ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
J. Spangenberg, K. Mildred, for the Crown
DAVID HATCH
B. Vandebeek, A. Youssef, for the Applicant
HEARD: in writing
RULING ON JUDICIAL SCREENING FOR SECTION 745.6 APPLICATION
CARNEGIE J.
[1] On March 27, 2012, the Applicant was convicted of first-degree murder in a jury trial presided over by Justice Rady in London, Ontario. As a result, he was sentenced pursuant to statute to life imprisonment without parole eligibility for 25 years.
[2] He now applies pursuant to s. 745.6 of the Criminal Code, colloquially known as the “faint hope clause”, for a reduction in his period of parole ineligibility. Section s. 745.61 necessitates a two-stage process, first commencing with this judicial screening stage.
[3] Pursuant to s. 745.6(1), the Applicant became eligible to bring this application on February 1, 2025, fifteen years after the date of his arrest.
[4] In sum, while in a depressed state, the Applicant planned a murder-suicide involving a former intimate partner, callously killing the victim but not himself. He resolved that if he could not have her, no one would and that he would take her life to permit them to share an eternal life together. On the trial record, this conclusion was inevitable and obvious. However, the Applicant denies that he planned or intended to kill the victim in advance. He only wanted to see the victim one last time before killing himself. Indeed, at trial he claimed he did not recall why he killed the victim but now maintains that once she shared her problems with him, he reasoned that he could relieve both of their problems though homicide.
[5] Both the Applicant and Crown Respondent have provided substantial evidentiary records for my consideration. Section 745.63(1)(a)-(e) necessitates that I consider several factors:
a. the character 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.
[6] There is no priority in consideration of these statutory factors. Each application must be assessed upon a fact specific basis. The most compelling argument for granting this application is the Applicant’s institutional rehabilitative efforts. All agree, he has made substantial progress in the institutional setting. That said, the nature of the offence, its impact upon the victims and degree of his acceptance of responsibility counterbalance the prospect of early parole.
[7] As explained below, I have concluded that, despite the callous and premediated nature of this intimate partner murder, the Applicant has established, through his rehabilitative efforts and overall character, that he has a reasonable prospect of persuading a jury that his parole ineligibility period should be reduced. A formal hearing to determine the merits of this application will proceed.
Legal Framework
[8] This faint hope process has two stages: first, on a written record, I must determine whether on a balance of probabilities the application merits a hearing; and second, if so, a hearing is set before a jury which has great wide discretion. The standard to be applied to this initial screening assessment is agreed upon by the parties: is there a reasonable prospect of success?
The screening threshold
[9] At present, s. 745.61 provides for a higher screening threshold. In 2011, Parliament enacted a “substantial likelihood that the application will succeed” standard to replace the 1996 initial “reasonable prospect” threshold. Going forward, Parliament also eliminated the faint hope provision. In R v Dell,1 the Ontario Court of Appeal found that retrospective application of these provisions violated s. 11(i) of the Charter, which could not be saved by s. 1 of the Charter. There, the offender had committed the antecedent offence in 1995, prior to the judicial screening mechanism being enacted. That offender applied in 2013,
1 R v Dell, 2018 ONCA 674, leave to appeal refused, [2018] SCCA No 389; see also R v Liu, 2022 ONCA 460,
at para 6, and R v Joseph, 2026 ONCA 317 at para 29
after both the addition of the judicial mechanism and its enhanced threshold. The Court’s conclusion permitted recourse to the sentencing regime in place at the time of the offence was committed.
[10] On this basis, and given an offence date in 2010, the Crown concedes that this application is subject to the “reasonable prospect of success” threshold. I agree. I must, therefore, determine whether there is a reasonable prospect that a jury will unanimously conclude that the Applicant’s parole ineligibility should be reduced.
Reasonable prospect of success
[11] What amounts to reasonable prospect of success has been clarified by the Ontario Court of Appeal in R v Phillips, ruling that this threshold reaches beyond a “not hopeless” standard:
We agree with the application judge that the statutory test embodies more than merely showing that a case is not hopeless. The normal meaning of the words suggests a higher test. Moreover, as the application judge pointed out, lowering the threshold to having to establish only that a case is not hopeless would frustrate the purpose of the judicial screening stage.
In passing, we note that it is generally preferable when a court is applying a statutory test to use the language in the legislation. Inserting what are considered to be synonymous words or phrases into an analysis often tends to confuse rather than clarify.2
[12] When applying this standard, I agree with Justice Pomerance (as she then was) in R v Al-
Shammari, when she observed that
[T]he 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 upon the evidence of rehabilitation.3
Relevant screening principles
[13] The principles relied upon for this screening process have been well settled. In R v Eunick, Justice O’Marra helpfully summarized the oft cited screening principles outlined by Justice Durno in R v Morrison:
- All of the factors set out in s. 745.63 (1)(a)-(e) inclusive must be considered. There is no "score card" that gives each factor equal weight. Each application is a fact-specific determination.
2 R v Phillips, 2012 ONCA 54, at paras 6-7
3 R v Al-Shammari, 2022 ONSC 4113 at para 13
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] AJ No 29 (CA), at para
The primary focus of the hearing is to "call attention to changes which have occurred in the applicant's situation that might justify a less harsh penalty": R v Swietlinski, 1994 CanLII 71 (SCC), [1994] 3 SCR 481, at p 482. The jury's verdict, in effect, is an assessment of the offender's progress: R v Jenkins, 2014 ONSC 3223, 11 CR (7th) 346, at para 17.
In order to reduce the period of ineligibility, the applicant must satisfy all twelve jurors. Accordingly, the test at the judicial screening stage is whether on the material filed the applicant satisfies the judge on a balance of probabilities that there is (in this case) a reasonable prospect that a jury would unanimously reduce the ineligibility period.
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] OJ No 4124 (SCJ), at para 30.
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.
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, 324 CCC (3d) 57, at para 62.4
[14] Further, when assessing the s. 745.63(1) statutory factors, I adopt Justice Durno’s approach in R v Rowe, that “there is no requirement that each be given the same weight.”5 While I must consider each factor. I have the discretion to assess and prioritize them based upon case specific circumstances.
[15] Finally, an applicant’s acceptance of responsibility for the offence and/or the extent of his remorse has been found to be a relevant factor at the screening stage.6
Analysis
[16] I will now turn to a consideration of each enumerated statutory factor.
4 R v Eunick, 2018 ONSC 5971 at para 6; R v Morrison, 2016 ONSC 5036 at paras 34-43
5 R v Rowe, 2015 ONSC 2576 at paras 12
6 Phillips at para 8; affirming 2011 ONSC 1914; Eunick, supra at para 29; R v Banwait, 2019 ONSC 3026, at paras
57, 89, 91; R v Crick, 2012 ONSC 5695, at para 20
Nature of the offence
[17] To summarize, on January 31, 2010, the Applicant murdered the victim, Ms. Marie Roberts, in a hotel room in London, Ontario. They had a previous and ongoing intimate relationship. While visiting London from his home in Alberta, they agreed to meet at his hotel room. While she was watching television, he approached her from behind and shot her in the temple with a rifle he brought from his home in Alberta. Ms. Roberts died instantly. Her body was then moved into the bedroom of his hotel room, disrobed and covered with a blanket.
[18] On February 1, 2010, the Applicant was arrested and charged with first degree murder.
[19] Ms. Roberts was 29 years of age at the time of her death. The Applicant was 30 years of age. They had previously had a short-term relationship that was described as “on-again, off-again”. That relationship ended in 2007, but they continued to communicate by email and text messages afterwards.
[20] In December 2009, he had returned to St. Thomas, Ontario to spend the holiday season with his family. His life was then in turmoil, suffering from significant financial distress and generalized depression. During this trip, he met the victim at a variety store before returning to his home in Calgary, Alberta. On January 5, 2010, the Applicant purchased
a .22 calibre rifle from a sports store in Alberta. A few weeks later, on January 30, 2010, he flew back to London on a one-way ticket and booked a hotel room for three nights, from January 30th through to February 2, 2010, which he paid for in cash. He brought the recently purchased rifle with him. He told no one other than the victim that he was returning to London for the weekend and maintained contact only with her that weekend.
[21] On January 31, 2010, Ms. Roberts attended the Applicant’s hotel room at 8:40pm. She had made plans to attend a concert and had invited the Applicant to join her. The Applicant asserts that they were then sexually intimate before she briefly departed to pick up the concert tickets. Back at his hotel room, they watched television. During this activity, the Applicant went to the separate bedroom in the hotel room where he retrieved his rifle, wrapping a folded facecloth over the muzzle to mimic a silencer. He then approached the victim from behind, shot her in the temple, and then moved her body back into his bed, removing her clothing in the process, and covering her with a blanket.
[22] At trial, the Crown’s theory was that the Applicant had committed a planned and deliberate murder, as part of an intended “murder-suicide”, which included the following additional evidence:
a. digital evidence from the Applicant’s work computer in Calgary, which included generalized “Google” internet searches for:
i. homemade silencers using a towel, pillow, and how far will the sound of a gunshot reach (January 12-14, 2010);
ii. killing a person with a .22 calibre rifle with one shot, “where to shoot someone in the head”, “best place to shoot someone in the head for instant
death”, “will a person die instantly if shot in the head” (January 13, 19, 25- 27, 2010);
iii. hotel booking for London, Ontario (January 13, 19-20, 2010);
iv. flight booking and information respecting transporting a firearm (January 13, 15, 2010);
v. searches of the victim by name, city (January 14, 2010);
vi. “murder-suicide”, “Romeo and Juliet”, “if you die with the one you love, are you together forever in death”, “do you reunite [with] your love when you die”, “if you kill someone, do you go to hell”, “if you kill someone and commit suicide, what happens to you”, “what happens if you commit suicide”, “murder of passion, how many people kill their lover”, and “are all suicides planned and is suicide with a .22 messy” searches (January 14, 19, 28-29, 2010);
b. Admissions made to the police upon arrest, including the following:
i. he arrived in London having not told anyone he was there except the victim;
ii. he was a “broken man” thinking that if he could not be with the victim in this world, maybe they could be together in heaven forever;
iii. he planned to kill her and then lay beside her and kill himself, and then join her in heaven;
iv. the victim did not know he brought a rifle with him. He retrieved it while she was watching television. They were watching the “Grammys” award show. He approached her from behind, started crying and shot her. He then moved her to bedroom removing her clothes and placed her in the bed;
v. after killing her, he cried for hours, drank alcohol (mostly after the shooting), texted his mother goodbye and fell asleep;
vi. the morning afterwards, he woke up and said goodbye to family members, leaving notes for his mom in the hotel room;
vii. he would have killed himself if the police had been 10 minutes later in responding. He regretted not doing it before police arrived at the hotel;
viii. he worshipped the victim, and his affair with her was difficult because her partner had been his best friend; and
ix. he was experiencing financial distress due to arrears in support payments to his former partner which caused him to lose his house in Calgary. He started
reading the bible and first wanted to just kill himself but then decided to bring the victim into it.
[23] At trial, the Applicant denied intending to kill the victim. He flew back to Ontario with his rifle simply to see her one last time and then commit suicide. He acknowledged that he was not intoxicated when he killed her but certainly became so thereafter. He testified that he had no memory of what occurred from some 10 minutes prior to the murder to the point when the police arrived the next day. He did not recall comments and admissions made to police. Finally, he could not say why he killed the victim and hoped that one day he would find out. He maintained that, at the time, he was depressed.
[24] The Applicant did not appeal his conviction attesting in his affidavit, dated May 1, 2025, at paragraph 7, that he did not want to put the victims’ family, or his own, through any further court proceedings.
[25] Having considered the nature of the offending conduct, I consider it a significant factor weighing against granting the Applicant a further hearing on this application. Of course, inherent to these applications are offences of the worst and most serious nature where premeditated homicide is the norm. Further, it is impossible to meaningfully compare the severity of one murder to another given the incalculable loss of life involved. That said, gradations upon a scale of homicide severity must be assessed. While I am reluctant to do so, this offending conduct falls short of what is commonly referred to as stark horror scenarios that might, on their own, overwhelm the balancing process. Nevertheless, the callous self-absorbed and premediated nature of these circumstances emphasizes this factor in the overall analysis. As has been commented in other faint hope screening decisions, where the analysis is based solely upon the nature of the offending conduct, this application would fail at the screening stage.
Victim information
[26] Unsurprisingly, the loss of Ms. Roberts has been overwhelming to her family and loved ones, both at the time of sentencing and now. She is remembered for her sense of humour, her generosity, her kindness, and her devotion to family. Described as the family’s “heart”, her loss is particularly felt during the holidays and at family gatherings. The void that has been left remains.
[27] At the Applicant’s sentencing hearing, the anguish of this tragedy was palpably expressed through victim impact statements from ten family members. The repetitive trauma experienced by her father throughout the trial process was and remains noteworthy. The agony at the loss of a life partner, expressed by the victim’s boyfriend who was formally a friend of the Applicant was profound. Ms. Roberts clearly had an indelible impact upon those she loved and cherished.
[28] In anticipation of consideration of this application, eight of the victim’s relatives have submitted further victim input, including her mother, aunts, uncles and a cousin. The loving memories held and shared of the victim and her impact upon their respective lives is impactful. In particular, I note with sadness and understanding that the victim’s mother’s
loss has not been assuaged by the passage of time. Her daughter was taken from her, robbing her of expected life celebrations and experiences. She feels unfilled and broken to this day. I also note that the victim’s loss has been attributed to various familial health concerns since.
[29] Members of the victim’s family struggle to find compassion for the Applicant given all that he has taken from them. They have made plain the juxtaposition between her selflessness and the Applicant’s selfishness. Some are angered by the prospect of clemency and its correlation with justice. Others fear that his possible early release puts their safety at risk. Further, this very application and the prospect of the Applicant’s early release has refreshed wounds earlier than expected. All of this is entirely understandable. Their resolute advocacy against this application is heard and has been considered. Applicant’s conduct while serving this sentence
[30] The Applicant is presently 47 years of age and is incarcerated at the Beaver Creek Institution, Medium Security, located in Gravenhurst, Ontario. Reports respecting his overall conduct within the institutional setting are positive leading this concession by the Crown, as supported by this Application Record. I would go further. The Applicant has been described by institutional sources as a “model inmate” evidenced by the breadth of his efforts towards rehabilitation.
[31] The Applicant’s engagement with institutional programing has been described quite positively, including that:
a. he has been described by institutional staff as a “stand up, model inmate” who has been focused upon his sobriety and mental and physical health, who presents as extremely polite, well behaved, hard working, and self reflective;
b. he has fully participated in several standard correctional programs geared towards targeting interconnected criminal risk factors to reduce recidivism and increase self-awareness and reflection, and in this regard has received positive reports;
c. he has actively participated in substance abuse programs and has maintained sobriety for over 15 years;
d. he has furthered his education while in custody obtaining a high school diploma, as well as other vocational diplomas from adult learning centres which include social work, substance abuse, fitness, nutrition, and business disciplines, alongside numerous institutional mandatory and voluntary courses and programs;
e. he has acquired a positive institutional employment record where correctional staff and supervisors have commented favourably respecting his work ethic and interpersonal skills. His employment opportunities have spanned various areas, including various institutional cleaning assignments, various workshop disciplines, carpentry activities, various canteen operations assignment, and the role of Inmate Grievance Coordinator to assist fellow inmates with institutional concerns; and
f. he has assisted other inmates through St. Leonard’s Life Inreach programming, not only addressing his own issues but assisting other inmates with their own. In addition, his participation in the “Lifer Mindfulness Group” as a participant and facilitator has demonstrated leadership attributes and an interest in other inmates and their recovery.
[32] The Applicant’s institutional behaviour, by and large, has also been positive. He incurred one institutional misconduct finding having pleaded guilty in 2012 for having excessive medication in his cell which, he reports, was prescribed for him by his psychologist but was not being diligently taken resulting in the accumulation. Otherwise, his conduct has not raised any institutional concerns. His Correctional Plan notes that he has developed a positive and productive daily routine and his interactions with correctional staff have been characterized as respectful and appropriate.
[33] The Applicant’s risk of recidivism is also a relevant feature of this screening assessment. The Applicant has been subjected to various recognized actuarial based psychological risk assessments, which have generally scored him as a low risk for recidivism. His most recent risk assessments, from 2022 and 2024, rate the Applicant overall as a “low to low-moderate risk for general and low-moderate risk for violent recidivism”. Further, since his admission and initial assessments, the Correctional Plan notes across the board substantive improvement in several dynamic risk factors.
[34] The Crown notes that he has been rated as having a “moderate need for improvement” in the “Marital/Family” dynamic risk factor – the area of most concern given the offence narrative. To that, the Correctional Plan explains that further risk assessments specific to intimate partner violence would be useless as the dynamic factors related to this measure cannot be further addressed in the institutional setting. In other words, the Applicant’s scoring beyond the nature of his offending conduct cannot be reassessed or mitigated until he is observed in a community setting.
[35] The Applicant is currently classified as a medium security inmate, assessed as having a low level of risk to public safety. The fact that the Applicant has not yet cascaded down to a minimum-security institution is a relevant consideration because such determinations are attributable to institutional conduct.7 Also relevant is commentary respecting his present and future classification. I note that since 2022, his assessing psychologist has suggested that the Applicant would be manageable in a minimum-security setting which would allow for further access to the community.
[36] The Applicant has successfully completed several Escorted Temporary Absences within the community, as granted by the Parole Board in 2022. These have included participation in programming at a minimum-security facility where he facilitated his operational awareness of employment and programming opportunities in that setting. His plans now include gaining the support of a halfway house in his community of choice through the
7 Phillips, at para 8; Joseph, at para 41
Parole Office and securing future escorted absences as part of a comprehensive future release plan.
[37] The Applicant’s potential for reintegration in the community is assessed as medium in his Correctional Plan. Practically, this classification cannot be rated higher until he is placed in a less restrictive environment and then re-assessed. He has effectively reached the ceiling in his current medium security setting.
[38] With this overall progress in mind, the Applicant has checked most, if not all, rehabilitative boxes in his institutional setting. His progress is noteworthy and consistent, presenting as respective to authority, non-violent, and motivated towards self-improvement. His efforts at addressing identified risk factors appear fulsome and real. Time productively spent upon educational goals and employment opportunities bode well for his eventual reintegration into society. What can reasonably be expected from this offender since his conviction has, by and large, been achieved.
Applicant’s character
[39] In considering the Applicant’s relevant character attributes, I have considered his background, offence time period stressors, his ongoing familial relationships and supports as well as his offence specific accountability and remorse.
[40] By way of background, the Applicant was born in Stratford, Ontario, and was raised in a broken family – his father abandoning the family when his was an infant, his mother marring and living with abusive alcoholic partner until he was 11 years of age. Thereafter, his mother moved to St. Thomas, Ontario, where she began a new positive relationship with a father-figure the Applicant maintained a positive relationship with until his more recent passing. In his teenaged years, the Applicant met his half-sisters from his biological father and continues to have positive relationships with them. At 18 years of age, the Applicant began an intimate relationship and by 21 years of age had two daughters. That relationship ended after the birth of his second daughter.
[41] The Applicant outlined various difficulties that he experienced throughout his life, as he presently understands them, including that:
a. he suffered from low self-esteem and anxiety, manifested from emotionally abusive treatment at the hands of his first step-father;
b. he struggled academically;
c. he abused alcohol to cope with stressors;
d. he experienced the loss of a lifelong best friend 8 months prior to this offence, who had also lost a marriage and had been subsequently living with the Applicant in Calgary. After conflict between them, the Applicant kicked his friend out of his house and, weeks later, his friend committed suicide for which the Applicant blamed himself. This contributed to further substance abuse on the part of the Applicant;
e. his own financial stressors mounted, with arrears in family support obligations being garnished from his wages causing him to fall behind and ultimately lose his own home; and
f. the resulting stressors contributed to self-described “extreme depression”, resulting in a fatalistic mindset, increased abuse of alcohol and suicidal ideation.
[42] Despite his incarceration, the Applicant has maintained positive relationships with his family which positively reflects upon his prospects for rehabilitation. While his step-father has passed, he regularly connects with his mother, grandmother, sister, aunt and uncle and daughters. Upon my review of the submitted letters from family members, I noted a common perception that he is not only remorseful for what he had done but is motivated to address his mental health and substance abuse issues, to better himself through enhanced education and vocational training, is finding pro-social interests, and has demonstrated active engagement with his family and their respective lives. He has been building bridges with his familial supports.
[43] Should the Applicant ultimately be granted parole, his plan is to move a significant distance away from southwestern Ontario. He claims that he is motivated to do so out of respect for the victim’s family, hoping that distance may mitigate further reminders of this tragedy. This intention is supported by active planning, wherein the Applicant has made contacts with available local supports and his mother, who is nearing retirement with the intention to relocate out of southwestern Ontario to reside with the Applicant and assist with his reintegration.
[44] The Applicant’s criminal antecedents are generally unrelated and non-violent, where on January 16, 2006, he was convicted of impaired driving and flight from police, and on May 11, 2010, he was convicted of failing to comply with a bail recognizance.
[45] Overall, the Applicant points to his mental health and substance abuse as substantive contributing factors to his offence cycle. He had not demonstrated a predisposition towards violence prior to this offence, as is evident by his limited criminal history, but allowed himself to become self-destructive and self-absorbed in his own misery. He accepts that he cannot undo the tragedy he has caused and is left only with motivation to improve himself.
[46] In assessing the Applicant’s character, I remind myself of Justice Pomerance’s observation in R v Jenkins,
The character of an offender is not immutable. It is not forever defined by the homicide that brought the offender before the court. The faint hope process is predicted on the notion that persons can change over time. As stated by Lamer
C.J.C. in R. v. Sweitlinski, 1994 CanLII 71 (SCC), [1994] 3 S.C.R. 481, at para. 12: "the primary purpose of the 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". Past events, including the offence, are important in the assessment of character, but their relevance may be attenuated by changes in the offender’s life. 8
Remorse and accountability
[47] As a feature of his character, an assessment of the Applicant’s level of accountability and resulting remorse is germane. Despite his most recent Correctional Plan’s “high” accountability rating, the Crown has highlighted the Applicant’s trial and post-trial offence narrative as evidence of a continuing lack of remorse and acceptance of responsibility. It is argued that this is entirely relevant to and adversely reflects upon the Applicant’s prospects for rehabilitation.
[48] The Crown relies upon the dichotomy between its trial theory and the Applicant’s trial evidence, modified to some extent post trial. To be clear, the Crown relied upon “planning and deliberation” as its route to first-degree murder culpability which was obviously accepted by the jury. To this end, the Crown posits a binary analysis between a planning and deliberation theory reliant upon advanced planning of a murder-suicide prior to the Applicant’s return trip in January 2010 to London, with the Applicant’s trial evidence that he simply wanted to return to London to say goodbye to the victim before committing suicide. At trial, the Applicant could not recall how circumstances led to the victim’s killing but has since “modified” his account to include a narrative involving a pre-killing London discussion with the victim that included her sharing all her problems, leading to his contemporaneous determination that he could and would relieve both of their problems.
[49] When considering the impact of remorse and accountability upon rehabilitative prospects, I adopt the reasoning of Justice Dambrot in R v Banwait, wherein as part of a screening stage analysis, he noted the correlation between the two:
Unquestionably, remorse and accountability must be considered together. Accountability is the handmaiden of remorse. Genuine remorse must begin with the acceptance of responsibility for the actions in question.9
[50] The Applicant counters that consistent institutional assessment reports demonstrate his “full accountability” and “full responsibility” for the offending conduct, despite the fact that his version of the offence narrative was noted in his preliminary assessments as being inconsistent with “official” information received. Since his modified version was advanced, it appears to have buttressed institutional confidence in his degree of remorse. Upon my review, it is unclear to me which parameters were used by correctional authorities to assess this offender’s accountability.
[51] Further, the Applicant counters that his position is not necessarily inconsistent with the jury’s verdict. Of course, as common law has long established, a planned and deliberate murder need not be planned and considered over a protracted period of time.10 Even a short
8 R v Jenkins, 2014 ONSC 3969 at para 16
9 Banwait, at para 57
10 R v Ally, 2022 ONCA 558 at para 43
gap between these elements and the homicide is sufficient to ground a conviction which was a theory available to the jury. As such, the Applicant has adequately accepted responsibility for his conduct making his expression of remorse both real and genuine.
[52] Regardless, I acknowledge the Applicant’s submission that a lack of complete accountability and/or a fulsome expression of remorse is but one factor for screening determination. There are a number of examples of cases where a less than fulsome acceptance of responsibility and/or remorse, or a complete denial of both, have nevertheless advanced to the formal hearing stage.11
[53] Indeed, in this region I note examples, including in R v Mordue, where Justice George (as he then was) noted that the applicant maintained that he never planned the murder of his estranged spouse as part of a Crown argued murder-suicide theory. This, despite the fact that the court found that the “jury got it right … as there was overwhelming evidence of planning.”12 Nevertheless, the court distinguished between full and partial accountability and remorse, finding that the applicant’s acknowledgment of the killing had some positive character effect.
[54] Further, in R v Al-Shammari, I note Justice Pomerance’s assessment of less than perfect accountability, relied upon by the Applicant here:
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.13
[55] While this conclusion may well have fit Mr. Al-Shammari, I find it ill-fitting in the present circumstances. As I have noted, there was ample, if not overwhelming evidence of a pre- existing plan to kill Ms. Roberts in advance of the Applicant’s return to London in January 2010. As I note from the trial record, the Applicant had little persuasive response for the pre-existing internet search history grounding his state of mind before his return. That search history not only included specific murder-suicide related inquiries but also included queries respecting the means to suppress the sound of a rifle’s muzzle fire, which would have little relevance to a mere pre-existing suicide intention. As was the case in Mordue, on this record I am confident that the jury got it right. Further, upon my screening review, I am satisfied that a both planned and deliberate murder was committed in accordance with
11 See: R v Schaefler, 2009 CanLII 39498 (ON SC), [2009] OJ No 3175 (SCJ) and R v Spence, 2025 ONSC 3645, wherein the applicants maintained their innocence; Dell, 2016 ONSC 505 at para 25, wherein the applicant’s level of remorse was
described as “weak to moderate”, yet upon appeal (supra) a formal hearing was nevertheless granted; R v Humaid, 2016 ONSC 5345 at para 11, wherein the applicant maintained a lack of memory before the killing and did not admit to planning.
12 R v Mordue, 2022 ONSC 982 at para 6
13 Al-Shammari, at 67
the Crown’s trial theory. As a result, I am not satisfied that the Applicant has fully accepted responsibility for this offence, and his expressed remorse is therefore qualified.
[56] While a fulsome expression of remorse can buttress rehabilitative prospects, I also agree with Justice Edwards in R v Spence that it is not the only means of doing so:
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.14
[57] The Applicant has demonstrated through his custodial conduct a capacity for demonstrated remorse. I agree with the Applicant that his institutional records reflect an individual who has substantially grown, gaining necessary insights and experiences that heighten his prospects for rehabilitation. Balanced against that is his refusal to acknowledge the extent and degree of planning and deliberation he engaged in. While this mitigates the extent of his remorse, it does not eliminate it from meaningful consideration. As noted, there is no standard of perfection applied to the degree of remorse demonstrated. The Applicant is entitled to dispute the very findings of the court. Here, the Applicant is not protesting his innocence, nor has he appealed his conviction. He takes responsibility for ending Ms. Robert's life and has consistently expressed remorse for doing so. On this evidentiary record, I accept that accountability has at least been partially acknowledged lending to a degree of remorse that further buttresses the Applicant’s character.
Other relevant matters
[58] As part of the screening function, s. 745.61(1)(c) compels consideration of “any other written evidence” presented by the Crown. Further, s. 745.63(1)(e), as noted, permits consideration of “any other matters” that I might consider relevant in these circumstances.
[59] In that spirit, the Crown seeks consideration of post offence conduct evidence ruled inadmissible at trial. Specifically, given that culpability has been established and the Applicant’s character and an assessment of risk are live factors in this application, the Crown seeks to rely upon evidence it alleges establishes postmortem sexual interaction between the Applicant and the victim. This form of conduct, contemporaneous to the murder, has not be substantively addressed as part of the Applicant’s rehabilitative programming.
[60] In particular, the Crown alleges that it can establish that the victim was disrobed after the shooting and that her body was moved onto the hotel room bed and left in a position
14 Spence, at para 60
suggestive of postmortem intercourse. It seeks to have me consider at the screening stage the following evidence:
a. computer searches performed by the Applicant on January 4th and 11th, 2010, relating to “necrophilia” and “would a dead women’s vagina be tight”;
b. the Applicant’s trial excised responses from a police interview wherein, when asked whether he was intimate with the victim after her death, he said: “No, unless I don’t remember it, but that’s what I recall”;
c. evidence from a forensic biologist who examined the victim’s clothing, finding that there was no semen found in her underwear or on her pants despite positive findings of semen in her vagina. In response to a hypothetical sexual intercourse scenario prior to the shooting event, wherein the victim was clothed thereafter, left the hotel room and later returned (as outlined by the Applicant’s narrative), the biologist would have expected to find semen on underwear or pants “drained from the vaginal cavity”; and
d. bloodstain pattern analysis evidence respecting the victim’s body positioning, postmortem bleeding, and the presence of a bloody handprint on the bedsheets beside the victim’s body.
[61] The Applicant disputes the probative value of this evidence on its factual foundation. He contends that the lack of presenting semen on the victim’s underwear or pants fails to address the timing of the sexual activity given that there is no evidence to determine when the clothing was removed, or if it was ever put back on. To this, I am unconvinced. The Applicant’s police statements establish his narrative to the contrary, that the parties engaged in intercourse some 30 minutes prior to the shooting, that thereafter, the victim clothed, left the hotel room to purchase concert tickets, then returned and watched television. After the shooting, he moved the victim’s body and, upon the totality of the evidence, he acknowledged then removing her clothes before placing her in the bed. The Applicant’s account allows for the Crown’s narrative absent pre-shooting sexual intercourse.
[62] Nevertheless, I find that I need not consider whether this proposed evidence merits screening stage consideration. While this statutory regime is permissive respecting consideration of relevant evidence, and I acknowledge that this hearing falls closer to sentencing hearing evidentiary allowances than it does to trial evidentiary restrictions, I find that the Crown has failed on this evidentiary record to satisfy me that postmortem sexual intercourse occurred.
[63] I agree with Justice Rady’s pre-trial determination that “[t]he Crown cannot prove that sexual intercourse occurred post mortem.”15 Further, I agree with the Applicant that, as part of the Criminal Code’s sentencing regime, establishing this contested aggravating fact would require proof beyond a reasonable doubt. Justice Rady was concerned not only about
15 R v Hatch, 2012 ONSC 1519 at para 2
the prejudicial effect of this evidence, but that it posed a real risk that a jury might jump to the Crown’s requested inference without proper consideration to the possibility that prior sexual intercourse between the parties occurred that evening. I share that concern but, more particularly, I am more concerned that this evidentiary record allows for competing conclusions that cannot be firmly resolved, which diminishes the relevance and corresponding probative value of this evidence. While limited fact finding is inevitable, the purpose of a screening assessment does not include engagement in substantive and contested fact-finding of aggravating post offence conduct refashioned as relevant to an offender’s rehabilitative prospects.
[64] As such, I decline to consider whether postmortem sexual intercourse occurred on January 31, 2010, as part of my screening function on this application.
Conclusion
[65] On the totality of these circumstances, mindful of the enumerated statutory factors, I am satisfied on a balance of probabilities that the Applicant has a reasonable prospect of convincing a unanimous jury that his parole ineligibility can be reconsidered. To this end, I adopt the observations of Justice Pomerance (as she then was), in R v Abram, wherein she noted:
…People are not exclusively or indefinitely defined by the crimes that they committed, however serious those crimes may be. Faint hope is predicated on the notion of redemption and the capacity of human beings to change. As stated by Lamer C.J.C. in R v Sweitlinski, 1994 CanLII 71 (SCC), [1994] 3 SCR 481, at p 493: “the primary purpose of the 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”.16 (emphasis in original)
[66] Here, the nature of the offence was callous, calculated, and shocking. Fixated upon himself, the Applicant determined that he could not live without Ms. Roberts nor permit her to live without him. He planned her killing and deliberated upon it for some time, failing only to kill himself in the process. The record makes clear the inevitability of his conviction for first degree murder. The impact of this offence understandably remains devastating to the victim’s family and their opposition to this application is understandable.
[67] Yet, the Applicant has since engaged upon significant rehabilitative efforts. As I have noted, his institutional conduct and overall character support a rehabilitative profile that justifies a fulsome hearing on merits of his continued parole ineligibility. A jury would be best positioned to assess the relevant disparity between who the Applicant was and is today, his redemptive capacity, and the degree to which that impacts his claim for clemency.
16 R v Abram, 2019 ONSC 3383 at para 3
[68] As such, I am satisfied that the Applicant has met the relatively modest reasonable prospect of success threshold. On this evidentiary record, a unanimous jury could conclude that the opportunity for earlier parole is justified.
[69] I direct, pursuant to ss. 745.61(5) and 745.63, that a jury be empanelled to consider the Applicant’s request to have his period of parole ineligibility reduced.
[70] A case management conference will be held with counsel to assess the parameters for this hearing, including establishing a timetable and a time estimate for the hearing to permit its scheduling as soon as practicable.
Released: August 4, 2026
CITATION: R. v. Party, 2026 ONSC 4543
COURT FILE NO.: CR-10-10677
DATE: 20260804
ONTARIO SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
DAVID HATCH
REASONS FOR JUDGMENT
Justice M. B. Carnegie
Released: August 4, 2026