R. v. Davis, 2010 ABQB 804

Court of Queen ’ s Bench of Alberta Citation: R. v. Davis, 2010 ABQB 804 Date: 20101216 Docket: 071467872X1 Registry: Lethbridge IN THE MATTER OF AN APPLICATION pursuant to

Section 745.6 of the Criminal Code of Canada for a reduction in the number of years of imprisonment and without eligibility for Parole with respect to Adrian Vernard Davis AND IN THE MATTER OF the preliminary application pursuant to

Section 745.61 for Judicial Approval to have the matter heard by a Jury Between: Her Majesty the Queen Crown - and - Adrian Vernard Davis Accused _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice D.K. Miller _______________________________________________________ [ 1 ] Adrian Vernard Davis was convicted of first degree murder and commenced his sentence of 25 years without eligibility for parole on May 26, 1993. Now, after serving over 17 years of his sentence, he applies under

Section 745.6(1) of the Criminal Code for an

Order empanelling a Jury to determine if his ineligibility for parole should be reduced to something less than 25 years. [ 2 ] Mr. Davis makes his application on the following grounds: 1. The protection of the public does not require his continued imprisonment without eligibility for conditional release; 2. The continued reform and rehabilitation of the Applicant would be aided by allowing him to seek conditional release; 3. The refusal of the application would adversely affect the public interest in the correction of the Applicant; 4.

The Applicant is deserving of lenience and the right to have his case considered by the National Parole Board in light of his good conduct while serving his sentence; and 5. The objectives of imprisonment of the Applicant have been attained. [ 3 ] The evidentiary basis for Mr. Davis’ application is a brief Affidavit and an unsworn 84 page Parole Eligibility Report prepared by John Gavan of the Drumheller Penitentiary dated June 12, 2009. [ 4 ] A review of the Parole Eligibility Report reveals some success and accomplishments of Mr. Davis while he was incarcerated.

On the other hand, it reveals a series of drug-related convictions disclosing a serious problem with substance abuse. This is verified by testing of urine samples. There are also several times when Mr. Davis refused to provide samples. [ 5 ] Mr. Davis also has disciplinary issues, some fairly recent in his incarceration period. [ 6 ] While counsel for Mr. Davis is very frank in his submissions on the negative and positive aspects of his client’s time serving his sentence, he is quick to point out that perfection is not the required standard. Quite properly, counsel refers to

Section 745.61(2) of the Criminal Code , which requires the Court, at the screening application stage, to consider the following criteria: 1. The character of the Applicant; 2. The Applicant’s conduct while serving the sentence; 3. The nature of the offence for which the Applicant was convicted; 4. 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 5. Any other matters that the Judge considers relevant in the circumstances. [ 7 ] Both Crown and Defence refer to R. v. Kent (2001), 2001 MBQB 350 (CanLII) , 161 Man.

R. (2d) 111, a decision of the Manitoba Court of Queen’s Bench. In that case, A.C.J.Q.B. of Manitoba, Justice Oliphant says: 44. In my opinion, for a judge to dismiss any application that is not hopeless, at the initial step of the proceeding is tantamount to usurping the function of the jury. I think Parliament intended that a jury, not a judge, should decide whether an offender should be given an opportunity to apply for early release in all cases except those where there is no reasonable prospect of success before a jury. [ 8 ] One would have thought that if there ever was a hopeless case it was that of R. v.

Kent . However, in that case, Justice Oliphant allowed the applicant to go before a Jury. I note that Mr. Davis’ charge and his Parole Eligibility Report, while not stellar in its recommendations are a far cry from the facts in Kent .

[ 9 ] The Crown has consented to this Application. I note there was no testing of the Parole Eligibility Report or challenge of any of its assertions by the Crown. That is certainly the Crown’s prerogative. But to accede to the Application of a convicted murderer who provides an unsworn Parole Eligibility Report for a screening application and not test the evidence is surprising. Analysis [ 10 ] At this stage, the Court is required to determine whether Mr.

Davis has shown, on a balance of probabilities, that there is a reasonable prospect that his Application will succeed. [ 11 ] A recent decision by our Court of Appeal, R. v. Dulay , (2009), 2009 ABCA 12 (CanLII) , 457 A.R. 206, describes at paragraphs 5 and 6 what steps are to be taken by the screening Judge: 5. In assessing whether there is a reasonable possibility that a jury might reduce the parole ineligibility, a screening judge is to review relevant written materials in light of the criteria upon which a jury would make its determination.

He or she must do a limited weighing of the evidence, specifically on the basis for which the application is brought. In this case, that basis is the alleged change in attitude. Under s. 745.63(1), a jury is to conduct its assessment of whether parole ineligibility should be reduced by considering:

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) victim information;

e) any other relevant information. 6. A screening judge’s assessment is not to decide whether the factors warrant a reduction, but only to decide whether there is a reasonable possibility that a jury will so conclude. Evidence and Factors [ 12 ] It is obvious from the Parole Eligibility Report that Mr. Davis did not have a good upbringing. He was a child of divorce at an early age; he experienced alcoholism in the family; he had no male figure in the home when he was growing up; and he was effectively raised by his sisters. He began drinking at a young age and became sexually active at a very young age.

All this, at a time when he wasn’t attending school, set a pattern of behaviour which resulted in the unfortunate death of Kenneth Roy Jackson on March 14, 1992. [ 13 ] The factual background of the murder for which Mr. Davis was convicted is summarized from the Parole Eligibility Report: Mr. DAVIS and Curtis Wade Pierson were together in the evening on 13 March 1992 and on the morning of 14 March 1992. They were drinking in a local bar. The topic of discussion turned to Ken Jackson and the suggestion that Mr. Jackson was sleeping with numerous women, including Mr. DAVIS’S ex-wife, and that Mr.

Jackson was spreading A.I.D.S. Shortly thereafter, Mr. DAVIS called Lethbridge Police asking what could be done about a person spreading A.I.D.S. Mr. DAVIS was basically told to have the “A.I.D.S. Victims” contact the police. Mr. Pierson later called the Lethbridge Regional Hospital after calling 9-1-1 for advice. Mr. Pierson was told that they could call the police or contact the Public Health Department. While Mr. Pierson was talking, the nurse heard the guy in the background say “then we’ll take care of it ourselves, we’ll shoot the fucker”.

The nurse said that the guy in the background was the most upset as he was carrying on and yelling through the entire call. Mr. Pierson and Mr. DAVIS left the bar and Mr. DAVIS drove the vehicle. They went to Mr. DAVIS’S home where Mr. DAVIS picket up a rifle and came back to the vehicle. Mr. Pierson later told police that he thought that Mr. DAVIS was going to scare Ken Jackson with the gun. The two went to Mr. Jackson’s house and they were invited inside. Mr. Jackson knew both men. Mr. DAVIS told Mr. Jackson that they

had some Cocaine. He was invited to go with them and they indicated that they would give him some cocaine. Mr. Pierson was apparently perplexed at what was happening but Mr. DAVIS told him not to worry about it. The three left the residence with Mr. DAVIS driving, the victim Mr. Jackson in the front seat and Mr. Pierson in the back seat. The vehicle ended up in a cul-de-sac area near an isolated city park. Mr. DAVIS grabbed the rifle and got out of the car. Mr. DAVIS told Mr. Jackson that he was sleeping with too many people and at gun point, Mr. DAVIS ordered Mr. Jackson out of the car. Mr.

Jackson denied that he was spreading it (AIDS) around and Mr. DAVIS said that he was. Mr. DAVIS then hit Mr. Jackson a couple of times and Mr. Pierson said that he told Mr. DAVIS “he’s had enough”. Mr. Pierson said that Mr. DAVIS took a step forward, put the gun under Mr. Jackson’s throat and pulled the trigger really fast. Mr. Jackson died instantly. The two men left the scene and changed clothes before returning to the scene where they dragged the body into some bushes in a vain effort to hide it. The body was discovered later that day and a subsequent investigation revealed that Mr. DAVIS and Mr.

Pierson were responsible for the murder. Both were charged but after a review by the Crown Prosecutor’s Office, a Stay of Proceedings was entered on the charge against Mr. Pierson. The police file does not indicate that Mr. DAVIS cooperated with the police. He pleaded “Not Guilty” and he maintained his plea until he was convicted before a jury. He maintained that he did not know that the rifle was loaded and that he did not intend to kill Mr. Jackson. He indicated that if he had not been so drunk, the killing of Jackson would not have occurred. The victim, Ken Jackson was 33 years old when he was murdered.

He was living apart from his wife and he is survived by two children. He was living on Assured Income for the Severely Handicapped (AISH) allowance and he had been a carrier of the A.I.D.S. virus since 1986. Adrian DAVIS was 26 years old when he murdered Ken Jackson and he was employed as a bartender at a local hotel. [ 14 ] Victim Impact Statements were presented to the Court as a result of this Application. Determination [ 15 ] This Application is the first step of a three-step process to reduce the term of parole ineligibility. The role of the Court at this first stage is to determine if Mr.

Davis has established on a balance of probabilities that there is a reasonable probability that a Jury could conclude that his period of parole ineligibility should be reduced. Given the information included in the Parole Eligibility Report, the authorities cited and most importantly, the Crown’s consent, it appears to me that the Applicant could have a chance of having his parole ineligibility term reduced before a Jury. Accordingly, pursuant to

Section 745.61 of the Criminal Code I Order that a Jury be empanelled to determine Mr. Davis’ Application. Counsel should determine the approximate time required for this hearing and contact the Trial Coordinator for dates. The matter is to be placed on the Arraignment List on January 10, 2011, for the purpose of fixing the date. Heard on the 16 th day of August, 2010. Dated at Lethbridge, Alberta this 15 th day of December, 2010. D.K. Miller J.C.Q.B.A.

Appearances: Robert B. Coleman, Q.C. Alberta Justice for the Crown Alexander D. Pringle, Q.C. for the Accused