Court File and Parties

COURT FILE NO.: CR-20-10-00MO (Goderich) DATE: 20220322 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Donald Earhart Defendant

Counsel: Deanna Bronowicki, for the Crown Jaime L. Stephenson, for the Defendant

HEARD: In Writing

Reasons for Judgment on Threshold Screening Application Pursuant to s. 745.61 of the Criminal Code

carrocia j.

[1] Donald Earhart was convicted by a jury on March 18, 2008, of the first-degree murder of Ronald Sullivan. Thereafter he was sentenced to imprisonment for life without eligibility for parole for 25 years. Having served over 15 years of his sentence, he has filed an application pursuant to the provisions of s. 745.61(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, 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 that application. If the application passes the screening process, a jury will be empanelled to hear the application.

The Statutory Factors

[2] Section 745.61(1) of the Criminal Code currently reads:

On receipt of an application under subsection 745.61(1), the appropriate Chief Justice shall determine, or shall designate a judge of the superior court of criminal jurisdiction to determine, on the basis of the following written material, whether the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed:

(a) the application;

(b) any report provided by the Correctional Service of Canada or other correctional authorities; and

(c) any other written evidence presented to the Chief Justice or judge by the applicant or the Attorney General.

[3] Section 745.61(2) of the Criminal Code sets out the guidelines that apply to an application made pursuant to s. 745.61(1):

(2) In determining whether the applicant has shown that there is a substantial likelihood that the application will succeed, the Chief Justice or judge shall consider the criteria set out in paragraphs 745.63(1)(a) to (e), with any modifications that the circumstances require.

[4] The criteria for consideration on this application set out in s.745.63(1)(a)-(e) include:

(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.

[5] At the time of the Mr. Earhart’s conviction, an application for judicial screening required a judge to consider whether there was a reasonable prospect that the application would succeed as opposed to a substantial likelihood that the application will succeed. Section 745.61(1) read as follows:

745.61 (1) On receipt of an application under subsection 745.61(1), the appropriate Chief Justice shall determine, or shall designate a judge of the superior court of criminal jurisdiction to determine, on the basis of the following written material, whether the applicant has shown, on a balance of probabilities, that there is a reasonable prospect that the application will succeed:

[6] The criteria to be considered in making the determination outlined in s. 745.63(1)(a)-(e) were the same in the earlier version as they are today.

The Legal Principles

[7] The parties agree, in accordance with the decision of the Court of Appeal for Ontario in R. v. Dell, 2018 ONCA 674, that the appropriate test to be applied to the screening of this application is whether the applicant has shown on a balance of probabilities that there is a “reasonable prospect” that the application would succeed before a unanimous jury, given the date of the offence.

[8] In R. v. Morrison, 2016 ONSC 5036, Durno J. conveniently summarized the manner in which the screening is to be conducted at paras. 36 and 38-41:

[36] Conducting the screening, the judge considers the above noted factors as would an empanelled 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 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. 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 on 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] Fourth, having been convicted, the applicant no longer enjoys the benefit of the presumption of innocence with the burden of proof on the Crown. He has to provide all the available evidence that would support his application at the time of the threshold screening.

[9] In R. v. Phillips, 2012 ONCA 54, at para. 6, the Court of Appeal sets out the appropriate test to be applied as follows:

We agree with the application judge that the statutory test embodies more than merely showing that a case is not hopeless. The normal meaning of the words suggests a higher test. Moreover, as the application judge pointed out, lowering the threshold to having to establish only that a case is not hopeless would frustrate the purpose of the judicial screening stage.

[10] The court must determine whether it is reasonable to expect that a jury might reduce the parole ineligibility period. The Court of Appeal in Dell said the following, at para. 20:

The judicial screening criterion established in 1996 was judicially interpreted as setting a relatively low bar intended to prevent applications being brought before a jury that had no realistic chance of success. 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: see R. v. Jenkins, 2014 ONSC 3223, 310 C.C.C. (3d) 248, at paras. 20-22; R. v. Phillips, 2011 ONSC 1914, at paras. 6-9, aff’d 2012 ONCA 54, 288 O.A.C. 351, at paras. 6-7; R. v. Rochon, 2011 ONSC 5061, at paras. 6-7; R. v. Oczko, 2012 ABQB 121, 535 A.R. 59, at paras. 4-13.

[11] In R. v. Swietlinski, [1994] 3 S.C.R. 481 the Supreme Court of Canada set out the purpose of s. 745 (as it then was) in the following terms, at pp. 492-494:

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. …

When legislation lists various factors that a decision‑maker must take into consideration a finding reached upon one or all of the factors does not necessarily mandate a conclusion leading to a specific decision. They are instead factors some of which may work in favour of the applicant and some against him, and which must be assessed and weighed as a whole in arriving at a conclusion. This is quite different from a trial where very strong evidence of one aspect of an offence cannot offset the weakness of evidence of another aspect.

Written Material Relied Upon

[12] The court has had the benefit of reviewing the Application Records provided by counsel for the Applicant and counsel for the Crown which contain their written submissions, the criminal record of the applicant, the decision in R. v. Earhart, 2010 ONCA 874, leave to appeal refused, [2011] S.C.C.A. No. 397, Correctional Plans and Records, Psychological Risk Assessments, letters of support, segregation records, as well as the Victim Impact Statements (“VIS”) from the family of Roland Sullivan prepared in 2007 and updated Victim Impact Statements as well as other reports and documents.

[13] I now turn to consider each of the factors set out in s. 745.63(1) of the Criminal Code to determine whether the applicant has met his onus.

The Character of the Applicant

[14] Mr. Earhart was born on December 1, 1974, and is currently 47 years of age. He is an Indigenous man, a member of the Chippewa of the Thames First Nation. He is currently serving his sentence at La Macaza Institution in Quebec.

[15] Mr. Earhart has a lengthy criminal record dating back to 1989 when he was 15 years old which includes convictions for offences of violence, including, assault with a weapon and assaulting a police officer in 1994, uttering threats in 1997 and 1998 for which he received short jail sentences, assault in 2002 for which he was sentenced to three months in jail, and assault with a weapon for which he was sentenced to 18 months in jail in 2003. The balance of his criminal record consists of convictions for violating various court orders and failing to attend court, driving offences as well as break and enter and various property offences. There are entries in his record nearly every year between 1994 and 2008 when he was convicted of first-degree murder. Furthermore, on November 11, 2009, while serving his life sentence he was convicted of carrying a concealed weapon contrary to s. 90 of the Criminal Code and sentenced to 90 days jail concurrent with his life sentence.

[16] The applicant provided the court with letters of support provided by his mother and her spouse, his grandmother, his brother, his step-sister, and several friends. The letters describe an individual who has matured over the years of his incarceration. He maintains contact with his family regularly even though he is now in a different province. They describe him as kind, caring, and thoughtful. He shows concern about their lives and their personal circumstances. They describe how he speaks of his Aboriginal heritage and expresses a desire to learn more about it and participate in its customs. They express hope that he will be released from custody.

[17] The Crown points out that the applicant’s brother, Brian Earhart, has a criminal record, although it is dated and limited to two convictions, one as a youth in 2009 and one as an adult in 2010. He is also currently on bail for a number of offences including discharge firearm contrary to s. 244.2 of the Criminal Code.

[18] The Crown also filed a report from the London Police Service dated March 19, 2008, relating to threatening behaviour by Janet Earhart, the applicant’s mother towards her own brother on the day after the applicant was convicted of first-degree murder which resulted in Ms. Earhart being charged with uttering threats. Those charges were resolved by peace bond.

[19] The Crown filed a statement from Dwight Peer, Chief Superintendent of the Ontario Provincial Police, dated April 19, 2021. He was in the courtroom during the applicant’s trial. On the last day of trial, the court heard evidence from the applicant’s co-accused Ronald Kirk, who testified that the applicant committed the murder of Ronald Sullivan. Thereafter, the jury was charged by the trial judge and retired to deliberate. When the jury returned with a verdict, they found the applicant guilty of first-degree murder and found the co-accused not guilty. As Mr. Kirk left the courtroom with his lawyer, Mr. Carter, the applicant threw the restraint belt that had been used to restrain his hands towards Mr. Carter and yelled at him. The belt bounced off the counsel table and scared the people in the courtroom. Mr. Earhart’s own lawyer was shaken by this conduct and requested a police escort to her vehicle.

[20] A Psychological Risk Assessment dated April 1, 2020, was prepared by Eric St. Amant, a psychologist. That report was subsequently updated by Mr. St. Amant on June 18, 2020, because the original report reflected an “incomplete picture” of the individual, as it did not include programs completed by Mr. Earhart and certain other information.

[21] The report details Mr. Earhart’s background. His mother was 14 years old when he was born. He has a younger brother, and a step-brother, and a step-sister. His father left the family when Mr. Earhart was six years old. It appears that he was exposed to “significant substance abuse, violence and instability during his formative years.” [1] His father had an alcohol problem and was abusive and violent towards the applicant, his mother, and his siblings. He would often encourage his children to use drugs.

[22] Mr. Earhart was the victim of sexual abuse but refused to provide details to Mr. St. Amant. His family is described as poor, but as a child he travelled with this extended family and spent time on the reserve.

[23] He began to get involved in fights and drug dealing as a teenager. He left home at age 18. He worked sporadically and often lost a job because he went to jail or would not show up for work after a night of drinking. He has had two significant relationships in his life. He had a child with his first partner, with whom he has no contact. He has a history of substance abuse that began when he was 15 years of age and continued unabated until he was sentenced for this offence. Mr. Earhart claimed that all the criminal offences on his record were committed when he was under the influence of substances.

[24] The report details that the applicant was either at risk of being assaulted or responsible for aggressive behaviour which resulted in transfers to various institutions during his time in the federal penitentiary. During the interview conducted for the report, Mr. Earhart is described as upbeat, friendly and engaged in the process although his enthusiasm appeared to wane as the interview went on. He was described as making excuses for his earlier conduct.

[25] He was described as having antisocial personality disorder, being impulsive and irritable and probably suffering from narcissistic personality disorder. He also suffers from severe substance abuse disorder.

[26] Mr. St. Amant offers his opinion that the applicant still poses a considerable risk to society, based on his previous community behaviour and his institutional history. He describes the applicant’s efforts at “reforming his ways” as inconsistent, and that “he is a long way from the exemplary behaviour that would justify shortening his sentence”. With all due respect, that is not the test which this court must apply at this stage in the process.

The Applicant’s Conduct While Serving the Sentence

[27] Mr. Earhart has been continuously imprisoned for the last 20 years. [2] He was transferred to the Quebec region in 2018. Prior to that time, he spent time at ten different institutions including the Millhaven Assessment Unit, Kingston Penitentiary, the medium security unit of Beaver Creek Institution, Stony Mountain Institution, Bath Institution and Collins Bay.

[28] Since being admitted to the federal penitentiary system, Mr. Earhart has been placed in segregation units on 18 separate occasions for periods of time ranging from six days to 258 days at a time, commencing in 2008. He spent 483 continuous days from June 2, 2014 until September 28, 2015 in segregation units in Millhaven and Beaver Creek Institution ostensibly for his own safety or what is referred to as “integration difficulties”. For instance, Mr. Earhart was placed in segregation from June 2, 2014, to January 13, 2015, a period of 225 days for the following reason:

Reliable information gathered that offender, Earhart, was in danger of being assaulted with a weapon. The information suggests that three offenders

from the range would attempt to assault him the first available time that the three offenders had the means.

[29] He has spent a total of 1,551 days or 4.25 years in segregation (as of the time that the application was filed). [3]

[30] A class action proceeding against Her Majesty in Right of Ontario was certified by Perell J. by order dated September 18, 2018, where the class includes all inmates who were subjected to Administrative Segregation for 15 or more consecutive days between January 1, 2009, and the date of certification. Mr. Earhart appears to be a member of the class.

[31] In his decision in a Summary Judgment motion in relation to that matter, Francis v. Ontario, 2020 ONSC 1644, at para. 269, Perell J. made findings of fact based on the experts’ reports and evidence he heard during the hearing including the following:

• throughout the Class Period, Ontario knew that there was a worldwide consensus that solitary confinement should be a last resort for securing the safety of a correctional institution;
• a placement in administrative segregation can and does cause physical and mental harm, particularly to inmates that have serious pre-existing psychiatric illness. The degree of mental injury is severe and rises above the ordinary annoyances, anxieties and fears that come with living in civil society;
• negative health effects from administrative segregation occur within a few days in administrative segregation as it is practiced in Ontario;
• some of the specific harms of administrative segregation include anxiety, withdrawal, hypersensitivity, cognitive dysfunction, significant impairment of ability to communicate, hallucinations, delusions, loss of control, sever obsessional rituals, irritability, aggression, depression, rage, paranoia, panic attacks, psychosis, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behaviour;
• Ontario’s placing an inmate in administrative segregation for a period of more than 15 days is a contravention of the inmate’s rights under s. 12 of the Charter that is not saved by s.1 of the Charter.

[32] It appears that Mr. Earhart suffers from many of the harmful effects associated with extended periods of time spent in segregation. He was diagnosed on November 21, 2019 by Dr. Labine, a psychiatrist, with unspecified anxiety disorder, anti-social personality disorder and adaptive disorder with irritability elements and prescribed medications.

[33] A further report from Dr. Labine dated July 2, 2020, indicates that the applicant feared at that time that he was suffering from schizophrenia. He indicates that he had suffered from auditory hallucinations since he was 17 years old. Dr. Labine indicates that this was the first time that these symptoms were mentioned to him, and he did not believe that the applicant’s symptoms were consistent with schizophrenia, but that this should be further explored.

[34] The court was provided with the applicant’s employment records while he has been at La Macaza. He appears to be making an effort to use his time productively. His behaviour is described as good, his attitude and motivation excellent. He has created a jewelry design company called RezCity Dez-igns and makes Indigenous themed crafts and jewelry.

[35] He has successfully completed an Aboriginal offender substance abuse program called “In Search of Your Warrior” which is designed to reduce and eliminate violent behaviour, and the Aboriginal High Intensity Family Violence Prevention Program while serving his sentence. In 2016, he completed a 26-session Aboriginal Basic Healing Program as well as a program called Moderate Intensity Family Violence Prevention Program. He had mixed success in these programs. There are positive aspects to the Correctional Plan as well. The report indicates that his institutional behaviour has improved, but he has some way to go.

[36] Some of the programs the applicant was scheduled to participate in were cancelled due to his transfer to a different institution or his admission to segregation. [4] In March of 2016, he completed the Aboriginal Basic Healing Program and was noted to be “actively engaged” in group and classroom discussions; he gained better insight into how his actions have impacted others.

[37] The applicant’s Correctional Plan dated April 22, 2020, reflects that his conduct while serving his sentence has fluctuated. At times he has been designated a maximum-security risk and then has earned his way to a medium-security facility. It also contains a number of contradictory statements. There are concerns expressed over his attitude and involvement in inmate subculture and at other times he is described as having insight and making improvements. The Plan makes reference to a Psychological Risk Assessment completed on April 21, 2016, which found that there was “no evidence of mental health issue which would preclude transfer a reduced security environment” [5] and yet in 2019, Mr. Earhart was diagnosed with a number of mental health issues by Dr. Labine.

[38] The Report also states at p. 20 that: “it appears substance abuse, a comfort with criminal lifestyle, negative peers and an upbringing that normalized both instrumental and gratuitous violence were major factors in his offending.” Random urine screens for drugs that have been taken from the applicant have all been negative for drugs.

[39] The Correctional Report refers to an earlier report where it was indicated that Mr. Earhart had made considerable effort to maintain appropriate institutional behaviour in addition to participating in required programs. [6] However, after that time, the applicant’s behaviour became problematic. The author of the report indicates that “we find Mr. Earhart’s motivation at a medium level. Although changes are slow in coming, the fact remains that he is willing to participate in the required programs”.

[40] As to correctional and sentence planning, the recommendation is that Mr. Earhart must make a “great deal” of progress before he can hope for a transfer to a minimum-security facility or release to the community.

[41] The applicant’s conduct while serving his sentence is a factor to be weighed in the totality of the circumstances in the determination to be made by the court.

The Nature of the Offence for Which the Applicant was Convicted

[42] The applicant did not testify at trial. His version of the events is reflected in the Psychological Risk Assessment. According to Mr. St. Amant’s report, Mr. Earhart indicated that he was in an advanced state of intoxication at the time of the offence and he “became paranoic”. He claims that he was experiencing substance induced psychosis at the time and does not recall parts of what happened. He admits responsibility for Mr. Sullivan’s death but claimed it should have been prosecuted as a manslaughter; although when he was first admitted to the penitentiary, he would not speak about the offence because he was pursuing an appeal of his conviction.

[43] The Crown submits that this is not a full acceptance of responsibility for the offence and that Mr. Earhart has not demonstrated any remorse. The Crown suggests that Mr. Earhart continues to minimize his involvement in the murder of Ronald Sullivan.

[44] The facts of the offence are set out in the decision of the Court of Appeal for Ontario in their decision dismissing Mr. Earhart’s appeal in 2010 ONCA 874, at paras. 14-23:

[14] The following summary of what transpired on the night when Sullivan was killed comes primarily from the testimony of Kirk, T.D. and members of Kirk’s family.

[15] The evening of October 14, 2004, began with Earhart and Kirk driving around and smoking crack. They were periodically accompanied by two women - Melissa Davey and T.D. With them, they had a gun belonging to Earhart.

[16] At one point, Earhart called Sullivan and arranged to meet him at a Burger King. Sullivan, who arrived with two other men, agreed to go off with Earhart, Kirk and T.D. As the four drove around, Earhart became increasingly angry at Sullivan. In addition to confronting him about some allegedly adulterated crack he had sold him, Earhart was enraged over the fact that Sullivan had come to meet him in the company of the other men. He thought that Sullivan had tried to “set him up”. On numerous occasions during the evening, Earhart violently assaulted Sullivan, both inside and outside of the car. After all four smoked some crack, Earhart made Sullivan take off his shirt, jacket and shoes and get into the front seat beside him. Earhart drove off with the gun in his lap, pointed at Sullivan.

[17] Kirk testified that as the group continued to drive around, Earhart’s ire increased. In addition to his growing rage against Sullivan, he was angry at Kirk for running low on gas.

[18] Eventually the group ended up at the house of Linda Wein, an aunt to both Earhart and Kirk. By this time, Sullivan had been blindfolded. Earhart woke Wein up to ask her for gas. Wein testified that Earhart told her “he was upset ... Ron [Kirk] was suppose to take them to somebody’s house and that he was going to kick the f’in shit out of him [Kirk]” and that he had been in a fight earlier with someone in his car, and he “beat the crap out of him.” She testified that Earhart was very angry when he left.

[19] Still in search of gas, the group proceeded to the house of B.K., a relative of both Kirk’s and Earhart’s, still in search of gas. Both B.K. and her son P.K. testified that Earhart took a blindfolded man to the side of the house and repeatedly beat him. Kirk, in response to shouted demands from Earhart, brought the gun to him.

[20] Eventually, Earhart drove off with Kirk and Sullivan. T.D. stayed with B.K.

[21] Kirk testified that the three men stopped at a bush lot where Earhart pulled Sullivan out of the car and yelled at him to remove the rest of his clothing. Earhart shouted to Kirk to “get the fuck over here. Bring me the fuckin’ gun.” When Kirk got out of the car, he saw Earhart and Sullivan fighting and pushing. He then saw Earhart “just slit his throat”. Sullivan fell to the ground and Earhart stabbed him again in the stomach area. Kirk helped Earhart pull Sullivan into the bush. Sullivan started gurgling and Earhart stabbed him twice more. They covered Sullivan with branches. Earhart told Kirk that if anyone found out, Kirk and his mother would be hurt.

[22] Kirk and Earhart returned to B.K.’s house. They had blood on their hands and clothing. B.K. asked where the other man was and Earhart said that he beat him up and he had run away. T.D., who was still at B.K.’s house, testified that Earhart told her that this was “his messiest kill yet”. Kirk made a gesture to his throat and a gurgling sound. Earhart and Kirk changed, borrowing clothes from one of Kirk’s relatives.

[23] Earhart and Kirk left together, looking for drugs. They threw Sullivan’s clothes into a field and disposed of the gun in a ditch. Later that day, on Earhart’s instructions, T.D. cleaned the car and got rid of a cell phone.

[45] Ronald Sullivan was last seen alive on October 15, 2004. His mother reported him missing on October 19, 2004. In early 2005, T.D. recanted her earlier story and provided the police with statements that incriminated the applicant. Mr. Sullivan’s remains were located on April 26, 2005.

[46] All first-degree murders are reprehensible; it is difficult to qualify one as more serious than another. The Crown, however, rightly points out that the circumstances of this case were particularly aggravating and involved a vicious and sustained beating over a period of time, during which the victim was blindfolded and transported to several locations before he was killed, and his body hidden.

Information Provided by the Victims at the Time of the Imposition of Sentence and at the Time of this Application

[47] When Mr. Earhart was sentenced, there were VIS provided by the deceased’s cousin, aunt, and mother. Those VIS reflect the immeasurable loss caused by the murder of Ronald Sullivan. His mother, Mary Arthur, described her first-born child as a “delightful little boy” who grew into a hardworking young man with a love of the outdoors who was kind and generous to everyone. She described becoming very ill following her son’s death and feeling like she “lost [her] focus for living”.

[48] Mr. Sullivan’s cousin, Tanya Grierson-Weiler, described the family’s anguish when Mr. Sullivan was reported missing and the devastation when his remains were found eight months later. She and Mr. Sullivan were very close as children, almost like brother and sister rather than cousins. She describes the emotional toll that Mr. Sullivan’s murder took on her including the overwhelming feeling of loss.

[49] Margaret Grierson, Mr. Sullivan’s maternal aunt, also submitted a VIS which details how her nephew was a great support to Ms. Arthur when she lost her husband and how his absence had been so difficult for her. She expresses the grief and distress that the family felt as a result of the murder of Mr. Sullivan.

[50] The court also had the advantage of an updated VIS provided by Ms. Grierson-Weiler dated April 2021. In that VIS, she is speaking on behalf of the family since Mr. Sullivan’s mother, Ms. Arthur, has since passed away, and her own mother is now elderly. She describes hearing the circumstances of Mr. Sullivan’s murder for the first time during the trial and describes them as “gruesome and nightmarish”. She describes the conduct of Mr. Earhart during the trial and following the verdict which caused her fear and contributed to her being diagnosed with symptoms consistent with Post Traumatic Stress Disorder.

[51] Ms. Grierson-Weiler goes on to describe how this application by Mr. Earhart has triggered in her “new waves of trauma”. She continues to fear Mr. Earhart and his family and associates. She explains that her aunt, Ms. Arthur, died in 2010 and how her final years were filled with great sadness and the pain of losing her son in such a horrible way. She expresses sadness that her family will never be the same as they were before Mr. Sullivan’s murder.

Any Other Matters that the Judge Considers Relevant in the Circumstances

[52] Mr. Earhart is an Indigenous person. That fact is a relevant consideration on sentencing by virtue of s. 718.2(e) of the Criminal Code. The issue is whether it is factor to be considered in the circumstances of a threshold screening pursuant to s. 745.61 of the Code.

[53] The applicant argues that his Indigenous background should be considered in making this determination. There is support for that position in the decision of Pomerance J. in R. v. Abram, 2019 ONSC 3383, where she says, at paras. 22-23:

Gladue factors are relevant in determining the period of parole ineligibility in second degree murder cases, where the period can be anywhere from 10 to 25 years. It would seem to follow that it is relevant in determining whether parole ineligibility should be reduced, or more accurately in this case, whether the applicant should be entitled to ask that it be reduced by a jury.

Even if faint hope is not a part of sentencing, Gladue is still pertinent. Gladue has been applied in various non-sentencing contexts, including bail, extradition, and Ontario review board hearings orders. As Epstein J.A. put it in R. v. Hope, 2016 ONCA 648, 133 O.R. (3d) 154, quoting from United States of America v. Leonard, 2012 ONCA 622, 112 O.R. (3d) 496, at para. 60:

Gladue stands for the proposition that insisting that Aboriginal defendants be treated as if they were exactly the same as non-Aboriginal defendants will only perpetuate the historical patterns of discrimination and neglect that have produced the crisis of criminality and over-representation of Aboriginals in our prisons…[B]oth Gladue and Ipeelee…emphasize that consideration of the systemic wrongs inflicted on Aboriginals does not amount to discrimination in their favour or guarantee them an automatic reduction in sentence. Instead, Gladue factors must be considered in order to avoid the discrimination to which Aboriginal offenders are too often subjected and that so often flows from the failure of the justice system to address their special circumstances.

[54] A Criminal Profile Report prepared by Megan Flintoft on April 8, 2015, while Mr. Earhart was at Beaver Creek Institution, details his “Aboriginal Social History”. [7] He indicated to Ms. Flintoft that he participated in sweats, circles and smudges when he was in a federal institution previously (although it is unclear from the documents when that was). He reported that he was a heavy crack cocaine and alcohol user and that he was interested in pursuing a s. 81 or s. 84 release. [8] He is described in that report as High Risk given his criminal history.

[55] Section 84 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 provides for the release of an inmate into an Indigenous community and gives the community an opportunity to propose a plan for the inmate’s release and integration. Mr. Earhart has already investigated that possibility with the Chippewas of the Thames First Nation. Chief Jacqueline French sent Mr. Earhart a letter dated February 5, 2020, indicating that his request might be premature at this point given that he is not yet eligible for parole and suggested that he make contact after this application is determined.

[56] That report quite frankly lacked any insight into how Mr. Earhart might be impacted by “historical patterns of discrimination and neglect”. The report was updated following Mr. Earhart’s conviction on November 25, 2009. Mr. Earhart provided additional information including that he was a member of the Thunder Clan of the Chippewas of the Thames First Nation and had an “Aboriginal name” given to him by an Elder while at Kingston Penitentiary. He advised that his maternal grandmother was a survivor of the residential school system and lost her “Native status” when she married his grandfather. The family subsequently regained their recognized status.

[57] Mr. Earhart expressed feelings of loneliness and isolation which turned to anger and resentment. He indicates that he felt racism from Indigenous and white people because of his mixed heritage. The report goes on to state, at p. 11:

Although Earhart was not directly affected by the residential school system, foster care, or the 60s scoop, his relatives have suffered these injustices and the generational trauma was evident in his upbringing. …

[58] The applicant has filed a letter from the Chippewas of the Thames Fist Nation Board of Education, which confirms that he has been sponsored by them to take a psychology course through Northern College.

[59] Mr. Earhart sought admission into the Pathways Unit which required that he meet certain criteria such as having worked with an Elder, showing commitment to a traditional way of life and that the Elders of the Pathways agree to his admission. The report on the decision to not to admit him into the unit authored by Nathalie Pageau on March 4, 2020 states, at p. 2: [9]

Therefore, in light of the previous information, multiple Aboriginal social history issues are identified. The following systemic Aboriginal factors characterized your childhood, and most certainly influenced the path you have chosen: Effects of the residential school system, family or community history of suicide, family or community history of substance abuse, family or community history of victimization, level of connectivity with family/community, experience with poverty, loss of or struggle with cultural/spiritual identity.

[60] The reasons for denying him entry to Pathways included the applicant’s behavioural or attitude issues and a lack of genuine motivation to change that attitude. He is described as having shown disrespect towards staff including cursing at and insulting staff. As a result, it was determined that he was “not ready to invest yourself totally on your healing path”. It was felt that since the applicant is not ready to acknowledge his issues, he was not suitable for the program.

[61] In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 60, the Supreme Court of Canada reminds us that courts must take judicial notice of the background factors that affect Aboriginal people in Canadian society to address issues of overrepresentation in the criminal justice system:

To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders. Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2(e) of the Criminal Code.

Conclusion

[62] The court has considered all the factors outlined in s. 745.63(1)(a)-(e). As Durno J. said in Morrison, there is no “score card” that requires each factor to be given equal weight. Each case turns on its own unique facts, and in certain circumstances, one or more factors may be decisive.

[63] The court must perform a limited weighing of the evidence provided in order to determine whether, based on the evidence, there is a reasonable prospect that a jury may reduce the period of parole ineligibility.

[64] In Swietlinski, the Supreme Court indicates that during this process, new information or factors which could not have been known initially should be examined. It is not just a question of determining whether the applicant has performed well enough over the last 15 years to merit a hearing, but rather the court must balance all of the factors to make that determination.

[65] In this case, there are a number of factors which constitute new information. The applicant’s Indigenous status was not a factor initially considered because it could not be given the mandatory sentence that had to be imposed upon conviction.

[66] A jury may consider the systemic and background factors, including the history of discrimination and its intergenerational impact, to be relevant when determining whether there ought to be a change in the parole ineligibility period. In Abram, at para. 31, Pomerance J. said: “Suffice to say, for present purposes, Gladue bears on the question of whether the applicant should have the right to make application before a jury.” I agree.

[67] The applicant has been diagnosed with mental health conditions which, without a doubt, impact upon his conduct in the institution. He has participated in institutional programming directed towards rehabilitation and his reintegration into society. He has had mixed success. This is one factor to be taken into account.

[68] It is also particularly significant for the purpose of this assessment that the applicant has been subjected to extended periods of segregation, which Perell J. has found to constitute cruel and unusual punishment and contrary to s. 12 of the Charter.

[69] In balancing all the relevant factors including the additional factors referred to above, the applicant has established that there is a reasonable prospect that a jury will determine that the parole ineligibility period ought to be reduced.

[70] Accordingly, the application is granted, and a jury shall be empanelled to consider whether the parole ineligibility period should be reduced.

Original Signed by “Justice M.V. Carroccia” Maria V. Carroccia Justice Released: March 22, 2022

[1] Psychological Risk Assessment, Applicant’s Application Record at Tab 6A, at p. 3 [2] Supra at p. 5 [3] Applicant’s Application Record at Tab 10(b). [4] Applicant’s Application Record at Tab 5. [5] Applicant’s Application Record at Tab 5, at p. 19. [6] Applicant’s Application Record at Tab 5, at p. 25. [7] Applicant’s Application Record at Tab 12, at p. 7. [8] Referring to sections of the Corrections and Conditional Release Act, S.C. 1992, c. 20. [9] Respondent’s Application Record, at Tab 11.