Ontario Superior Court of Justice

Court File No.: CR-24-00000084-000MO
Date: 2025-06-18

BETWEEN:
His Majesty the King
– and –
Sean Lenworth Anthony Spence

Michael Flosman, for the Crown
Alexandra Youssef, for the Applicant

Heard: In writing

RULING ON JUDICIAL SCREENING OF AN APPLICATION UNDER SECTION 745.6 OF THE CRIMINAL CODE

Edward R. S. Edwards, Regional Senior Justice

Overview

[1] On March 7, 2007, two vehicles were stopped on the side of a country road north of Barrie. The applicant, Mr. Lenworth Spence (hereinafter Mr. Spence), was in one vehicle. Four other individuals including Jonathan Chambers (Mr. Chambers) were in the other. Mr. Chambers exited the vehicle and was then shot in the head by Andrew Turner. The two vehicles left the scene. Chambers was dead at the roadside. His body was discovered later that day.

[2] Everyone in the two vehicles were eventually caught and charged. Three of the individuals pled guilty to manslaughter. One of the individuals pled guilty to being an accessory after the fact to murder. Mr. Spence was tried on a charge of first-degree murder in a judge alone trial. He was convicted on that charge and sentenced to the mandatory term of life imprisonment without eligibility for parole for 25 years.

[3] Mr. Spence appealed his conviction to the Court of Appeal. The appeal was dismissed in 2018.

[4] On July 17, 2023, counsel for Mr. Spence wrote to Chief Justice Morawetz of the Superior Court of Justice to advise that Mr. Spence intended to bring an application to reduce the number of years imprisonment without eligibility for parole pursuant to section 745.6 of the Criminal Code, RSC 1985, c C-46 (the Code). As a result of delays in obtaining the federal institutional records, counsel advised Chief Justice Morawetz that Mr. Spence might need to request an extension of the 90-day filing deadline provided for in section 745.6 of the Code.

[5] A further letter was written by counsel on December 4, 2023 to Chief Justice Morawetz indicating an intention on the part of Mr. Spence to pursue an application under section 745.6. Because of delays in obtaining the federal institutional records, Mr. Spence would be requesting an extension of the 90-day filing deadline.

[6] Mr. Spence has now served more than 15 years of his sentence and as such he applies for a hearing before a jury. This hearing is often referred to as a “Faint hope” hearing where he will ask that his parole ineligibility period be reduced.

[7] Section 745.61 of the Code requires that Faint hope applications be screened for merits before a jury hearing is granted. Associate Chief Justice McWatt has designated me as the judge with authority to screen this application. These reasons explain why I am satisfied that the threshold test is met and that a jury should be empanelled.

The Facts

[8] In order to get a full understanding of the facts relevant to this application it is necessary to go back a few years prior to the actual murder.

[9] On August 7, 2000, Mr. Spence turned himself in to the police in response to an outstanding warrant for robbery. Mr. Spence was charged with robbery, using an imitation firearm, and wearing a disguise in connection with the robbery. These charges ultimately came before Locke J. Mr. Spence was convicted on April 11, 2002. He received a sentence of four years in the penitentiary.

[10] Mr. Spence appealed his conviction to the Court of Appeal. On November 1, 2004, the Court of Appeal in a two-to-one decision granted the appeal. The Crown appealed the decision of the Court of Appeal to the Supreme Court of Canada. The Supreme Court of Canada released its decision on December 2, 2005. Mr. Spence was to have turned himself in prior to the release of the Court’s decision. The Supreme Court restored the conviction by Locke J. The sentence appeal was returned to the Court of Appeal for disposition.

[11] Mr. Spence remained unlawfully at large after the December 2, 2005 Supreme Court decision. He was not brought back into custody until September 2, 2008 when he was arrested in the United States. The arrest in the United States was in connection with the murder of Mr. Chambers on March 7, 2007.

[12] The person who actually pulled the trigger and killed Mr. Chambers was not Mr. Spence. However, it is clear from reading the reasons of the trial judge, Howden J. (reasons that are detailed and in excess of 148 pages), that the killing of Mr. Chambers was an execution style killing. While Mr. Spence did not pull the trigger, the reasons of Howden J. leave no doubt that the execution of Mr. Chambers was done at the direction of Mr. Spence. The killing of Mr. Chambers arose out of the loss of $52,000 that Mr. Chambers had caused, or had an inability to account for, to Mr. Spence. Mr. Spence developed a plan that effectively resulted in the kidnapping of Mr. Chambers and getting Mr. Chambers into a car and then ultimately to the site of his murder.

The Statutory Factors

[13] Pursuant to section 745.61(2) and section 745.63 of the Code as the screening judge I am to consider the following factors:

(a) the character of Mr. Spence
(b) Mr. Spence’s conduct while serving the sentence
(c) the nature of the offence for which Mr. Spence 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
(e) any other matters that the screening judge considers relevant in the circumstances

The Timing of the Application

[14] Section 745.6(2.1) provides:

(2.1) A person who is convicted of murder or high treason and who has served less than 15 years of their sentence on the day on which this subsection comes into force may, within 90 days after the day on which they have served 15 years of their sentence, make an application under subsection (1).

[15] The Crown in this case takes issue with the timing of Mr. Spence’s application. The Crown takes the position that Mr. Spence’s application for judicial review does not meet the deadline set forth above.

[16] At the time of the murder on March 7, 2007, section 745.6 of the Code did not stipulate a timeframe within which an offender had to submit their application. The predecessor to the present section 745.6 provided that so long as an offender had served 15 years of his or her life sentence, he or she was eligible to apply for a reduction in the parole eligibility date. The present incarnation of section 745.6, as quoted above, now includes a 90-day filing deadline. This filing deadline did not exist at the time Mr. Spence committed the offence.

[17] The test which the Court is required to apply in the judicial screening process has changed. The test as presently worded in section 745.61(1) provides that an applicant is only entitled to a hearing if a judge is satisfied “on a balance of probabilities, that there is a substantial likelihood that the application will succeed”. The section did not always read in this manner. Initially there was no judicial screening. An offender had an automatic right to a jury hearing. Parliament introduced a judicial screening mechanism in 1996 by providing that only those cases with a “reasonable prospect of success” would make it to a jury hearing. In 2011 the section was amended to impose the current more stringent test at the screening stage.

[18] The question of the possible implications of the retroactive application of the screening test came before the Court of Appeal in R. v. Dell, 2018 ONCA 674. Doherty JA ruled that the retrospective application of the 2011 screening standard violated the applicant’s rights under section 11(i) of the Charter and could not be saved under section 1 of the Charter. As such, in that case the accused was entitled to the benefit of the law as it existed at the time of her offence: the right to a jury hearing without judicial screening.

[19] In R. v. Abram, 2019 ONSC 3383, Pomerance J., as she then was, dealt with the question of whether or not Mr. Abram should be subject to judicial screening on the higher standard of a substantial likelihood that the application would succeed versus the lower screening standard of a reasonable prospect of success.

[20] Pomerance J., applying the principles set forth in Dell, concluded that Mr. Abram should be given the benefit of the lower screening standard.

[21] For the same reasons reflected in the decision of Pomerance J. in Abram, I am satisfied that the 90-day deadline for the filing of Mr. Spence’s application which did not exist at the time of the murder should not apply to Mr. Spence. Mr. Spence’s application is not too late to be heard.

The Test to be Applied: The Legal Principles

[22] There was a time when a Faint hope application was before the Court that it was thought that the test to be applied of a reasonable prospect of success set a very low threshold that simply asked the question whether the application was hopeless. In R. v. Phillips, 2012 ONCA 54 at para 6 the Court of Appeal made clear that the reasonable prospect test was not akin to not hopeless. The Court stated as follows:

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

[23] In Abram, Pomerance J., having reviewed the Court of Appeal decision in Phillips, noted at paragraph 14 of her reasons:

[14] … I will abide by the Court of Appeal’s direction to be guided by the statutory language, which is, on its face, self-explanatory. It asks whether it is reasonable to expect that a jury might reduce the parole ineligibility period. This need not be the only rational or reasonable outcome available on the record. If it falls within a range of reasonable outcomes, it qualifies as a reasonable prospect of success. [emphasis in original]

[24] The principles which this Court must follow were set forth in a decision of Durno J. in R. v. Morrisson, 2016 ONSC 5036. Those principles were summarized by O’Marra J. in R. v. Eunick, 2018 ONSC 5971 at para 6. These principles have been adopted and followed in a number of subsequent decisions including the decision of Pomerance J. in Abram. The principles that this Court must follow are as follows:

1. All of the factors set out in section 745.63(1)(a) to (e) inclusive must be considered. There is “no scorecard” that gives each factor equal weight. Each application is a fact-specific determination.

2. Once all the evidence has been examined the screening judge performs a limited weighing of the evidence in an attempt to forecast the outcome of the application if it was heard by a jury: R. v. Dulay, 2009 ABCA 12, [2009] A.J No. 29 (CA) at para 5. The primary focus of the hearing is to “call attention to changes which have occurred in the applicant’s situation that might justify a list of less harsh penalty”: R. v. Swietlinski, [1994] 3 SCR 481 at page 482. The jury's verdict, in effect, is an assessment of the offender's progress: R. v. Jenkins, 2014 ONSC 3223.

3. In order to reduce the period of ineligibility the applicant must satisfy all 12 jurors. Accordingly, the test at the judicial screening stage is whether on the material filed the applicant satisfies the judge on the balance of probabilities that there is (in this case) a reasonable prospect that the jury would unanimously reduce the ineligibility.

4. The mandated sentence for first-degree murder is life imprisonment without parole eligibility for 25 years. The applicant must show that his current situation justifies a departure from the normal legislated sentence: R. v. Gayle, 2013 ONSC 4124 para 30.

5. The applicant is no longer presumed innocent. He must provide all the available evidence that would support his application at the time of the threshold screening.

6. The applicant must show that the application has real merit and in this case a reasonable prospect that a jury will unanimously reduce the period of ineligibility: R. v. Rowe, 2015 ONSC 2576.

[25] As other judges dealing with Faint hope applications have done in the past I will use the headings in section 745.63(1) (a)-(e) of the Code to properly organize the matters that must be taken into account as I fulfil my obligation to screen this application. As the Supreme Court noted in Swietlinski at para 31, it would be an error to excessively compartmentalize the various factors set forth in what is now section 745.63(1).

The Character of Mr. Spence

[26] Mr. Spence was born in Jamaica on December 29, 1979. He is approximately 46 years of age. He is not a Canadian citizen and if he is released, he is subject to a deportation order.

[27] Mr. Spence lived in Jamaica with his parents until he was 12 years of age when he moved to Canada to live with his grandparents, leaving behind his parents and his siblings. He was primarily raised once he was in Canada by his grandmother although he moved in with his father as a teenager.

[28] As previously noted, Mr. Spence has three convictions on his criminal record arising out of the April 2002 robbery, use of imitation firearm, and disguise with intent convictions registered by Locke J. Mr. Spence was unlawfully at large when the murder of Mr. Chambers took place.

[29] A “Parole Eligibility Report for the Purpose of Judicial Review” dated September 24, 2024 was prepared pursuant to an order of this Court dated June 28, 2024 (the Parole Eligibility Report). In addition to his adult criminal record reflected in para 29 above, Mr. Spence also has a young offender record which includes convictions for assault that appear to relate to altercations at his school.

[30] A psychological risk assessment report found in the penitentiary records reveals that Mr. Spence's grandmother died in 2016. Both of his parents are also deceased.

[31] Mr. Spence has an older brother and a younger sister living in Jamaica and Brampton respectively. He also has two siblings in Jamaica.

[32] Mr. Spence is not in a relationship, but he has a daughter who is 23 years of age and twins who are 18 years of age. Mr. Spence’s daughter has remained in contact with her father while he has been in custody and has filed a letter of support for Mr. Spence.

[33] The psychological risk assessment report indicates that Mr. Spence's plans at the time of the assessment in 2024 would have him returning to Jamaica where his family apparently owns a farm controlled by one of his brothers. The same report indicates that Mr. Spence hopes to rebuild his life in Jamaica by working towards postsecondary education.

Mr. Spence's Conduct While Serving His Sentence

[34] The behavior of an offender serving a life sentence in a penitentiary provides some understanding of how that offender may behave if ultimately released on parole. In Mr. Spence’s case he has been incarcerated now for in excess of 16 years. He has been charged with two institutional misconducts. Both misconducts were minor and non-violent in nature and ultimately resulted in the charges being withdrawn. There is no evidence that he has ever been subject to periods of disciplinary segregation. For all intents and purposes Mr. Spence has a clean discipline record which is in stark contrast to his criminal record prior to his incarceration.

[35] I have had an opportunity to review the various records from the penitentiary where Mr. Spence has been serving his sentence. Included in those materials is a final program performance report that appears to be dated October 5, 2021. The author of that report summarizes his conclusions as follows:

In summary Mr. Spence demonstrated a good knowledge of ability and commitment to use the program skills required to manage his risk factors throughout the course of the program. Although there were no previous ratings from prior ICPM programs, his initial ratings from the transition maintenance program are all assessed at good. Although these ratings are set at a good level, Mr. Spence knows there is always room for improvement and he would not be reluctant to partake in further programming if required at a later date in order to refresh his skills. Further Mr. Spence is commended for his commitment and willingness to show what he wants to learn and wants to be a better person. In addition and to his credit Mr. Spence put a creditable effort into the program, despite the restrictions and changes necessitated by the current COVID-19 pandemic.

[36] Mr. Spence participated in a psychological risk assessment in 2024. The psychologist who conducted the assessment completed her report with certain conclusions and recommendations which I have reproduced below:

Actuarial assessment of risk placed Mr. Spence in the low moderate to moderate risk category for general recidivism in the high-risk category for violent recidivism. Mr. Spence had a long-standing history of criminal behaviour and had a violent criminal history leading up to the current offence that occurred when he was 27 years of age. I am mindful that Mr. Spence continues to maintain innocence of the actual murder of the victim but has acknowledged involvement in the events leading up to that offence. Since the completion of the previous psychological risk assessment in 2013, Mr. Spence has completed additional programming, has improved institutional behaviour, and has made gains with respect to acknowledging responsibility for his criminal offending history. (emphasis added)

The referral for this updated assessment was to assist the application for judicial review and did not indicate a reintegration plan at this point. The reintegration plan for Mr. Spence should afford opportunities for gradual reintegration beginning with demonstration of adequate institutional behaviour in a minimum-security setting, when deemed appropriate by Mr. Spence’s CMT. Typically, this would be followed by limited access to the community to further demonstrate implementation of appropriate skills and prosocial behaviour. It is noted that he is subject to deportation and his eventual community release decisions will need to take that into account. At the current time, Mr. Spence appears to be engaged in his Correctional Plan and there are no mental health concerns that would negatively impact reintegration efforts.

[37] While incarcerated Mr. Spence has worked to improve his education and has obtained his high school diploma. Since completing his high school diploma, Mr. Spence has continued to pursue his education by taking college courses at Northern College and Centennial College. He has an aspiration to obtain a Bachelor of Arts in Psychology from Northern College.

[38] Throughout his incarceration Mr. Spence has pursued job opportunities made available to him at the penitentiary where he has been in custody. He has maintained employment positions for lengthy periods of time including his position as Secretary-Treasurer of the Inmate Committee.

[39] Mr. Spence has also participated in a number of programs aimed at his rehabilitation. In 2013 Mr. Spence completed the Violence Prevention Program – Moderate Intensity. In 2021 he participated in the integrated Correctional Program Model Maintenance Program. He has also participated in the Transformative Change Program and various voluntary workshops including the Look Both Ways creative writing workshop.

[40] The records from Correctional Service Canada indicate that Mr. Spence has been active in his religious faith and a letter from Imam Habeeb Alli, the Muslim faith chaplain at the Beaver Creek Workworth Institution notes as follows:

I am willing to engage with him on his understanding of the faith upon reintegration. Mr. Sean Spence is a caring person and remorseful of his previous crimes. I support him for faint hope clause as this will help them reintegrate into society as a law-abiding citizen earlier than the given date.

[41] In the Parole Eligibility Report, under the subheading “Relationship with Institutional Staff” the author of the Report reflects the following:

Mr. Spence's parole officer, S. Fraser, provided the following comments on August 21, 2024:

Professional rapport with other staff members at Beaver Creek can be witnessed through the offender's work performances and through various comments received for the purpose of his escorted temporary absence. Overall, positive feedback had been received from members of the upper management team, correctional officers, correctional managers, and social program officers. Mr. Spence has worked closely alongside many members of these departments through his employment with the inmate committee.

The majority of comments received had mentioned that Mr. Spence often acts as the liaison between the offender population, management, and other staff members. They described him as a pleasure to work with, and he always strives for the most reasonable outcome of any situation to ensure that all parties involved are satisfied with the result. It was mentioned that management has utilized Mr. Spence to speak with offenders who have difficulties integrating to Beaver Creek. They have found that this sometimes allows an offender who is struggling to feel more comfortable, to be able to speak with another offender about his issues, rather than opening up to positions of authority as so many in the population have troubles doing. Mr. Spence was mentioned as being generally helpful and supportive in his role with the committee, and it is evident that he has worked hard over the years at fostering these relationships.

[42] Appended to the Parole Eligibility Report is a letter dated July 7, 2024 on the letterhead of Correctional Service Canada. It is authored by Shirley Osei who is a correctional officer at the Beaver Creek Institution. She has worked with Mr. Spence for about three years. In her letter Ms. Osei, amongst other things, states:

Mr. Spence is described by officers as a model offender who exemplifies good behavior and follows all institutional rules and policies. Spence has remained incident and charge free since I started working on his unit and is not seen as being a part of the offender subculture…

Lastly I strongly believe that Spence is a motivated individual who is doing whatever it takes to rehabilitate back into society and to return home to his family.

The Nature of the Offence

[43] There is a significant disparity between the positions of the Crown and Mr. Spence as it relates to the description of the nature of the offence. In the written argument supplied to this Court on behalf of Mr. Spence, counsel summarizes the nature of the offense as follows:

Mr. Spence was convicted of first-degree murder in the death of Mr. Chambers. The prosecution's theory, as described above, was that Mr. Spence encouraged Mr. Turner to carry out the offence.

[44] The Crown in its written argument takes issue with the description of the offence and summarizes its position as follows:

Lenworth Spence was the driving force behind the drug deal that was catalyst to this murder. That Mr. Spence had a motive to kill as a result of the failure of said deal and that he ordered that Jonathan Chambers life be terminated as a way to save face and to send a message.

[45] As previously noted, Howden J. in his detailed reasons for convicting Mr. Spence makes it abundantly clear that the killing of Mr. Chambers was done at the behest of Mr. Spence and that it was for all intents and purposes an execution style murder.

[46] It goes without saying that any murder is a serious offence. The willful taking of another person's life is the most serious crime in the Criminal Code. The murder for which Mr. Spence was convicted was premeditated. Mr. Spence believed Mr. Chambers, being unable to account for $52,000 belonging to Mr. Spence, deserved to be killed.

Victim Impact

[47] The Crown has provided to the Court victim impact statements from Mr. Chambers’ father, mother, sister, and brother. All of the statements speak to the continuing impact that the murder of Mr. Chambers has had on his family.

[48] In the victim impact statement of Mr. Chambers' father, he states:

This same individual (referring to Mr. Spence) while he was sitting in the prisoner's box as the trial was going on, was giving me, the father of the man he just murdered, the middle finger. Something that enraged me then, and still to this day. Granting parole would send a message that the life of my son Jonathan was not valued as it should have been. It would ignore the profound and lasting pain we continue to endure every single day. It would also place others at risk by allowing someone who has demonstrated a disregard for human life back into the community.

[49] In her victim impact statement Mr. Chambers’ mother, Nancy Chambers, amongst other things states:

Jonathan's death left a void that can never be filled. How do you heal a broken heart is my question. The pain of losing him was heartbreaking. There is no escape from the memories of his absence from the holidays that he loved so much should have echoed, to the milestones he never reached. He was robbed of his future, and we were robbed of his presence. Jonathan never got to see his brother play in the CFL, his Grey Cup Win. … When Jonathan was murdered his little sister that he loved so much was only four years old. He was not there for her high school graduation and see her get a scholarship to New Mexico University to run track and field. So many things have happened in our life and we are trying to get through without him.

[50] Mr. Chambers' sister, Aliyah Logan, reflects on the loss of her brother and ends her statement:

As I continue my journey as an athlete, I carry Jonathan's memory with me, running in his honor and keeping his light alive. There are so many more words to explain how my family has risen in devastating circumstances but not enough words to explain. Thank you for taking the time to hear my plea and for recognizing the enduring pain my family carries every day.

[51] A detailed review of the victim impact statements filed by the Crown in opposition to Mr. Spence’s Faint hope application make crystal clear that Mr. Chambers came from a caring family. To their credit the Chambers family has excelled in many regards since his death. The statements prepared by the various family members clearly reflect the long-lasting and ongoing impact that the loss of their son has had on all of them.

Any Other Matter Relevant to This Hearing

[52] In my view, there is at least one other factor that this Court must consider in relation to Mr. Spence's Faint hope application. This arises out of the fact that Mr. Spence is not a Canadian citizen and is subject to a deportation order in the event he is released from custody.

[53] Counsel on behalf of Mr. Spence argue that the immigration and deportation process that might occur following Mr. Spence's potential release on parole should not be considered by this Court. It is argued that, if Mr. Spence is ultimately successful in his Faint hope application and thus allowed to apply for early parole, the subject of deportation and any subsequent supervision are matters that the Parole Board of Canada (the PBC) will ultimately have to consider in relation to the risk to the public.

[54] While I agree with counsel for Mr. Spence that the ultimate decision as to whether or not Mr. Spence would be granted parole lies with the PBC, the fact that Mr. Spence is subject to a deportation order is a relevant consideration on this faint hope application. In R. v. Joseph, 2024 ONSC 1383, Dennison J. took into account the immigration status of the accused person in denying the faint hope application at the judicial screening stage.

[55] At paras 85-88 Dennison J. stated:

[85] The fact that the applicant will be removed from Canada and the supervision of the Parole Board is a factor to consider, particularly as it relates to safety concerns for members of the worldwide community.

[86] In Gayle at para. 39, Nordheimer J. held that the argument that it is pragmatic to want to grant the application so that the offender would be deported at the earliest opportunity, so they are no longer Canada’s problem is inconsistent with the objection [sic] of s. 745.6 of the Criminal Code and is not a relevant factor on the threshold issue. I agree.

[87] In Rowe, Justice Durno stated that the issue of deportation is a relevant factor to consider given that there will not be a safety net that the offender otherwise would have if they remained in Canada and were subject to the supervision of the National Parole Board.

[88] In this case, the applicant’s family support system is in Canada. While the applicant stays connected with his father, he does not appear to have the same support system in Trinidad as he has in Canada. In addition, once deported he would not be under the supervision of the National Parole Board. Consideration of the safety of the community is not limited to the community in Canada. The court should be concerned with the safety of the community at large.

Conclusion and Analysis

[56] Crown counsel largely opposes Mr. Spence's application for three reasons: the gravity of the offence; Mr. Spence's lack of remorse; and the fact that Mr. Spence if released and deported would avoid a significant part of the sentence originally imposed on him and would have no supervision once he is deported to Jamaica. Crown counsel does acknowledge that Mr. Spence “has been attempting to better himself while in custody and seems to be making strides towards improvement. All credit must be given to him for these actions.”

[57] While acknowledging that Mr. Spence has been attempting to better himself while in custody, Crown counsel suggests that these efforts must be tempered by caution due to Mr. Spence's failure to admit what he has done. His failure to admit his role in the murder of Mr. Chambers as reflected in the reasons of Howden J. thus limits Mr. Spence's insight which Crown counsel argues is a prerequisite for overcoming the issues that caused him to become involved in the murder in the first place.

[58] Not surprisingly, counsel for Mr. Spence sees this matter completely differently. Addressing the argument made by the Crown that Mr. Spence's denial of guilt for first-degree murder reflects negatively on his character and negates any expressions of remorse, defence counsel argues that it is unreasonable and incorrect to require that Mr. Spence agree with every proposed fact in the prosecution's theory of the case. Defence counsel accepts that this Court is left with the facts as found by the trial judge and the Court of Appeal. That said, defence counsel argues that there is no requirement that Mr. Spence accept without qualification and agree to those facts found by the trial court and the Court of Appeal.

[59] Defence counsel notes the inconsistency in the position asserted by the Crown where in the one breath Crown counsel suggests that Mr. Spence's failure to acknowledge guilt is a negative factor to be taken into account while later in its argument acknowledging that “there is no requirement that the applicant admit guilt and the accused cannot be condemned for exercising the panoply of legal options available to him” (see para 72 of Crown submissions).

[60] As it relates to the position asserted by the Crown that Mr. Spence has demonstrated a lack of remorse, it is in my view one thing to express remorse in words and another thing to express remorse through deeds. It is a much easier task to say something that others want you to say, i.e., to express remorse. It is another thing, and in my view a much more difficult task, for someone to demonstrate remorse through action. In Mr. Spence's case the steps that he has taken while in custody that I have reflected in these reasons, speak to the positive steps that Mr. Spence has taken that demonstrate an acknowledgement on his part to make himself a better person than the person who was involved in the murder of Mr. Chambers.

[61] The words of Pomerance J. in R. v. Al-Shammari, 2022 ONSC 4113 at paras 66 to 67 are, in my view, equally appropriate to Mr. Spence's application and this Court’s ultimate determination that a jury should be empanelled. In that regard Pomerance J. stated:

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

[62] It is worth noting that in Al-Shammari the offender who was seeking to have his faint hope application proceed before a jury presented before Pomerance J. with a series of the misconduct infractions while he was in prison. There were 12 infractions against the offender's record from 2010 through 2017. In her reasons at para 59, Pomerance J. noted that the infractions revealed a “pattern of disregard of the rules, and, perhaps, a certain arrogance in the applicant's response to authority.” Pomerance J. noted in her reasons that she was troubled by the infractions but determined that those infractions will be for the jury to assess their significance.

[63] In the case of Mr. Spence there are no infractions other than the two that were ultimately withdrawn. The applicant in Al-Shammari despite his infractions was ultimately successful in having a jury empanelled to hear his faint hope application.

[64] As it relates to the issue of Mr. Spence's potential deportation if he is released on parole, it is argued that in that eventuality Mr. Spence would have no objective, independent and verifiable mechanism of supervision and if he were to commit any further crime, he would not be subject to parole revocation. In addition, Crown counsel suggests that to allow Mr. Spence's application would have the effect of commuting a life sentence with a fixed parole schedule into a de facto 17-year sentence for a planned and deliberate murder. In framing his argument in this way Crown counsel notes that this was never the intention of Parliament and that to countenance such an outcome would bring the administration of justice into disrepute and would be a slap in the face to Mr. Chambers’ family and thus ultimately result in a “manifest injustice”.

[65] As previously noted, defence counsel argues that Mr. Spence's immigration status and the likelihood that he will be deported are not appropriate considerations for this Court at this stage of his application. I disagree. It is a factor to be considered but not a determinative factor.

[66] If the argument of the Crown was taken to its logical extreme an individual convicted of first-degree murder who upon completion of his or her sentence would be deported, could never apply for parole. This flows from the fact that someone serving a life sentence and released on parole remains on parole for the remainder of their life and thus subject to the terms and conditions imposed by the PBC. Crown counsel opposes Mr. Spence’s application because he would no longer be under the supervision of the PBC once he is deported from Canada.

[67] Ultimately, the decision as to whether or not Mr. Spence would be released on parole is a decision that the PBC will make. It is not a decision made by the jury or by this Court. The decision of this Court to empanel a jury then leaves it up to the jury to determine whether or not Mr. Spence should be entitled to apply for parole. The jury does not determine whether Mr. Spence gets parole. The jury does not determine what conditions might be imposed as a condition of his release.

[68] One of the factors that the PBC will have to take into account is the impact of Mr. Spence's deportation and the potential impact on the people of Jamaica. The PBC will consider the safety of the community which includes the community outside of Canada where an offender is deported to upon his or her release. See Collins v. Canada (Attorney General), 2012 FC 268.

[69] In conclusion there is absolutely no doubt that the murder of Mr. Chambers was brutal, premeditated and an execution. While Mr. Spence may not have been the person who pulled the trigger on the gun that killed Mr. Chambers, he was found guilty, and the appeal of his conviction was dismissed. If the only consideration that this Court had to take into account was the nature of the offence, Mr. Spence's application would have been doomed to fail.

[70] The brutality of the murder is but one factor that this Court is required to consider. Pomerance J. in Al-Shammari at para 65 of her reasons framed the question before her as follows:

[65] … The question is whether there is a viable hope that the applicant is a changed person, able to move forward with his rehabilitative efforts while posing no real risk to the safety of the public. Is it open to a jury to conclude that, despite the horrific nature of the crime, there is a realistic prospect that the applicant can become a contributing member of the community? Is it open to a jury to find that the applicant is deserving of an opportunity to seek release now, rather than waiting for the expiration of 25 years?

[71] The answers to the questions framed by Pomerance J. are yes. In my view, there is a viable hope that Mr. Spence is in fact a changed person as reflected in the various records and letters of support that were filed in this application. The records from the penitentiary reviewed above, in my view, demonstrate that Mr. Spence is in fact a changed person and that he has made efforts to rehabilitate himself and to move on to the point that he may not pose any real risk to the safety of the public.

[72] While it is ultimately up to a jury to determine whether or not Mr. Spence may apply for parole sooner than the 25 years imposed as part of his sentence, I cannot say that his application is doomed to failure. On a balance of probabilities there is a substantial likelihood that the application might succeed.

[73] Mr. Spence's application is granted, and a jury shall be empanelled to hear his application.

Edward R. S. Edwards
Released: June 18, 2025