COURT FILE NO.: CR-24-00000090-00MO DATE: 20240906 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – NICOLA PUDDICOMBE

Counsel: Paul Zambonini and Alice Bradstreet, for the Crown Mitchell Huberman, for Ms. Puddicombe

HEARD: In Writing

REASONS FOR JUDGMENT ON PAROLE ELIGIBILITY SCREENING APPLICATION

R.F. GOLDSTEIN J.

[1] Everyone convicted of murder must be sentenced to life imprisonment. Everyone convicted of first-degree murder is not eligible for parole until they have served 25 years of their sentence. An offender can, however, apply for parole after they have served 15 years. The procedure, or clause in the Criminal Code, is colloquially referred to as the “faint hope” clause. A jury may decide whether to reduce the offender’s parole eligibility. If the jury does so, the National Parole Board may grant parole to before the offender has served the full 25 years.

[2] Before the jury considers the issue, however, the application is screened by the chief justice of the superior court of criminal jurisdiction or their designate.

[3] A jury convicted Nicola Puddicombe of the first-degree murder of Dennis Hoy. Ms. Puddicombe and Mr. Hoy were in a long-term opposite-sex relationship. Ms. Puddicombe was also in a same-sex relationship with Ashley Pechaluk. The police arrested Ms. Pechaluk at the scene of the murder. Ms. Pechaluk confessed to the police that she killed Mr. Hoy. She told the police that Ms. Puddicombe had nothing to do with it. After further investigation, the police later charged Ms. Puddicombe as well. Ms. Pechaluk and Ms. Puddicombe were tried separately for the murder. Ms. Pechaluk’s confession was excluded from her trial based on a breach of the Charter of Rights. Ms. Pechaluk was acquitted. She testified for the Crown at Ms. Puddicombe’s trial. She said, contrary to her confession, that Ms. Puddicombe killed Mr. Hoy. The Crown theory at Ms. Puddicombe’s trial was that Ms. Puddicombe and Ms. Pechaluk planned the murder and that Ms. Pechaluk carried it out. A jury convicted Nicola Puddicombe of first-degree murder.

[4] Ms. Puddicombe has served 15 years of her 25-year period of parole ineligibility. The Chief Justice has designed me to conduct this review. My role is to determine whether there is a basis on which to refer her application to a jury. In this case, I find that there is a reasonable prospect that a jury may reduce her period of parole ineligibility. I therefore order that a jury be empanelled to hear her application.

[5] What follows are my reasons for making the order to empanel the jury.

BACKGROUND

[6] On October 27, 2006, Dennis Hoy was murdered with an axe while he was asleep in bed. Mr. Hoy and Ms. Puddicombe were in a long-term relationship. They did not live together but Mr. Hoy was staying at Ms. Puddicombe’s apartment. Ms. Pechaluk occupied one of the bedrooms.

[7] Ms. Puddicombe was 32 at the time of the murder. She was managing a Loblaws store, which is how she came to meet 21-year-old woman Ashleigh Pechaluk in 2005. Ms. Pechaluk worked at a different Loblaws with some of Ms. Puddicombe’s friends.

[8] The relationship between Mr. Hoy and Ms. Puddicombe had apparently been deteriorating. Mr. Hoy had begun seeing other women. In early 2005 Ms. Puddicombe and Ms. Pechaluk began an intimate relationship. Ms. Pechaluk moved into her own bedroom in Ms. Puddicombe’s apartment shared. Another uninvolved roommate also lived in the apartment.

[9] On the day of the murder, Ms. Puddicombe called 911 and told the operator that there was an intruder in their apartment. She did not ask for an ambulance or medical help. When the police arrived, Ms. Puddicombe mentioned Mr. Hoy’s alleged criminal connections, the fact that his tires were slashed, and that she had been taking a shower with the radio on when Mr. Hoy was attacked.

[10] Ms. Pechaluk was arrested on the same day as the murder. She gave a detailed confession to the police. She also said that Ms. Puddicombe had nothing to do with the murder. The police continued to investigate, however. The police arrested Ms. Puddicombe several months later, on May 16, 2007, and charged her with first degree murder. The Crown proceeded separately against Ms. Pechaluk and Ms. Puddicombe.

[11] The Crown theory at Ms. Puddicombe’s trial was that she manipulated and orchestrated the murder, while Ms. Pechaluk carried it out. Ms. Puddicombe was motivated by Mr. Hoy’s unfaithfulness. She was also motivated by money – she was the beneficiary of his life insurance policy and his workplace survivor benefits. Ms. Puddicombe used Ms. Pechaluk. Ms. Pechaluk was deeply attached to Ms. Puddicombe. Ms. Puddicombe, the Crown theorized, dangled the prospect of the two spending their lives together if she could get rid of Mr. Hoy.

[12] Ms. Pechaluk testified for the Crown at Ms. Puddicombe’s trial. She told the jury that they began a relationship while Ms. Puddicombe was still with Mr. Hoy. Ms. Puddicombe told Ms. Pechaluk that Mr. Hoy was physically and emotionally abusive; that he was a member of the Hell’s Angels and had killed people; and that he was involved in serious criminal activity. While there was some evidence that Mr. Hoy had told people he was a gang member, there was no evidence that he was. A detective from the Biker Enforcement Unit testified that there was no evidence Mr. Hoy had any connection to the Hell’s Angels. The Crown’s position was that Ms. Puddicombe told these stories about Mr. Hoy’s abuse and criminality to manipulate Ms. Pechaluk.

[13] In September 2006 Ms. Pechaluk moved into an empty bedroom in Ms. Puddicombe’s apartment. According to Ms. Pechaluk’s testimony, Ms. Puddicombe began to discuss killing Mr. Hoy. In October 2006 someone slashed the tires on Mr. Hoy’s car. He decided to stay at Ms. Puddicombe’s apartment for his safety. Ms. Pechaluk did not want him to stay there. Ms. Puddicombe, according to Ms. Pechaluk’s testimony, didn’t want him there either. They discussed beating Mr. Hoy with a baseball bat – Ms. Pechaluk was a baseball player. They discussed poisoning Mr. Hoy. Ms. Pechaluk testified that they discussed a plan that she would beat Mr. Hoy while Ms. Puddicombe was in the shower and that they could make up an “intruder” story. In at least one email prior to the murder, Ms. Puddicombe asked Ms. Pechaluk why she wasn’t sleeping, as she would “need your rest for tomorrow”. Although Ms. Pechaluk initially confessed to the police that Ms. Puddicombe had nothing to do with the murder, she testified at Ms. Puddicombe’s trial that on the evening of the murder, Ms. Puddicombe banged on her door and told her that she thought Mr. Hoy was dead. The relationship had soured by the time of Ms. Puddicombe’s trial: Ms. Pechaluk, contrary to her confession to the police, pointed the finger at Ms. Puddicombe.

[14] Two friends of Ms. Pechaluk from work testified for the Crown. Sarah Sousa testified that Ms. Pechaluk mentioned the various plans to kill Mr. Hoy, including a plan to beat him with a baseball bat and then tell the authorities that it was an intruder in the apartment. Ms. Sousa also testified that Ms. Pechaluk also mentioned Mr. Hoy’s criminal connections and abuse. Keisha Brooks testified that Ms. Pechaluk discussed various plans to kill Mr. Hoy. Ms. Brooks did not tell anyone because she thought these plans were not serious. When the police first entered the apartment, Ms. Puddicombe told them about some of the things that Ms. Pechaluk had mentioned to Ms. Brooks and Ms. Sousa.

[15] Ms. Pechaluk was the Crown’s key witness against Ms. Puddicombe. Her credibility was vigorously challenged but it would have been open to the jury to find that Ms. Pechaluk and Ms. Puddicombe had discussed the murder beforehand – based on confirmation from Ms. Sousa and Ms. Brooks. As the Crown pointed out, there was also no independent evidence that Mr. Hoy had been abusive towards Ms. Puddicombe; that all came from Ms. Puddicombe herself.

[16] Ms. Puddicombe did not testify at her trial. On December 3, 2009, the jury convicted her of first-degree murder. On August 7, 2013, her appeal to the Ontario Court of Appeal was dismissed. On March 6, 2014, the Supreme Court of Canada dismissed her application for leave to appeal.

[17] Ms. Pechaluk’s confession was excluded from evidence at her trial based on a violation of s. 10(b) of the Charter of Rights. Ms. Pechaluk was acquitted.

ANALYSIS

[18] The Crown’s position is that Ms. Puddicombe was, and still is, a cold-blooded killer and a liar. She has refused to accept responsibility for the murder of Mr. Hoy. She has not changed a whit. She has shown no insight at all into her behaviour. As a result, the application should be dismissed.

[19] The defence position is that Ms. Puddicombe has accepted responsibility for her role in the murder. She has made great strides while in custody. She is at a very low risk to re-offend. There is a reasonable likelihood of success at a parole eligibility hearing. As a result, a jury should be empanelled.

[20] The “faint hope” process is set out in sections 745.6 to s. 745.63 of the Criminal Code. The faint hope process has gone through several iterations since it was first enacted as part of the reforms abolishing the death penalty in 1976: R. v. Swietlinksi, [1994] 3 S.C.R. 481, 92 C.C.C. (3d) 449 at para. 13. The history of the various iterations of the “faint hope” clause were set out by Doherty J.A. in R. v. Dell, 2018 ONCA 674, at paras. 11-14, 18-19, 21, 24-28.

[21] The faint hope process is aptly named – an offender must overcome three hurdles before they can be released on parole. The first hurdle is the judicial screening. The offender must apply in writing to the Chief Justice (or their designate, who I will refer to as “the screening judge”) in the province where the offence took place to have a jury consider the parole eligibility reduction. If the screening judge grants the application, a jury may be empanelled to consider whether the offender’s eligibility for parole should be reduced. That is what I am tasked with.

[22] The second hurdle in the process is the jury hearing. The jury determines whether to recommend that the offender’s eligibility for parole be reduced, and if so by how much. The jury must be unanimous.

[23] If the offender overcomes that second hurdle, they may then apply for parole to the National Parole Board – the third hurdle in the faint hope process. It is at that point that the offender may – or may not – be released.

[24] At this first stage I am only required to determine whether Ms. Puddicombe’s application before the jury has a reasonable prospect of success. The current legislation came into force in 2011. It states at the screening stage the applicant must demonstrate on a balance of probabilities there is a substantial likelihood that the application will succeed: Criminal Code, s. 745.61(1). At the time Ms. Puddicombe was sentenced, however, the legislation stated that the applicant need only demonstrate a reasonable likelihood of success. A “reasonable likelihood of success” is a lower threshold than a “substantial likelihood of success”. Ms. Puddicombe is entitled to the benefit of the lesser standard: R. v. Dell, supra, at paras. 87, 100, 102; R. v. Liu, 2022 ONCA 460. In these reasons I refer to a “reasonable likelihood of success”. Future screening applications relating to convictions after the 2011 amendments will apply the standard of a “substantial likelihood of success”.

[25] The purpose of s. 745 was set out by Chief Justice Lamer in R. v. Swietlinksi, supra, at paras. 11-12:

… the procedure is one for reassessing long-term imprisonment imposed by law (in the case of first-degree murder) or by a judge (in the case of second-degree murder). The purpose of a reassessment procedure, especially when it takes place 15 years after the initial decision, is necessarily to re-examine a decision in light of new information or factors which could not have been known initially. It follows that the primary purpose of a s. 745 hearing is to call attention to changes which have occurred in the applicant's situation and which might justify imposing a less harsh penalty upon the applicant. Accordingly, the jury's decision is not essentially different from the ordinary decision regarding length of a sentence. It is similar to that taken by a judge pursuant to s. 744 of the Code as to the period of ineligibility in cases of second-degree murder.

[26] The jury on a faint hope application determines whether “the offender has made sufficient progress demonstrating that he or she deserves an earlier opportunity to seek parole”: R. v. Al-Shammari, 2022 ONSC 4113 at para. 28; R. v. Morrison, 2016 ONSC 5036 at para. 38. The jury’s decision is not “a legal conclusion but rather an assessment of the offender’s progress”: R. v. Jenkins, 2014 ONSC 3223 at para. 37. [1]

[27] The following is a non-exhaustive list of the principles a judge on a screening application must apply:

• The applicant must demonstrate to the screening judge on a balance of probabilities that there is a reasonable prospect that the application will succeed before the jury: R. v. Dell, supra, at para. 19; R. v. Morrison, supra, at para. 41; R. v. Poitras, 2012 ONSC 5147 at para. 19 (of course, the test for post-amendment convictions is that there is a substantial likelihood of success).
• A reduction in parole eligibility need not be the only reasonable or rational outcome on the record. If a reduction in parole eligibility is one of a range of reasonable outcomes, that qualifies as a reasonable likelihood that the application will succeed: R. v. Abram, 2019 ONSC 3383 at para. 14.
• Although the jury does not apply a legal test or give reasons, the screening judge must articulate why there is a reasonable prospect of success: R. v. Al-Shammari, supra, at para. 31.
• While the sentencing principles of rehabilitation and protection of the public will inevitably play a role in the jury’s decision, as does the nature of the offence, Parliament did not incorporate the full sentencing regime into the faint hope process. Other principles, such as deterrence and denunciation, are already incorporated into the sentence and play no significant role in the jury’s deliberation: R. v. Jenkins, supra, at para. 36.
• The screening judge performs a limited weighing of the evidence to determine whether there is a reasonable possibility that a jury will reduce the period of parole ineligibility: R. v. Morrison, supra, at para. 38; R. v. Dulay, 2009 ABCA 12 at paras. 5-6; R. v. Abram, supra, at para. 15.
• Given that sentencing principles such as deterrence and denunciation play little or no role in the hearing, the judicial screening (and the jury hearing) are not a re-litigation of the initial murder trial. The hearing should not be an inquiry into the degree of culpability and moral blameworthiness of the offender. That is already established. The nature of the offence is relevant because it informs the degree of progress made and insight achieved by the offender (if any).
• The applicant must demonstrate that they have gained insight and made progress since the murder conviction; in other words, the primary focus is on changes that might justify a less harsh penalty. It is an assessment of the offender’s progress: R. v. Abram, supra, at para. 15.

[28] I agree with the approach articulated by Pomerance J. (as she then was) in R. v. Al-Shammari, supra, at para. 31:

… 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.

[29] The criteria that a jury must consider if one is empanelled to hear the parole eligibility application are set out in s. 745.63(1) of the Criminal Code:

(a) the character of the applicant; (b) the applicant’s conduct while serving the sentence; (c) the nature of the offence for which the applicant was convicted; (d) any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and (e) any other matters that the judge considers relevant in the circumstances.

[30] The screening judge must consider these factors as a jury hearing the parole eligibility application would: R. v. Morrison, supra, at para. 38; Criminal Code, s. 745.61(2).

[31] I turn now to each of the criteria set out in the Criminal Code. While I am separating out these criteria, that is only for analytical convenience. The decision is not an exercise in box-ticking. The screening judge must take a holistic view of the application. There is no rule about the weight to be given to each of the factors.

The Character Of The Offender

[32] The Crown argues that Ms. Puddicombe’s character remains unchanged. She still refuses to take responsibility for her role in the murder of Mr. Hoy. She still maintains that she was taking a shower when Mr. Hoy was killed and that an intruder came into the apartment.

[33] While the Crown’s submission has merit, I do not think it is quite that simple. A detailed review of the evidence shows that Ms. Puddicombe’s view of her role in the murder has evolved. She still does not accept full responsibility for the theory as articulated by the Crown at trial, and she is still being economical with the truth in some respects. In my view, however, it would be open to a jury to find that Ms. Puddicombe has obtained enough insight into her role in the murder of Mr. Hoy to show progress. It would also be open to a jury to find that Ms. Puddicombe has taken responsibility for it.

[34] Ms. Puddicombe’s self-reported background was set out in one of her Psychological Risk Assessments and in her Correctional Plan. She was born in the United Kingdom but came to Canada at age 2 with her parents from Guyana. She is a permanent resident – it appears that she never obtained Canadian citizenship. Her parents separated when she was young. She claims her father was abusive towards her mother. Apparently, there was a custody battle. Her home situation impacted her negatively. She described her home situation as “rough”. As a teenager she was involved in petty theft and other anti-social activities. She used drugs and alcohol. She did, however, manage to be a good student and went to George Brown College to become a nurse. Unfortunately, she was diagnosed with cancer and unable to complete the program. She later went back to school and completed a Bachelor of Arts with a major in English literature from the University of Toronto. She worked part-time at Loblaws and after graduation became a store manager. When she was 29, she was diagnosed with multiple sclerosis. Lesions were found on her brain. She also said she was diagnosed with anxiety and depression by a psychiatrist. Prior to her arrest she drank two glasses of wine and used marijuana daily.

[35] Ms. Puddicombe has undergone four Psychological Risk Assessments since being in federal custody. She was issued with a Correctional Plan, and it has been updated from time to time.

[36] In February 2010 Ms. Puddicombe had her first Psychological Risk Assessment. According to file records, during an initial criminal profile assessment in 2009 she denied any involvement in the offence. She provided details about Mr. Hoy’s allegedly controlling and abusive behaviour but no further details about the murder. She claimed a poor memory. She maintained that she was in the bathroom when her partner was murdered and did not hear the incident. She did say that “I have a lot of guilt about the whole situation. I had a girlfriend and a boyfriend at the same time. I feel guilty because there were a lot of things I should’ve done differently.” In 2010 her conviction was still under appeal. Several tests were administered to Ms. Puddicombe. According to clinical results and actuarial data she presented as a low risk to re-offend, and a low risk to violently offend. There were clinical results suggesting possible substance abuse. Both clinical results and self-reporting suggested Ms. Puddicombe had a history of multiple romantic partners, dysfunctional relationships, and some level of substance abuse. The risk assessment recommended she take counselling for anger management and substance abuse. There was no discussion of a major mental illness although she apparently struggled with anxiety and depression. Although she led a relatively pro-social life, I think it is fair to describe her personal life and her relationships as chaotic.

[37] On March 9, 2011, Correctional Services issued a Correctional Plan for Ms. Puddicombe. Under the heading “Accountability” the Plan noted that Ms. Puddicombe accepted no responsibility for her role in the murder. The Plan further noted that she pleaded “not guilty” and was appealing her conviction.

[38] Her next Psychological Risk Assessment occurred in March 2015. That was after Ms. Puddicombe’s appeals were exhausted. She was referred for an assessment after re-classification from maximum security, and after completing several programs. She also completed 54 therapy sessions. Her therapist described her as thoughtful, respectful, and honest. She described Ms. Puddicombe as highly motivated for treatment. It appears that there was no discussion of Ms. Puddicombe’s attitude towards the index offence. It also appears that no further testing was done.

[39] The next Psychological Risk Assessment occurred in March 2016. At that point Ms. Puddicombe had completed an additional 12 therapy sessions. She continued to be motivated for treatment but based on her progress, her therapist recommended that treatment be terminated. As with the March 2015 assessment, there was apparently no discussion of Ms. Puddicombe’s attitude towards the index offence; and no further testing was done.

[40] On May 8, 2019, Correctional Services issued an update to Ms. Puddicombe’s Correctional Plan. Her view of the murder was noted in the update:

Ms. Puddicombe was involved in two relationships at the same time, and this resulted in the death of her former boyfriend. She continues to state that she did not kill the victim herself but most recently admitted to understanding that she created and allowed the circumstances that led to his death.

[41] Thus, Ms. Puddicombe went from complete denial in 2009 to admitting in 2019 that she “created” the circumstances that led to Mr. Hoy’s death.

[42] On May 25, 2021, Correctional Services issued an update to Ms. Puddicombe’s Correctional Plan. Her view of the offence and her role in it did not change.

[43] A fourth Psychological Risk Assessment was conducted in September 2021. Further tests were conducted. There was reference to the initial criminal profile report from 2010. Ms. Puddicombe continued to deny that she murdered Mr. Hoy. She became mildly agitated when she was asked about the index offence during her interview. Her assessor described her as evasive when asked questions about it; she either did not answer questions forthrightly or did not recall details. Further testing was conducted. The testing revealed, again, concerns about substance abuse – especially of alcohol, although it was not an issue at the time of the risk assessment. She did not present with a major mental health disorder. The assessor noted that although she continued to deny the index offence, Ms. Puddicombe had a “positive and favourable attitude towards parole and supervision both in the institution and the community.” As well, her attitude towards treatment was positive. She was assessed as being at a low risk for general recidivism and a low risk for violent recidivism. In terms of her acceptance of responsibility, the report noted:

Furthermore, she expresses a positive attitude towards parole and supervision. She follows up with her parole officer on a regular basis. She does not express concerns with correctional officers escorting her on temporary absence. Ms. Puddicombe endorses that when a life is taken it is fair and appropriate to be on probation for an extended period. Although she continues to deny that she committed the index offence, she feels her sentence is fair and appropriate for her role in the circumstances leading up to it. Ms. Puddicombe displays regret about the situation (i.e., introducing Ms. Pechaluk to Mr. Hoy). She blames herself for the offence occurring.

[44] In her affidavit on this application, sworn in 2023, Ms. Puddicombe expressed remorse for the murder of Mr. Hoy. She stated that “I accept that it is my fault that Dennis Hoy was murdered and that I created the circumstances that led to his death. My actions and comments are what caused Dennis’s murder.” Through her programming, Ms. Puddicombe states that she has come to realize that she was to blame for Ms. Pechaluk killing Mr. Hoy. Ms. Puddicombe further stated in her affidavit:

I take responsibility for encouraging Ashleigh to kill Dennis. I do not agree that I orchestrated a plan to kill Dennis or a plan to manipulated Ashleigh into killing Dennis. However, I accept that Ashleigh would not have killed Dennis if not for my encouragement.

[45] Undoubtedly, “encouragement” falls under the concept of abetting in s. 21(1)(c) of the Criminal Code and is a basis for party liability to the murder. The actus reus of abetting is doing something or omitting to do something that encourages the principal to commit the offence: R. v. Cowan, 2021 SCC 45 at para. 32.

[46] The Crown relies on R. v. Walizadah, 2017 ONSC 3. The offender was having an affair with the victim’s wife. Encouraged by her, the offender stabbed the victim to death. The offender continually denied involvement in the offence. Over time, the offender came to accept some involvement in the murder. He asked the original investigating officers to see him in prison and gave them details of the crime; he did not, however, accept that it was planned and deliberate although he brought a knife to the encounter with the victim. Nordheimer J. (as he then was) found at para. 31 that his remorse was insufficient, noting that it was “difficult to see how an applicant, who is not truly remorseful for his/her actions, would likely be able to satisfy twelve jurors that s/he has so changed, from the person who committed a horrific crime…” This case has only limited precedential value – Nordheimer J. decided it after the 2011 amendments but before Dell, and therefore applied the standard of “substantial likelihood of success”. It is not clear that he would have decided it in the same way had he applied the standard of “reasonable likelihood of success.”

[47] I agree with Crown counsel that the murder in this case has some similarities to the murder in R. v. Gatenby, 2021 ONSC 3535. Ms. Gatenby organized the murder of her mother’s common law partner. The murder was carried out by her son and another young man. Throughout her time in custody, Ms. Gatenby continued to deny her involvement in the offence and deflect blame. Moreover, in her later years in custody – after her mother died – for the first time she mentioned her mother’s alleged abuse when she was younger. The screening judge found that Ms. Gatenby was not truly remorseful.

[48] Ms. Puddicombe’s level of remorse is distinguishable. Ms. Gatenby’s level of remorse changed over time only in the sense that she changed who she blamed and how she deflected. Ms. Puddicombe has not evolved to blame others in a different way – she has evolved to taking progressively more responsibility.

[49] The remorse and insight that are called for do not require a full-throated acceptance of the Crown theory as presented at trial – or, for the purposes of this case, a full-throated acceptance of the version of events as presented in the evidence of Ms. Pechaluk. Indeed, it was open to the jury to convict Ms. Puddicombe without a full-throated acceptance of the Crown theory. It would also be unrealistic for a convicted offender to suddenly accept their guilt when they have pleaded not guilty and vigorously defended themselves – especially while the appeal is outstanding. There is a danger in over-emphasizing this factor: lack of remorse is an obstacle that every single offender who did not plead guilty to murder will face. At trial they denied involvement or denied the level of culpability asserted by the Crown. If an offender immediately upon conviction accepted their culpability, it might be very difficult to accept the credibility of that acceptance, as Justice Pomerance noted in Al-Shammari at para. 67. I think it is more realistic to hope that an offender will gradually come to accept responsibility.

[50] As Crown counsel correctly point out, it is true that Ms. Puddicombe has not backed away from some things that may well be untrue, such as her assertion that she was in the shower when Ms. Pechaluk assaulted Mr. Hoy. That is a factor that weighs against Ms. Puddicombe. Respectfully, however, I do not think it is determinative. The key question is whether there has been sufficient insight into the offence to have confidence that rehabilitation is both ongoing and realistic. Moreover, a major aspect of rehabilitation is for the offender to gain a sense of responsibility – and I think it would be open to a jury to find that Ms. Puddicombe has done so.

[51] The Crown has also pointed out that Ms. Puddicombe lived a generally pro-social life prior to committing this crime. She therefore had a shorter rehabilitative distance to travel. The Crown points to the following statement in R. v. Gatenby, supra, at para. 65:

A jury that hears a faint hope application will be instructed to consider the progress that an applicant has made while serving her sentence. The amount of progress that could possibly be made by the applicant in this case is limited because the applicant started from a higher perch.”

[52] With respect, I take a different view. For one thing, Ms. Puddicombe started from a higher perch in the sense that she did not live a criminal lifestyle, but she had both physical and mental problems and was clearly troubled in some ways. More importantly, I do not see how it relevant to compare an offender to the progress of other offenders who are serving sentences for murder. The faint hope process, like sentencing, is an individual process. The question is not how the offender compares to others, but how the offender compares to the person she was when the murder was committed.

[53] I thus find that there is a reasonable prospect that a jury could find that Ms. Puddicombe has sufficient insight into her role in the murder to justify lowering the penalty. Whether a jury would do so is a different question – it is one outcome in a range of reasonable outcomes.

The Offender’s Conduct While Serving Sentence

[54] As Crown counsel very fairly noted in their factum, Ms. Puddicombe has done well while serving sentence. Because this criterion is not controversial, I do not need to spend a lot of time on it.

[55] Ms. Puddicombe was transferred to medium security on August 23, 2011. She was transferred to minimum security on May 25, 2019. In her Correctional Plan update of May 25, 2021, her case manager encouraged Ms. Puddicombe to consider Escorted Temporary Absences as “she is at minimum security and has completed all mandatory correctional interventions.”

[56] While in custody, Ms. Puddicombe has worked in the correctional system, including working in a position of trust as an institutional librarian. She has garnered positive support from all the responsible institutional authorities. She has friends and it appears she has repaired her frayed relationship with her mother. She has accumulated few institutional misconduct charges, and convictions for institutional misconducts – and those are arguably for petty offences and did not undermine her position of trust in the library. She has consistently displayed a positive and cooperative attitude and has not been part of any criminal subculture. She has taken all counselling and programming as set out by her therapist and in her correctional plan. Overall, this criterion is positive.

[57] Again, I find that there is a reasonable prospect that a jury could find that Ms. Puddicombe’s conduct in prison is sufficient to justify lowering the penalty; and, again, whether a jury would do so is a different question – it is one outcome in a range of reasonable outcomes.

The Nature Of The Offence

[58] As Crown counsel correctly characterize it in their factum, the murder of Mr. Hoy was cold-blooded and calculated. If the Crown theory is correct, then Ms. Puddicombe planned the murder and manipulated Ms. Pechaluk into carrying it out. If the Crown is correct about Ms. Puddicombe’s motive, then she was motivated by a combination of greed for Mr. Hoy’s death benefits and anger over Mr. Hoy’s infidelity.

[59] There was certainly evidence that Ms. Puddicombe manipulated Ms. Pechaluk, although a significant part of that evidence came from Ms. Pechaluk – a person of questionable credibility – herself. According to Ms. Pechaluk’s testimony at trial, Ms. Puddicombe repeatedly told her that Mr. Hoy was physically and emotionally abusive. Ms. Puddicombe told others the same thing. She has maintained that position while incarcerated. There is no other evidence of abuse other than that emanating from Ms. Puddicombe. Intimate partner violence often takes place behind closed doors and frequently depends on the credibility of the victim, so it is certainly possible that Ms. Puddicombe was and is truthful about it. There is, however, also evidence that Ms. Puddicombe may have misled Ms. Pechaluk about some things. There was at least some evidence that Ms. Puddicombe was on vacation and telling Ms. Pechaluk that she was having a terrible time, while photographs suggest otherwise. Of course, two things can also be true at the same time – a victim of intimate partner violence can also have smiling photographs from a vacation.

[60] It was open to the jury to find that Ms. Puddicombe orchestrated the murder and manipulated Ms. Pechaluk into committing it. The jury was not, however, required to accept the Crown theory in full to convict Ms. Puddicombe of first-degree murder. It was not necessary for the jury to reject the allegations of intimate partner violence to convict Ms. Puddicombe. The jury could have convicted based on Ms. Puddicombe abetting Ms. Pechaluk in her first-degree murder of Mr. Hoy. Ms. Pechaluk no doubt had her own motive for killing Mr. Hoy – namely, that he stood in the way of Ms. Puddicombe fully committing to her.

[61] Whatever theory the jury ultimately accepted does not change the fact that the murder was pre-meditated, brutal, and that Ms. Puddicombe was guilty of it as either a principal or a party. Mr. Hoy was attacked with an axe while he slept. He had no opportunity to defend himself. As the trial judge, Benotto J. (as she then was) stated in sentencing Ms. Puddicombe, the murder was “a very cowardly act”. I do not think that a jury will have any difficult in agreeing with Benotto J. on that point.

[62] That said, the judicial screening, and the parole eligibility hearing are not a re-litigation of the murder trial. While Ms. Pechaluk stands convicted of first-degree murder, and that will not change, the nature of the offence is only one of the criteria the jury must consider.

Information Provided By A At Sentencing And Now

[63] Mr. Hoy’s parents did not provide a victim impact statement. Rather, Mr. Hoy’s father testified briefly at the sentencing hearing. He told the sentencing court that he and his wife have been suffering every day since the murder. He was grateful that there was a result, and grateful for the support of many people.

[64] Mr. Hoy’s parents are since deceased. There is no further information from any victims.

Other Relevant Information

[65] Defence counsel argues that the equities ought to play some role in the screening process. Ms. Puddicombe is serving a life sentence and even if she obtains early parole, she will have served something over 15 years in custody. In the meantime, Ms. Pechaluk was acquitted, quite likely because of a violation of the Charter. In a way, Ms. Pechaluk was not convicted on the merits. While not decisive, the fact of Ms. Pechaluk’s acquittal should, Mr. Huberman argues, have some impact.

[66] Crown Counsel’s submission is that Ms. Pechaluk got away with murder and Ms. Puddicombe did nothing to stop that from happening.

[67] The Crown has a point. It is reasonable to infer that Ms. Puddicombe feels the same way – it would be unusual if she did not. In Al-Shammari Pomerance J. noted that the offender’s co-accused received lesser periods of parole eligibility, and that was a factor, although certainly not a critical one.

[68] I think that Ms. Pechaluk’s acquittal plays a role in this way: at the time of Ms. Puddicombe’s initial assessment, she had been convicted of first-degree murder and Ms. Pechaluk had been acquitted. Ms. Puddicombe noted that Ms. Pechaluk’s confession “wasn’t shown at her trial, and it was shown at mine”. I think it is a further reasonable inference that Ms. Puddicombe was, understandably, upset about the disparate outcomes. That appears to have coloured some of her views about her own culpability. A jury may consider the equities. In my respectful view, this question is one that ought to be considered by a jury and given whatever weight, if any, the jury thinks important.

Decision

[69] I find that Ms. Puddicombe’s application has a reasonable likelihood of success. A jury could decide to reduce the parole eligibility period. Such a decision falls within the range of reasonable outcomes. Whether a jury should do so, or will do so, is not a question for on this judicial screening.

[70] Why is there a reasonable likelihood of success? I have evaluating the evidence in light of the statutory criteria, and have not conducted a “box checking” exercise. The cold-bloodedness of the murder, and Ms. Puddicombe’s role in it count against the application. On balance, however, I find that Ms. Puddicombe has done extremely well in terms of her therapy, her behaviour in the institution, and her employment status while incarcerated. I also find that while her insight has not been perfect, it has gone far enough that a jury could reasonably decide to lower the period of parole eligibility.

DISPOSITION

[71] The application to empanel a jury is granted. Counsel may arrange an appearance before me or another judge through the trial coordinator’s office.

[72] I want to thank Mr. Huberman, Ms. Bradstreet, and Mr. Zambonini for presenting very accessible and cogent materials, which made my job considerably easier.

R.F. Goldstein J. Released: September 6, 2024

Footnotes

[1] Jenkins was decided after the 2011 amendments but before the Court of Appeal’s decision in Dell. As Pomerance J. noted in R. v. Abram at para. 11 it may no longer be good law in an overall sense. In Dell Doherty J.A. referred extensively to Jenkins in relation to general principles surrounding the judicial screening. I believe that Jenkins remains good law for that purpose.