
[17] Therefore, I find that the function of the screening judge is not to predict the jury verdict. I accept and adopt the comments made by Doherty J. in Dell at para. 82, as follows:
Save in the obvious cases, I think a judge, reviewing a written record only, would be hard-pressed to make a reliable assessment of how a jury would react to an offender’s plea for clemency presented viva voce to that jury…It is more accurate to view the judicial screening process as a distinct inquiry, intended to limit the jury’s power to extend leniency to applicants.
[18] Finally, it is important to note that in order to be successful on an application for a reduction in the number of years of parole ineligibility the applicant must obtain the unanimous approval of all 12 jurors. See s.745.63(3).
THE OFFENCE
[19] At all relevant times, the applicant and her 18-year-old son, Byron, lived in British Columbia. The applicant was the executive director of the Heart of Trail Youth Centre, which was a youth centre in Trail, B.C. that provided support and recreation for troubled youths. As such, the applicant had access to, and influence over, troubled youths.
[20] The applicant’s mother, Mrs. Benesch, had been residing with Mr. Firman in a common-law relationship at their residence on Tecumseh Street in St. Catharines, Ontario. That home had been purchased with money that Mrs. Benesch had received as an inheritance after the death of her husband.
[21] After cohabiting in their common-law relationship for approximately three years, Mrs. Benesch and Mr. Firman separated, but they continued to reside in the same residence. Their legal proceedings were acrimonious and had been ongoing for approximately two years as of November 2001. Mrs. Benesch was under considerable financial and emotional stress as a result of her ongoing dispute with Mr. Firman.
[22] In order to rescue her mother from her stressful situation, the applicant formulated a plan to kill Mr. Firman. She initially recruited her son, Byron, as a participant in the plan. Thereafter, the applicant and/or Byron recruited Chris Dilling (“Chris”) to assist them. Later, as the plan unfolded, Chris told the applicant that he “can’t kill this man”, and he sent another troubled youth, 17-year-old Brendan, as his replacement.
[23] On November 2, 2001, the applicant purchased two Greyhound bus tickets for travel from B.C. to St. Catharines. One of the tickets was for the applicant and the other was for Byron, although Byron’s ticket was purchased under the name of Jared Szeles, another youth who was known to the applicant and Byron.
[24] On November 6, 2001, the applicant purchased another bus ticket for travel from B.C. to St. Catharines in the name of Michael Moss. This ticket was intended for Chris, but it was actually used by Brendan.
[25] On November 19, 2001, the applicant and Byron travelled by bus from B.C., arriving in St. Catharines approximately three days later. In St. Catharines the applicant stayed with Mrs. Benesch at her home. The applicant used her credit card to rent a motel room for Byron at the Q-Way Motel in St. Catharines. She also rented a car for their use while in Ontario.
[26] The next day the applicant drove Byron to the bus station to meet Brendan who had just arrived from B.C. Brendan and Byron stayed together at the Q-Way Motel.
[27] After arriving in St. Catharines, the applicant purchased walkie-talkies, jogging clothes, and coveralls for the two boys to use in the murder. On the weekend prior to the murder, the two boys wore the jogging clothes and used the walkie-talkies while they secretly followed Mr. Firman in order to familiarize themselves with his regular routine.
[28] On the morning of November 27, 2001, the two boys checked out of the Q-Way Motel. The applicant drove them to the tourist area of Niagara Falls where she rented another motel room for them at the Comfort Inn. The applicant then drove back to her mother’s home in St. Catharines.
[29] Later in the day of November 27, 2001, the applicant drove Mrs. Benesch to Niagara Falls to see the Festival of Lights. She parked the rental car in the parking lot of the Comfort Inn and left the keys in the car where Byron could find them. After leaving the car in the parking lot, the applicant walked with her mother around the tourist area of Niagara Falls, where they had dinner at a restaurant, took some photographs, and bought trinkets at a tourist shop.
[30] While the applicant and Mrs. Benesch were touring Niagara Falls, the two boys drove the rental car to the neighbourhood of Mr. Firman and Mrs. Benesch’s home in St. Catharines. The applicant had told the two boys of Mr. Firman’s bike route and the time that he was expected to return to the home. The plan was for the boys to wait for Mr. Firman inside the home.
[31] Once they were in St. Catharines the two boys parked the car a few blocks away from the residence. They then pretended to jog in their new jogging clothes. They jumped the back fence and entered the victim’s home using the extra set of keys that they were told would be on the porch. They waited in the garage for Mr. Firman to return.
[32] Mr. Firman returned to his St. Catharines home after his bike ride, as expected. When he entered the garage, he was immediately accosted by the two boys. Brendan hit Mr. Firman in the head with a pipe wrench causing him to fall to the ground. Then, Brendan hit Mr. Firman in the head several more times until he stopped breathing. Brendan and Byron stole Mr. Firman’s wallet in order to make the incident look like a robbery.
[33] The two boys then left the home through the backyard and over the fence. They disposed of the clothing that they had been wearing, got into the rental car, and drove back to the Comfort Inn in Niagara Falls.
[34] The applicant met Byron in the parking lot of the Comfort Inn. Byron returned the rental car keys to the applicant and confirmed that the job was over with. The applicant gave Byron a few hundred dollars in cash for the return trip to B.C. Then, the applicant drove her mother back to her St. Catharines home where the applicant “discovered” Mr. Firman’s body in the garage.
[35] In two separate statements to police officers, given in the days after the murder, the applicant denied that she had any involvement in the murder and denied having any knowledge of a plan to kill Mr. Firman. She also concealed the fact that her son, Byron, had accompanied her from B.C., and she misled the police as to the reason for her rental of the motel rooms. She maintained her denial of any involvement in, or knowledge of, the murder up to and including her testimony at trial.
THE POSITIONS OF THE PARTIES
[36] Counsel for the applicant submits that the applicant is a person of good character who has made substantial progress while serving her sentence. Counsel submits that the applicant has been a model inmate with only a small number of minor institutional infractions.
[37] The applicant has completed both a bachelor’s and a master’s degree in religious studies during her term in prison. She has participated in many faith-based courses. She has attended and completed all recommended core programming. She has been employed in a variety of positions of trust, and she has been a leader, mentor, and an advocate for other inmates.
[38] Further, the applicant has entered the community on Escorted Temporary Absences (“ETAs”) on more than 80 occasions without incident. Psychological testing indicates that there is a low risk of recidivism. Moreover, counsel submits that the applicant has expressed remorse and has accepted full responsibility for the offence. Accordingly, applicant’s counsel submits that there is a reasonable prospect that this faint hope application will succeed if it is heard by a jury.
[39] It is the Crown’s position that the application should be dismissed at this judicial screening stage as there is no reasonable prospect that the application will succeed before a jury.
[40] The Crown submits that although the applicant has made some personal progress while serving her sentence, the applicant was a person of apparent good character prior to the offence. Before she committed the offence, the applicant had demonstrated leadership, trust, and faith-based qualities.
[41] Further, the Crown submits that the applicant has not expressed true remorse – only regret – for her involvement in this offence. She has denied and deflected responsibility for the offence since her initial arrest, and at the present time the applicant continues to deflect blame onto her son, and onto her mother who has now passed away.
[42] Still further, the Crown submits that the circumstances of this offence, particularly the recruitment of troubled youths to assist in the murder, is a factor that is in favour of the Crown’s position that the application should be dismissed.
ANALYSIS
The Character of the Applicant – Prior to the Offence
[43] My role, in part, is to consider the applicant’s character and her conduct while serving her sentence. These factors are intertwined. Therefore, in my view it is appropriate to consider the applicant’s character prior to the commission of the offence, the applicant’s progress and conduct while she has been serving her sentence, and the applicant’s present character.
[44] The applicant was 43 years old at the time of the offence. It is clear that the applicant had a troubled childhood. Her parents separated when the applicant was 12 years of age. The applicant states that she was sexually assaulted as a child by a group of boys and later by her brother. She developed addictions to drugs and alcohol as a teenager and was eventually expelled from school.
[45] The applicant completed grade 12 at age 16 at a community college. She made attempts to control her addictions, but she struggled with alcohol abuse as an adult. She states that she has had her drug and alcohol addictions under control since approximately 1995.
[46] The applicant was married at 16 years of age, and then later divorced and remarried three times. She has three adult children. Currently, she is married to Alexander Lich, and he continues to be very supportive of her.
[47] There is clear evidence that the applicant made substantial improvements to her life in the decade prior to the commission of this offence. At the time of the offence, she was the executive director of Heart of Trail Youth Centre where she worked with troubled youths. She was also a regional representative for Narcotics Anonymous, a director of the Trail Chamber of Commerce, and a director of the local United Way. Still further, she was an active member of her church in British Columbia from at least the mid-1990s.
Progress and Conduct while Serving the Sentence
[48] The applicant remained in custody after the charges were laid for approximately one year before she was released on bail. She then returned to prison after her conviction in 2006.
[49] While serving her sentence the applicant has regularly participated in counselling and psychological assessments of various kinds. She has attended all of the required core programming, as well as other personal programming. As required, she has been the subject of periodic Correctional Plans prepared by Correctional Service Canada (“CSC”).
[50] The early counselling notes suggest that the applicant was predisposed to angry feelings, that she was likely to suppress her feelings, and that she had a tendency to engage in passive-aggressive behaviour. She saw herself as a rescuer and that mentality limited her ability to deal with problems effectively. I accept that the counselling and the programming have assisted the applicant in identifying her psychological and emotional issues. She has made progress in dealing with her issues, particularly with her emotional regulation.
[51] In September 2019, Dr. Catherine Power prepared a risk assessment report that reviewed the applicant’s history. Dr. Power confirmed that the applicant has been co-operative with her case management team and that she has completed all core programming recommended in her Correctional Plans, as well as non-core personal development programming. In summary, Dr. Power felt that the applicant was at low risk for general or violent recidivism.
[52] The CSC records show that the applicant has made advances in her education, in her employment, and in her spirituality while serving her sentence. In particular, I note that the applicant continued her education while in prison, achieving both a Bachelor’s degree in Theology and a Master’s degree in Christian Studies.
[53] Regarding her spirituality, the applicant solidified her religious faith by participating in approximately 140 faith-based courses or programs. She became a certified facilitator at the institution for some faith-based courses, including a 12-step addiction program. She also became a group leader for a program offering instruction in Christianity.
[54] Still further, during the course of her imprisonment the applicant worked at several jobs that put her in positions of trust, including being a tutor, mentor, cook, librarian, and media assistant. She has received commendations from her supervisors for her work in those positions.
[55] It should also be noted that the applicant has on occasion advocated for and represented inmates. She was the Chair of the Inmate Committee for two terms, for which she received commendations from the Warden’s office.
[56] In written submissions the Crown references several incidents in which the applicant was reprimanded for breaches of the rules at the institution. In particular, the applicant was reprimanded for hiding tobacco and rolling papers in her cell, for hiding food in her laundry, and for inappropriate behaviour on two separate visits to the institution by her husband. In my view, these breaches of the institutional rules were intermittent and minor. They do not affect my overall view of the conduct of the applicant while serving her sentence.
[57] In summary, I find that the applicant has made excellent personal progress while she has been serving her sentence. She has conducted herself well. I accept that she has improved her psychological, emotional, and spiritual well-being. She has extended her education and she has worked as a leader and advocate, as well as working at jobs that put her in positions of trust. Overall, I find that she has been a respectable inmate who has made good use of her time in prison.
Present Circumstances and Character of the Applicant
[58] The applicant is currently 63 years of age, and she has some physical health problems that I will discuss later in this decision.
[59] I find that the applicant has shown that she can be trusted in the community. She has been permitted in the community on ETAs on at least 80 occasions for medical reasons and personal reasons without incident. There is no security issue.
[60] I also find that the applicant can generally be trusted to comply with the rules and regulations that might govern her conduct. Her behaviour on the above-mentioned ETAs, as well as the fact that she properly conducted herself while working in positions of trust, supports this view. I accept the opinion that there is a low risk of recidivism.
[61] Further, as discussed earlier, I accept that while she was serving her sentence the applicant improved her education, worked on her psychological and emotional issues, and solidified her commitment to her faith.
[62] Regarding her psychological and emotional health, I find that the applicant has made progress through counselling; however, I accept the evidence that she needs further and ongoing therapy. In the 2019 risk assessment, Dr. Power observed that the applicant has been diagnosed with depression and anxiety for which she takes medication and has psychiatric consultations. Also, as of 2019, Dr. Power believed that the applicant had expressed little insight into her role in the offence. Dr. Power recommended ongoing mental health therapy with a mental health clinician.
[63] One of the issues at this screening stage is the weight that should be given to the applicant’s current character and circumstances. It is clear from the above-mentioned discussion that the applicant is of good character, particularly when compared to the greater inmate population. She is educated, articulate, spiritual, and generally trustworthy. She has used her skills to work at the prison, attend programming, and lead and mentor others. These are all commendable qualities.
[64] The difficulty is that the applicant was of apparent good character prior to the offence. In the 1990s the applicant would have been viewed as an upstanding member of the community. At that time, she was in a position of trust as a director of various organizations, she was a leader and mentor in the community, and she was an active participant in her church. These are also commendable qualities.
[65] A jury that hears a faint hope application will be instructed to consider the progress that an applicant has made while serving her sentence. The amount of progress that could possibly be made by the applicant in this case is limited because the applicant started from a higher perch.
[66] Therefore, in my view, without undermining the applicant’s current good character, the weight of the character evidence in this case is lessened by the fact that the applicant appeared to be of good character prior to the commission of the offence.
[67] In summary, I find that during her 15 years in prison the applicant has refined the positive qualities of her character. She has taken the positive attributes that were evident before the offence and improved those attributes during her sentence. This factor will be given positive weight for the applicant, but it is not as weighty as it might otherwise be because the applicant has not completely changed her character; she has taken her otherwise good character and improved it.
Remorse and Responsibility for the Offence
[68] Counsel for the applicant submits that the applicant has expressed remorse and has accepted full responsibility for the offence. The Crown’s position is that the applicant has not expressed true remorse for committing this offence and has not taken full responsibility for her central role in Mr. Firman’s murder. In my view, the evidence clearly supports the Crown’s position.
[69] I accept that the applicant’s insight into her role in the murder has evolved over time and that the applicant has now acknowledged some responsibility for the murder. However, the applicant continues to excuse her conduct by deflecting blame and responsibility onto others.
[70] The applicant gave two separate statements to police shortly after the offence was committed. On November 28, 2001, in her first statement, she denied any involvement in, or knowledge of, Mr. Firman’s murder. On November 29, 2001, in her second statement, she again denied any involvement in Mr. Firman’s murder, and denied knowledge of any plan to kill Mr. Firman.
[71] In both statements she did not reveal that her son, Byron, was in the Niagara Region, or that he had accompanied her on the bus trip from B.C. She also fabricated evidence and misled the police officers in order to conceal the fact that Byron was in the area.
[72] In her second statement, which was more detailed than the first, the applicant said that she travelled by bus from B.C. to St. Catharines by herself, and that the purpose of her visit was to support her mother who was having a difficult time dealing with her ongoing dispute with Mr. Firman.
[73] She confirmed that she rented a car and a motel room. However, she invented a story about a young man that she met on the bus, Jared. She said that she rented a motel room at the Q-Way Motel for Jared as Jared did not have his own credit card. She said that she then visited Jared at the motel the next day and later took him shopping.
[74] She confirmed that while she was in St. Catharines, she purchased clothing and walkie-talkies, but she said that the walkie-talkies were Christmas presents and that she purchased coveralls for her husband. She confirmed that on the day of the murder the applicant drove her mother to Niagara Falls so that she could see the Festival of Lights. She did not mention that she had picked up Brendan at the bus station or that she had rented another motel room at the Comfort Inn.
[75] The applicant maintained her complete denial of any involvement in the murder through and including her testimony at trial. By the date of the trial the fact that Byron had travelled with her to St. Catharines had been established. At trial she testified that Byron came to the Niagara Region for the purpose of surreptitiously following Mr. Firman to obtain information that might be useful in mediating a settlement of the ongoing litigation. She said that Brendan travelled to Niagara as Byron’s travel buddy. She denied any knowledge that Byron and/or Brendan planned to murder Mr. Firman.
[76] She testified that by the morning of November 27, the two boys had not discovered any useful information about Mr. Firman, and they would be returning to B.C. However, they wanted to see Niagara Falls, so they checked out of the Q-Way Motel and the applicant rented a room for them at the Comfort Inn in Niagara Falls.
[77] She testified that she drove the boys to their new motel, and then she drove back to St. Catharines. Her mother then told her that she wanted to see the Festival of Lights, so she drove her mother to Niagara Falls and parked in the Comfort Inn parking lot. She left the keys in the car so that Byron could use the car.
[78] After a few hours, Bryon returned to the Comfort Inn in the rental car, and the applicant met him in the parking lot. She testified that Byron said to “tell grandma she doesn’t have to worry about Bruce anymore,” and then he shrugged. She gave him some money for the return trip to B.C, and then she drove her mother back to St. Catharines. The applicant implied at trial that it was Byron’s idea to murder Mr. Firman, and that he had acted without the applicant’s knowledge or involvement.
[79] The applicant’s complete denial of responsibility for the murder has continued into the time spent serving her sentence. In 2010, Mrs. Benesch passed away and the applicant applied for an ETA to attend the funeral. In its decision the Parole Board wrote, “you have maintained your innocence in the actual killing and only accepted responsibility for engaging your son to carry out surveillance on the victim and for not being forthcoming with the police when first questioned about the matter.”
[80] In the 2013 Correctional Plan the author wrote that the applicant “continues to maintain that she is innocent and did not have any part in either the killing or contracting the killing.” Further, in 2013 the applicant’s parole officer stated, “her belief that she is innocent of the index offence and continued contemplation of an appeal makes it clear that she has limited understanding of the events and her participation in those events that led to the death of the victim.”
[81] In support of his position that the applicant has accepted full responsibility for the offence, counsel heavily relies on a letter written by the applicant in late 2013. I note that the letter is dated December 2, 2013, but it also appears in the applicant’s mental health file after a date stamp of October 21, 2013. I will refer to this letter as the 2013 letter.
[82] The 2013 letter is very lengthy, disjointed, and rambling. I accept that in some parts of the letter the applicant appears to take the first steps toward accepting some responsibility for the offence. However, I do not agree that the 2013 letter, read as a whole, shows that the applicant accepts full responsibility for the offence or that the applicant expresses true remorse.
[83] The first part of the letter is a lengthy recitation about the applicant’s troubled background, including what she describes as her emotionally unstable relationship with her mother and her struggles with drugs and alcohol. She portrays her mother as a person who manipulated her. In the course of this recitation the applicant wrote that she did not feel that she was unjustly convicted. This, in my view, is certainly a step toward admitting responsibility.
[84] However, in the middle part of the letter the applicant clearly identifies both her mother and Byron as the sources for the idea of murdering Mr. Firman. She wrote that her mother said, “it’s either him or her that had to go.” She wrote that Byron “volunteered to go there and take care of it.” The applicant also wrote that when she heard Byron say he that would “take care of it,” she “screamed, no, … I told him that was not a solution.”
[85] In the concluding part of the letter the applicant notably wrote, “I am fully responsible for Byron being with me, fully responsible for the plans we made including to kill Bruce.” The applicant relies on this statement in this application. However, only one line later the applicant wrote, “Just because I changed my mind is not absolving me of anything.” She wrote that she told Byron they had to “call this thing off” and she told her mother that she had “cancelled the plans.”
[86] In my view, the 2013 letter indicates that the applicant knows that she should accept some responsibility for the murder. However, the applicant still does not recognize that she was the person who planned and orchestrated the murder. She continues to deflect the blame onto others. Somehow, the applicant believed that she was involved, but she changed her mind.
[87] It is noteworthy that in the 2013 letter, for the first time, the applicant embarked on a new theme of deflecting blame onto her mother. Her mother had passed away in 2010, and the applicant at no time prior to her mother’s death suggested that her mother had any prior knowledge of the plan. In the 2013 letter the applicant specifically wrote that her mother had asked Byron to come to Ontario to kill Mr. Firman, and that her mother told her that “he deserves to be wiped off the face of the earth.”
[88] In the 2016 Correctional Plan, the applicant still had not taken full responsibility for the murder, although she seemed to accept some responsibility. The author wrote in 2016 that the applicant was now willing to accept some responsibility, but “this change is in its infancy as is her acceptance of responsibility as she continues to lack full understanding of the complexities of the crime and her central role in its commission.”
[89] Also, a risk assessment report that was completed in 2016 references the applicant’s theme of blaming her mother. The psychologist, Andrea Ennis, wrote that the applicant told her that the idea of killing Mr. Firman came from Byron and/or her mother. She told Ms. Ennis that her mother pressured her into helping with Mr. Firman’s murder and that the applicant reluctantly said that she would “find someone.” The applicant also said that on the night of the murder her mother gave her $400 “to pay the hit man.”
[90] In the 2018 Correctional Plan, the applicant’s view of her responsibility took another turn. At that point she said that she accepted responsibility for her actions, but she claimed that she had been subjected to an abusive childhood at the hands of her mother and that this contributed to her involvement in the offence. Again, the applicant’s mother was deceased, and this issue had not been raised prior to her mother’s death.
[91] This same type of deflection is present in the most recent 2019 Correctional Plan, which indicates that the applicant stated, “when her mother’s relationship with Mr. Firman was dissolving, her mother guilted her into discussing the murder of Mr. Firman with her son.”
[92] Finally, on this point, in the 2019 risk assessment report, Dr. Power wrote, “she continues to minimize her role in the offence by attributing her actions solely to her desire to assist her mother while failing to readily acknowledge the level of control she had and the planning in which she engaged…”
[93] I find that the applicant has not fully accepted responsibility for her central role in the murder of Mr. Firman and has not expressed true remorse. I agree that she has made some progress toward accepting some responsibility, but she still deflects blame and responsibility onto her son and her mother.
[94] True remorse means that an offender recognizes that she has wronged another person, that she is fully responsible for the harm caused, that she has no excuses, and that she takes full responsibility for her role in the offence. In my view, the applicant has not expressed true remorse.
[95] In considering the weight to be given to this factor, I acknowledge that it is not a prerequisite for success on a faint hope application for the applicant to accept full responsibility for the offence and show true remorse. See the decision in Morrisson at para. 82. However, I find that the absence of true remorse is a strong negative factor in this application.
[96] In the case of R. v. Walizadah, 2017 ONSC 3, at para. 31, Nordheimer J. wrote, and I adopt,
It is difficult to see how an applicant, who is not truly remorseful for his/her actions, would likely be able to satisfy twelve jurors that s/he has so changed, from the person who committed a horrific crime, that a reduction in the parole eligibility period would be warranted.
The Nature of the Offence
[97] It is very difficult to categorize first-degree murders according to severity or seriousness. All first-degree murders are serious, severe, and horrific.
[98] As Nordheimer J. wrote in R. v. Brown, 2015 ONSC 5264, at para. 20:
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.
[99] In consideration of these comments, I find that there are some significant aggravating factors in the present case. Specifically, Mr. Firman’s murder required extensive planning and premeditation, all of which was done solely by the applicant. The applicant paid for three separate parties to travel from B.C. to Ontario, she used aliases for two of the bus tickets, she purchased paraphernalia such as walkie-talkies and jogging clothes, she set up her accomplices in a motel room, she rented a car, she told her accomplices where to find the keys to the car, she provided information about Mr. Firman’s routine, she provided information as to the location of the keys to Mr. Firman’s home, and she set up her own alibi.
[100] Further, the applicant enlisted the assistance of troubled youths, including her own 18-year-old son, to commit the offence. At the time, Byron had a substance abuse problem and suffered from behavioural issues. The applicant manipulated Byron’s actions by exploiting his feelings for his grandmother’s pain and suffering.
[101] The applicant also took advantage of Brendan who was a troubled 17-year-old youth and a drug dealer. The applicant offered to give money to Brendan as compensation for assisting her. Further, the applicant had initially recruited Chris, over whom she had some influence through her position at the youth centre.
[102] It is also an aggravating factor that this was a contract murder. Because of her mother’s stressful matrimonial litigation, the applicant chose to plan and facilitate a “hit” on Mr. Firman.
Victim Information
[103] There is evidence on this application that Mr. Firman’s family continues to suffer from his murder. Mr. Firman’s brother and his wife, Robert and Linda Firman, as well as Mr. Firman’s son, Donald, have provided updated victim impact statements. They confirm that they sincerely miss Mr. Firman and that their lives have changed dramatically because of his murder. They clearly still feel the pain of losing their family member.
[104] In addition, Robert and Linda state, and I accept, that they have regularly been requested to provide letters and complete forms to explain their views and feelings. This resurfacing of the case on a regular basis has repeatedly caused them to relive the pain of their loss.
[105] All three of the family members confirm that they have not received an apology or a show of remorse from the applicant. The anger and sadness caused by the absence of remorse and the applicant’s failure to accept responsibility comes through in their letters.
Other Relevant Matters
[106] There are two other factors for consideration in this application, namely the applicant’s family and community support, and the applicant’s physical and mental health.
[107] Regarding the applicant’s support, I find that the applicant continues to have the full support of her husband who visits regularly and accompanies the applicant on some of her ETAs. The applicant also is supported by the pastor at the community church that she attends with her husband on ETAs.
[108] Regarding her physical well-being, I find that the applicant is not in good health. Her physical health is poor. She has been diagnosed with rheumatoid arthritis, diabetes, fibromyalgia, COPD, hepatitis C, and other physical ailments.
[109] In 2017 the applicant had a serious problem with leg pain. This required treatment of intravenous antibiotics three times per day while in prison and one time per day in a hospital in a community setting. At the present time she walks with a cane.
[110] I also find that the applicant has ongoing psychological issues. At present she has a diagnosis of a mild to moderate depression and moderate to severe anxiety for which she takes prescribed medication. She continues to be treated by way of counselling and psychotherapy. I note that one of the main stressors for the psychological issues is her poor physical health.
Balancing the Factors
[111] At this judicial screening stage, I must engage in limited weighing and balancing of the relevant factors in consideration of how those factors may be evaluated by a jury. Each factor does not have equal weight; there is no score card that a judge can use to screen the application.
[112] I am tasked with determining “whether the applicant has shown, on a balance of probabilities, that there is a reasonable prospect that the application will succeed.” I accept that the wording of s.745.61, as it existed in 2001, sets a relatively low bar at the judicial screening stage. See the decision in Dell at para. 20.
[113] In the present case, I find that there are both positive and negative factors that a jury would consider. The positive factors in support of the applicant’s request include the fact that the applicant can show that she is a person who, despite a troubled childhood, significantly improved herself prior to the offence.
[114] Moreover, the applicant can show that she has conducted herself well during her incarceration. She has strengthened her otherwise good character while serving her sentence by improving her education, solidifying her religious faith, improving her psychological well-being, and acting as a leader and mentor in the prison community.
[115] The applicant’s current good character is another positive factor. She can show that there are no security concerns. She has followed the rules and regulations while serving her sentence, she has completed the required core programming, and she has worked well in positions of trust. There is a low risk of recidivism.
[116] The applicant’s current health situation and her supports are also modest factors that support the application.
[117] These are all positive factors, but the weight of these factors is lightened in two ways. First, as discussed earlier, the applicant’s otherwise good character at present must be compared with her apparent good character prior to the offence. She has made excellent progress while serving her sentence, but she was starting from a good base. This is still a positive factor.
[118] The second tempering factor is that, although she has made progress with her psychological issues, her psychological health remains a work in progress. The applicant has been able to identify her emotional and psychological issues, but it is clear that the applicant needs to continue with mental health therapy.
[119] I find that there are also strong negative factors that must be given significant weight in this application. The nature of the offence is a negative factor as there are several aggravating elements, including the recruitment of the applicant’s son and other troubled youths to assist with the murder.
[120] Also, the impact on Mr. Firman’s family is a negative factor. The pain suffered by the victim’s family to date has been significant, and a jury may reasonably decide to give considerable weight to this factor at a hearing of this application.
[121] In my view, the single most important factor in this application is the glaring lack of remorse expressed by the applicant and the applicant’s failure to accept full responsibility for her central role in Mr. Firman’s murder. This factor must be given significant weight.
[122] As discussed, the applicant still wishes to deflect at least part of the blame for Mr. Firman’s murder onto Byron and her mother. Byron clearly was manipulated by the applicant, and the applicant’s mother is now deceased and was never given the opportunity to respond to the applicant’s suggestion that she was a principle in the murder. The applicant has never expressed true remorse.
[123] The applicant seems to have made some progress toward accepting responsibility, but the responsibility that she does not accept relates to important aspects of the offence. In particular, she does not accept that she was the organizer and planner, that she recruited youths to assist her, that she manipulated her son into assisting her, that she travelled from B.C. to kill Mr. Firman, that she contracted the hit on Mr. Firman, and that she facilitated the murder.
[124] It is worth repeating the statement made by Nordheimer J. in Walizadah at para. 31:
It is difficult to see how an applicant, who is not truly remorseful for his/her actions, would likely be able to satisfy twelve jurors that s/he has so changed, from the person who committed a horrific crime, that a reduction in the parole eligibility period would be warranted.
[125] I find that it is very unlikely that the applicant will be able to convince 12 jurors to unanimously agree to the applicant’s request that she be treated in a more lenient manner than that set out in the mandatory sentencing provisions of the Criminal Code. Therefore, I find that the applicant has not shown that there is a reasonable prospect that the application will succeed.
CONCLUSION
[126] In summary, I find that the relevant factors weigh heavily against the applicant’s request. I find that the applicant has not shown, on a balance of probabilities, that there is a reasonable prospect that the application will succeed. Therefore, the application is dismissed.
[127] The Criminal Code contains provisions for the time at which a further faint hope application may be made. In my view, those provisions are appropriate in this case, and I decline to make any further order pursuant to s.745.61(3).
J. R. Henderson J.
Released: May 18, 2021
COURT FILE NO.: 374/20-00MO
DATE: 2021/05/18
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Elizabeth Gatenby
REASONS FOR JUDGMENT
THRESHOLD SCREENING APPLICATION
SECTION 745.61 OF THE CRIMINAL CODE of Canada
J. R. Henderson J.
Released: May 18, 2021