R. v. Oczko, 2012 ABQB 121

Court of Queen ’ s Bench of Alberta Citation: R. v. Oczko, 2012 ABQB 121 Date: 20120228 Docket: 904876512U1 Registry: Lethbridge/Macleod IN THE MATTER OF an application pursuant to s.745.6 of the Criminal Code of Canada for a reduction in the number of years of imprisonment without eligibility for parole with respect to FRED OCZKO Between: Her Majesty the Queen Crown/Respondent - and - Fred Oczko Applicant _______________________________________________________ Reasons for Judgment of the Honourable Chief Justice Neil Wittmann _______________________________________________________ Introduction

[1] On March 3, 1993 at Lethbridge, Alberta, Fred Oczko (“Oczko”) was sentenced to two concurrent terms of lifeimprisonment, having been convicted, after a trial by a judge and jury, of two counts of first degree murder. The sentences carried withthem an automatic requirement that Oczko would not be eligible for parole for 25 years. Oczko has applied to reduce his paroleineligibility to less than 25 years. A screening hearing was held in Lethbridge, Alberta, on the basis of written materials presented byOczko and the Crown, to decide whether his application should be heard by a jury. Applicable Provisions of the Criminal Code [2] The Criminal Code of Canada provides as follows: 745.6

(1) Subject to subsection (2), a person may apply, in writing, to the appropriate Chief Justice in the province in which theirconviction took place for a reduction in the number of years of imprisonment without eligibility for parole if the person (

a) has been convicted of murder or high treason; (

b) has been sentenced to imprisonment for life without eligibility for parole until more than fifteen years of their sentence has beenserved; and (

c) has served at least fifteen years of their sentence. [3] The process for the application is a stepped one and it is set forth in s. 745.61(1): 745.61

(1) Judicial Screening - On receipt of an application under subsection 745.6 (1), the appropriate Chief Justice shall determine, orshall designate a judge of the superior court of criminal jurisdiction to determine, on the basis of the following written material, whetherthe applicant has shown, on a balance of probabilities, that there is a reasonable prospect that the application will succeed: (

a) the application; (

b) any report provided by the Correctional Service of Canada or other correctional authorities; and (

c) any other written evidence presented to the Chief Justice or judge by the applicant or the Attorney General.

(2) Criteria - In determining whether the applicant has shown that there is a reasonable prospect that the application will be succeed,the Chief Justice of judge shall consider the criteria set out in paragraphs 746.63(1)(

a) to (e), with such modifications as thecircumstances require. 745.63

(1) Hearing of application - The jury empaneled under subsection 745.61(5) to hear the application shall consider the followingcriteria and determine whether the applicant’s number of years of imprisonment without eligibility for parole ought to be reduced: (

a) the character of the applicant; (

b) the applicant’s conduct while serving the sentence; (

c) the nature of the offence for which the applicant was convicted; (

d) any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section;and (

e) any other matters that the judge considers relevant in the circumstances.

(1.1) Information provided by victim - Information provided by a victim referred to in paragraph (1)(

d) may be provided either orallyor in writing, at the discretion of the victim, or in any other manner that the judge considers appropriate. The Law [4] Counsel have cited the following authorities: R. v. Dulay, [2009] A.J. No. 29, 2009 ABCA 12; R. v. Dulay, [2007] CarswellAlta 2320 (QB); R. v. Swietlinski, (SCC), [1994] 3 S.C.R. 481; R. v. Ryan, [2010] A.J. No. 128, 2010 ABQB 87; R. v.Davis, [2010] A.J. No. 1478, 2010 ABQB 804; R. v. Sedore, [2008] O.J. No. 2705 (Ont. Sup. Ct.), R. v. Schaefler,

(ON SC) , [2009] O.J. No. 3175; R. v. Livingston (Re) , [2011] S.J. No. 482, 2011 SKQB 289 ; and R. v. D.E.K. , [2001] M.J. No. 575, 2001 MBQB 350 . [ 5 ] At the outset of the hearing, the Court questioned counsel as to the applicability of the new

section 745.61(1), given Royal Assent March 23, 2011. The significant difference in that section, which refers to the standard of proof necessarily applied by the screening judge is the change from . . . “whether the applicant has shown, on a balance of probabilities, that there is a reasonable prospect that the application will succeed”, to . . . “whether the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed”. [ 6 ] The

preamble to this

section is the same. It is identical to the old section, the only difference being the above quoted words. The

preamble says “on receipt of an application under subsection 745.6(1) . . .”. The application was filed and received by me in 2009. Counsel for the Crown conceded that the standard of proof would be governed by the

section in force prior to March 23, 2011, not the new section. I concurred with that assessment because, arguably the new

section mandates a higher, or at least a different standard. All of the case authority cited applied the previous standard. [ 7 ] The analysis or exposition in the authorities as to the criteria assessed and the application of the standard of proof is somewhat instructive. In this judgment, I will set forth much of the information brought before me in the written materials which I am mandated to consider.

Prior to that, however, it may be helpful to attempt to analyse the standard of proof. [ 8 ] The phrase “balance of probabilities”, is a well known civil law standard, as well as a standard of proof used in judicial interim release assessments. It has been articulated as requiring the trier of fact to assess whether any given fact is more probable than not. Indeed, it has been said that if the scales are evenly balanced, the party with the onus of proof fails.

If however, the scales are balanced, 51% to 49%, there is no need to apply an onus because the standard of proof has been met, or not, and a decision made accordingly. Therefore, my mandate is to assess whether it is more probable that not that there is “a reasonable prospect that the application will succeed”. [ 9 ] But, the mandate of the Court to decide whether there is a reasonable prospect the applicant will succeed in front of a jury is not very helpful. The word “prospect”, is not a well-worn judicial phrase.

It has been equated with a “possibility” in Dulay (C.A.) at paragraph 6 where the Court, per curiam , stated: 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.

The same terminology is used in paragraph 5 of Dulay (C.A.). [ 10 ] The modifier of “possibility” is that it must be “reasonable”. “Reasonable” has likely been considered more often by courts in western democracies more, or at least as much as, any other single word. [ 11 ] Thus, I take the case authority in Alberta to have decided that it must be more probable than not that there is a possibility, not fanciful or remote, but based on a sober, reasoned process, that a jury would decide in favour of the applicant. This is the standard of proof that guides the Court. [ 12 ] In Ryan , I stated at paragraph 15 : “Mr.

Ryan is required to establish on a balance of probabilities that there is a reasonable probability that a jury would conclude that his sentence should be reduced” [emphasis supplied]. Unfortunately, that statement is repeated in Davis at paragraph 15 . During the hearing, I suggested to counsel that this statement was in error; that following Dulay (C.A.), the statement should have been, that “Mr.

Ryan is required to establish on a balance of probabilities that there is a reasonable possibility that a jury would conclude that his sentence should be reduced.” It should be noted, that in both Ryan and Davis , the Crown consented to the application at the screening judge level. That is not this case. [ 13 ] In Sedore , Strong J. quoted Oliphant J. in D.E.K. after considering all of the criteria, stating that the test was whether on a balance of probabilities, there was reasonable prospect that the jury would allow the application to succeed. He adopted the reasoning of

Oliphant J. in D.E.K. at paragraph 40 where he held: The threshold test mandated by Parliament that the applicant must meet here is relatively low. While the applicant bears the onus of proof on the application before me, the standard of proof to be applied at this stage is that of the balance of probabilities, rather than the higher standard of proof beyond a reasonable doubt. The applicant need not show that the likelihood of the success of his application is beyond any doubt. Rather, he must only satisfy me that there is a reasonable prospect of success before a jury.

I think the word “reasonable” as it is used in the relevant sections of the Criminal Code is to be given its ordinary meaning. The Concise Oxford Dictionary defines “reasonable” as being “in accordance with reason, not absurd; within the limits of reason, not greatly more or less than might be expected”. [ 14 ] In Schaefler , Hackland J. also quoted Oliphant J. at paragraph 40 and allowed the application. In Livingston , Laing C.J. allowed the application after reviewing all of the criteria by simply concluding that the material filed “shows on the balance of probability there is a reasonable prospect that Mr.

Livingston’s application will succeed”: paragraph 13. The Material Submitted [ 15 ] The application of Oczko was filed September 15, 2009. An Order for a Parole Eligibility Report (“P.E.R.”) was granted November 6, 2009. The P.E.R., dated June 6, 2010, was prepared by Don Topper, a Parole Officer of the Bowden Institution. The updated PER, also prepared by Don Topper, is dated September 12, 2011.

In addition to those materials, there is a document entitled “Wrongful Conviction History” with a number of supporting documents attached, a Victim Impact Statement from Ken Cherniawsky, and a Victim Impact Statement from Ann Olson. The history of Oczko’s trial for the first degree murders was also part of the materials including a

summary of the evidence by the Alberta Court of Appeal in its judgment: R. v. Oczko , August 15, 1995 (95 Carswell Alta. 353). A number of letters from various individuals were also submitted on behalf of Oczko , referring to his employment and conduct while incarcerated. Relating the Materials to the Criteria in

Section 745.63(1) [ 16 ] As indicated above, the specific criteria are four in number, including the character of the applicant, the applicant’s conduct while serving his sentence, the nature of the offence for which the applicant was convicted, and any information provided by a victim either at the time of the sentencing or the time of the screening hearing. The fifth criterion is any other matter considered relevant by the Court in the circumstances. I will deal with the specific criteria separately in a different order. I will begin with the nature of the offence for which the applicant was convicted. 1.

Nature of the Offences for Which Oczko was Convicted [ 17 ] As stated earlier, Oczko was convicted of two counts of first degree murder. The account provided by the Royal Canadian Mounted Police to Corrections Canada is at page 8 of the P.E.R. It indicates that on January 24, 1991, the bodies of two persons, Mavis Elaine Oczko and Kenneth Cherniawsky were found in a farm residence near Warner, Alberta.

Kenneth Cherniawsky was shot twice and Mavis Oczko was hit several times in the chest with a butt end of a rifle and shot four times. [ 18 ] Oczko had been drinking heavily prior to the offences and when he arrived at his own residence in the early morning hours of January 24, 1991, he informed his two sons, Brent and Andrew and a house guest, Bob Manzke, that he had gone to the farmhouse where Mavis Oczko and Kenneth Cherniawsky were and shot them both. Oczko also told a friend by telephone, what he was going to do prior to the offence.

That friend was Cliff Day and after the murders, Oczko phoned Cliff Day again and admitted that he had murdered the two victims. [ 19 ] Mavis Oczko was Oczko’s wife prior to her death and approximately a month before the murders, she served Oczko with divorce papers. Prior to that, the marriage was described as “rocky.” Mavis Oczko was requesting one-half of the proceeds from the sale of the Oczko residence, which caused Oczko to be enraged. The couple were also experiencing financial difficulties.

It is possible Mavis Oczko had a problem with petty theft and shoplifting and that Oczko threatened to reveal her problem, should she decide to leave him. Oczko had made statements to associates, including a statement that “if he couldn’t have her, no one would”. The police determined that

a 32 calibre Winchester rifle was used during the murders and that Oczko owned a 32 calibre Winchester rifle, which was never recovered. However, it was determined that ammunition found at the crime scene and at Oczko’s residence was fired from the same rifle. Oczko admitted to the offences upon his arrest but within minutes refused to talk to any one. He has been incarcerated since January 24, 1991. [ 20 ] Oczko disclosed to a prison psychiatrist or psychologist and to Mr. Topper that Mavis Oczko was having extra marital affairs in the two years prior to the murders and that the couple was estranged.

Money was an issue and Oczko was angry with Mavis Oczko because she appropriated joint funds while the couple were living separate lives. [ 21 ] Oczko, since his arrest, denied taking

part in the murders and says that due to his level of intoxication, he could not have driven to the location where Mavis Oczko and Kenneth Cherniawsky were. Oczko continues to deny his guilt to the present time and after exhausting his recourse in the Alberta Court of Appeal and a leave application to the Supreme Court of Canada being refused, he applied to the Association in Defence of the Wrongly Convicted for help. 2. Oczko ’s Conduct while Incarcerated [ 22 ] According to the P.E.R., Oczko was arrested January 24, 1991 and convicted of two counts of first degree murder on March 3, 1993.

He was placed in the Edmonton Maximum Security Institution on March 29, 1993, progressed to medium security in July, 1995 at the Bowden Institution and in March 2000 to minimum security at Bowden.

In January 2001, he was transferred to medium security at Bowden and in November 2002 back to minimum security at the Bowden Institution where he remains. [ 23 ] The P.E.R. chronicles the institutional history of Oczko in terms of his work, his work ethic, his participation in programs, whether he had behavioural issues concerning discipline, and risk assessments in terms of his threat to society or inmates. [ 24 ] Oczko was born October 7, 1941. Thus, at present he is 70 years old. In the updated P.E.R. dated September 12, 2011, it is noted that since the completion of the P.E.R.

June 2, 2010, Oczko continues to build model chuck wagons which he does as a hobby and sells them to supplement his income. The updated P.E.R. reports that Oczko is willing to “pay lip service” to programming, that his static factor assessment remain medium, his dynamic factor assessment remained medium and accountability was assessed at low. Overall motivation was assessed as medium. He is not engaged. Oczko continues to deny his guilt and disagrees with the result of his Spousal Assault Risk Assessment which suggested he was at high risk for future spousal violence. It was recommended that he take

part in the National High Intensity Family Violence Program which was 164 hours in length. Oczko is currently scheduled to take

part in this program starting March 2012, but that is a tentative start date only. [ 25 ] Oczko’s employment is as a general duty gang worker and he is rated as an excellent worker who requires minimum work supervision; he interacts well with staff. He has had some minor conflict with younger inmates, but nothing remarkable. At one point, Oczko regarded this application as a form of appeal and failed to understand what he is applying for and the result, even if he is successful. However, a later interview disclosed that he was clearly able to explain his understanding of the application and what it might mean for his case. [ 26 ] The

summary contained in the P.E.R. June 2, 2010 indicates that Oczko has generally been a “compliant inmate”, that this attribute has assisted in his risk assessment to medium; that he is reluctant to take

part in programming, but once enrolled, does follow it through to completion. He continues to maintain his innocence. The

summary concludes at page 50: Recent psychological information shows that without accepting responsibility for the offences there can be no remorse, no insight and no recognition of problem areas. As such, assessing program skill development would be difficult. In terms of additional programming and work to be done by Oczko; his Correctional Plan still has an outstanding referral for the National High Intensity Family Violence Program. However, it is believed he minimizes family violence issues and it is believed by the Case Management Team that with the level of minimization Oczko has, programming will be without benefits. 3. Oczko ’s Character

[ 27 ] The enumerated criteria are not mutually exclusive. Oczko’s character is closely inter-related with his conduct while incarcerated and with the nature of the offences for which he was convicted. The P.E.R. is replete with references to Oczko’s rigid thinking, denial and anger issues. As argued by the Crown at the oral hearing, Oczko does not seem to take the position that he cannot remember what happened at the time of the murders because he was intoxicated; rather, he has taken the position that he did not do it.

It would seem that there was a strong case that he did do it; the jury so found beyond a reasonable doubt. The Alberta Court of Appeal in the Oczko decision, repeated the facts as outlined above, as provided by the Royal Canadian Mounted Police, but in addition related that on December 27, 1990, Oczko attempted suicide. Further, the Court of Appeal stated that on January 15 and 22 of January, 1991, in conversation with two different people, Oczko talked of shooting his wife and that on January 23, Oczko told another person that he was going to “blow her fucking guts out” with a gun.

Oczko denied making this statement to the witness. With respect to the telephone call to Clifford Day at around 11:00 p.m. on the evening of January 23, 1991, Day testified that Oczko said that he was going to shoot his wife and then shoot himself and said that “If I can’t have her, nobody is going to have her”. Day also said at 8 o’clock in the morning of January 24, 1991, Oczko again called him and said “It’s all over, they’re both dead, I shot them both.” Oczko’s own evidence was that he passed out after the first call to Day and woke up in the morning.

Later in the morning, Oczko told his friend Manzke “I just couldn’t take it anymore, I went out there and I shot them both four, five, six times, I can’t remember.” Oczko’s sons, Brent and Andrew, testified and Brent said that Oczko admitted that he had killed them. [ 28 ] According to the P.E.R., the picture painted of Oczko’s character is that of a rigid thinker, obsessed with his innocence, who has a mind closed to other possibilities, such that he cannot admit that he might have done something that he can’t remember because he was too intoxicated.

Moreover, his denial seems to also affect his perception as to whether he is a risk to commit violence against an intimate partner, depending on the circumstances. This is also manifested by his reluctance to undergo programs. [ 29 ] Against this, he is reported to be an excellent worker who interacts well with those with whom he works, although he is somewhat impatient with younger inmates who play loud music and annoy him and who apparently don’t have the same nutritional outlook as he does.

He maintains an outright denial of guilt and denial that there is any risk to an intimate partner or need for the High Intensity Family Violence Program which he is now enrolled, albeit with some reluctance. 4. Victim Impact Statements [ 30 ] The two Victim Impact Statements received are from Ann Olson and Ken Cherniawsky. Ann Olson [ 31 ] Ann Olson is the mother of Ken Cherniawsky. In her statement dated December 10, 2010, she indicates she is 84 years old and has grieved for her son ever since the incident, which she describes as terrorizing her mind, her heart and her soul.

She indicates her windows are covered, her doors are bolted and double locked; that she doesn’t answer the phone and suffers from fear and that the crime has literally destroyed her life. Ms. Olson asks the question of Oczko “How dare you ask for parole?” She implores the Court to never release Oczko. Ken Cherniawsky, Jr. [ 32 ] In a Victim Impact Statement dated February 1, 2012, Ken Cherniawsky Jr. details that the murder of his father did not just hurt him, but hurt all involved because he thereafter grew up without a father, became angry and fought through some depression.

He still cries about his loss and thinks about his father, describes himself as a grown man who is scared. He states he is afraid of Oczko finding him and his family and that his only comfort is that Oczko is locked up and unable to come and find any of them. He also implores the Court to not let him out. Analysis [ 33 ] Returning to the onus of proof and the standard of proof, Oczko has the onus of satisfying me on the balance of probabilities that there is a reasonable prospect his application would succeed if put to a jury.

I must pose the question, whether it is more likely than not, that there is a logical, reasoned possibility that the application will succeed. It does not have to be a reasonable probability.

[ 34 ] These applications have been called Faint Hope applications. Clinging to a possibility that is fanciful, remote, or indeed, absurd, would result in a screening judge dismissing the application.

In assessing whether there is a reasonable prospect or possibility that the application would succeed, one is driven to turn to the process involved were this matter to be put before a jury. [ 35 ] One of the difficulties faced by a screening judge in assessing whether it is more probable than not that there is a reasonable possibility the application will succeed, is that it is a virtual certainty that Oczko would give evidence before a jury and that the Victim Impact Statements could be read aloud by the victims to, or at least reviewed by, the jury.

That evidence, especially the testimony of Oczko, in my view, is likely to have a significant effect upon the jury. The impact is difficult to predict on written materials. Notwithstanding this difficulty, the screening judge is bound to proceed only on the basis of written materials, but in applying the standard of proof, is also bound to consider as best as he or she can, how a jury would react and assess the evidence anticipated to be before them. [ 36 ] The jury charge would include providing them with the applicable provisions of the Criminal Code , including ss. 745.6(1) , 745.6(3) .

In addition, the judge would instruct the jury to consider all of the exhibits before it, including, no doubt, the original P.E.R. and the updated P.E.R., the evidence of Don Topper, Oczko, and any opinion evidence from psychologists or psychiatrists called by either Oczko or the Crown.

The jury would be instructed as to the reliability and credibility of the evidence, that no one person’s evidence is to be considered in isolation, that the demeanour of a witness may be considered as well as the weight to be accorded to the evidence or part of the evidence of any witness and that the acceptance or rejection of the evidence of any witness, in whole or in part, is solely up to the jury. [ 37 ] As to the law, the jury will be instructed that their decision is not to grant or to withhold the granting of parole to Oczko, but rather to decide the question of Oczko’s eligibility for parole; that their only power, pursuant to the provisions of the Criminal Code is to reduce the parole ineligibility period to less than 25 years.

They would also be instructed that the granting of parole is solely within the jurisdiction of the National Parole Board and that they are dealing only with the question as to when Oczko can apply for parole. [ 38 ] Finally, the jury would be instructed that Oczko has the burden of proof and that the standard of proof is balance of probabilities, that is, are they satisfied on balance that the parole ineligibility period should be reduced and that their verdict, in this regard, must be unanimous.

The jury would also be instructed as to the criteria set forth in s.745 of the Criminal Code , that those criteria are not to be examined separately, but are to be weighed and assessed as a whole and of course, the judge would relate the evidence tendered to the criteria, as part of the jury charge. [ 39 ] Weighing all the factors as a screening judge, including the five criteria in s.745 and considering the applicable authorities, I have concluded that Oczko has not discharged the onus in satisfying me on a balance of probabilities, that there is a reasonable possibility that his application will succeed in front of a jury.

I am mindful of Oliphant J.’s decision in D.E.K . as applied in Sedore . But I am also mindful of the purposive direction in Swietlinski by Lamer C.J. at paragraph 12, that the purpose of a 745 hearing is to “... call attention to changes which have occurred in the applicant’s situation, which might justify imposing a less harsh penalty upon the applicant.” Further, Lamer C.J. said at page 14 that the decision of a jury is discretionary in nature. [ 40 ] I am of the view, that the most difficult of the 745 criteria for Oczko, is the assessment of his character. What has changed? The Crown will argue nothing.

The P.E.R. supports that assessment. In particular, Oczko is maintaining his innocence and the effect that has on his ability to learn and change through programs which he is reluctant to take, tips the scales against him. It is true that he has a good work ethic and is a good worker. Weighing the evidence and all the criteria, I do not find that it is more probable than not, there is a reasonable possibility Oczko’s application will succeed. [ 41 ] The application is dismissed. Heard on the 2 nd day of February, 2012. Dated at Calgary, Alberta this 23 rd day of February, 2012.

Neil Wittmann C.J.C.Q.B.A. Appearances: Robert B. Coleman, Q.C. for the Crown Michael Bates and Jim Edgett for the Applicant