Court File and Parties

COURT FILE NO.: 09-3572-01SR DATE: 20240725

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent

• and - CRISTIAN FIGUEROA Applicant

COUNSEL: Keeley Holmes, for the Respondent Andrew Guaglio, for the Applicant

HEARD: In Writing

REASONS FOR DECISION

STRIBOPOULOS J.:

INTRODUCTION

[1] On October 1, 2007, Cristian Figueroa and Fabian Loayza-Penaloza broke into a home in Mississauga to burglarize it. During the break-in, Jocelyn Dulnuan, a 27-year-old housekeeper employed by the homeowners who had only been in Canada a short time to earn money to send back to the Philippines to support her young daughter, was strangled to death.

[2] In December 2007, Mr. Figueroa and Mr. Loayza-Penaloza were arrested and charged with first-degree murder. At their trial in the spring of 2010, each admitted their involvement in the break-in but denied responsibility for the murder of Ms. Dulnuan. Mr. Loayza-Penaloza testified that he was sitting in a van outside the home when Mr. Figueroa killed Ms. Dulnuan. In contrast, Mr. Figueroa testified that he unexpectedly came upon Mr. Loayza-Penaloza while he was strangling Ms. Dulnuan and unsuccessfully tried to stop him from killing her.

[3] The jury found both men guilty, rejecting their respective denials of responsibility and accepting the Crown's position that they each had actively participated in the murder of Ms. Dulnuan while forcibly confining her. Each received the mandatory sentence prescribed by law for first-degree murder: life imprisonment without being eligible to apply for parole for twenty-five years. The Court of Appeal for Ontario dismissed their appeals against conviction: see R. v. Figueroa, 2016 ONCA 645.

[4] After serving fifteen years of his life sentence, Mr. Figueroa has applied to the Chief Justice of Ontario under section 745.6 of the Criminal Code, R.S.C., 1985, c. C-46, to seek an order reducing the number of years he must serve before he is eligible to apply for parole - commonly known as a "faint hope" application.

[5] On behalf of the Chief Justice, Associate Chief Justice McWatt designated me to screen the application under section 745.61(1) of the Criminal Code. Should I conclude that Mr. Figueroa has justified a hearing before a jury, she has also designated me, under section 745.61(5), to empanel a jury to hear the application.

[6] Subsequently, counsel for the parties appeared before me to address logistical issues regarding Mr. Figueroa's application, including whether to grant him leave to file supplementary materials and to set filing deadlines. The court has now received all the evidence and written submissions filed by the parties on the application.

[7] These are the court's reasons concerning Mr. Figueroa's application. They proceed in three main parts. First, they explain the standard that governs Mr. Figueroa's application at this threshold stage. Second, they provide an overview of the parties' competing positions. Finally, they assess whether Mr. Figueroa has met his burden to justify empanelling a jury to hear his application.

I. TEST GOVERNING THE JUDICIAL SCREENING OF FAINT HOPE APPLICATIONS

[8] The history of the faint hope provisions was reviewed in detail in R. v. Dell, 2018 ONCA 674, 364 C.C.C. (3d) 419, at paragraphs 11-29, by Doherty J.A. Some of that background is necessary to explain the test that governs at this threshold stage of Mr. Figueroa's application.

[9] Parliament added what became known as the "faint hope" provisions to the Criminal Code in 1976. They formed part of a package of amendments that abolished capital punishment and reformed the law of murder: see Criminal Law Amendment Act (No. 2) 1976, S.C. 1974-75-76, c. 105, ss. 4, 5, and 21.

[10] The faint hope provisions allowed offenders convicted of murder or treason whose parole ineligibility was set at more than 15 years to apply for a reduction in their parole ineligibility after serving 15 years of their sentence. Upon receiving the application, the Chief Justice of the superior court in the province where the offender was convicted would appoint a judge to empanel a jury to hear the application.

[11] The legislation required the jury to consider the offender's character, their conduct while serving their sentence, the nature of the offence, and any other matter deemed relevant by the presiding judge. Based on that, if two-thirds of the jury agreed, they could substitute a lesser period of parole ineligibility or terminate the offender's ineligibility for parole.

[12] Parliament amended the relevant provisions twice in the 1990s. Initially, by requiring that the jury also consider information from any victims provided either at the time of the original sentencing hearing or at the faint hope hearing: see An Act to Amend the Criminal Code (Sentencing) and Other Acts in Consequence Thereof, S.C. 1995, c. 22, s. 6.

[13] Parliament then made three further significant changes to the faint hope provisions: see An Act to Amend the Criminal Code (Judicial Review of Parole Ineligibility) and Another Act, S.C. 1996, c. 34, ss. 2 and 6. First, it introduced a judicial screening procedure. Under it, the offender could only have their application heard by a jury if they could convince the Chief Justice or the designated judge, based on the written materials filed, that there was a "reasonable prospect" of the application succeeding. Second, it mandated that the jury had to unanimously conclude that the offender's parole ineligibility period should be reduced, as opposed to the previous requirement of a two-thirds majority. Finally, it eliminated the availability of faint hope applications for offenders convicted of multiple murders.

[14] Parliament again amended the faint hope provisions in 2011, making several significant changes: see An Act to Amend the Criminal Code and Another Act, S.C. 2011, c. 2, ss. 2 through 5. First, the amendments prospectively eliminated faint hope applications, making them unavailable to offenders who committed their offences after the amendments became effective. Second, it made the threshold test for the judicial screening of such applications more demanding for offenders who could still bring such applications. It did so by requiring a demonstration of a "substantial likelihood" of success as a precondition to empanelling a jury to hear the application. Lastly, the amendments restricted the number of applications an offender could bring and imposed strict timelines on them.

[15] The current scheme in the Criminal Code for faint hope applications reflects the 2011 amendments: see ss. 745.6 through 746. Section 745.61(1) addresses the judicial screening of faint hope applications. It provides that the Chief Justice or their designate shall determine, based on certain prescribed materials, "whether the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed".

[16] However, in Dell, the Court of Appeal held that to the extent that s. 745.61(1) of the Criminal Code imposes a judicial screening requirement on applicants who committed their offence before January 9, 1997 (the effective date of the second set of 1996 amendments), that provision is of no force or effect: at para. 102. Applying that provision to such offenders would violate section 11(i) of the Charter – the right to the benefit of any lesser punishment when the punishment has changed since the commission of the offence – and was not justified under section 1: at para. 100. Therefore, these offenders must have their faint hope applications heard by a jury without first undergoing a judicial screening to assess their prospects for success.

[17] In R. v. Liu, 2022 ONCA 460, the Court of Appeal allowed an appeal by an offender after a judge dismissed his faint hope application at the screening phase. The offender was serving a life sentence for first-degree murder for killing his wife in 2000; after the 1996 but before the 2011 amendments. The application judge concluded that the offender had not met the test under s. 745.61(1) of demonstrating his application had a "substantial likelihood" of success. The Court of Appeal, applying Dell, found that the application judge erred by screening the application using the "substantial likelihood" rather than the "reasonable prospect" threshold test, explaining at para. 6:

[T]he court's reasoning in Dell leads to the conclusion that elevating the judicial screening threshold for offenders like the appellant who committed murder or high treason between January 9, 1997 and December 2, 2011 from a "reasonable prospect" to a "substantial likelihood" of success significantly increased the appellant's risk of serving a longer period of incarceration and therefore had the effect of retrospectively increasing his punishment contrary to s. 11(i) of the Charter, and that the violation cannot be justified under s. 1.

[18] In Liu, the Court of Appeal ordered that "the 'reasonable prospect' of success threshold applies to s. 745.6 applications brought by offenders who committed murder or high treason between January 9, 1997 and December 2, 2011": at para. 7b.

[19] Given the Court of Appeal's decision in Liu, section 745.61, as it existed on October 1, 2007, the date of Ms. Dulnuan's murder, governs Mr. Figueroa's application at this initial judicial screening phase. At that time, that provision read as follows:

On receipt of an application under subsection 745.6(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:

(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.

[ Underlining added. ]

[20] The "reasonable prospect" of success threshold sets a relatively low bar to prevent cases from going to a full jury hearing if they have no real chance of succeeding: see Dell, at para. 20. However, having a "reasonable prospect" of success does not mean "any" chance of success, no matter how remote: see R. v. Al-Shammari, 2022 ONSC 4113, at para. 10. It requires more than merely showing that the case is not hopeless: see R. v. Phillips, 2012 ONCA 54, 288 O.A.C. 351, at para. 6. As Pomerance J. (as she then was), in explaining the "reasonable prospect" of success threshold test, observed in Al-Shammari, at paras 12-13:

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.

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.

[Italics in original.]

[21] Having identified the threshold test for evaluating Mr. Figueroa's application at this judicial screening phase of the process, these reasons now turn to the parties' competing positions.

II. POSITIONS OF THE PARTIES

[22] In support of his application, Mr. Figueroa filed hundreds of pages of records which comprehensively detail his time spent in the custody of the Correctional Service Canada (CSC) since the fall of 2010. Additionally, Mr. Figueroa has filed numerous letters of support from family and friends and a "Remorse Letter" he authored. The Crown elected not to file any evidentiary materials to supplement the record.

[23] The parties each filed written submissions in which they advanced conflicting positions concerning whether, based on the materials filed, Mr. Figueroa has demonstrated that his application has a reasonable prospect of succeeding before a jury.

[24] On behalf of Mr. Figueroa, Mr. Guaglio submits that the evidence presented demonstrates that the application has a reasonable prospect of succeeding and that the court should, therefore, empanel a jury to consider it. Mr. Guaglio makes several arguments in support of this position.

[25] First, he contends that Mr. Figueroa's conduct during his sentence demonstrates that he is a person of good character who has worked hard to rehabilitate himself and has made considerable strides toward doing so.

[26] Second, Mr. Guaglio emphasizes Mr. Figueroa's employment record while in custody, which evidences a strong work ethic and reflects positively on his rehabilitative prospects.

[27] Third, Mr. Guaglio notes that Mr. Figueroa has used his time in prison effectively, devoting himself to his religion and taking full advantage of available programming to acquire the skills necessary to lead a law-abiding life upon release.

[28] Fourth, Mr. Guaglio points out that since his transfer to federal custody, Mr. Figueroa has had comparatively few institutional infractions and none involving violence. Further, he gets along well with other inmates and staff.

[29] Fifth, Mr. Guaglio highlights the improvement in Mr. Figueroa's risk assessments over time, suggesting that he poses a comparatively low risk of reoffending if paroled.

[30] Finally, although Mr. Guaglio acknowledges that Mr. Figueroa maintains his innocence, he argues that he has taken increasing responsibility for his crime and expressed genuine remorse, which bodes well for his rehabilitation and reintegration into society.

[31] For these reasons, Mr. Guaglio submits that Mr. Figueroa has established, on a balance of probabilities, that his application has a reasonable prospect of succeeding and that the court should empanel a jury to consider it.

[32] In contrast, on behalf of the Crown, Ms. Holmes submits that Mr. Figueroa has failed to discharge his burden. As a result, the court should not empanel a jury to hear his application. In support of that position, Ms. Holmes makes several arguments.

[33] Firstly, she emphasizes the circumstances of Mr. Figueroa's crime. Ms. Holmes submits that the horrific strangulation murder of an innocent female housekeeper in furtherance of a planned residential break-and-enter to steal property does not qualify as an "exceptional and deserving case" of the kind that Parliament envisioned justifying a reduction in parole ineligibility through a faint hope application. In that regard, she emphasized that through its verdict, the jury accepted that both Mr. Figueroa and his co-accused participated in the physical domination of Ms. Dulnuan, who was tied up, regardless of who ultimately tightened the wire around her neck that stopped her breathing.

[34] Second, turning to Mr. Figueroa's character, Ms. Holmes notes that, at the time of the murder, he was a mature offender who already had a prior criminal record for domestic violence, another crime of violence against a woman. Additionally, he was on bail for outstanding charges for break-and-enter offences. In short, she submits that the murder of Ms. Dulnuan was not an out-of-character act in an otherwise law-abiding life.

[35] Third, Ms. Holmes notes that Mr. Figueroa has never taken responsibility for his crime, which suggests that he is far from rehabilitated. To the contrary, she argues that, in a recent recounting of the circumstances of the crime, Mr. Figueroa has offered a narrative at odds with his trial testimony, in which he has endeavoured to distance himself even further from Ms. Dulnuan's murder. He is not genuinely working towards rehabilitation, Ms. Homes submits, but instead working on impression management.

[36] Fourth, while acknowledging that Mr. Figueroa has taken steps to improve his education and completed some programming while incarcerated, Ms. Holmes notes that his limited English language abilities have prevented him from full participation in his correctional plan. As a result, he still has a considerable distance to travel toward his rehabilitation. In that regard, Ms. Holmes noted that CSC officials still consider Mr. Figueroa a moderate escape risk and threat to public safety, which has led them to deny his requests for a transfer from a medium to a minimum-security prison.

[37] Ultimately, for all these reasons, Ms. Holmes contends that Mr. Figueroa has more work to do and that his application is premature. She submits that if he is eventually assessed as posing a low risk of reoffending and transferred to a minimum-security facility, with a demonstration of actual remorse, his application for a reduction in his parole ineligibility might have a reasonable prospect of succeeding. Absent that, she submits, it is improbable that a jury would unanimously conclude that he has come far enough to justify a reduction in his period of parole ineligibility.

[38] As a result, Ms. Holmes submits that the court should dismiss Mr. Figueroa's application. However, she does not seek an order under section 745.61(3) imposing restrictions on his ability to apply again in future.

III. ASSESSMENT OF WHETHER MR. FIGUEROA'S APPLICATION HAS A REASONABLE PROSPECT OF SUCCEEDING

[39] This part assesses whether Mr. Figueroa has established on a balance of probabilities that his application has a reasonable prospect of succeeding. It does so while remembering how the case law has interpreted that threshold test, mindful of the parties' submissions, and after carefully reviewing the evidentiary record.

The Legislated Criteria and the Record

[40] When applying the "reasonable prospect" of success threshold test, the screening judge must consider the same criteria as the jury will, those prescribed in section 745.63(1), should the application ultimately proceed before a jury: see Criminal Code, s. 745.61(2).

[41] These include the applicant's character, their conduct while serving their sentence, the nature of the offence, any information provided by a victim, and any other matters the judge considers relevant: see Criminal Code, s. 745.63(1)(a) - (e).

[42] Accordingly, it is sensible to organize the review of the record around these same criteria. That said, we will begin with the circumstances of the offence because they assist in better understanding other aspects of the record as they relate to the legislated criteria.

The murder of Ms. Dulnuan

[43] Subparagraph 745.63(1)(c) requires the jury hearing a faint hope application to consider "the nature of the offence for which the applicant was convicted". The Court of Appeal's decision dismissing the appeals by Mr. Loayza-Penaloza and Mr. Figueroa against their convictions details the horrific circumstances of Ms. Dulnuan's murder: see Figueroa, at paras. 5-24. The summary that follows draws largely on that decision.

[44] In the fall of 2007, Mr. Loayza-Penaloza and Mr. Figueroa planned to burglarize a home in Mississauga. Mr. Loayza-Penaloza was familiar with the house and the deceased, having done work as a painter for the homeowners for several years. He had performed work at the home just a few days before the murder.

[45] The deceased, Ms. Dulnuan, lived at the residence where the homeowners employed her as a housekeeper. She was just 27 years old, a recent immigrant from the Philippines with a young daughter. She sent money regularly to the Philippines to support her daughter and hoped to bring her to Canada to join her eventually.

[46] Late on the afternoon of October 1, 2007, Ms. Dulnuan's lifeless body was discovered in her basement bedroom, not far from a basement kitchen. Two different sets of ligatures bound her. The first was a copper wire around her neck, knotted at the front and continuing down and around her left wrist. The loop around her left wrist was loose and had enough space for her right wrist, which was free. The wire used to strangle her was similar to wire stored in a basement storage room. The second ligature was a jacket tied in a double knot around her ankles.

[47] The ligature around Ms. Dulnuan's neck was very tight, compressing her neck to a diameter of 9.5 centimetres. It cut off the supply of blood and oxygen to her brain, resulting in unconsciousness within seconds and death within a "small number of minutes."

[48] Forensic testing revealed the presence of Mr. Figueroa's DNA underneath Ms. Dulnuan's fingernails. There was no DNA evidence linking Mr. Loayza-Penaloza to the crime. There was a 6-millimetre laceration on one of her fingers and some injuries to her mouth.

[49] Traces of blood were found on the carpet going from Ms. Dulnuan's bedroom door to the location of her body. There were also traces of blood in the kitchen area and signs of an attempt to clean up blood there.

[50] The Crown's theory at trial was that Mr. Loayza-Penaloza and Mr. Figueroa broke into the home to burglarize it. When Ms. Dulnuan, who was unexpectedly home, discovered them, they together forcibly confined and murdered her to eliminate her as a witness, given that she knew and could identify Mr. Loayza-Penaloza.

[51] Mr. Loayza-Penaloza and Mr. Figueroa both testified at their joint trial. Each denied any role in the murder and pointed the finger at the other.

Mr. Loayza-Penaloza’s Account

[52] Mr. Loayza-Penaloza testified to planning the break-in for months and enlisting Mr. Figueroa's assistance. When they arrived at the home in a van, they expected that no one would be home. However, after they noticed some men working in the garage, they drove to a payphone and called the house twice to confirm no one was there. The calls went unanswered, so they returned to carry out the planned burglary.

[53] According to Mr. Loayza-Penaloza, the plan was for him to remain in their van outside a front gate to the driveway. Mr. Figueroa was to enter the home through an open window and burglarize it. He testified that when Mr. Figueroa attended the front door alone carrying a clipboard and wearing a hat, he saw Ms. Dulnuan answer the door and allow him to enter.

[54] After receiving a call from Mr. Figueroa, Mr. Loayza-Penaloza testified to opening the gate, driving the van to the house and entering the residence.

[55] He testified that Mr. Figueroa had collected items in bags by the front door. According to Mr. Loayza-Penaloza, he asked Mr. Figueroa about Ms. Dulnuan, and Mr. Figueroa told him he had tied her up and left her in her room.

[56] Mr. Loayza-Penaloza testified that Mr. Figueroa was upset that he parked the van with its front facing the house. He went outside, backed the van toward the front door, and returned with a crowbar. Mr. Loayza-Penaloza directed him to the safe in the upstairs bedroom, but he stayed outside in the hall as a lookout. Mr. Figueroa eventually emerged with a safe.

[57] Mr. Loayza-Penaloza testified that he loaded the bags in the van and Mr. Figueroa did the same with the safe. He testified that Mr. Figueroa ultimately opened the safe in the back of the van, which contained about $5,000, and they threw it into a canal north of Toronto.

[58] Mr. Loayza-Penaloza maintained that he did not learn about the death of Ms. Dulnuan until several days after the murder. Mr. Loayza-Penaloza testified to confronting Mr. Figueroa and learning some details about how he had killed Ms. Dulnuan, which he then discussed with his ex-wife.

[59] Mr. Loayza-Penaloza's ex-wife testified concerning details of the murder that he had shared with her that were not publicly known, including that he had tied up the housekeeper, who was scared, and put something in her mouth. However, she also testified that Mr. Loayza-Penaloza told her he knew the details because Mr. Figueroa had shared them with him.

Mr. Figueroa’s Account

[60] Mr. Figueroa testified that Mr. Loayza-Penaloza approached him for help with the break-in because of his expertise in cracking safes. He said they telephoned twice as they approached the house to ensure no one was home. Mr. Figueroa testified that Mr. Loayza-Penaloza opened the front door with a key and showed him where the safe was in the primary bedroom. According to Mr. Figueroa, Mr. Loayza-Penaloza then left the room.

[61] Mr. Figueroa testified that he pried the safe out of the wall and carried it down the stairs, intending to load it in the van. After that, he looked for Mr. Loayza-Penaloza, who had told Mr. Figueroa he was going to the basement.

[62] Downstairs, Mr. Figueroa testified to hearing noises and coming upon Mr. Loayza-Penaloza standing behind Ms. Dulnuan, strangling her with a wire. He claimed that he yelled at Mr. Loayza-Penaloza to stop and tried to pull his hands away from Ms. Dulnuan's neck and that he had his fingers inside the wire, trying to get it loose. He testified that her face changed from blue to purple and then red. Mr. Figueroa claimed that Ms. Dulnuan reached out to him and placed her hands around his neck. When she did that, it allowed Mr. Loayza-Penaloza to continue with the strangulation, and she quickly lost consciousness. Mr. Figueroa claimed that Ms. Dulnuan collapsed into his arms, and he placed her on the floor, believing her dead.

[63] Mr. Figueroa testified to asking Mr. Loayza-Penaloza why he killed Ms. Dulnuan and that he said she had called him by name and surprised him.

[64] After the murder, Mr. Figueroa testified to loading some bags and the safe in the back of the van. He eventually opened the safe, and he and Mr. Loayza-Penaloza each received about $40,000 from inside.

The Jury’s Verdict

[65] Given that the jury found Mr. Figueroa and Mr. Loayza-Penaloza guilty of first-degree murder, they must have rejected their respective denials. Instead, it is apparent from the verdicts that the jury accepted the Crown's theory that each man had played a hands-on role in the murder of Ms. Dulnuan while they forcibly confined her.

Mr. Figueroa's Character

[66] Subparagraph 745.63(1)(a) requires the jury hearing a faint hope application to consider "the character of the applicant." That includes their character before and at the time of the murder, and over the intervening years: see R. v. Swietlinski, [1994] 3 S.C.R. 481, at p. 501.

[67] Mr. Figueroa is now 51 years old. He was born and raised in Ecuador. He is the third youngest sibling in a family of nine brothers and five sisters. In speaking to the psychologist who prepared a risk assessment report in 2011, Mr. Figueroa did not raise any concerns about his upbringing. He said his parents sometimes argued but maintained that they were never physically aggressive towards one another. In contrast, when interviewed by the psychologist who prepared a risk assessment report in 2023, Mr. Figueroa acknowledged witnessing his father sometimes slap his mother when they argued.

[68] Mr. Figueroa left school at eight or nine after four unsuccessful attempts to complete the first or second grade. Although he recalled undergoing some testing as a child, he could not recall any formal diagnosis. After leaving school, despite his very young age, Mr. Figueroa began working in various construction-related jobs.

[69] Testing of Mr. Figueroa conducted during a psycho-educational assessment in 2018 "reflected Low Average intellectual abilities, with a severe mixed receptive language disorder," which helps explain his learning challenges, including his struggles with literacy in Spanish and, more recently, English.

[70] At the age of 18, Mr. Figueroa entered the army in Ecuador. He enjoyed being in the military and served for several months beyond his nine months of mandatory service. However, Mr. Figueroa ultimately left due to his limited prospects for advancement because of his illiteracy. While in the army, he had a daughter with a woman with whom he had a brief relationship. Mr. Figueroa only learned of this child after his incarceration and since then has had some sporadic contact with her by telephone.

[71] Mr. Figueroa married his first wife when he was only 19 to facilitate his immigration to Canada. They had a child, but the marriage did not last, and his wife and their son returned to Ecuador. According to Mr. Figueroa, he supported this child before his incarceration.

[72] After arriving in Canada, Mr. Figueroa had consistent employment. He initially worked at an auto body shop but soon transitioned to construction, working in the tile-setting trade. After initially working for others, Mr. Figueroa eventually started a tile-setting business of his own. He ran that business for several years, up until his arrest for Ms. Dulnuan's murder.

[73] Mr. Figueroa married his current wife in 1994. They have a son, who is now 22. The couple separated in 2003 but remain legally married. Over time, Mr. Figueroa has taken increased responsibility for the breakdown of his marriage.

[74] In 2011, early on in his sentence, when interviewed by a psychologist who prepared a risk-assessment report that year, Mr. Figueroa claimed his wife took advantage of his illiteracy to incur debt in his name without his knowledge. He cited the financial strain this created as the reason for their separation. Although Mr. Figueroa acknowledged pleading guilty to assaulting his wife in 2003, he maintained that he "never touched his wife" and only pled guilty because he could not afford a lawyer.

[75] In contrast, by 2014, after undergoing some programming while serving his sentence, Mr. Figueroa admitted acting violently towards his wife and said that was something he was not proud of. Consistent with that, when interviewed by the psychologist who prepared a risk-assessment report in 2023, Mr. Figueroa described an incident when they were arguing, and he threw her onto the bed and held her there. He said his wife called the police, and they arrested him. These comments are some distance from his claim in 2011 that he "never touched” his wife.

[76] Since his arrest, Mr. Figueroa has successfully rebuilt his relationship with his wife. They have had regular contact during his incarceration. There were regular visits when he was at the detention centre, and these continued after he began serving his sentence in Ontario. Since his transfer to Mission Institution in British Columbia, video visits have also occurred with her and other family members and friends.

[77] Before the murder of Ms. Dulnuan, beyond his 2003 assault conviction, Mr. Figueroa's only other criminal conviction was an entry from 2001 for driving with excess blood alcohol. That said, he did face other charges.

[78] In 2006, Mr. Figueroa faced further charges involving his wife, including unlawfully being in a dwelling house, assault, mischief, and uttering a threat. According to police records, he attended his wife's residence, took some tools from her car, and then pushed past her into the residence after she told him to leave. Mr. Figueroa reportedly grabbed her by the arms, threw her onto the couch, kicked her on the knees and stomach, grabbed her by the neck, uttered a death threat, and damaged a door by kicking it. According to the police report, he then went through the house looking for tools before leaving with their son, who was four at the time. Mr. Figueroa then attended the police station to report the incident and was arrested. The Crown withdrew these charges when Mr. Figueroa entered a peace bond.

[79] When the psychologist who prepared the 2023 risk assessment report interviewed him and asked about the charges of domestic violence he faced in 2006, Mr. Figueroa denied them. He noted the "charges were dismissed".

[80] In her submissions, Ms. Holmes argued that Mr. Figueroa has been inconsistent when it comes to acknowledging his prior acts of domestic violence and that this is "troubling". With respect, I do not read the records the same way. Although early in his sentence, before undergoing any programming, Mr. Figueroa denied acting violently towards his wife and claimed that the 2003 assault conviction was unjustified, since 2014, at least, he has taken responsibility for behaving violently towards his wife to the extent that he now admits throwing her onto the bed and holding her there during the incident that culminated in his 2003 conviction.

[81] It is also apparent that Mr. Figueroa continues to deny the allegations levelled by his wife that formed the basis for the 2006 charges. On the record before this court, it is impossible to determine where the truth lies concerning those allegations. However, it is noteworthy that in 2014, when Mr. Figueroa requested a Private Family Visit, CSC officials interviewed his wife. At that time, she denied "any serious physical violence between them," and after interviewing her, they concluded that the prior violence consisted of "non-serious scuffling". The CSC approved the visit. His wife's comments to CSC staff are far more consistent with the 2003 incident that Mr. Figueroa now admits, while they are inconsistent with the 2006 allegations he continues to deny.

[82] At the time of his arrest for Ms. Dulnuan's murder, Mr. Figueroa was on bail for charges he was facing for three separate break-ins at commercial establishments. After his murder conviction, the Crown withdrew these charges. A review of the CSC records reveals that, despite the withdrawal of the charges, Mr. Figueroa has consistently admitted that he was guilty of those charges and readily shared details concerning each of these crimes.

[83] In explaining the break-ins, including the one that culminated in the murder of Ms. Dulnuan, Mr. Figueroa cited the financial pressure he was under at the time as his motive. It appears that Mr. Figueroa's intellectual challenges left him ill-equipped to handle the administrative side of his tile-setting business. In time, he accumulated $200,000 of debt for unpaid taxes. Before his arrest, he saw the break-ins as a way to manage his money problems.

[84] By taking the programming recommended by his Case Management Team in his Correctional Plan (explained more fully in the next part), Mr. Figueroa has gained considerable insight into the problematic thinking that led him to rationalize the commission of crimes to solve his problems. Even more importantly, Mr. Figueroa has made significant progress toward developing the necessary skills to make pro-social choices in the future. Significantly, "his overall ability and commitment to use the skills required to manage his various risk factors" had improved from "Moderate" in 2014 to "Good" by 2019.

[85] During his incarceration, Mr. Figueroa has undergone two separate risk assessments—the first in 2011 and then again, more recently in 2023. In 2011, the psychologist who administered a battery of psychological tests concluded that Mr. Figueroa did not meet the criteria for diagnosis as a psychopath. Further, the doctor concluded that Mr. Figueroa was "at the low end of the moderate range of risk for general recidivism" and "in the low range of risk for violent recidivism."

[86] Mr. Figueroa completed a significant amount of programming between that initial risk assessment and the risk assessment undertaken in 2023. The psychologist who conducted the risk assessment in 2023 concluded as follows:

Given that Mr. Figueroa remains several years away from eligibility for access to the community, release planning activities have not been initiated. The absence of concrete information about release plans if deported to Ecuador represents a significant limitation to my ability to offer opinions about violence risk and associated management recommendations at present. Recognizing that caveat, in my clinical opinion Mr. Figueroa's risk for general and violent recidivism would be manageable in a community setting should he obtain and maintain legal employment in the community using his existing skill set; live within his financial means; maintain abstinence from illicit drugs and alcohol; develop pro-social community supports and avoid antisocial or procriminal associates; and maintain adequate emotional stability.

With respect more narrowly to risk for intimate partner violence, there are no clear clinical data to indicate Mr. Figueroa's risk for perpetrating such violence has decreased through program participation during his federal sentence and therefore should be regarded as somewhat elevated or moderate. Therefore, should Mr. Figueroa become involved in a romantic or sexual relationship in the community in the future, re-appraisal of his violence risk using professional guidelines in which victim vulnerability factors are considered explicitly (e.g., SARA Version 3) would be indicated.

[87] Since his conviction, Mr. Figueroa has continued to maintain that he is not responsible for the murder of Ms. Dulnuan, that Mr. Loayza-Penaloza alone killed her, and that he unsuccessfully tried to stop him. Over the years, he has recounted the events to various CSC staff, including facilitators running programs he has participated in and the psychologists who completed the two risk assessments.

[88] In her submissions, Ms. Holmes submits that Mr. Figueroa's most recent account, provided to the psychologist who prepared the 2023 risk assessment report, differs markedly from his trial testimony. He told that psychologist that while inside the house, he heard some screaming and did not know what to do; in a panic, he loaded the van with the stolen property before going back inside, continuing to hear the screaming and going to investigate. It was at that point that Mr. Figueroa claimed to discover Mr. Loayza-Penaloza strangling Ms. Dulnuan and unsuccessfully attempted to stop him. Mr. Figueroa told the psychologist that within a few days of the murder, when Mr. Loayza-Penaloza came to his home to retrieve his share of the proceeds, he told him to take it all, as he did not want any of the money.

[89] Ms. Holmes submits that Mr. Figueroa's recent account of loading the property before the murder and not afterward, and not taking his share of the proceeds, is entirely new. Further, she argues this is no mistake in memory by Mr. Figueroa, but a deliberate effort to further distance himself from the murder.

[90] I agree with Ms. Holmes that Mr. Figueroa’s recent claim that he did not take his share of the proceeds differs materially from his trial testimony. To be sure, that may reflect, as she submits, a continuing effort by Mr. Figueroa to distance himself further from this horrific crime.

[91] In contrast, I place less stock on his description of the sequence of relevant events some 16 years after the crime. Mr. Figueroa has added and omitted comparatively minor details with each retelling over the years, which is somewhat unsurprising given how much time has passed.

[92] Nevertheless, from my review of the record, it is apparent that over the years, Mr. Figueroa has slowly but increasingly come to recognize just how tragic and senseless the murder of Ms. Dulnuan was.

[93] In 2010, soon after he entered CSC custody, his attitude was that of someone who felt aggrieved because he considered himself wrongfully convicted. In those early years, he lacked empathy for Ms. Dulnuan and did not express remorse for his crime. Instead, he was focused primarily on his "plight" and the impact of his incarceration on his family. As a result, not surprisingly, when assessing his level of accountability for his crime early during his sentence, CSC staff gave him a "Low" rating.

[94] In contrast, more recently, after being actively engaged with his Correctional Plan and completing recommended programming over the years, Mr. Figueroa has expressed increased responsibility for his role in the events precipitating Ms. Dulnuan's murder. Even though he continues to deny playing a hands-on role in her killing, Mr. Figueroa has continually expressed remorse and empathy for Ms. Dulnuan and her family. As a result, by 2021, CSC staff increased his rating for his level of accountability from "Low" to "Moderate."

[95] Many aspects of Mr. Figueroa's character since he began serving his sentence are addressed in the next part.

Mr. Figueroa's conduct while serving his sentence

[96] Subparagraph 745.63(1)(b) requires the jury hearing a faint hope application to consider "the applicant's conduct while serving the sentence".

[97] Since he began serving his sentence, Mr. Figueroa has been incarcerated at several different institutions, including Millhaven Institution (June to October 2010), Kingston Penitentiary (October 2010 to September 2012), Kent Institution (September 2012 to September 2013), and Mission Institution (September 2013 to present). Upon his transfer to Mission Institution, CSC reduced Mr. Figueroa's security classification from "maximum" to "medium".

[98] Mr. Figueroa's behaviour in custody has improved over the years. While in pre-trial detention, he was involved in two fights. During the early years of his sentence, he accrued disciplinary infractions for disobeying institutional rules, including possessing contraband items. That said, there have been no incidents related to actual or potential violence apart from the discovery of a sharpened toothbrush early in his sentence.

[99] Over the last several years, Mr. Figueroa has not had any issues that have resulted in discipline. CSC staff consistently report that Mr. Figueroa has steered clear of gang involvement or the institutional drug subculture. There have been numerous urinalysis tests while Mr. Figueroa has been serving his sentence, all of which have been negative. Neither alcohol nor drugs have proven to be issues for Mr. Figueroa while in custody.

[100] Regarding his interactions with CSC staff, support staff, and fellow inmates, reports concerning Mr. Figueroa's behaviour and attitude are uniformly positive. They describe him as polite and compliant; he interacts effectively and responsibly with others, individually and in groups, with little or no supervision. Staff on his unit characterize him as "pleasant and cheerful." They report that he occupies his leisure time through physical activities (gym, yard, and tennis), socializing, and watching TV with other offenders on his range. Further, Mr. Figueroa has responded appropriately to stressors that often rattle other inmates, like the death of family members, including his mother, and the challenges created by the COVID-19 pandemic.

[101] CSC staff describe Mr. Figueroa as motivated toward self-improvement and actively participating in his Correctional Plan. In that regard, he has completed all the programming his Case Management Team has recommended for which he qualified. His progress was delayed somewhat by his language difficulties. However, to his considerable credit, and despite his learning challenges, he has completed levels I, II, and III of ESL classes. That assisted him in taking recommended programming to address his risk factors.

[102] The performance reports for the programming Mr. Figueroa has completed over the years are all very positive. They remark on Mr. Figueroa's motivated attitude, engagement, and continuous effort, and that he was consistently respectful and polite. More significantly, over time, through these efforts Mr. Figueroa has made a marked and measurable improvement in the various risk factors that led to his participation in Ms. Dulnuan's murder. By the end of the Institutional Maintenance Program - Multi Target in 2019, all his risk factors improved, and his scores went from "Moderate" to "Good."

[103] Beyond programming, Mr. Figueroa has worked almost continuously since the opportunity presented itself early in his sentence. Since 2019, at Mission Institution, he has worked as an assembler and in warehouse shipping at the CORCAN Manufacturing facility. A Program Performance Report rates him as "excellent" in every category of his job performance. Mr. Figueroa has received praise for helping new inmate employees acclimate and for having a "great" working relationship and attitude toward everyone he encounters.

[104] A letter written by the Chaplin of Mission Institution attests to Mr. Figueroa's regular and attentive presence in the chapel. The Chaplin remarks that Mr. Figueroa is "consistently pro-social and positive in an environment that is not always easy or positive."

[105] Over the years, Mr. Figueroa has remained in contact with family and friends despite his incarceration. Several of them have written letters of support attesting to his growth while serving his sentence and his increased sense of responsibility for his actions.

[106] Despite Mr. Figueroa's progress at Mission Institution, CSC has denied his requests for transfer to a minimum-security facility. They have cited two principal reasons for doing so. First, although, over the years, he has had 25 Escorted Temporary Absences without incident, these were always subject to close supervision. Significantly, he has not yet participated in positions of trust, such as Perimeter Security Clearances or reintegration-based Temporary Absences. However, in fairness to Mr. Figueroa, he is not eligible for these because of his current parole ineligibility date. Second, his escape risk is considered "moderate," but this, too, is mainly because of the time until his parole eligibility date, coupled with his status as a permanent resident and his being subject to deportation upon release.

Information from the victims

[107] Subparagraph 745.63(1)(d) requires the jury hearing a faint hope application to consider "any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing".

[108] Ms. Dulnuan's family does not appear to have provided victim impact statements at the original sentencing hearing. Nor has the Crown filed any such information to supplement the record on this application. That is far from surprising, given that Ms. Dulnuan was alone in Canada at the time of her murder, and it is most likely that her family remains in the Philippines.

[109] Despite this, it is not difficult to imagine that Ms. Dulnuan's senseless murder has profoundly impacted her family, including her daughter. The lifelong trauma of losing a loved one to murder is something about which the court can readily take judicial notice.

[110] The impact of this crime on Ms. Dulnuan's daughter, who, because of it, was forced to grow up without her mother, is incalculable. Words cannot possibly capture the loss and suffering Ms. Dulnuan's daughter has no doubt endured because of her mother's senseless murder in a faraway country.

Other relevant matters

[111] Subparagraph 745.63(1)(e) requires the jury hearing a faint hope application to consider "any other matters that the judge considers relevant in the circumstances." In this case, that would include Mr. Figueroa being subject to a deportation order. As a result, if the Parole Board ever decides to release Mr. Figueroa on parole in the future, the Canadian Border Services Agency will immediately deport him to Ecuador.

Has Mr. Figueroa established that his application has a reasonable prospect of succeeding?

[112] Having reviewed the record in light of the legislated criteria, I will now consider whether Mr. Figueroa has established that his application has a reasonable prospect of succeeding. Doing so requires much more than applying a checklist or tabulating a scorecard based on the legislated criteria: see R. v. Morrisson, 2016 ONSC 5036, at para. 36; R. v. Gatenby, 2021 ONSC 3535, at para. 14.

[113] The Supreme Court of Canada explained how a jury assessing a faint hope application is to use the legislated criteria in Swietlinski, at p. 494:

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.

[114] A global assessment of the merits is necessary because of the unique character of the jury's function when it comes to faint hope applications, where, unlike with its role in other contexts, the jury is "a tool of clemency," tasked with a function "more akin to an exercise of mercy than it is an application of law": R. v. Jenkins, 2014 ONSC 3223, 11 C.R. (7th) 346, at para. 33. The jury does not assess the application against a specific standard. Instead, it enjoys broad discretion to consider the offender's progress in deciding whether he deserves leniency: see Jenkins, at para. 37.

[115] In this case, two aspects of the record would undoubtedly weigh against the jury deciding to reduce Mr. Figueroa's period of parole ineligibility.

[116] Firstly, there are the circumstances of the crime itself and its impact on the victims. Every murder is undoubtedly senseless and inexcusable. However, there are some significant aggravating features surrounding the murder of Ms. Dulnuan. Mr. Figueroa and Mr. Loayza-Penaloza planned the break-in; their decision to carry it out was far from impulsive. Their motive for the burglary was entirely selfish: their financial gain. When Ms. Dulnuan unexpectedly encountered them, they placed their desire to avoid the potential consequences of being held responsible for the break-in above any regard for her life. They forcibly confined and strangled Ms. Dulnuan to death to eliminate her as a potential witness against them. It is impossible to imagine the sheer terror that Ms. Dulnuan must have experienced in her final moments. Finally, by making the choices they did, the men left a young child half a world away without her mother. To be sure, these are not circumstances that would incline a jury to exercise mercy when considering Mr. Figueroa's application.

[117] Secondly, Mr. Figueroa has never accepted the jury's verdict and acknowledged his role in Ms. Dulnuan's murder. He has even made recent efforts to distance himself further from the crime; for example, his 2023 comment about declining to share in the proceeds from the break-in. Although I recognize that a complete acceptance of responsibility is not a legal or practical precondition to a successful faint hope application, its absence might very well cause a jury to reasonably conclude that Mr. Figueroa is far from rehabilitated and undeserving of mercy: see Morrisson, at para. 82; Al-Shammari, at para. 67. That sentiment, however, may be somewhat lessened by Mr. Figueroa's expression, at least in recent years, of remorse and empathy for Ms. Dulnuan and her family.

[118] All that said, other aspects of the record could, especially when combined, cause a jury to look favourably upon Mr. Figueroa's application.

[119] First, the record does not suggest that Mr. Figueroa is an incorrigible criminal. At the time of the murder, he had a criminal record consisting of only two entries: driving with excess blood alcohol and a comparatively minor assault. Soon after arriving in Canada and up until his arrest for Ms. Dulnuan's murder, Mr. Figueroa was gainfully employed. Significantly, he has undergone two risk assessments since being incarcerated. The first, in 2011, concluded that he is "at the low end of the moderate range of risk for general recidivism" and "in the low range of risk for violent recidivism." The more recent risk assessment, prepared in 2023 after Mr. Figueroa completed extensive programming, concluded that with the proper release plan, his "risk for general and violent recidivism would be manageable in a community setting."

[120] Second, Mr. Figueroa's track record while incarcerated could reasonably support the conclusion that he has made significant inroads toward rehabilitation.

[121] To begin, Mr. Figueroa has avoided much of the negativity that permeates the penitentiary environment. He has steered clear of gang involvement or the institutional drug subculture and abstained from using drugs or alcohol. Notably, Mr. Figueroa has not been subject to institutional discipline for anything remotely violent, except for possessing a sharpened toothbrush in the early years of his sentence. His correctional records are replete with uniformly positive comments about his attitude and behaviour towards everyone he interacts with, including CSC staff, support staff, and fellow inmates. To his credit, Mr. Figueroa has remained positive despite being in an environment that is too often the opposite.

[122] Despite his intellectual challenges, Mr. Figueroa completed the first three levels of ESL studies. He has also completed each program recommended by his Case Management Team and received positive assessments for his commitment, engagement, and progress in those programs. As a result, his ability to use the skills he learned in those programs to manage the risk he might otherwise pose when finally released has markedly improved. That appears to be the direct result of his positive attitude and considerable efforts.

[123] Additionally, Mr. Figueroa's work history during his incarceration is very positive. He has taken up available employment opportunities and received stellar performance evaluations. His record reveals a solid work ethic and that he is a collegial employee and coworker.

[124] Finally, there are the relationships that Mr. Figueroa has managed to maintain during his incarceration. Despite the challenges they have faced in the past, he has reconciled with his wife. The family and friends he has remained in contact with over the years attest to his transformation while in custody and express their love and support for him.

[125] All of that could favourably impress the jury and weigh in favour of a decision to reduce his period of parole ineligibility.

[126] More difficult to gauge is how a jury might consider the impact of Mr. Figueroa's outstanding deportation order. Once paroled, Mr. Figueroa is subject to deportation to Ecuador. As a result, unlike offenders paroled in Canada, Mr. Figueroa will not be subject to the safety net of Parole Board supervision if granted parole. That is undoubtedly one of the factors the jury will need to consider in arriving at its decision: see R. v. Rowe, 2015 ONSC 2576, 324 C.C.C. (3d) 57, at paras. 144-146. However, the jury will also know that this is a consideration that the Parole Board would ultimately need to consider in deciding whether and when to grant Mr. Figueroa parole. After all, the Parole Board has a preeminent obligation to consider the "protection of society," whether in Canada or Ecuador, in making its parole decisions: see Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 100.1, 101 (c), 102.

[127] After considering the entire record, a jury could reasonably conclude that the seriousness of his crime and Mr. Figueroa's failure to take full responsibility for his part in Ms. Dulnuan's murder outweigh the progress he has made toward his rehabilitation while incarcerated. Because of this, a jury could deny his request to reduce his parole ineligibility period.

[128] However, it is equally conceivable that a jury could reasonably decide that, despite the circumstances surrounding Ms. Dulnuan's murder and Mr. Figueroa's failure to admit the true extent of his involvement, his positive and prosocial attitude and behaviour while serving his sentence, relatively low risk of reoffending, and significant efforts at rehabilitation over the past 15 years, warrant leniency. Based on these factors, a jury could unanimously decide to grant his application and reduce his period of parole ineligibility.

[129] Given that Mr. Figueroa has satisfied the court that the success of his application is within the range of reasonable outcomes, he has met his burden of demonstrating, on a balance of probabilities, that there is a reasonable prospect of his application succeeding.

CONCLUSION

[130] The court grants Mr. Figueroa's application: a jury shall be empanelled to consider his application. The parties should contact the Trial Office to arrange an appearance before me to address the scheduling of the hearing.

Signed: “Stribopoulos J.” Released: July 25, 2024