Court File and Parties

Court File No.: 05-CR-000512 Date: 2022-07-12 Ontario Superior Court of Justice

Between:

Her Majesty the Queen

– and –

Ali Al-Shammari, Applicant

Counsel: George Spartinos, for the Crown Michael Crystal, for the Applicant

Heard: In writing

Ruling on Faint Hope Screening

Pomerance J.

[1] Ali Al-Shammari ("the applicant") was convicted of first degree murder on December 5, 2007. He was sentenced to the mandatory term of life, with a 25-year parole ineligibility period. In 2016, the Court of Appeal for Ontario dismissed his appeal against conviction: see R. v. Al-Shammari, 2016 ONCA 614, 350 O.A.C. 369. Having now served more than 15 years of his sentence, the applicant seeks a review of his parole ineligibility period under s. 745.6(1) of the *Criminal Code of Canada*, R.S.C. 1985, c. C-46.

[2] I was designated by the Chief Justice of the Superior Court of Justice to screen the application and determine whether a jury hearing is warranted. I was also the judge that presided over the applicant's trial all those years ago.

[3] I have determined that, despite the brutality of the crime, the applicant has established, through his rehabilitative efforts, that he has a reasonable prospect of persuading a jury that his parole ineligibility period should be reduced. Therefore, I direct that a jury hearing be scheduled.

[4] I will explain why I reached this conclusion in the reasons that follow. I will begin by addressing, in general terms, the nature of the faint hope process and the court's approach to this task.

Preliminary Considerations

[5] Before turning to the facts of this case, I will address the following preliminary points:

a. The screening standard;

b. The historical conception of faint hope; and

c. The relationship between rehabilitation, human dignity, and clemency: see R. v. Bissonnette, 2022 SCC 23, [2022] 469 D.L.R. (4th) 387.

a) The Screening Standard

[6] The process set out in s. 745.6 of the Code is often referred to as a "faint hope" application. I will use that term.

[7] While framed as "faint", the degree of hope held out to offenders has shifted from time to time based on statutory enactments and judicial pronouncements. At the first stage of the process, a judge screens the written application to determine whether it warrants a jury hearing. Prior to 2011, an offender received a jury hearing if he or she could show a "reasonable prospect of success." In 2011, Parliament abolished faint hope applications for future offenders and tightened the screening test for those still in the system. The 2011 amendments required that the applicant demonstrate "on the balance of probabilities that his or her application is substantially likely to succeed".

[8] This new standard appeared to merge two different levels of probability, by referring to a balance of probabilities and a substantial likelihood. However, the meaning of the new standard has been rendered academic by R. v. Dell, 2018 ONCA 674, leave to appeal refused, [2018] S.C.C.A. No. 389, in which the Court of Appeal for Ontario ruled that retrospective application of the new standard was unconstitutional. Since then, courts have routinely applied the standard of "reasonable prospect of success": see R. v. Liu, 2022 ONCA 460; R. v. Gatenby, 2021 ONSC 3535; R. v. Atkins, 2021 ONSC 3457; R. v. Abram, 2019 ONSC 3383. Counsel in this case urge that standard upon the court, and I agree that it applies.

[9] Even when a case makes its way to a jury hearing, this does not inexorably lead to release. The path to release is paved with a series of interlocking chances. By filing an application, the offender asks the court for the chance to ask the jury for a chance to plead his or her case before the parole board. It is eligibility, not actual release, that is at issue.

[10] That said, there can be no release without eligibility. The pre-2011 standard – that of reasonable prospect of success – is more attainable than the more stringent test set in 2011 – a substantial likelihood of success. Yet, a reasonable prospect of success is not "any" prospect, however remote. It is not enough for an offender to show that the application is "not hopeless": see R. v. Banwait, 2019 ONSC 3026, at para. 18. The prospect of success must be one that is reasonable.

[11] This point was made in R. v. Phillips, 2012 ONCA 54, 288 O.A.C. 351, at paras. 6-7:

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.

In passing, we note that it is generally preferable when a court is applying a statutory test to use the language in the legislation. Inserting what are considered to be synonymous words or phrases into an analysis often tends to confuse rather than clarify.

[12] I will abide by the Court of Appeal's direction to be guided by the statutory language, which is, on its face, self-explanatory. It asks whether it is reasonable to expect that a jury might reduce the parole ineligibility period. This need not be the only rational or reasonable outcome available on the record. If it falls within a range of reasonable outcomes, it qualifies as a reasonable prospect of success. Where an offender can point to rehabilitative progress, remorse, maturation, and a commitment to pursuing a pro-social lifestyle, those factors will weigh in favour of a jury hearing

[13] To be clear, the screening judge is not predicting what a jury will actually do. That requires a level of prescience that no judge can claim: see R. v. Jenkins, 2014 ONSC 3223, quoted with approval in Dell. More accurately, the screening judge is assessing whether a jury could grant clemency, based on the evidence of rehabilitation.

[14] I will return to a discussion of rehabilitation shortly.

b) The Historical Conception of Faint Hope

[15] Twenty-five years has long been the parole ineligibility period for first degree murder. It is baked into the litigation psyche of the criminal law. It therefore may be easy to forget that, when the period was set at 25 years, it was, comparatively speaking, unusually harsh. This term was much longer than parole ineligibility periods set by other Western countries. History would suggest that Parliament chose a particularly lengthy term to appease those who opposed abolition of the death penalty.

[16] This point was recently affirmed by the Supreme Court of Canada in Bissonnette, in which the Court ruled that stacking of 25-year periods in cases of multiple murders was unconstitutional. The Court noted the following about the 1976 amendments to the Code, at para. 32:

The mandatory 25‑year parole ineligibility period for first degree murder was presumably established to satisfy proponents of the death penalty (A. Manson, "The Easy Acceptance of Long-Term Confinement in Canada" (1990), 79 C.R. (3d) 265, at p. 266). Indeed, it was particularly severe when compared with the ineligibility periods provided for in other Western countries at the time for similar offences (Manson, at pp. 266‑67). Moreover, from 1961 to 1976, the average time served in prison for the offence of capital murder had been 15.8 years, well below the newly enacted 25‑year period of imprisonment (Correctional Service of Canada).

[17] Recognizing that 25 years was "particularly severe", Parliament tempered the parole ineligibility period by simultaneously enacting the faint hope clause, which allowed offenders to apply for a reduction in their parole ineligibility period after serving 15 years. In other words, the law, at its very inception, contemplated that some offenders sentenced for first degree murder would not serve the entirety of the 25-year period. I refer again to Bissonnette, at para. 33:

When the death penalty was abolished, Parliament also established a right to judicial review of the parole ineligibility period, commonly known as the "faint hope" clause (Criminal Law Amendment Act (No. 2), 1976, s. 21). This clause allowed persons who had been sentenced to life in prison for first or second degree murder without eligibility for parole for more than 15 years to apply for a review of their parole ineligibility period once they had been incarcerated for at least 15 years. The clause was added to the *Criminal Code* in the hope of encouraging the rehabilitation of offenders serving long prison sentences and, as a result, of creating a safer prison environment. As well, it tempered the increased harshness of parole ineligibility periods (Department of Justice Canada, An Analysis of the Use of the Faint Hope Clause (2010), at p. 1; Library of Parliament, at pp. 3‑4).

[18] The tempering effect of faint hope will soon be lost to the mists of time, given the 2011 amendments to the Code. This too was noted in Bissonnette, at para. 34:

In 1996, Parliament amended the faint hope clause such that, among other things, persons convicted of multiple murders would no longer be able to apply for judicial review (An Act to amend the Criminal Code (judicial review of parole ineligibility) and another Act, S.C. 1996, c. 34). Then, in 2011, Parliament passed legislation that abolished the clause for all intents and purposes by making it inapplicable to anyone who committed a murder on or after the day on which the legislation came into force (An Act to amend the Criminal Code and another Act, S.C. 2011, c. 2).

[19] As cases make their way through the system, faint hope is poised to eventually become an historical artifact. In the meantime, it will remain available to offenders, like the applicant, who were already in the system at the time of the 2011 amendments. For those offenders, it bears noting that the ability to seek a reduction of parole ineligibility does not offend or derogate from the murder sentencing regime. To the contrary, faint hope was an integral part of the regime at the time of its enactment.

c) Rehabilitation, Clemency, and Human Dignity

[20] Faint hope is predicated on the innate capacity of individuals to rehabilitate. The process hinges on the understanding that persons are not forever or exclusively defined by a crime that they committed. As it was put by Lamer C.J. in R. v. Swietlinski, [1994] 3 S.C.R. 481, at p. 493: "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" (emphasis in original). Past events, including the original offence, are important in the assessment of character, but their relevance may be attenuated by changes in the offender's life.

[21] The decision in Bissonnette, referenced above, offers a framework for the consideration of rehabilitative potential. The recognition of human capacity for growth and change is governed by the overarching principle of human dignity. As it was held in Bissonnette, at para. 8, the objective of rehabilitation "is intimately linked to human dignity in that it conveys the conviction that every individual is capable of repenting and re‑entering society." Dignity presumes that all persons are inherently worthy and entitled to respect. It presumes that all persons have the potential to reform, irrespective of the circumstances that brought them before the court.

[22] On this analysis, the faint hope process – fundamentally premised, as it is, on the capacity of human beings to reform themselves – is an expression of the principle of human dignity. While not a Charter right, per se, human dignity is a value that informs interpretation of all Canadian law, including the Charter. As it was put in Bissonnette, at para. 48, "[r]ehabilitation is one of the fundamental moral values that distinguish Canadian society" from those of other nations. Bissonnette teaches that the belief in rehabilitation must never be abandoned or extinguished, whatever the circumstances before the court. Even where other considerations – such as deterrence, denunciation, and protection of society – are paramount, they cannot oust the hope, however faint, that the offender will turn his or her life around.

[23] The prospect of rehabilitation, like the calculation of risk, has a predictive quality that is inherently imperfect. Various factors bear on the calculus, not least of which is the proposition that future behaviour is best predicted by past behaviour. However, even that proposition is rooted in assumption rather than empirical verification. There are no guaranteed outcomes given the infinite exigencies that can affect human conduct, which is itself infinitely variable. Courts must engage in this exercise despite its uncertain character. Accepting these limitations, we do our best to forecast future events based on logic, reason, what we know, and a greater or lesser degree of hope.

[24] Within the present context, hope alone will not suffice. The offender seeking a jury hearing on parole ineligibility must establish a reasonable prospect of success by pointing to concrete evidence of reform and rehabilitation. Where such evidence exists, the principle of human dignity commands its recognition and, presumably, its facilitation. Concrete evidence of reform may call for a concrete legal response, to the extent permitted by law. Stated differently and borrowing from the words of Healy J. (as he then was) in R. v. Bibeau, 2011 QCCQ 6970, at para. 12, where there is a meaningful hope of change – a viable prospect of redemption – courts should, to the extent possible, "allow [such] hope to flourish".

[25] Bibeau was a sentencing decision, in which Healy J. invoked the concept of mercy as a mechanism to ameliorate an otherwise harsh result. As he explained, at paras. 12-13:

The place of mercy in Canadian penal justice is little developed in our jurisprudence. There is a deep uncertainty whether mercy can be accommodated within the positive law of sentencing or recognised only as an exceptional reason to depart from the ordinary principles of the positive law that would apply in a given case. In a narrower form mercy is apparent in some notions of mitigation for personal hardship. It may be seen also in decisions that seek to redress deprivations that would be cruel or pointless. But, in a broader sense, perhaps the most fertile ground for mercy is where the lawful power of courts can be used to allow hope to flourish if there is a chance of success. If there is such a chance, it may be argued that mercy provides a sufficient reason to depart from the path that would otherwise be dictated by retributive objectives within the positive law of sentencing.

If that is today a chance of hope, I should forego the full force of retribution that he would otherwise deserve. And if this is mercy, I will take that chance every time that the law and the jurisprudence allow me--to do so in accordance with the evidence in the case, good judgment and sound policy.

[26] The concept of mercy, invoked in Bibeau, is another link in the chain of reasoning inspired by Bissonnette:

a. The principle of human dignity commands that courts recognize the hope of rehabilitation;

b. Where manifest, the hope of rehabilitation should be allowed to flourish;

c. Allowing hope to flourish will, in some instances, invoke the principle of mercy.

[27] As noted by Healy J., the concept of mercy is of uncertain application when it comes to the traditional sentencing paradigm. It is not clear whether it is a component of the purposes and principles of sentencing as conventionally understood, or whether it is an extrinsic factor that derogates from the strict application of the law. To the extent that it gives expression to equity, it may be seen to temper rather than augment the law. As described by one commentator: it is "a judicial tool to avoid societal injustices, and particularly, judicial injustices by severe punishment that serve no other purpose than strict retribution": see Rowan Kunitz, "At the Mercy of the Court: Canadian Sentencing Principles and the Concept of Mercy" (2020) 25:1 Can. Crim. L. Rev. 1, at p. 9. On the other hand, the individualized and discretionary nature of the sentencing process – fundamentally recognized as art, rather than science – would seem to leave breathing room for intangibles such as compassion and humanity.

[28] I need not resolve that conundrum in this case, because whatever the role of clemency in the traditional sentencing model, it is at the very core of the faint hope model. Faint hope hearings are unique. A jury hearing a faint hope application is engaged in an exercise of clemency, rather than the application of a legal test. Fundamentally, "[s]ection 745 empowers 12 jurors, who represent the community and its conscience (R. v. Nichols (1992), 71 C.C.C. (3d) 385 (Alta. Q.B.)), to determine whether the applicant deserves clemency or leniency in the form of a reduction in his or her parole ineligibility": see Swietlinski, at p. 504, per Major J. (dissenting). The question for the jury is whether the offender has made sufficient progress demonstrating that he or she deserves an earlier opportunity to seek parole.

[29] As it was put in Jenkins, at para. 38:

The function of the jury in faint hope cases is not unlike the executive power to grant clemency under the Royal Prerogative of Mercy. Like the Royal Prerogative, the jury decision is unbounded by law; it is the subject of confidential deliberations, and it is immune from review. It is perhaps no coincidence that, when faint hope came into being, mercy was a common feature of criminal justice. In every case involving a conviction for capital murder, the Executive was to determine whether or not to commute sentence. In each case, Cabinet members, acting on the advice of the Minister of Justice or Solicitor General, made a decision for or against mercy. Cabinet recommendations were passed to the Governor General (the sovereign's representative), where they were typically endorsed.

[30] In Dell, Doherty J.A. observed as follows, at paras. 80-81:

The difficulty in attempting to quantify the effect of introducing judicial screening on the offender's chances of obtaining a reduction in parole ineligibility is made all the more acute by the nature of the decision the jury makes in a "faint hope" proceeding. To a large extent, the outcome of the jury's deliberations defies prediction: Jenkins, at paras. 37-40.

The jury's function on a "faint hope" application is much different than its function at the end of a criminal case. Verdicts are predicated on the application of legal principles provided to the jury by the trial judge and applied to the facts as found by the jury. In making those findings, the jury is bound by the evidence it hears. On a "faint hope" hearing, the jury has virtually unfettered discretion to allow or deny the application. That discretion is not confined or structured by legal principles or findings of fact. The jury can make a subjective assessment and give the various relevant factors whatever weight it deems appropriate. In the end, the jury decides what the offender "deserves". The jury offers no explanation for the decision and no appeal is available from that decision: Jenkins, at paras. 41-46.

[31] Within this context, mercy should not be confused with unprincipled leniency or subjective sentimentality, at least as it relates to judicial screening. The jury hearing a faint hope application does not apply a legal test and does not give reasons for its verdict. However, the judge who screens the application is called upon to articulate why there is or is not a prospect of success, applying a standard to predict the outcome of a process that has no standard. This is why a screening decision is not so much a prediction as an independent evaluation. This evaluation must be rooted in the evidence. However, it must view the evidence through the lens of human dignity, accounting for the innate capacity of human beings to change, and the amorphous nature of clemency.

[32] It is against this backdrop that I will assess the applicant's request.

Overview

[33] In 2007, Ali Al-Shammari was convicted of the first degree murder of a taxi-driver, Thualfikar Alattiya, who was killed in the cab that he was driving. The applicant, then 19 years of age, acted in concert with two other individuals to commit the murder, prompted by a dispute over funds gathered to build a mosque. The murder was planned and deliberate or, alternatively, was first degree murder on the basis that the murder occurred during an unlawful confinement.

[34] The applicant denied aspects of the allegations in his testimony at trial. However, the verdict would indicate that the jury did not accept the applicant's account or have a reasonable doubt on that basis. The verdict signals that the jury found the applicant to have played a direct and substantial role in the killing of the victim.

[35] The brutality of the crime is self-evident. While the applicant did not inflict the fatal wound, he was instrumental in the crime by handing over the murder weapon and encouraging his accomplice to use it. As a result of the stabbing, the victim was almost decapitated. The group left the victim to be discovered in the cab. They made their way to various locations, including a Chinese food buffet and the local mall. Steps were taken to destroy or conceal evidence.

[36] The Crown opposes this application, arguing that the applicant's custodial record is far from perfect. He has amassed a number of infractions while in custody, though these are relatively minor and do not involve any violent action. The Crown relies upon the nature of the crime and the assertion that the applicant has not taken full responsibility for his actions.

Statutory Factors

[37] Pursuant to ss. 745.61(2) and 745.63 of the Code, the screening judge is to consider the following matters:

(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.

The Offence

[38] The victim of the offence was a 41-year-old man who worked as a cab driver. He collected funds for the construction of a mosque and delivered them to the father of the applicant's accomplices, Mohamed Al Ghazzi ("Mohamed") and Hassan Al Ghazzi ("Hassan"), named Daham Al Ghazzi ("Daham"). The victim and Daham argued over how the mosque was to be registered, and the victim told Daham that his daughter had "loose morals." Daham enticed his two sons to beat up the victim.

[39] An early attempt at committing the crime was foiled, as the victim was not driving his cab that night. The second attempt was tragically successful. On the night of the murder, Mohamed, Hassan, and the applicant called the taxi company and specifically asked for the victim to pick them up. He was dispatched to their location.

[40] Upon the victim's arrival, Hassan and the applicant entered the vehicle. Hassan sat in the back seat and was attempting to pull the victim into the back seat using a speaker wire. The wire snapped, and the applicant then assisted Hassan by cutting the victim's seatbelt with a knife. Mohamed sat in the driver's seat as Hassan was punching the victim in the back seat. On Mohamed's account, the applicant then told Hassan to "kill him" and gave the knife to Hassan after the victim recognized the three assailants and asked them why they were doing this. However, while Hassan was detained and awaiting trial, he said to a family-friend who had become a police agent that the applicant had been silent during the attack: see Al-Shammari, at para. 12. Hassan proceeded to stab the victim multiple times. The applicant told Hassan to "make sure he's not breathing": Al-Shammari, at para. 23. Hassan stabbed the victim in the neck and nearly decapitated him. Mohamed continued to drive until they knew the victim was dead. They returned to the pick-up area, left the victim in the car, and went to change their clothes and eat at a restaurant.

[41] Further details are summarized in the judgment of the Court of Appeal, at paras. 19-23:

The morning of the murder, the appellant called Hassan and agreed to go with him. He was picked up by the brothers in their vehicle as he walked toward their home. Mohamed testified that because of D.D.'s refusal to participate, the three assailants devised a new plan. They would telephone the taxi dispatcher and ask specifically for the victim's taxicab to pick them up at a remote location. The appellant would sit in the front passenger seat and Hassan would get into the back seat. Hassan would wrap a speaker wire around the victim's neck while the appellant punched him. Mohamed would then drag the victim out of the driver's seat of the cab, and they would take him to another location where they would continue the beating. Hassan got the wire from the house, and they had masks and gloves that they had obtained previously. The plan was to beat up the victim to send a message that he should stay away from the Al Ghazzi family.

With Mohamed driving, the three assailants went to D.D.'s group home to attempt to persuade her to participate in the attack. A staff member at the group home said she saw the Al Ghazzi vehicle outside the group home at about 6:15 a.m. with no fewer than three people in the vehicle, and perhaps as many as five. This evidence was important to the Crown's theory that the appellant was in the vehicle with the brothers, permitting the inference that he knew about the original plan involving D.D, and that he discussed the formulation of a new plan with the brothers. The appellant testified that he did not leave his house to meet the brothers until after 6:30 a.m.

Mohamed testified that after D.D. persisted in her refusal to participate, Hassan telephoned the taxi dispatcher from an outdoor payphone. While the call was being made, Mohamed said that the appellant took some speaker wire and made loops at each end to create grips, and gave the wire to Hassan. The appellant denied this.

Mohamed drove to the pickup location. Hassan and the appellant got out and waited for the victim's cab, while Mohamed waited in his car. When the cab arrived, Hassan got in the back and the appellant got in the front, as planned. Both were wearing gloves and ski masks. The car began to roll forward and Mohamed heard someone calling his name. He opened the driver's door and tried to sit in the driver's seat to take control of the car. Hassan had the victim in a headlock and was trying to pull him into the back seat, but the victim's seatbelt prevented this. Hassan was telling the others to undo the seatbelt. The appellant took his knife out of his pocket and cut the victim's seatbelt. After the appellant cut the seatbelt, he helped push the victim into the back seat as Hassan pulled him. Mohamed began driving the cab around. Hassan was punching the victim in the back seat.

As they were doing this, the victim recognized all three of them, referred to them by their first names, asked them why they were doing this and told them their parents would not approve. Mohamed testified that at this point the appellant began to panic. Hassan asked the appellant what they should do. The appellant said to "kill him" and handed the knife to Hassan. Hassan then began stabbing the victim, and the appellant said to "make sure he's not breathing". Hassan stabbed the victim in the neck. Mohamed continued driving the taxi until they were certain that Mr. Alattiya was dead. Mohamed testified the knife belonged to the appellant and he had seen it on the appellant several times in the past.

[42] The applicant does not acknowledge telling his accomplice to kill the victim. The verdict would suggest that the jury found this to have occurred. Even if that is not the case, in the circumstances at issue, handing Hassan the knife conveyed the same thing in a non-verbal way. The parties were struggling to subdue the victim. By handing Hassan the knife, the applicant both provided the means and the implicit encouragement for Hassan to kill the restrained taxi driver.

[43] The applicant's accomplices, Hassan and Mohamed, were sentenced to life imprisonment with ten years of parole ineligibility.

The Character of the Applicant

Upbringing and Family Connection

[44] The applicant was born in Kuwait and moved to Canada with his parents in 1992. According to the applicant's psychiatric assessment, he had a pro-social upbringing. After coming to Canada, the applicant's parents separated, but he remained close with both parents. They both frequently visited him at his medium-security institution, despite him residing in the Pacific Region for several years. His father continues to visit him, but his mother is now in a wheelchair and is unable to do so. In short, his parents continue to support him and "express[] a deep love and commitment to their son": Supplementary Application, at para. 13.

[45] At the time of the offence, the applicant was 19 years old (d.o.b. October 30, 1985) and had no criminal record. His correctional plan indicates that at that time, the applicant thought of himself as "immature and unsure of his place in society": Faint Hope Application, Tab C, at p. 4. Prior to the offence, the applicant "was living a pro-social and life [sic] devoid of criminal activity or interactions with the criminal justice system": Faint Hope Application, Tab 2, at para. 29.

[46] The applicant is now over 36 years old and has been incarcerated for several years. He has never had issues with drugs or alcohol, nor has he shown signs of mental health issues: Faint Hope Application, Tab 2, at para. 29. This comes with the caveat provided in his correctional plan, which states that "because no mental status assessment interview was completed, the information provided cannot be taken to represent a comprehensive assessment regarding Mr. Al-Shammari's current state of mental health": Faint Hope Application, Tab C, at p. 6.

[47] The applicant has been in a relationship with his partner, Melody Abaei, a law clerk in Toronto, for eight years. The applicant's partner wrote a letter in support of his faint hope application. She says the applicant is a trustworthy person and is deserving of a successful application. She speaks highly of the applicant's growth and maturity over the years and indicates that she "can only imagine what he is capable of achieving in a different environment." She also notes that he is a "kind, patient, courteous, responsible, intelligent, and trustworthy" individual: Faint Hope Application, Tab 2, at para. 13.

Community Support

[48] The applicant has the strong support of his family and his partner, who have maintained regular contact with him during his period of incarceration. The 2017 correctional plan report indicates that he possesses the skills necessary to function well in the community.

[49] He has also inspired trust on the part of non-familial individuals and agencies. Habib Alli is the Muslim Faith Chaplain at Beaver Creek Institution and the founder of One Love Media. Mr. Alli has written letters supporting the faint hope application. He is willing to help the applicant by counseling him and "provid[ing] [him] with a volunteer position with his organization and [helping him] pursue a career in mentoring youth": Faint Hope Application, Tab 2, at para. 22. In his letter dated July 3, 2019, Mr. Alli suggests that upon release, the applicant volunteering at Mr. Alli's events "will help provide him with social skills and job opportunities": Faint Hope Application, Tab B.

[50] Through his relationship with Mr. Alli, the applicant has come to embrace his religion and its tenets, another factor that bodes well for his rehabilitative prospects. A letter from Mr. Alli reports that he regularly attends the weekly Islamic religious services and weekly sessions that Mr. Alli runs. Mr. Alli believes that the applicant is "ready to work" and "to inspire young people in the community as a volunteer in the future."

Remorse and Accountability for Offence

[51] The applicant has, from time to time, expressed remorse for his role in the offence. In his application, he asserted: "I am sorry for the pain that my actions have caused the family and friends of the victim. I live with their loss every day": Faint Hope Application, Tab 2, at para. 14.

[52] Mr. Alli, with whom the applicant has a very positive relationship, believes Mr. Al-Shammari "to be compassionate and full of regret as to what happened when he was younger."

[53] Other reports suggest that the applicant has yet to fully acknowledge his participation in the murder. An updated correctional plan report from June 2017 reported that the applicant "still denies his full role in the index offence," and that he "does not fully accept the charge he was convicted of (First Degree Murder), although he does accept his conviction and sentence." However, the report does indicate an increasing willingness to accept responsibility, with the author explaining that:

Mr. AI-Shammari has relaxed his staunch denial to now admitting he brought the knife used to kill the man and was at least a partial active participant in the murder itself by facilitating his co-accused ability to drag the man into the backseat to be killed.

[54] It is difficult to gauge the precise level of remorse and responsibility demonstrated by the applicant, given the conflicting reports and statements. He does express some remorse over the incident, even if he is reluctant to accept the full implications of the jury verdict. It may be that the applicant seeks to minimize his involvement as a participant because he did not directly cause the victim's death. Of course, the law does not see this as an exculpatory distinction. To the contrary, by providing the knife and directing an accomplice to kill the victim, the applicant is as culpable as the man who actually used the weapon to carry out the direction. What is apparent is that, over time, the applicant has come to accept more responsibility for his involvement, a process that will hopefully continue.

The Applicant's Conduct While Serving the Sentence

[55] The applicant has performed relatively well while in custody. He has been "actively engaged in his correctional plan, is not involved in subculture activity, and he has interacted well with others": Faint Hope Application, Tab F, at p. 3. Following the early days of his incarceration, it appears the applicant has done well and has taken advantage of the programming and opportunities available to him: see also R. v. Poitras, 2012 ONSC 5147, at para. 32. He has been employed as a "cleaner, maintenance worker and canteen worker": Supplementary Application, at para. 12. During his incarceration, the applicant has completed several programs:

• Integrated Correction Plan Model (ICPM) Model Intensity;
• ICPM Maintenance Program;
• Alpha, Levels 1 and 2;
• Houses of Healing; and
• Non-Violent Communication, Levels 1 and 2.

[56] He has also completed an entrepreneurship program and business courses. In 2017-2018, he "successfully completed several computer-related courses through Acheron college", earning high grades. On occasion, he has attended a minimum-security facility to complete an Arabic language program.

[57] Corrections personnel have lauded the applicant's dependability, ability to follow the rules, promptness, good behaviour, and respect for others, to name a few. One correctional officer called the applicant a "model inmate": Faint Hope Application, Tab 2, at para. 32. Further, correctional officers have supported the applicant's move to minimum security given his behaviour. However, the prison Warden denied this move to minimum security, citing reasons that there were still many years left to be served on the sentence, and that the applicant minimizes his role in the murder. Nevertheless, the applicant's escape risk is listed as "low", and he falls within the category where four out of five offenders will not commit an indictable offence upon release.

[58] The Crown has noted a series of misconduct during the applicant's time in prison:

• February 2, 2010: refused to go back into his cell;
• February 21, 2011: attempted to steal a cup of sugar, and then said the sugar was found in his jacket;
• January 2, 2014: unauthorized items in his cell;
• December 23, 2014: the applicant and another inmate were observed discussing combat techniques;
• May 31, 2015: practicing physical fighting and technique with another inmate;
• July 6, 2015: not wearing institution clothing twice in one day;
• August 27, 2015: in another cell;
• October 16, 2015: lied to officer;
• February 4, 2016: TV carried into another inmate's cell and was not authorized to have it;
• June 6, 2016: unauthorized item in cell;
• July 22, 2015: amount of items exceeded;
• March 24, 2017: caught running a store and had a "debt list" in a notebook.

[59] These infractions reveal a pattern of disregard of the rules, and, perhaps, a certain arrogance in the applicant's response to authority. For example, when confronted about running a store from his cell, the applicant offered the disingenuous remark that he was "simply practicing his business skills": Crown Response, at p. 11.

[60] On the other hand, the infractions are now quite dated. They are, relatively speaking, minor infractions and do not involve any elements of violence. While these incidents are far from commendable, they do not give rise to concern about violent recidivism. It is generally accepted that the applicant is at a low risk for re-offending. I am troubled by the infractions, but it will be for the jury to assess their significance. For screening purposes, when they are considered against the backdrop of highly positive commendations offered by prison officials, and the applicant's progress through institutional programming and employment, they are not of such force as to foreclose a reasonable prospect of success.

Any Information Provided by the Victim

[61] There is no fresh victim information in this case. No victim impact was filed at the time of the applicant's sentencing. The mandatory sentence was imposed immediately after the jury verdict was delivered. However, a victim impact statement, dated November 2, 2007, was filed at the sentencing hearings of Hassan and Mohamed. That statement has been filed by the Crown on this application. While not tendered at the applicant's trial, it is properly received as evidence of the impact of the crime on the victim's family.

[62] The statement described that impact in poignant terms. As a result of the murder, the victim's wife, Rola Kamel ("Ms. Kamel"), experienced depression, anxiety, and psychological stress. At the time, she and the deceased had three children who were ten, nine, and five years old, respectively. During the investigation and trial processes, she "began to avoid contact with the community because people would continue to ask [her] questions about what had happened and what was happening": Victim Impact Statement, at p. 1. At the time of sentencing, she was "in the process of moving out of the country" with her children: Victim Impact Statement, at p. 2.

[63] The statement also described the impact of these events on her children. Her oldest child had nightmares and suffered from depression. He viewed the world as a dangerous place and grew up quickly to protect the family. Her middle child was devastated by the loss of her father. Her youngest child had a lot of bad dreams and "still talks about 'the knife'": Victim Impact Statement, at p. 2. Ms. Kamel indicated that their lives were changed forever following this traumatizing experience.

[64] Ms. Kamel could apparently not be reached by the Crown for purposes of this application.

Conclusion

[65] The murder in this case was a brutal and violent premeditated act. The applicant played a substantial role in the killing. Were the offence the primary or only consideration on this application, the application would have to fail. However, that is decidedly not the case. The murder must be considered, but so too must subsequent events. The question is whether there is a viable hope that the applicant is a changed person, able to move forward with his rehabilitative efforts while posing no real risk to the safety of the public. Is it open to a jury to conclude that, despite the horrific nature of the crime, there is a realistic prospect that the applicant can become a contributing member of the community? Is it open to a jury to find that the applicant is deserving of an opportunity to seek release now, rather than waiting for the expiration of 25 years?

[66] On the whole of the record, I have determined that the applicant has a reasonable prospect of success and that a jury should be empanelled given the following considerations:

a. The applicant was a young man at the time of the crime and has, by all accounts, matured considerably during his time in custody;

b. The institutional record is largely positive, save for non-violent infractions;

c. The applicant has a very good record of work performance during his time in custody and has taken steps to educate himself in various skills;

d. The applicant has expressed some degree of remorse and responsibility, though he has yet to fully embrace the jury verdict;

e. The applicant has found solace in his religion and has forged positive relationships with those in the Islam community, including Mr. Alli;

f. The applicant has been assessed at a low risk of recidivism; and

g. The applicant has the support of his family and others in the community.

[67] The picture presented of the applicant is not perfect. For example, the applicant has been reluctant to expressly accept the full ramifications of the jury verdict. This factor detracts to some degree from his rehabilitative prospects. On the other hand, it is easy enough for an offender so inclined to feign acceptance of responsibility by offering the credited response. That the applicant has not just said what people might want to hear is, perhaps, a sign of honest interaction with correctional officials.

[68] Similarly, while custodial infractions have been cited in this case, they are blemishes on what is otherwise a very positive complexion of institutional conduct. The institutional records reflect a minutiae of scrutiny over the course of more than 15 years. While the infractions are far from laudable, they do not prevent the jury from attaching weight to the other more positive reports of institutional progress. The actual significance of the misconduct will be for the jury to determine.

[69] Finally, while of little consequence standing alone, I note that the applicant's co-accused received only ten years of parole ineligibility. As indicated by the Court of Appeal, "Hassan confessed to being the one who killed the victim by nearly decapitating him in the back seat of the cab. He pled guilty to first degree murder and, in light of his age, received parole ineligibility of ten years": Al-Shammari, at para. 12. Mohamed was originally charged with first degree murder, pleaded guilty to second degree murder, and received ten years of parole ineligibility. The applicant was entitled to exercise his right to a trial, but, as a consequence, he was sentenced to a lengthier parole ineligibility period of 25 years. The applicant has already served a longer period of parole ineligibility than the individual who used the knife to kill the victim. This consideration does not alter the legal landscape but may affect the equities to some extent.

[70] It is significant that the jury that hears the case will be drawn from the very community that was directly affected by the crime. This is as it should be. That is the community in which the murder occurred; that is the community to which the applicant might return if released. That is the community uniquely situated to assess whether clemency should be extended based on the applicant's positive steps toward individual growth.

[71] I too am the judge that received the jury's verdict and imposed the mandatory penalty for first degree murder. I heard all of the evidence, including the applicant's testimony. My knowledge of the crime goes beyond the black and white of the written record. Despite that knowledge, I am prepared to find that the applicant has a reasonable prospect of success. It may be that nothing flows from the fact that I was the trial judge. However, if sending the case to a jury is an expression of faith in the offender, such faith has been expressed in this case by the judge who has the fullest knowledge of the details of the crime committed.

[72] In sum, the applicant has inspired a hope of rehabilitation, grounded in evidence of concrete steps he has taken to date. The principle of human dignity commands that I recognize and give effect to the rehabilitative efforts taken by the applicant. It will be up to him to carry such efforts forward upon his eventual release. As for when that release will occur, that is a decision first for the jury and then for the parole board. For now, my task is to determine whether the applicant deserves the chance to ask for the chance to ask for release.

[73] I direct that a jury be empanelled to consider the request for a reduction in parole ineligibility.

Original signed by Justice Renee M. Pomerance

Renee M. Pomerance

Justice

Released: July 12, 2022