COURT FILE NO.: CR-08-2909-SR
DATE: 2024-03-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
D. D’Iorio, for the Respondent
Respondent
- and -
CLEAVON JOSEPH
B. Vandebeek, for the Applicant
Applicant
HEARD: In writing
REASONS FOR JUDGMENT
Threshold Decision on s. 745.6 of the Criminal Code
Dennison J.
Overview
[1] Cleavon Joseph (the applicant) and his co-accused Andrae Parris murdered Jermaine Malcolm on September 22, 2007, over a $30 drug debt. They went to the deceased’s residence, confined the deceased and stabbed him six times.
[2] At the start of his jury trial before Miller J., the applicant sought to plead guilty to second-degree murder. The Crown did not accept the plea. On September 11, 2009, a jury found the applicant, along with Mr. Parris, guilty of first-degree murder. He was sentenced to life imprisonment without parole for 25 years.
[3] On April 12, 2013, the Court of Appeal dismissed his appeal; 2013 ONCA 515.
[4] The applicant has served more than 15 years of his sentence. He now seeks a review of his parole ineligibility pursuant to s. 745.6 of the Criminal Code.
[5] The Associate Chief Justice of the Superior Court designated me to screen the application to determine whether a jury should consider reducing the applicant’s parole ineligibility period.
[6] The applicant filed an application record and factum in support of his application. The Crown filed a factum outlining its position that the applicant has not satisfied the threshold required to put this matter before a jury. I received the applicant’s written response to the Crown’s factum, as well as an agreed statement regarding certain facts that were in dispute.
[7] After reviewing all this material, I have determined that the statutory threshold has not been met. The applicant failed to demonstrate on the balance of probabilities that there is a reasonable prospect that a unanimous jury would find that his parole eligibility ought to be reduced. The basis of this conclusion is set out in the reasons below.
The Screening Standard
[8] Section 745.6 of the Criminal Code permits the applicant to seek a reduction in his parole ineligibility “in light of new information or factors which could not have been known initially” which might “justify imposing a less harsh penalty” than the sentence that was initially imposed: R. v. Swietlinski, 1994 71 (SCC), [1994] 3 S.C.R. 481, at pp. 492-493. This process is often referred to as a “faint hope” application.
[9] The original “faint hope” provisions permitted an automatic right to have a hearing before a jury. In 1997, Parliament amended the legislation and required the court to screen the application to determine “whether the applicant has shown, on the balance of probabilities, that there is a reasonable prospect that the application will succeed.”
[10] On December 11, 2011, Parliament passed further amendments that made the screening test more onerous. The amended provisions required an applicant to demonstrate on the balance of probabilities that there is a substantial likelihood that the application would succeed before a jury.
[11] There was some debate as to whether the new amendments applied retroactively. The Court of Appeal for Ontario ended that debate in R. v. Dell, 2018 ONCA 674, 364 C.C.C. (3d) 419, leave to appeal to S.C.C. refused, [2018] S.C.C.A. No. 389. The Court held that the applicant has a constitutional right to have the provisions that were in force at the time of the offence be applied in determining if the application should be granted. See also R. v. Liu, 2022 ONCA 460 and R. v. Atkins, 2022 ONCA 709, at para. 2
[12] As such, the test for this court to apply in screening the application is whether the applicant has demonstrated on the balance of probabilities a reasonable prospect that a jury would unanimously vote to reduce the applicant’s period of parole ineligibility: s. 745.61. Or as Pomerance J. stated in R. v. Jenkins, 2014 ONSC 3969, at para. 14, “whether there was some evidence on which a reasonable jury could properly reduce the offender’s parole ineligibility period.”
[13] In determining the threshold issue, it is difficult for the screening judge to accurately predict the outcome of a jury’s deliberation. As explained by Doherty J.A. in Dell at paras. 80-81, “To a large extent, the outcome of the jury’s deliberations defies prediction”. The jury’s decision in a faint hope hearing is not confined to legal principles or findings of fact. The jury’s decision is based on whether they decide the applicant deserves clemency or leniency such that the parole ineligibility period should be reduced. The jury provides no reasons for its decision and no appeal is available from the decision: See also Swietlinski at p. 504 per Major J. (dissenting), Jenkins at para. 38. As explained by Pomerance J. in Jenkins at para. 38:
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.
[14] It is against this backdrop that I must consider this application.
Statutory Factors & Principles to Apply
[15] Section 745.61(2) and s. 745.63(1) lists the factors to consider in determining the threshold question as follows:
(a) the character of the applicant;
(b) the applicant’s conduct while serving the sentence;
(c) the nature of the offence for which the applicant was convicted;
(d) any information provided by a victim at the time of the imposition of sentence or at the time of the hearing under these sections; and
(e) any other matters that the judge considered relevant in the circumstances.
[16] Durno J. outlined the principles to be applied at the judicial screening stage in R. v. Morrisson, 2016 ONSC 5036, at paras. 36-43. I would summarize the principles as follows:
In considering the statutory factors there is no “score card” that gives each factor equal weight. Each case is fact-specific, and one or more factors may be decisive and different factors will receive different weight depending on the circumstances and evidence.
In examining the evidence, 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, at para. 5. The primary focus at the hearing is “to call attention to changes which have occurred in the applicant’s situation and which might justify imposing a less harsh penalty”: Swietlinski, at p. 493. The jury’s verdict is in effect an assessment of the offender’s progress.
When conducting the assessment, the judge must keep in mind that to reduce the period of ineligibility the jury must be unanimous.
The mandated sentence for first-degree murder is life imprisonment without parole eligibility for 25 years. The applicant must show that their current situation justifies a departure from the legislated sentence: R. v. Gayle, [2013] O.J. No. 4124 (S.C.), at para. 30.
The applicant does not enjoy the benefit of the presumption of innocence. The onus is therefore on the applicant to provide evidence that would support his application at the threshold screening.
Position of the Parties
[17] The applicant submits that the focus on this application is the applicant’s progress. Over the past 15 years, the applicant has matured and developed. He has improved himself by obtaining his GED and is enrolled in post-secondary education. He has consistently been employed in the institution and has completed numerous institutional courses.
[18] The applicant submits that, through personal reflection and institutional programing, he has developed insight into the impact of the offence and has expressed significant remorse for what he has done. Contrary to the Crown’s submission, he is not required to demonstrate absolute or unqualified remorse. In addition, he has the love and support of his family and friends in the community who will assist him in re-integrating into the community.
[19] The Crown submits that the applicant has not met his onus at the threshold stage when the relevant factors are considered. The Crown submits that the applicant was not a youthful or first offender who committed an out of character act. He was a veteran drug dealer. He has not been a model prisoner since his incarceration and has not been transferred to a security level below medium security. He has been assessed of having a 31% chance of reincarceration within one year of release.
[20] The Crown further submits that the applicant may regret his actions but still lacks insight and continues to downplay his involvement in the murder.
[21] The Crown submits that, at this time, the applicant has not demonstrated on the balance of probabilities that there is a reasonable prospect that a jury would unanimously vote to reduce his parole ineligibility.
The Relevant Factors in This Case
[22] Anyone who has committed first-degree murder has serious character issues. The focus of the inquiry is to consider if the applicant’s character has meaningfully changed. The character of an offender is not immutable. As noted in R. v. Bissonnette, 2022 SCC 23, 414 C.C.C. (3d) 1, at para. 48, “[r]ehabilitation is one of the fundamental moral values that distinguish Canadian society” from those of other nations. The process under s. 745.6 is premised on the belief that people can change over time. As such, in considering whether the applicant has changed the court must consider both the applicant’s past and present character in the screening process: R. v. Banwait, 2019 ONSC 3026.
[23] With these principles in mind, I will first review the appellant’s antecedents and then consider what changes he has made since being convicted of first-degree murder.
Applicant’s Prior Antecedents
[24] The applicant was born in Trinidad on November 1, 1975. He moved to Canada when he was fourteen years old with his mother and two half siblings. His father and other half siblings remained in Trinidad. Once in Canada, his mother primarily raised him. He is not a Canadian citizen and is subject to a deportation order upon his release from custody.
[25] The applicant dropped out of high school in his final year. He was three or four credits from graduation. The applicant was employed prior to this offence at various jobs. He stated that at the time of this offence he had just finished working at a restoration company and was attempting to start his own business customizing vehicles.
[26] When the accused was arrested he was in an eight year relationship. He has two adult daughters.
[27] The applicant has a criminal record prior to his first-degree murder conviction, which includes violent offences:
• April 1996: fail to comply with undertaking contrary to s. 145(3) x2;
• January 1999: assault with a weapon contrary to s. 267(a); and
• April 2005: unauthorized possession of a prohibited or restricted weapon contrary to s. 91(2).
[28] When he committed the murder, he was 32 years of age.
The Offence
[29] The facts are summarized in the Court of Appeal decision. The Crown also summarized the facts in his factum. The parties agreed that I may consider some of those facts.
[30] The applicant, Joseph, was a “veteran” drug trafficker. His co-accused was new to the business. Joseph and Parris were at a bar together. They had known each other for seven or eight years and were friends. Parris left the bar to go sell drugs to Malcolm at a nearby housing complex. Malcolm was a crack addict. The purchaser was either Malcolm or someone who wanted to buy drugs. Parris handed over the drugs at the front door and waited at the front door to be paid for the drugs. Malcolm did not return.
[31] Parris returned to the bar and told Joseph what happened. The applicant sought out the victim’s location. They learned that Malcolm was at Teitsson’s residence.
[32] Joseph and Parris left the bar and went to the residence where they believed Malcolm would be. The applicant took a concealed weapon from the trunk of his car. Joseph banged on the front door. He had a white cloth covering something in his hand. Joseph yelled that he knew Malcolm was inside and threatened to shoot up the house if Malcolm failed to answer the door. Parris was at the back door. Teitsson opened the front door and Joseph entered. Malcolm appeared and said he did not have their money. Joseph punched Malcolm in the face with a closed fist.
[33] Teitsson tried to leave, but Parris blocked Teitsson’s path. While holding a steak knife, Parris told Teitsson to get back inside or he “might get some of this.” Teitsson retreated into the house.
[34] When Teitsson went back in the house, Joseph and Malcolm were in the basement. Someone called “Andrae, come down here,” and Parris went downstairs. Teitsson went upstairs to find a cell phone to call the police. He heard a few thumps, but no words were spoken. Teitsson called 911 from a neighbour’s unit.
[35] Malcolm was stabbed 6 times, including 4 stab wounds to the upper chest, 1 to the lower thigh, and 1 to his upper left arm. A knife was also dragged across Malcolm’s throat. Malcolm also suffered blunt force blows to the face consistent with having been struck by a fist or having his faced forced into a wall or other object.
[36] Malcolm died of six stab wounds caused by a knife with a single sharp edge. The deepest wound penetrated 15.5 cm into his body. The pathologist could not say how many knives had been used.
[37] After killing Malcolm, the applicant drove his car from the scene with Parris. They changed their clothes and returned to the bar where they had initially been.
[38] When police arrived, they discovered a knife handle on the hallway floor near the stairwell into the basement. The blade of the knife was on the basement floor and there was blood on the knife blade and the walls. The drywall in the basement was dented and cracked in several places. Police also found a second knife with a three-inch blade in the front hall that had no blood on it.
[39] Malcolm could not be excluded as the source of DNA from blood found on a pair of Nike shoes in the seat of the vehicle where Joseph was arrested, on the knife blade found in the basement, on the patio by the front door, and on the walls and handrail of the basement stairs.
[40] Based on the jury’s verdict, they disbelieved Joseph’s evidence that he acted in self-defence or in defence of Parris. The Court of Appeal agreed with the trial judge that there was not an air of reality to the defence of accident.
[41] The jury found the applicant guilty of first-degree murder on the basis that it was a planned and deliberate attack over a $30 drug debt or that the murder occurred when Malcolm was unlawfully confined. The parties agree that it was open to the jury to find that the reason for the killing was to send a deliberate message to others who he dealt with in the drug trade about the consequences of not paying your drug debts.
Victim Impact
[42] The Crown attempted to obtain the victim impact statements that were filed at the time of the trial, but the court could not locate them. The victim’s mother advised that she wishes to provide a victim impact statement if the matter proceeds beyond the judicial screening phase.
Remorse
[43] The applicant submits that he is remorseful for his actions which further demonstrates his change in character.
[44] The applicant submits that over the past 15 years, he has had the time to reflect on his actions and regrets many of the decisions that he made prior to his incarceration including his actions that resulted in Malcolm’s death. He stated that he “understand[s] how wide-reaching the consequences of [his] actions are and the detrimental impact it has had on Mr. Malcolm, his family, my family, and so many others.” He stated that what happened to Mr. Malcolm and his family was not right or fair to them and he regrets his participation in the offence.
[45] The Crown submits that the applicant’s assertion of regret is not borne out as demonstrated by the applicant’s most recent psychological assessment, dated March 17, 2022, which states:
Mr. Joseph indicated that he took responsibility for the offence, noting that his friend had a drug deal with the victim, although Mr. Joseph forewarned his friend that the victim did not look trustworthy. The friend did the deal, came back, and said the victim had taken something from him and he asked Mr. Joseph to drive him to the victim to get his money back. Mr. Joseph had been socializing with friends at a nearby bar and did not wish to leave, but he did anyway. The friend went inside and when he did not come out after a brief time, Mr. Joseph went inside and heard sounds of a scuffle. He went downstairs, saw that the victim had a knife, and he tried to intervene. He also noted the victim appeared to be high on crack cocaine. While he fought off the victim, his co-accused ran upstairs. Mr. Joseph stated that the victim “had a knife and he (the victim) ended up being stabbed.
Applicant’s Conduct While Serving Sentence
[46] Another measure of the change in character of an offender is their post-arrest institutional conduct. It is helpful to examine the applicant’s good conduct as well as his bad conduct in assessing whether the applicant has changed. In making this assessment, I appreciate the difficulty for any offender to entirely avoid misconducts while in an institution, but the nature of the misconduct may be telling about whether or how the applicant has changed.
[47] The applicant submits that he has demonstrated pro-social behaviour while in custody. This includes enhancing his education, connecting with inmates through religious affiliations, participating in programs, and being employed.
Rehabilitative Programs
[48] The applicant has participated in various programs that are both mandatory and voluntary, listed as follows:
i) Violence Prevention Program – Moderate Intensity (2013). He was noted to be a “strong group member and showed many leadership skills during group work.” He was however frequently late and demonstrated frustration when asked to complete worksheets. The correctional report notes that he made gains in the program, but that he needs to continue to work on how he solves his problems.
ii) Violence Prevention Maintenance Program (2014). At this course there was much better attendance and a more positive progress report.
iii) Institutional Maintenance Program – Multi-Target (2022). The supervisor wrote that Mr. Joseph has made considerable changes in his life and did well in the program. The report also notes that “his overall ability and commitment to use the skills required to manage his various risk factors is unchanged and remains needing some improvement.”
iv) Rise Above – Islamic History Month Program Workshop (2022).
v) Rise Above – Islamic Perspective Program with the foundation of the Overcomers, Grief and Loss and Restoration Justice Principles (2022).
vi) WHMIS (2020).
vii) Break Away programs. The notes indicated that he “has retained and strengthened the skills learned” from his programing. He was described as polite.
[49] The applicant attends Juma prayers within the institution on a weekly basis. The applicant filed a letter from the Muslim faith chaplain. The chaplain stated that Joseph is of good character based on his interactions and he has been a dedicated student of his faith since accepting Islam.
Education
[50] While incarcerated, the applicant has obtained his high school diploma. He has also taken post-secondary courses offered by Northern College and Algonquin College. At the time of this application, he was enrolled as a student in the Bachelor of Arts program at Laurentian University studying sociology or psychology. He is in the first year of a four-year program.
Employment
[51] The applicant has taken the opportunity to be employed while incarcerated and has volunteered. For example, he volunteered for and assisted with the pre-release fair at Beaver Creek in 2015.
[52] In his Offender Pay Reviews, his interpersonal relationships are noted as “excellent” and includes comments stating that Mr. Joseph “maintains a positive interaction with other offenders as well as staff.” He is noted to be fair and considerate of others.
[53] In 2017, he was awarded the position on the inmate committee as the Sports Commissioner. He was still in this position at the time of the application. He oversees the organization of sports, equipment, and the maintenance of the sporting facilities. The program supervisor stated that the applicant “gets along well with others, is always polite and is very pleasant to work with.”
Misconducts
[54] The applicant submits that his misconducts in the institution have been minor and he has never been subject to any periods of disciplinary segregation. His discipline misconducts have involved warnings, fines or suspension of money or loss of privilege.
[55] The Crown submits that it is not the consequences of the misconduct that should be considered but the nature of the misconducts themselves.
[56] The applicant has the following misconducts listed in the latest Correctional Plan.
i) 2015: Found in possession of contraband (watch).
ii) 2016: Visitor hit on ion scanner.
iii) April 2019: Charged for positive urinalysis.
iv) May 2019: Refused to provide a urine sample. He was not charged. In the psychological assessment the applicant explained that the reasons he did not provide the uranalysis was that he was fasting for Ramadan. A note on file indicates that Islam does not prohibit individuals from providing urinalysis during Ramadan and the inmate was given 2 hours to provide the sample. The assessment also notes that his most recent urinalysis on 2020/10/02 was negative.
v) May 2020: The applicant refused to stand for count when asked by officers. The applicant explained that he was fasting for Ramadan and felt weak and tired when asked to stand. He denied that he was rude to the officer.
vi) 2020/2021: The applicant was observed dragging an inmate with another inmate and held an inmate on the ground at a point while another physically assaulted the inmate. This incident resulted in the inmate requiring medical treatment. The applicant was involuntarily transferred to Warkworth after the assault but was later transferred back to Beaver Creek (medium security). It does not appear that he was charged for this incident. The applicant brought an application to correct the file information in 2021/6/4. The applicant indicated that the file implied that he assaulted someone. The memo to file notes the victim was “dragged from the range by JOSEPH and another inmate and was deposited in the vestibule… from this video review, there is evidence that another inmate physically assaulted the victim, while JOSPEH [sic] was observed at a point to have held the victim in position on the ground.” The assessment states that he was not charged by CSC or the OPP as he did not assault the inmate, but that the file notes, “That does not mean that your behaviour was appropriate.”
Psychological Assessment
[57] The psychological risk assessment was completed on March 17, 2022.
[58] The assessment conducted indicated that there is no indication of psychopathology, but there was some concern about defensiveness.
[59] On the violent risk appraisal guide, which is an actuarial assessment of risk for violent recidivism, the applicant would be expected to have a 17% chance of violent recidivism within seven years.
[60] The doctor also scored the applicant on the level of service inventory, which is an actuarial risk/need measure that assesses both static (or historical factors) as well as dynamic (changeable risk factors for general recidivism and outcome). The applicant scored on the low/moderate risk (approximately a 31% chance of reincarceration following one year of release).
[61] The doctor also scored the applicant on the Statistical Information on Recidivism, which is an actuarial measure of risk of general recidivism. The applicant scored an 8 which falls into the group in which four out of five offenders will not commit an indictable offence after release.
[62] The doctor found that the applicant is in the low-moderate risk for both violent and general recidivism. The doctor concluded by noting that,
The actuarial assessments of risk place Mr. Joseph in the low-moderate range for both violent and general recidivism…. Mr. Joseph’s conduct in the institution since his most recent assessment of risk completed ten years ago is not without incident, but the most problematic incident occurred about two and half years ago. Should he be able to sustain positive behaviour within the institution, I expect he would be suitable for continued gradual reintegration, with transfer to minimum security being the next logical step.
Ties with Family
[63] While incarcerated the applicant has maintained family ties. As stated previously, the applicant has two daughters aged 26 and 23. The applicant was close to his daughters prior to his incarceration, and he continues to try and be there for them.
[64] At the time of his arrest, the applicant was in an eight-year relationship. The relationship eventually ended when the applicant was transferred to a federal institution.
[65] The applicant’s mother filed a letter setting out her support for his early release. She stated that she has had regular phone contact with the applicant and has visited him on several occasions. She has seen a positive change in his attitude as he has shown a great deal of maturity. She is willing to provide him with support outside of prison.
[66] The applicant’s younger brother also filed a letter of support. He stated that his brother has always been a caring and compassionate person. He stated that his brother has shown a genuine commitment to changing his life. He further stated that he and his family are committed to supporting the applicant should he be paroled. He believes that the applicant has the potential to lead a productive and law-abiding life outside of jail.
[67] The applicant’s aunt also filed a letter. She attested to his growth over the years. He has learned to manage his social well-being while in prison. She stated that he is a promising young man with a bright mind who will have the support of his family upon re-entering society.
[68] Finally, the applicant’s friend for over 25 years wrote a letter stating that the applicant has matured and has evolved to be a better man. He stated that the applicant has provided advice to him and to some of their friends leveraging his newfound understanding of trauma and psychology.
[69] The applicant also has family in Trinidad. He stated that he has retained a relationship with his father and has two stepbrothers and a stepsister in Trinidad.
Immigration Consequences
[70] The applicant is not a Canadian citizen and is subject to a deportation order upon his release from custody.
Analysis
[71] Having now considered the evidence placed before me, my task is to perform a limited weighing of the evidence to determine “whether the applicant has shown on the balance of probabilities that there is a reasonable prosect that the application will succeed.” In deciding this issue, I must consider both the positive and negative factors that a jury would consider.
[72] The applicant has clearly made some positive changes. He has participated in several rehabilitative programs and for the most part has performed well in these programs. He has consistently been employed while incarcerated and participates in religious gatherings. His employment reviews were all positive. He has furthered his education obtaining his GED and is attending university. He also has the love and support of his family as demonstrated by the letters filed.
[73] Despite the rehabilitative gains made by the applicant, I am not satisfied that there is a reasonable prospect that he would convince a unanimous jury to reduce his parole ineligibility period at this time for the following reasons.
[74] Turning first to the offence. All murders are brutal. I agree with the comments of Justice Nordheimer, in Gayle, that when considering s. 745.6 cases, “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.” However, that is what s. 745.6 requires.
[75] This murder was callous. The applicant killed the deceased over a $30 drug debt. He confined the members of the house and, either alone or together with Parris, stabbed the deceased. This was not an accident nor was it an act done in self-defence. An individual who is prepared to commit a murder over such a trivial amount of money has a lack of morality that is staggering. The mandatory sentence of life imprisonment without parole for 25 years was fully justified at the time the sentence was imposed for this offence.
[76] As noted in Gayle and Banwait, in such cases a great degree of change must be seen in the offender to justify a departure from the normal terms of the legislative sentence imposed. The court must determine whether the applicant has sufficiently changed such that the applicant has satisfied the court on the balance of probabilities that there is a reasonable prospect that a jury would unanimously reduce his parole ineligibility period.
[77] I do not dispute that it would be difficult not to incur some misconducts while in prison, but the applicant’s misconducts are somewhat concerning and in particular, the latest incident in 2020/2021. The applicant was engaged in violent behavior. The applicant was on video assisting another inmate so that inmate could beat up another inmate. As a result of his conduct the applicant was transferred to a different jail for a period of time. I am however cognizant of the fact that the applicant was not charged and therefore the weight to be given to the incident is less than had he been charged and convicted of that misconduct. Nonetheless this conduct is deeply concerning.
[78] While the applicant may argue that this was a one-off incident, the evidence suggests that the applicant has more work to do. His psychological assessment places him at low to moderate risk to reoffend for both violent and general recidivism. He has been assessed as having approximately a 31% chance of being reincarcerated within a year and 17% chance of violent recidivism. In addition, in the Institution Maintenance Program Report that Mr. Joseph completed, the program supervisor noted that Mr. Joseph has made considerable changes in his life and “that his current overall ability and commitment to use the skills required to manage his various risk factors is unchanged and remains needing some improvement.”
[79] In addition, the most recent psychological assessment discussed the 2020/2021 incident that was over two years ago and concluded that “should he be able to sustain positive behaviour within the institution, I expect he would be suitable for continued gradual, reintegration, with transfer to minimum security being the next logical step.” These comments show that the doctor was also concerned with the applicant’s behavior and the need for the applicant to demonstrate that he can refrain from engaging in such behaviour before he is transferred to a minimum security institution.
[80] I recognize that it is not a prerequisite that an offender be in a minimum security institution to satisfy the threshold to have a jury consider a reduction in parole ineligibility. Indeed, applications have been granted where the offender was in a medium security institution. In this case, the applicant has remained at least at a medium security institution since the date of conviction. This is not a case where there has been a recommendation that he be transferred to a minimum security institute that has been denied or was waiting to be transferred upon determination of the application: See for example R. v. Al-Shammari, 2022 ONSC 4113, at para. 57 and R. v. Sedore, 2008 32838 (Ont. S.C.), at para. 20. In this case, there are legitimate institutional concerns about transferring him to a minimum security institution and the fact that he remains in medium security currently is therefore telling: R. v. Rowe, 2015 ONSC 2576, 324 C.C.C. (3d) 57, at para. 155.
[81] Turning next to the issue of remorse. The applicant submits that he is remorseful for his actions. The applicant also notes that absolute or unqualified remorse is not a prerequisite to be successful on this application. The applicant is not required to agree to all the facts that formed the Crown’s theory of the case, or the facts found by the jury or court.
[82] The Crown submits that the applicant is not truly remorseful because he does not accept accountability for his actions.
[83] It is not a requirement that the applicant accept full responsibility on the basis upon which he was convicted. However, accepting responsibility for one’s actions is a factor that the court may consider in determining if the applicant has changed. See for example Morrisson, at para. 82; R. v. Schaefler, 2009 39498 (Ont. S.C.); R. v. Al-Shammari, 2022 ONSC 4113, at para. 67; R. v. Dell, 2016 ONSC 505, at para. 25, reversed on appeal on other grounds: 2018 ONCA 674; and Gayle, at para. 35.
[84] The applicant has expressed his regret for his participation in the offence. He stated that he understood how wide-reaching the consequences of his actions were. While the applicant may be remorseful for the consequences of his actions, the applicant has not really accepted responsibility for his actions. The applicant continues to downplay his role in causing the victim’s death. In the 2022 psychological assessment, the applicant paints a picture of reluctantly going to the victim’s house at the request of his friend and only entering the house when his friend had gone in earlier and the victim “ended up being stabbed.” There is no acceptance that he is responsible for the victim being stabbed. The Court of Appeal held that there was no air of reality to the defence of accident and the jury clearly rejected the suggestion that the stabbing was done in self-defence. The applicant’s version of events tries to minimize his role and demonstrates that he lacks insight into his conduct that resulted in the victim’s death. It is difficult to see how the applicant would be able to convince the jury that he has changed when he has failed to really accept responsibility for his role in killing the victim. See R. v. Gatenby, 2021 ONSC 3535 at paras.123-125.
[85] The fact that the applicant will be removed from Canada and the supervision of the Parole Board is a factor to consider, particularly as it relates to safety concerns for members of the worldwide community.
[86] In Gayle at para. 39, Nordheimer J. held that the argument that it is pragmatic to want to grant the application so that the offender would be deported at the earliest opportunity, so they are no longer Canada’s problem is inconsistent with the objection of s. 745.6 of the Criminal Code and is not a relevant factor on the threshold issue. I agree.
[87] In Rowe, Justice Durno stated that the issue of deportation is a relevant factor to consider given that there will not be a safety net that the offender otherwise would have if they remained in Canada and were subject to the supervision of the National Parole Board.
[88] In this case, the applicant’s family support system is in Canada. While the applicant stays connected with his father, he does not appear to have the same support system in Trinidad as he has in Canada. In addition, once deported he would not be under the supervision of the National Parole Board. Consideration of the safety of the community is not limited to the community in Canada. The court should be concerned with the safety of the community at large.
[89] When all the above factors are considered, I am not satisfied that the applicant has demonstrated on the balance of probabilities that there is a reasonable prospect that a unanimous jury would lessen his parole ineligibility at this time.
[90] That is not to say that the applicant may never be able to satisfy the threshold, particularly if he does not have any further significant misconducts and continues to pursue his education, his institutional programing and maintains his positive employment record.
[91] Section 745.61(3) permits the court to make an order that a further application can be made within a set period not earlier than two years after the determination of this application or that the applicant not be permitted to make another application. The Crown is not seeking an order restricting the applicant’s entitlement to bring a further application. I agree that the applicant should not be restricted from making a further application in two years as provided for in the legalisation.
[92] The application is dismissed.
Dennison J.
Released: March 19, 2024