R v Morrison, 2012 ABQB 619

Court of Queen ’ s Bench of Alberta Citation: R v Morrison, 2012 ABQB 619 Date: 20121009 Docket: 951033207U1 Registry: Calgary Between: Her Majesty the Queen Respondent - and - Scott Byron Morrison Applicant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.L. Martin _______________________________________________________ 1. Introduction [ 1 ] Mr. Morrison is serving an indeterminate sentence with eligibility for parole in 25 years for the first degree murder of Janis Morrison on July 28, 1995. In this application, Mr.

Morrison asks for the opportunity to go before a jury to request a reduction in the number of years of imprisonment he must serve before he becomes eligible to apply for parole.

Section 745.61 of the Criminal Code : the Faint Hope Provision

[2] The matter is governed by s. 745.61 of the Criminal Code, also known as the faint hope provision. This provision involves athree step procedure. The initial step involves judicial screening to determine whether the applicant should be brought before a jury: theapplication at bar. If the judge determines that there is a substantial likelihood that the application will succeed, a jury is empanelled. Atthat second step, the jury receives evidence and decides if there is to be a reduction in the parole eligibility period and when the applicantmay in fact apply to the Parole Board.

The jury does not grant or withhold parole; that is for the National Parole Board to determinewhen, at the third step the applicant appears before the Parole Board seeking release. [3] Mr. Morrison has made the statutorily required application and has brought forward a report issued by the CorrectionalService of Canada, being an eighty-one page Parole Eligibility Report for Judicial Review I have been designated by the Chief Justice tohear this matter.

The written material before me also included an Agreed Statement of Facts addressing events prior to the offence andthe offence itself; a Psychological/Psychiatric Assessment Report from Correctional Services Canada dated May 27, 2010 conducted byDr. McGale; a book of photographs; and materials on the court file, including victim impact statements. 3. Legislative Changes to s. 745.61 [4] There have been important changes over time to the process by which those convicted of certain offences could seek toreduce the statutorily imposed periods of parole ineligibility.

For example, until 1997 an applicant had a right to have an early paroleeligibility application heard by a jury. In 1997 the Criminal Code was amended to provide the current mechanism of requiring priorjudicial screening before a jury is impaneled. The 1997 amendments also increased the jury voting requirements for a reduction in parolefrom a two thirds majority to a unanimous vote. In Bill C-48 Parliament removed faint hope for those convicted of multiple murders. [5] In Bill S-6, assented to on March 23, 2011 and proclaimed in force on December 2, 2011, Parliament made three furtherchanges.

First, it disallowed faint hope applications for all offences committed after the amendments came into force. However, Mr.Morrison may apply because his offence date preceded Parliament’s abolition of this process and because he has served at least 15 yearsof his sentence. [6] Second, for those offenders who continued to be eligible for a reduction in parole eligibility, further applications for reviewcould only be taken after five years, instead of the two year wait provided under the previous legislation. This means that if Mr.Morrison’s application is rejected he must wait at least five years to reapply.

See s. 745.61(3) and (4). [7] Third, the screening standard to be employed by a judge at the first stage of this process was altered. Under previous legislation the screening judge was to determine “whether the applicant has shown, on a balance ofprobabilities, that there is a reasonable prospect that the application will succeed.” For applications, like Mr.

Morrison’s, made afterDecember 2, 2011, Parliament has changed the test to “whether the applicant has shown, on a balance of probabilities, that there is asubstantial likelihood that the application will succeed.” [8] Before exploring the new test it is important to highlight what has not changed. The purpose of and rational behind a s.745.61 review, as explained by the Supreme Court of Canada in R. v. Swietlinksi, (SCC), [1994] 3 S.C.R. 481, is thesame.

According to Lamer C.J. at 492 to 493: The purpose of a reassessment procedure, especially when it takes place 15 years after the initial decision, is necessarily to re-examine adecision in light of new information or factors which could not have been known initially. It follows that the primary purpose of a s. 745hearing is to call attention to changes which have occurred in the applicant's situation and which might justify imposing a less harshpenalty upon the applicant. Accordingly, the jury's decision is not essentially different from the ordinary decision regarding length of asentence.

It is similar to that taken by a judge pursuant to s. 744 of the Code as to the period of ineligibility in cases of second-degreemurder. (Emphasis in original.) Thus, the process is designed to respond to instances in which there has been a change in circumstances such that the statutory period ofparole ineligibility comes to appear harsh and begins to operate in a manner that has become disproportionate to the goals ofincarceration.

[ 9 ] Under the current process if the new screening threshold is met and a jury is empanelled, the jurors still act as the ultimate arbiters of parole eligibility. The statutory factors that must be considered by the screening judge and the jury are also the same: they are the nature of the offence; the applicant’s conduct while serving his or her sentence; the character of the applicant; information provided by a victim and other matters. [ 10 ] It also remains the case that an applicant will only be successful, under the old or new test, if all 12 members of the prospective jury are in agreement.

Specifically, s. 745.63(3) requires that “(t)he determination to reduce the number of years must be by unanimous vote.” Further, success is still achieved if there is any reduction in the parole eligibility period. Thus the focus is still on whether all members of the jury will agree to any reduction in the period of parole ineligibility. [ 11 ] There has also been no change to the burden of proof placed on the applicant: the onus continues to be that of a balance of probabilities.

As stated by Wittmann C.J. in R. v Oczko , 2012 ABQB 121 (“ Oczko ”), at para. 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 ” . [ 12 ] Combining this comment with the current standard, the screening judge is now to assess whether it is more probable than not that there is a “substantial likelihood” that the application will succeed. 4.

The Substantial Likelihood Test [ 13 ] This application is one of the first few taken after Bill S-6 came into effect. While both counsel based their submissions on the substantial likelihood test, little argument was addressed to what the new standard required. A joint book of authorities was placed before the Court containing: Oczko ; R. v. Ryan , 2010 ABQB 87 (“ Ryan ”); R. v. Dulay , 2009 ABCA 12 (“ Dulay ”); R. v. Yarema (2006), 70 W.C.B. (2d) 249 (“ Yarema ”), and R. v. Su , [2002] O.T.C. 906, 55 W.C.B. (2d) 628 .

These cases provide some guidance but all involved and applied the different legal standard for the judicial screening set out in the predecessor legislation and in two of those cases the Crown did not oppose the application; see Ryan and Yarema . [ 14 ] The fact of amendment, in conjunction with the actual words used, makes clear that more will now be required of an applicant to meet the threshold test.

Excerpts from Hansard made during debates in the House of Commons show that the desire to impose a more rigorous standard at the first stage of the application process was one of Parliament’s main objectives when it made changes to s. 745.61 . For example, at the second reading of Bill S-6, Mr. Bob Dechert, Parliamentary Secretary to the Minister of Justice, addressed the change in wording from “reasonable probability” to “substantial likelihood”. Under the old legislation Mr.

Dechert explained: Applicants must convince a Superior Court judge in the province where the conviction occurred that there is a reasonable prospect that their application will be successful. If this threshold is met, the judge will allow the application to proceed. This is a relatively easy threshold to meet. Bill S-6 will strengthen it by requiring applicants to prove that they have a substantial likelihood of success. This should prevent less-worthy applications from going forward. (Hansard, page 4744) [ 15 ] In two recent reported cases, R. v. McAuley , 2012 ONSC 3732 (“ McAuley ”), and R. v.

Poitras , 2012 ONSC 5147 (“ Poitras ”), the screening justices agreed that the new test imposed a higher standard but nevertheless allowed the application to go before a jury. [ 16 ] In McAuley , Ratushny J. at para. 14 found that the plain meaning of the new words indicated a more stringent standard and a higher threshold to be met than under the old test. The justice used only the statutory words of the new test, without resorting to synonymous words to explain those statutory words based on R. v. Phillips , 2012 ONCA 54 .

In a brief decision in that latter case the Ontario Court of Appeal commented at paragraph 7 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.”

[17] That comment contains much wisdom but it was also made with respect to the reasonable prospect test, a test thathad existed for some time when the comment was made. However, I believe I am called upon to articulate the manner in which I haveinterpreted and applied this new test to explain to the litigants and to lay bare my approach and conclusions for any potential review. [18] In Poitras, Rutherford J. struggled to find meaning in the new wording at para. 19: So how much greater merit does an application with a “substantial likelihood” of success have than one with a “reasonable prospect” ofsuccess?

To answer that question requires a semantic exercise in giving meaning to a somewhat odd coupling of the terms “substantiallikelihood” with “balance of probabilities.” Lawyers and judges deal with the latter term in civil trials. A balance of probabilitiesthreshold is one in which it must be shown that something is more probable than not. So a faint hope applicant must now show that it ismore probable than not that the application has a substantial likelihood of success.

The Oxford Dictionary (Toronto: Oxford UniversityPress, 1998) defines the word “substantial” as “of real importance, value, or validity.” The word, “likelihood” is defined as a“probability” or a “promise of success.” Thus, a faint hope applicant contends with a threshold showing of it being more probable thannot that the application has a probability or promise of succeeding. That is, the likelihood is of substance; of real value; or valid.

A caseof some real merit, or some substantive merit, has a substantial likelihood of success. [19] In trying to ascertain what the new test requires and how much higher the new test is, it is important to note that decisionstaken under the reasonable prospect test did not always agree about what that test required.

As there was no decision from the SupremeCourt on point, various courts or justices appear to have adopted somewhat different approaches. [20] Some courts were of the view that the principal purpose of judicial screening was to weed out hopeless cases andconsequently held that the reasonable prospect of success test involved a relatively low threshold. For example in R. v.

D.E.K., 2001MBQB 350, 161 Man.R. (2d) 111 (“D.E.K.”), Oliphant J. held that the system was intended by Parliament to “enable a judge to stopobviously hopeless applications” and explained the “reasonable prospect” test at para. 40 as follows: In my view the threshold test, mandated by Parliament, that (the applicant) must meet here is relatively low.

While (the applicant) bearsthe onus of proof on the application before me, the standard of proof to be applied at this stage is that of the balance of probabilitiesrather than the higher standard of proof beyond a reasonable doubt. (The applicant) need not show that the likelihood of the success ofhis application is beyond any doubt. Rather, he must only satisfy me that there is a reasonable prospect of success before a jury. I thinkthe word “reasonable” as it is used in the relevant sections of the Criminal Code is to be given its ordinary meaning.

The Concise OxfordDictionary defines “reasonable” as being “... in accordance with reason, not absurd; within the limits of reason, not greatly more or lessthan might be expected ...” [21] This reading of “reasonable prospect” was also supported by, and perhaps even motivated by that court’s assessment of theappropriate roles of the screening judge and the jury. At para. 44, Oliphant J. continued: For a judge to dismiss any application that is not hopeless, at the initial step of the proceeding is tantamount to usurping the function ofthe jury.

I think Parliament intended that a jury, not a judge, should decide whether an offender should be given an opportunity to applyfor early release in all cases except those where there is no reasonable prospect of success before a jury. [22] The Manitoba justice in that case canvassed all relevant factors but noted that the weight to be attached to various evidence,including the applicant’s failure to accept responsibility for the murder for which he was convicted was ultimately “something for thejury to decide.” In short, the justice found that the first stage involved a very low threshold; the task of the judge was largely confined toscreening out clearly unmeritorious applications, and despite certain troubling aspects disclosed as part of D.E.K.’s application, it was nothopeless and totally without merit and was therefore allowed to proceed to a jury. [23] Other examples of this approach include R. v.

Sedore (2008), 78 W.C.B. (2d) 862, in which the Ontario Superior Court ofJustice allowed the application to proceed for an applicant with a mixed record on the relevant factors because that “the applicant hassatisfied me on a balance of probabilities that this is not a hopeless application, that there is a reasonable prospect of success before ajury.” (at para. 31). Similarly in R. v. Schaefler, , [2009] O.J. No. 3175, Hackland J. held at para. 7:

I am of the opinion that the question of the applicant's lack of acceptance of responsibility for this crime is a factor best left to a jury to consider along with and perhaps balanced by the many positive factors here which may justify a recommendation for early parole. I cannot say that the applicant's chances of persuading a jury in his favour are hopeless and he should, therefore, have an opportunity to present his case. [ 24 ] In these cases, the “reasonable probability” test was interpreted as establishing a very low bar for an application under s. 745.61 .

Certain courts dismissed only the hopeless applications but allowed most others to proceed to the second stage jury review. The role of the screening judge was generally limited to screening out clearly unmeritorious applications and the jury was viewed as the appropriate decision-making body to evaluate and weigh all but the most clear-cut evidence. [ 25 ] This appears to be the line of cases referred to by Mr.

Dechert when commenting on the recent amendments. [ 26 ] However, my review of the jurisprudence indicates that not all courts set the bar at the “relatively low” threshold under the reasonable prospect test. For example, in R. v.

Phillips , 2012 ONCA 54 , the Ontario Court of Appeal said at para. 6 that the “statutory test embodies more than merely showing that the case is not hopeless.” They held that the normal meaning of the words “reasonable prospect” suggested a higher test and that lowering the threshold to having to establish only that the case is not hopeless would frustrate the purpose of the judicial screening stage. [ 27 ] In Alberta, the applicant had the onus to demonstrate that there was a reasoned possibility, that was not fanciful or remote that the jury would decide in the applicant’s favour.

In Oczko , Wittmann C.J. noted at para. 9 that the standard was “not very helpful” and explained at para. 11: ... 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. [ 28 ] In Dulay , the Alberta Court of Appeal spoke in terms of a reasonable possibility standard and recognized that a screening judge was required to engage in a limited weighing of the evidence, even under the reasonable prospect test.

In that case, the screening judge relied extensively on the evidence of a psychiatrist that suggested the applicant believed the killing of one of his three victims was justified for cultural reasons. One of the key reasons that the screening judge did not permit the matter to go to a jury was the applicant’s lack of insight into the murder of his brother-in-law. The screening judge also considered the applicant’s prison record, which included a number of disciplinary infractions, including an escape attempt.

In determining that the screening judge was empowered to consider evidence that would be presented to the jury, the Court of Appeal held that the screening judge was correct in evaluating different types of evidence, emphasizing a recent psychiatric report, but including, as stated at para. 15, “the horrific nature of the crime; the extreme planning and deliberation; and Dulay’s prison record”.

Furthermore, the Court did not accept Dulay’s argument, referred to at para. 10, that “when there is more than one reference in the materials respecting a particular factor, it is for the jury to decide what reliance it will place on each item of evidence”. Permitting the judge to weight the evidence was something that the other line of cases suggested usurped the role of the jury. [ 29 ] However, the Court of Appeal also said at para. 5 that: (

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. This admonition retains its force under the revised provision such that a screening judge is not to decide the issue or simply to say what he or she would have done.

The task is to review the written materials and decide whether there is a substantial likelihood a jury will unanimously find that a reduction is warranted. [ 30 ] Knowing there was a variation in how courts approached the reasonable prospect standard is helpful in articulating what the new standard was meant to accomplish and to help understand what more is required. The continuum of descriptors to capture what may happen in the future is bounded by the extremes of never and with certainty.

Parliament’s move from a “prospect” to a “likelihood” and from a “reasonable prospect” to a “substantial likelihood” signals a step in the direction of increased probability. Parliament changed both

words in that term and strengthened each. Taken together, the composite term “substantial likelihood” sets a higher threshold than a“reasonable prospect”. However, the distance between weeding out hopeless cases to proving a substantial likelihood of success appearsbigger than the distance between a reasoned possibility based on a limited weighing of the evidence and a substantial likelihood. Howbig the step is depends in part on the starting point.

In assessing where the test has landed, the words “substantial likelihood” can be readdifferent ways and have been in the different and limited legal contexts in which they appear. [31] In relation to the faint hope provision, the Crown in McAuley argued that current applicants must establish a very high degreeof probability of success as the term “likelihood” suggests a probability of success in excess of 50% and “substantial” suggests a standardconsiderably beyond mere likelihood.

Substantial can mean of great size or importance and on this reading a substantial likelihood couldinvolve significantly more than a 51% probability. [32] Substantial may also mean real or having substance, something tangible rather than imaginary. In my view this is thepreferred meaning of substantial when used in the context of a screening standard.

It is higher than the previous standard and isconsistent with the desire to screen out less worthy applications, without trying to gage how much more over the 51% the claim must beto meet the threshold. [33] “Likelihood” may mean something that tips the legal scale on of the balance of probabilities: requiring that success is moreprobable than not.

The result of this approach would be that applicants would meet the threshold test if they could show on a balance ofprobabilities that success is a likelihood; that their application will “probably be successful” with probably meaning on the balance ofprobabilities. [34] Substantial likelihood is a standard found in many areas of law. It arises in relation to assessing whether an omitted fact ismaterial: the courts ask whether there is a substantial likelihood that it would have been considered important by a reasonable investor inmaking his or her decision. See Sharbern Holding Inc. v.

Vancouver Airport Centre Ltd., 2011 SCC 23. at para. 61 and Harris v.Universal Explorations Ltd. (1982), 1982 ABCA 87 , 17 B.L.R. 135, 37 A.R. 35, at para. 6. It has been used in applications fordismissal of actions, see Crispin v. Sidney (Town), (BC SC), [1994] B.C.J. No. 142; interlocutory injunctions, seeBenjamin v. Toronto-Dominion Bank, (ON SC), 80 OR (3d) 424 , [2006] O.T.C. 310, at para. 3; and concerning amanufacturer’s duty to supply a reasonably safe product, see Tabrizi v. Whallon Machine Inc. (1996), (BC SC), 29C.C.L.T. (2d) 176, 63 A.C.W.S. (3d) 755, and Storey v.

Canada Post Corp., 2002 BCCA 230. [35] In the criminal context, the term “substantial likelihood” is used in s. 515(10)(

b) of the Criminal Code, which allows for thecontinued detention of an individual if there is a “substantial likelihood that the accused will, if released from custody, commit a criminaloffence or interfere with the administration of justice.” [36] While courts have provided different

interpretations of that provision, in R. v. Link, 1991 ABCA 151 , 117 A.R. 25, 2W.A.C. 25, the Alberta Court of Appeal said that they did not understand the word “likelihood” in s. 515(10)(

b) Criminal Code as beingsynonymous with the word “probability” as that term is often used in the law, meaning more probable than not. The court was of theview that substantial likelihood in the

section means simply a “substantial risk”. [37] Similarly, in respect of judicial interim release, in R. v. Carbone (1972), 20 C.R.N.S. 313, Rogers J. provided a slightlydifferent assessment, stating at para. 5: I do not think that the words “substantial likelihood” (...) mean anything such as proof beyond a reasonable doubt, and the choice ofwords is probably unfortunate, but I think the meaning is more akin to the balance of probabilities in that the evidence shouldsubstantially weigh in favour of the likelihood of a repetition of the offence. [38] Gratton D.C.J. of the Ontario District Court provided a slightly more rigorous

interpretation of the term “substantiallikelihood” in R. v. Moore (1973), (ON SC), 16 C.C.C. (2d) 286, at 291: I know of no case save one ... where there has been judicial

interpretation of “substantial likelihood” (...), and the wording is possiblyopen to different

interpretations. First, “likelihood” would seem to indicate a balance of probabilities. Does “substantial likelihood” meansomething more than 51% chance? Does it mean 75%? It certainly would mean, if that approach were taken, that there is somewhat lessthan 100% chance that he will commit such an offence. I do not think that such

interpretation is proper. Preferably this one: is there a real

likelihood that the accused will commit an offence if released? I say the word “real” for it must be a likelihood that is of some substance, not conjectural nor illusory. [ 39 ] More recently, in R. v. Young, 2010 ONSC 4194 , Clark J. considered the

definitions of the terms “substantial” and “likelihood” in his analysis at para. 20: The word “substantial” is defined in the Concise Oxford Dictionary [Oxford University Press, 1964], in part, as follows: “having substance, actually existing, not illusory”. The word “likelihood” is defined in the same source, in part, as “being likely”. The word “likely” is defined, in part, as “such as might well happen”.

Therefore, so long as the prosecutor demonstrates that the applicant [for bail] might well commit another offence if admitted to bail, such that the risk is real or tangible, and not simply fanciful or imaginary, she has met her burden. [ 40 ] While the term substantial likelihood is thus used in many areas of law, in the case at bar, it must be read in the context of this particular Criminal Code provision: that is assessing, analysing and anticipating what a jury may do based on the written materials placed before the court at the screening stage.

Some argue that the new test simply means the application must be shown to have some merit because setting the threshold test too high would prevent applications with merit from reaching the stage of a jury hearing. As Rutherford J. pointed out at para. 18 of Poitras , according to the Library of Parliament Legislative

Summary, referred to above, juries granted relief in over 81% of the faint hope clause applications judges sent on to full hearings under the old threshold. This suggests a real danger in setting the bar so high, under the new threshold, that a case which a jury might find meritorious may not be heard. [ 41 ] Likelihood may also mean a probability or prospect of success, which may not necessarily involve being more probable than not. Given the various factors at play I believe that substantial likelihood means a real probability or prospect that all members of the jury will reduce the parole ineligibility period.

A probability that tips the balance of probabilities will certainly meet this test. However, one that falls below, but is close may also be sufficient if the applicant presents a case of some real merit. Such an approach respects the separate roles Parliament gave to the screening judge and jury, increases the test requiring more than both the weeding out of hopeless cases and the cases which called for a reasoned prospect of success; takes seriously the words used; and transposes into this particular context the conclusion of the Alberta Court of Appeal in R. v.

Fink that “substantial likelihood” does not necessarily involve showing something is more probable than not. [ 42 ] The new test has another aspect and impact. While both the old and new threshold tests have the same end point; being the trial judge’s assessment of what the jury may do if the application reaches them, now a screening judge is no longer being asked only to assess the reasonable prospect of what a jury might decide, but rather to assess the substantial likelihood of the applicant’s ultimate success before a jury.

To the extent that the role of the judge under the previous test was to screen out hopeless cases, the judge reviewed the evidence to determine if there existed some evidence that would remove the case from the hopeless category, and it was left to the jury to weigh all the evidence on its merits. In Alberta under the reasoned possibility standard the Court of Appeal said that the screening judge would necessarily engage in a limited weighing of the evidence.

In my view the substantial likelihood test calls for an increased consideration of evidence, including the most difficult and contentious issues, as it is precisely these issues that will likely steer a jury to their ultimate conclusion. As the new choice of words indicates, the substantial likelihood standard involves an augmented, more stringent threshold. The screening judge is now called upon to determine not just the possibility that a jury may decide in a certain way, but what that jury’s ultimate decision is likely to be.

Given that the screening judge is now tasked with a more thorough analysis, it follows that a screening judge requires the latitude to consider the evidence in greater depth and to weigh the factors when assessing whether there is a substantial likelihood that a jury will decide the case in a certain manner. In my view this is not usurping the role of the jury but is simply performing the function of the screening judge under a substantial likelihood standard. [ 43 ] The issue is therefore whether Mr.

Morrison has established, on a balance of probabilities, there is a substantial likelihood that all jurors would agree to reduce his parole eligibility. Having set out the new test governing the first stage of a s. 745.61 application, I now turn to an assessment of the facts on this particular application. 5. Statutory Factors [ 44 ] Under

section s.745.61(2), a court must consider the factors set out in s.745.63(1)(

a) to (e): being 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 criteria is any other matter considered relevant by the court in the circumstances.

(

i) Nature of the Offences for which Mr. Morrison was Convicted [ 45 ] Mr. Morrison shot and killed Ms. Janice Morrison, his second wife, after they had separated. In his second trial he was convicted by a jury of first degree murder and the possession of a prohibited weapon. [ 46 ] Crown and Defence have provided an Agreed Statement of Facts relating to the index offence. The following information was before this court and would be before a jury at the second stage jury hearing. [ 47 ] The murder came after several weeks of increasing hostility after Ms. Morrison ended their tumultuous relationship.

They had separated before and had reconciled but various factors and events, including Mr. Morrison’s continued use of alcohol, led Ms. Morrison to say the relationship was finally at an end in the months preceding her murder. [ 48 ] In April 1995, prior to the separation, Mr. Morrison told Ms. Morrison that if she ever left him again that would be the last time. [ 49 ] At some point between June 7 and 14, 1995 Mr. and Ms. Morrison agreed to an indefinite separation. [ 50 ] On June 16, 1995, Mr. Morrison confronted Ms. Morrison at a bar. They had an argument that ended with him throwing beer in her face.

On June 17, Ms. Morrison returned to the matrimonial home and found her personal property, including a computer monitor, clothing, plants, crystal and china, damaged and strewn about the yard. Mr. Morrison was in the home and would not let his wife enter. Ms. Morrison returned with a police escort and found the inside of the house in total disarray, with numerous items damaged. [ 51 ] On June 21, Mr. Morrison attended a counselling session with two social workers. In the session he demonstrated irrational anger towards Ms. Morrison, blaming her for the separation.

The next day he began a relationship with another woman, Ms. Val Marie Kirk, which lasted until the end of July. [ 52 ] On June 26, Ms. Morrison again returned to the matrimonial home to find a number of boxes outside the house that had been ripped open and contained numerous broken items. [ 53 ] On June 28, Mr. Morrison had a second counselling session with the social worker and displayed the same rage towards Ms. Morrison as in the June 21 session. [ 54 ] On July 6, Ms. Morrison was escorted to the matrimonial home by Constable Paul Labelle of the Calgary Police Service to stand-by while she removed property.

The house was again in disarray, strewn with burned photos, cut clothing, and stuffed animals slashed through the neck and legs, in addition to teddy bears impaled to the wall with knives and insulting graffiti displayed. [ 55 ] On July 8, Ms. Morrison again returned to the matrimonial home to find the locks changed, and the doors and windows jammed shut with two-by-fours. The thermostat had been removed and the wires crossed so that the furnace was running continuously. The heat in the house caused candles stored in the cupboards to melt. [ 56 ] On July 10, Mr.

Morrison telephoned Kathleen Holliday in a state of rage. He told her to warn Ms. Morrison to avoid him because he was not sure he could continue to control himself. He told her that while he had so far been able to take out his rage on the matrimonial home and Ms. Morrison’s property, he did not know what he was capable of. He told Ms. Holliday that he did not care about the consequences. He was convinced that Ms. Morrison was seeing another man and threatened to kill this “friend” if he ever found out the man’s identity. He also threatened to get a gun and kill Ms. Morrison and himself.

[ 57 ] On July 11, Mr. Morrison told his brother Herbert Morrison that he felt such a rage towards Ms. Morrison that he was afraid he would kill her. Herbert Morrison took his brother to the psychiatric ward of the Calgary General Hospital. Mr. Morrison was released the same day with a prescription and a follow-up appointment booked two days later. [ 58 ] On July 12, Ms. Morrison obtained an ex-parte Restraining Order against Mr. Morrison, banning him from any contact with her or access to the matrimonial home. [ 59 ] On July 13, Mr. Morrison was served with a copy of the Restraining Order. He indicated to Ms.

Kirk, the woman he had just begun to have an intimate relationship with, that he was extremely upset about the Restraining Order. [ 60 ] On July 15, Mr. Morrison wrote in his diary “ Had a shitty night with lots of bad thoughts like shooting her & the new guy .” [ 61 ] A Bargain Finder paper with shotgun ads marked was seized from Mr. Morrison’s apartment by police after the murder. It was dated July 20-26. [ 62 ] On July 23, Ms.

Morrison again returned to the matrimonial home, accompanied by a friend, and found the home flooded with taps left running, gasoline spilled in the bedroom, and a garbage can filled with paper and matches left near the water heater. Ms. Morrison was upset, scared and shaking. Later that day she found her van had been “keyed”. She told Kathleen Holliday that Mr. Morrison would soon run out of things to destroy and that she did not know what would happen then. [ 63 ] On July 25, Mr. Morrison wrote a note in which he lists the things he intended to do that day.

The note begins by stating “Today is probably one of the most exicting (sic) days of my life .” Item “5" states: “ Go to Esso Plaza at 4:30 - kill Janice then me .” Ms. Morrison worked at Esso Plaza. The note ends with a postscript, “ I ’m really pissed off. I couldn ’t find her van to wait for her but I have a better plan now - I needed today to figure this one out - she ’ll be so surprised .” [ 64 ] Mr. Morrison also dated two letters July 25.

The first letter was addressed to his mother and states, “ Mom please forgive me for what I ’ve done to Janice and myself .” The second letter was addressed to Dora Hanson, Ms. Morrison’s mother, and stated: “Janice should never have done me - but she did! She humiliated & embarrassed me - she deserved to have her face blown off. - The neat thing is I watched - it was cool !” The postscript states: “ Oh - PS: Brains everywhere!! ” [ 65 ] Also on July 25, Ms. Morrison moved out of Ms. Holliday’s house to go into hiding. Ms. Holliday was on vacation and Ms. Morrison was too afraid to stay at Ms.

Holliday’s house by herself. [ 66 ] Mr. Morrison killed Ms. Morrison on the afternoon of July 28, 1995. [ 67 ] At 12:40 p.m. that afternoon, Mr. Morrison left the following message on his answering machine: “ Hi. If anybody gets this message I ’m sorry I ’ve had enough. I tried. I went to counsellors, I did everything. I can ’t stand it anymore. I ’m out of here. Life ain ’t worth living. Maybe it sounds like a cop out but it ’s just too much for me. I love everybody. Sorry but the people that hurt me and I guess I ’ll see you all on the other side. Bye bye .” [ 68 ] A letter written by Mr.

Morrison with the time of 12:50 p.m. on the afternoon of the murder states, “ She deserves to die for what she did to me. . .If I can find her tonite this may be it. . .Well, I guess today ’s the day for sure. It ’s 12:50 – 4:30's it. So long cruel world .” [ 69 ] At 4:30 p.m., Ms. Morrison left her office for the Esso Plaza parkade at her usual time. Mr. Morrison was waiting behind her van in the parkade with a sawed-off shotgun, 15 shotguns shells, a duffle bag, a six-pack of beer, and two pairs of earplugs.

While waiting he vandalized the vehicle by flattening two tires, smashing the taillights, removing a windshield wiper, and shattering one of the windows.

[ 70 ] As Ms. Morrison approached her vehicle between 4:30 and 4:40 p.m., Mr. Morrison shot her twice in the back from a distance of less than ten feet. Ms. Morrison managed to reach the passageway between the two doors leading back to the elevator before she collapsed. Mr. Morrison entered the passageway, looked at Ms. Morrison while she was on the ground and said, “ I ’ll teach you for doing me wrong ,” He then loaded another shell into the shotgun and fired a third shot into the base of her head from a probable distance of less than two yards.

He then left the shotgun by the duffle bag and walked across the parkade, entered the stairway on the west side of Esso Plaza, and departed. [ 71 ] That night at 6:00 p.m., Mr. Morrison telephoned his brother, Herbert Morrison, and said, “ I went out and bought a shotgun and blew her fucking face off. You and Jerry and the fellas can have a good laugh at me now. I went and did it .” [ 72 ] These facts relating to the murder of Ms. Morrison are uncontested. (ii) Mr. Morrison ’s Conduct While Serving His Sentence [ 73 ] To his credit, Mr.

Morrison, currently 63 years old, is reported not to be “criminally minded” and has not sought out alcohol or drugs while incarcerated. Mr. Morrison’s case management reports and performance reviews consistently commend his positive rapport with all institutional staff. He has been described as “cooperative, patient, goal-oriented, and as an excellent worker.” Mr. Morrison has never posed a security threat or received an institutional charge. Since his first performance review in 1999, Mr. Morrison has been receiving Level A pay in recognition for his positive attitude and high level of motivation. Mr.

Morrison developed sophisticated woodworking skills and has made use of his skills by donating high quality finished products to be auctioned off for charity. [ 74 ] Mr. Morrison has also maintained contact with family members. His first wife remains in contact with him and considers herself part of his community support team. She is also very supportive of their two sons’ continuing contact with Mr. Morrison. His situation in prison has not involved an intimate personal relationship. [ 75 ] Mr. Morrison completed the Aboriginal High Intensity Family Violence Program (AHIFVP) in May of 2004, while incarcerated.

The program addressed family violence, anger, emotions and cognitive skills. He shared openly and honestly and demonstrated respect for program facilitators and other participants. Mr. Morrison was an active participant in the program, a group leader guiding participants to consider other perspectives, and was often considered the “voice of reason”. He demonstrated a firm understanding of concepts and was able to apply learned skills in the classroom setting. [ 76 ] The program facilitator in the AHIFVP had concerns, however, that Mr. Morrison was unable or unwilling to acknowledge some of his problems. While Mr.

Morrison discussed his depressive episodes, he did not believe he had a problem with anger or jealousy at the time of the offence. The relapse prevention plan developed by Mr. Morrison was described as “basic and simplistic,” as it did not address his anger issues. [ 77 ] Similarly, in a family violence booster program, while Mr. Morrison was a cooperative and willing participant, there were troubling inconsistencies in his behaviour. The facilitator’s final report indicated that Mr.

Morrison was able to explain how his patterns of emotional suppression began during childhood, and that he would use alcohol in an attempt to deal with his negative emotions. However, the facilitator’s final report again indicates that Mr. Morrison has a tendency to “intellectualize/explain the reasons behind his offence” which “suggests that he may not have fully accepted his use of violence and that he may be doing this in a defensive manner to avoid dealing with uncomfortable emotions and memories and the knowledge that he killed someone he was to have cared about.” [ 78 ] Mr.

Morrison has undergone 28 Maxxam urinalysis tests while incarcerated and has never tested positive for alcohol or drugs. Rather surprisingly, given that Mr. Morrison had been drinking heavily in the months leading up to the index offence, there are some statements that alcohol counselling was not recommended for him. Mr. Morrison’s Correctional Plan initially recommended that he complete the Offender Substance Abuse Program. Later Computerized Lifestyles Assessment Instrument (CLAI) results from his intake assessment on May 5, 1999, indicated “no problems in this area” according to the Report.

He was consequently screened out of that program. However, when the CLAI was administered a second time on April 22, 2005, Mr. Morrison received a recommendation for low intensity substance abuse programming. Subsequent administration of the CLAI in June 2006 confirmed the need for low intensity programming. The low intensity substance abuse treatment program that appears to have been recommended for Mr. Morrison was

unfortunately unavailable at the institution. It was therefore recommended that Mr. Morrison participate in this treatment upon release to the community. [ 79 ] By 2009 however, Mr. Morrison had completed his first official maintenance session of the Aboriginal High Intensity Substance Abuse Program. Since then, Mr. Morrison has developed a Self Management plan and, according to the Report, program facilitator Mr. Rob Gouin “is of the opinion that Mr.

Morrison uses the skills, strategies, communication techniques, self-monitoring strategies and relapse prevention processes taught through correctional programming on a daily basis”. While Mr. Morrison has maintained sobriety while incarcerated, his AHIFVP report notes that he has never been able to honestly acknowledge the severity of his substance abuse problem. As late as January 30, 2008, the Assessment indicated that Mr. Morrison “does not accept the degree substance abuse was an issue for him.” Paradoxically, the Assessment noted that Mr.

Morrison understood his wife’s death to be caused by alcohol, depression and medication, although he has been unable to acknowledge the role that frustration, anger and resentment played in the murder. [ 80 ] An inability to demonstrate insight into the index offence was a troubling inconsistency that led to Mr. Morrison’s first application for Escorted Temporary Absences (“ETAs”) on February 22, 2006 being rejected by the Parole Board of Canada (the “PBC”), despite reports by Correctional Service of Canada recommending ETAs at a frequency of one per month for a year. The PBC was also troubled by Mr.

Morrison’s purported inability to recall events surrounding the index offence, and the fact that the most recent available psychiatric and psychological reports noted concerns with outstanding issues of anger, aggression, minimization and alcohol use. [ 81 ] Mr. Morrison’s second application for ETAs in November 2006 was also rejected by the PBC. At that time, the PBC again noted Mr. Morrison’s failure to recall events, and his lack of insight into the emotional factors that contributed to the index offence. The PBC also noted Mr.

Morrison’s habit of going off topic when asked a question, concluding that this was an attempt to avoid discussing the issue. Mr. Morrison continued to deny recalling what he had done. [ 82 ] On April 26, 2007, Mr. Morrison was granted ETAs for the purpose of community service for one year, but the PBC again expressed concern regarding his anger and aggression issues. On June 11, 2008, Mr.

Morrison’s application for ETAs for the purpose of community service was granted for another year, but his application to participate in the Full Impact Program, wherein offenders speak to students about personal experiences in an effort towards crime prevention, was denied. This application was denied in part because a January 30, 2008 Psychological Assessment again reiterated that Mr. Morrison must demonstrate more memories and insight into past stressors in order to construct a solid relapse prevention plan. The psychologist who completed the 2008 assessment concluded it was simplistic for Mr.

Morrison to claim his wife’s death was caused by alcohol, depression and medication. [ 83 ] Mr. Morrison applied to have his ETAs for community service extended for another year in February 2009. Again, the PBC noted concerns. In particular, Mr. Morrison’s Assessment for Decision, a report prepared by his parole officer Ms. Schneider, notes the “convenience” of Mr. Morrison’s lack of or selective memories. Ms. Schneider goes on to explain “that there were incidents and behaviours leading up to the murder that Mr.

Morrison must address, whether he remembers them or not (ex. abusive, calculating and violent behaviour)”. (Emphasis in Parole Eligibility Report.) [ 84 ] Mr. Morrison again applied to extend his participation in ETAs, appearing before the PBC on May 13, 2009. In deciding to extend Mr. Morrison’s ETAs for another year, the PBC noted that Mr. Morrison was beginning to acknowledge that alcohol, medication and depression were not the only factors that played a role in the index offence. In addition, Mr.

Morrison discussed memories relating to the index offence, although he told the PBC that these memories were still “sketchy”. [ 85 ] Mr. Morrison’s application for another year of ETAs was once again approved on August 10, 2010. At that hearing, the PBC was satisfied that Mr. Morrison had begun to explore how underlying issues such as jealousy, anger, resentment and frustration contributed to the murder of his wife. [ 86 ] On May 31, 2011 Mr.

Morrison was approved for ETAs to attend Lifeline Meetings in Calgary designed to help slowly reintegrate offenders serving life sentences into the community, and Church service at the Church of Nazarene in Drumheller. At the same time, Mr. Morrison was approved for family contact ETAs to visit his son in Calgary. On July 5, 2011, Mr. Morrison’s annual application to have his community service ETAs renewed was approved. [ 87 ] Mr. Morrison has completed work in the various Drumheller parks for the Communities in Bloom project.

He also commenced work at the Church of the Nazarene in 2007, assisting with a major renovation project. During this time, Mr. Morrison has formed positive supports with the Pastor as well as other church employees and members. Mr. Morrison began volunteering at the East

Coulee School Museum in February of 2009, doing mainly repairs and maintenance work. The manager of the Museum describes Mr. Morrison as having a strong work ethic, knowledge, insight, common sense and an ability “to succeed within a fluid and dynamic work matrix.” In May 2010, Mr. Morrison began volunteering for the Drumheller Housing Renovation Project. [ 88 ] The PBC has consistently stated that Mr. Morrison is a low risk to society. There is no indication that Mr.

Morrison has used violence against the general public, although the PBC has also noted that the current structure of his ETAs would not lead to any relationship involvement which could increase Mr. Morrison’s risk to re-offend. (iii) The Character of the Applicant [ 89 ] The Court received a Judicial Review/Parole Eligibility Report (the “Report”) concerning Mr. Morrison. The Report was based on an interview with Mr.

Morrison as well as a review of his case management files, security intelligence information, reports of the Offender Management System and Automatic Data Applied to Reintegration. [ 90 ] The Report canvassed numerous topics, including a

summary of his social, family and criminal background; his pre-trial psychological/psychiatric assessments; his institutional history; Parole Board of Canada Decision Information; his Family/Community Contacts Since Incarceration; a

Summary of CSC Psychological/Psychiatric Assessments. [ 91 ] A Psychological Risk Assessment (the “Assessment”) was conducted by psychologist Mr. David McGale and was completed on May 27, 2010. Various test were administered including an assessment of Mr. Morrison’s general personality and cognitive functioning, the Violence Risk Appraisal Guide (the “VRAG”), and the Spousal Assault Risk Assessment (the “SARA”). [ 92 ] The Assessment notes that Mr.

Morrison is an intelligent individual with excellent verbal skills, registering in the 90 th percentile for cognitive abilities and the 88 th percentile for verbal abilities respectively. The Assessment states that Mr. Morrison’s intellectual abilities are intact and he displays no deficits or difficulties. [ 93 ] On the Personality Assessment Inventory (the “PAI”), a standardized self-report instrument that provides an assessment of an individual’s personality functioning and psychological adjustment, Mr. Morrison’s responses produced a defensive response. The Assessment notes that individuals matching Mr.

Morrison’s response pattern “tend to try and to portray themselves as being exceptionally free from common shortcomings that most individuals will admit to having. Elevations such as this may be the result of purposeful distortion due to the assessment process itself, lack of psychological awareness/insight or simply due to the stigma of having a mental disorder.” [ 94 ] However, the Assessment notes that past PAI tests have also identified Mr. Morrison as displaying a “high level of defensiveness and/or reluctance to admit to faults in himself.” The PAI administered to Mr.

Morrison in 2005 also indicated that he tries to maintain a high level of self-control, that he lacks insight with specific behaviours and that he is likely to become defensive about specific negative behavioural characteristics. Mr. Morrison’s responses are indicative of a tendency to defend against the expression of aggressive impulses but also to act out with “uncontrollable intensity” when he feels provoked. [ 95 ] According to the Violence Risk Appraisal Guide, Mr. Morrison falls in the low risk category to re-offend with violence.

He received a similarly low risk/needs designation on the LSI-R test. [ 96 ] On the Spousal Assault Risk Assessment, Mr. Morrison was found to be in the high risk category, meeting 12 of the 20 indicators. His counsel argued that his risk score would necessarily be high given the crimes he committed as some indicators include past assault on a family member, prior violence, presence of a personality disorder with anger management problems and behavioural instability/impulsivity.

The testing and interview took place in April and May 2010. [ 97 ] There is an inherent limitation to these types of risk assessment measurement. The Report notes at p. 76 that “due to individual variation or imperfect inter-ratio reliability, Mr. Morrison’s actual risk levels may differ from these group percentages”.

[ 98 ] The Report also notes that his violence “appears to be situational” and that “relationship stress is certainly a potential trigger for him” and “clearly, his risk would be higher under circumstances similar to those surrounding the index murder.” The Report also notes that “relationship rejection appears to one of the most influential factors associated with his spousal and abuse and index offences” and that Mr.

Morrison’s “risk to re-offend would most likely be higher if he enters into another romantic relationship,” especially if he began to consume alcohol again. [ 99 ] The tendency to manifest feelings of frustration, resentment, jealousy and anger in violence outbursts has marred Mr. Morrison’s past relationships. Before he killed Ms. Morrison, he engaged in repeated acts that demonstrated his uncontrolled anger towards her. [ 100 ] Mr. Morrison does not have an extensive criminal record. His criminal record dates back to 1984, when he pled guilty to charges of assault and mischief causing property damages.

These charges stem from the breakdown of Mr. Morrison’s first marriage. Mr. Morrison assaulted his first wife after they separated and also threw a rock through a window in her residence. [ 101 ] Mr. Morrison explained to Mr. McGale during the Assessment in 2010 that the rock incident was an innocent act. He had spent the day prior to the incident consuming alcohol and had arrived at his first wife’s residence to pick up his two sons. Mr. Morrison reported that shortly after arriving, he picked up a rock and threw it, “unintentionally” breaking a window.

He initially denied that he was under the influence of alcohol or that anger had played a

part in the incident. While Mr. Morrison later indicated that he had consumed alcohol, he maintained that it had not played a

part in the incident. [ 102 ] While the file information shows that he also struck his wife in 1984, Mr. McGale reports that in 2010: In discussing this incident with Mr Morrison, he denied having struck his first wife and stated that he and his first wife had separated due to her having an affair with a neighbour. [ 103 ] Mr. Morrison then recanted that statement, and described how he thought she was lying to him. He said that when she denied having had an affair, he pulled her down the stairs and shoved her out the door as he did not want to hear her lies anymore. Mr.

Morrison also explained how he always suspected his first wife of being unfaithful but that she always denied his claims. He explained how he had earlier found his first wife visiting his friend’s place of business where they were acting overly friendly with each other. After they saw him, Mr. Morrison claims they acted surprised and anxious causing him to realize his suspicions were correct. Mr. Morrison also suspected Ms. Morrison of seeing someone else prior to the murder. [ 104 ] With regard to alcohol consumption, Mr. Morrison denies ever having had a problem with alcohol abuse. He explained to Mr.

McGale during the 2010 Assessment that he only started drinking heavily in the months before the murder. On the actual day of the murder, Mr. Morrison reported having consumed 18 to 20 drinks consisting of beer and rye. Despite Mr. Morrison reported denial of ever having a drinking problem, alcohol consumption was well documented as being a significant factor contributing to his marital problems and was identified in several pre-trial psychiatric assessments. [ 105 ] Mr. Morrison maintains that he cannot remember the murder of his second wife. According to the Report: Mr.

Morrison has consistently denied any memory of going to Janice Morrison’s place of work. He has consistently denied any knowledge of vandalizing her van. He has consistently denied any memory of having, in his possession, a shotgun, let along using it to kill Janice Morrison. This stated lack of memory has been consistently held by Mr. Morrison. It would be consistent with his own reported state of functioning at the time and more importantly it is consistent with the observations of those who had contact with him.

It is clear that, through a combination of the effects of alcohol, depression and possibly the use of benzodiazepines, Mr. Morrison’s memory was significantly impaired in the time leading up to the death of Janice Morrison. [ 106 ] A jury may understand that his memory of events may be limited in part due to the combined effect of alcohol and medication. However, a psychological report completed by Dr. P. J. Williams on December 6, 1996 and summarized in the Parole Eligibility Report

(the “Williams Report”) questions some of Mr. Morrison’s claims of amnesia. It is summarized at length in the Parole Eligibility Report submitted as part of this application. The Williams Report corroborated observations and findings made by Dr. Hashmen during his assessment of Mr. Morrison at Calgary General following the murder. While in the forensic unit of the Calgary General Hospital for a seven week long assessment following his arrest, Mr. Morrison did not undergo the withdrawal symptoms usually exhibited by an individual suffering from alcohol dependence. Additionally, Mr.

Morrison’s claims of amnesia cover periods of times both when he was and was not under the influence of intoxicants. The Williams Report concludes that insobriety is therefore not an adequate explanation for Mr. Morrison’s claims of amnesia. [ 107 ] Instead, the Williams Report suggests that “the legitimacy of amnesic episodes becomes suspect when what is not recalled has a negative implication with respect to the accused person’s

interpretation of immoral or illegal behaviour.” The Williams Report further states that “it is common and easy for people to claim they do not remember something when admitting to that experience would have negative implications.” As previously noted, concerns with Mr. Morrison’s purported inability to remember events leading up to and including the murder of his wife, and the role that emotions such as resentment, frustration, jealousy and anger played in the offence have been consistently noted by the PBC in his applications for ETAs. [ 108 ] These concerns were also noted by Mr.

McGale in the Assessment, in which he wrote that “(i)n looking at his reported memory lapses they appear to be mostly related to his acts of violence.” While Mr. McGale noted that “Mr. Morrison appeared to display an appropriate amount of remorse and at one point broke down and began to cry over how he had hurt someone he was supposed to have loved,” Mr. McGale explained that when discussing the index offence, Mr. Morrison had a tendency to “intellectualize his behaviour in an attempt to have the offence sit better with himself.” Mr. McGale also noted that Mr.

Morrison “still has difficulty understanding his emotions and how they played into his offending behaviour and has difficulty expressing/explaining them.” [ 109 ] Finally, Mr. McGale noted Mr. Morrison’s comments regarding the supposed severity of his sentence. During the Assessment, Mr. Morrison stated that “many people believed he should have gotten second degree murder due to not being of sound mind.” The Assessment also noted that Mr. Morrison had explained to his son how he had received a “bum rap”, although Mr. Morrison denied ever having made that statement. While Mr. Morrison ultimately told Mr.

McGale that he believed he had been sentenced fairly, he explained that “the maximum sentence is what ‘society’ saw as being fair.” (iv) Information Provided by a Victim [ 110 ]

Section 745.63 requires a court to consider victim information.

Section 745.63(2) provides that “victim” has the same meaning as in s. 722(4), where it is defined as: (

a) means a person to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence; and (

b) where the person described in paragraph (

a) is dead, ill or otherwise incapable of making a statement referred to in subsection (1), includes the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any dependant of that person. [ 111 ] Accordingly, victim impact statements were completed by Ms. Morrison’s mother, nephew and three sisters in 1996, and again by her three sisters in 2010. The earlier statements focus on the family’s sense of loss and the close relationships between Ms. Morrison and her relatives.

Even in the earlier statements however, the family describe Mr. Morrison as “an actor” and a “con artist.” With reference to Mr. Morrison’s abuse of his first wife, one of the victim impact statements notes that he “seems to have a cycle of 10 yrs before he strikes.” [ 112 ] While the 2010 statements also describe the family’s continuing grief over the loss of Ms. Morrison, the focus of the later statements shifts to Mr. Morrison’s character and the risks associated with his possible early release. The statements describe how Mr.

Morrison blamed his faults on other individuals and never took responsibility for his actions. Mr. Morrison is described as “a manipulative smooth talker, and as a salesman” who “knows how to play the game.” [ 113 ] One of Ms. Morrison’s sisters, states that “because he (Mr. Morrison) knows how to play the game, I’m sure he has been a model prisoner, saying and doing all the right things. Please don’t be fooled by him!”

[114] Another states that Mr. Morrison was “very revengeful and cunning before he eventually murdered my sister.” She says thatMr. Morrison was “very jealous and controlling” and a “control freak”. She describes Mr. Morrison’s possessive nature and how “Janiceand I couldn’t have a working lunch together without him showing up. This way, he could monitor our conversation and we couldn’t talkabout him.” She also describes her fear of Mr. Morrison, how he “was totally oblivious to the evil side of humanity,” and her frequentnightmares about him. She says Mr.

Morrison “committed this murder out of tremendous jealously and control” and is distraught by thepossibility that “he will exact his revenge on those he feels contributed” to his conviction, upon his release. (

v) Other Matters [115] Whether considered as part of the nature of the offence, the first statutory criteria, or as a distinctive aspect of this application, itis important to consider that the index crime was one of spousal murder. Mr. Morrison’s criminal record also includes a prior attack onhis first wife. There are particular aspects, patterns characteristics and risks associated with crimes against intimate partners.

In thecontext of sentencing courts have frequently noted that spousal violence, including spousal homicide, is a pressing social concern andthat general and specific deterrence, as well as denunciation as the paramount sentencing considerations. See for example, of R. v.Cuthbert, 2007 BCCA 585, 249 B.C.A.C. 60 at para. 57 ; R. v. Edwards, (ON CA), [1996] O.J. No. 464 (QL), 28O.R. (3d) 54 (Ont. C.A.); R. v. Portsmith, [1995] B.C.J. No. 2605 (B.C.C.A.); R. v. McCulloch, [2001] B.C.J. No. 759, 2001 BCCA 196;and R. v. Dodd, (NL CA), 139 C.C.C. (3d) 2, 180 Nfld. & P.E.I.R. 145, at para 38. [116] In R. v.

Doyle (1991), 108 N.S.R. (2d) 1, 14 W.C.B. (2d) 387, (leave to appeal refused, [1992] S.C.C.A. No. 18), the NovaScotia Court of Appeal considered the role of deterrence in the context of spousal homicides. While that case involved a conviction formanslaughter rather than first degree murder, the similarities to the case at bar are hard to miss. Doyle has a history of alcoholdependency, and was struggling with anxiety and depression when he killed his wife. He was described as a “good provider” and had agenerally sound work history.

He had no criminal record except for a conviction for impaired driving. [117] At the time of the murder however, Doyle was growing increasingly jealous of his wife. He suspected his wife of having anaffair with a co-worker, though his suspicions were entirely unfounded. At 2:30 in the morning of August 6, 1989, Doyle entered hiswife’s bedroom and shot her three times with a high power 30-30 lever action rifle while she slept. [118] In deciding to raise Doyle’s period of parole ineligibility from 10 to 17 years, Chipman J.A. commented on the repugnant andindefensible nature of the murder.

However, he also noted the important role of deterrence in spousal homicide, stating at para. 39: Although Parliament has not singled out wives for special protection, sentencing jurisprudence recognizes that courts attach significanceto the relationship between the perpetrator of an offence and the victim, with special emphasis on crimes involving victims in positions ofvulnerability and to whom the perpetrator is in a position of trust.

With respect, it is wrong to say that one cannot consider as anaggravating factor the spousal nature of this murder simply because Parliament did not specifically say it should be done. Thehusband/wife relationship in this case is of great importance, and is a factor to be taken into account in moving towards the upper end ofthe range of parole ineligibility. Family and spousal violence are all too prevalent, and if courts have not sufficiently shown their sterndisapproval of such conduct the time has now come to do so. In R. v.

Publicover (1986), (NS CA), 74 N.S.R. (2d) 23,Macdonald, J.A. speaking for this court said at p. 24: "Incidents of wife beating appear to be more prevalent in our society than at one time believed.

The courts have an obligation to showsociety's denunciation of such conduct by the imposition of sentences that primarily emphasize the element of deterrence." [119] Justice Chipman’s decision is particularly notable in that Parliament would later add s. 718.2 to the Criminal Code, which cameinto effect on September 3, 1996 and which requires a sentencing judge to consider a variety of principles, including “(a)(ii) evidencethat the offender, in committing the offence, abused the offender’s spouse or common-law partner.” [120] While Alberta courts have not uniformly adopted a similar approach, MacDonald J. recently criticized an earlier decision, R. v.Diep, 2005 CarswellAlta 151, in which the sentencing judge failed to consider the spousal dimension of the crime as an aggravatingfactor.

At para. 43 of R. v. Osei-Agyemang, 2009 ABQB 389, [2010] A.W.L.D. 153, MacDonald J. stated:

In Diep , the accused was convicted of second degree murder in the stabbing death of his former wife. Notwithstanding the deemed aggravating factor of it being an (ex-) spousal homicide, the learned justice declined to increase the period of parole ineligibility beyond the statutory minimum of ten years.

This decision is not binding upon me and with all due respect, I am in no way persuaded by it. [ 121 ] The jury would know about such case law and the research that underpins it; specifically about how individuals convicted of intimate partner violence may not be generally violent, but they may nevertheless target, control and abuse those closest to them. Individuals convicted of domestic violence may be of no risk to general society and they may not be otherwise criminally minded. Violent tendencies may go unseen to all but those with whom they are most intimately involved.

This particular feature of spousal violence would help explain why Mr. Morrison had no history of violence against co-workers or his brother for example, but he assaulted his first wife and killed his second. The risk to intimate partners is often serious and recurring, and, as the case at bar demonstrates, sometimes life-threatening. Evidence that Mr. Morrison is not of a generally violent character and is at a low risk for general violence in the future may therefore be of less assistance to a jury when the index offence he committed was spousal murder.

He is said to have succumbed to situational stressors but while in prison Mr. Morrison has not had an intimate relationship and it is therefore not possible to assess his actual progress in the very realm in which he has previously experienced such extreme difficulties. In such a case the materials evaluate his risk of future spousal violence as high, especially as he appears to have not addressed fully the underlying causes of his violence. [ 122 ] The likelihood of recidivism is an especially pressing concern in the context of domestic violence.

In determining whether there is a substantial likelihood that a jury would unanimously decide that there should be a reduction in Mr. Morrison’s parole eligibility period, not only are risks to society at large to be considered, but risks on a smaller and more personal scale, for example, risks that Mr. Morrison may continue to pose to future intimate relations. 6. Argument of the Parties [ 123 ] The Applicant argues that there has been change in circumstances such that there is a substantial likelihood a jury would reduce Mr. Morrison’s parole ineligibility.

The Defence argues that all experts at the time of trial agreed that Mr. Morrison was medically depressed in 1995 when he killed his wife. They differed, however, as to whether he was criminally responsible for his actions. Mr. Morrison is said to have greater insight into his previous condition, is no longer clinically depressed or on medication, and has no problems with alcohol. As a prisoner he is hard working and highly motivated and has learned to work as a carpenter. He is in a minimum security facility and requires a low degree of supervision.

He has attended numerous counselling sessions and has been referred to as the “voice of reason” during group counselling sessions, providing insight and common sense to other participants. He listens and hears what others are saying. He claims to have developed self-monitoring strategies [ 124 ] It would appear that alcohol abuse has played a significant role in his life and in relation to the index offence. However, those dealing with Mr. Morrison do not seem to believe that he requires alcohol counselling.

He is of the view that he will simply not drink again. [ 125 ] The Defence acknowledges that he targeted a specific individual and has situational stressors but that he has learned to manage them. It was argued that he has grown out of his frustration, learned other coping strategies for disappointment and that his experience with throat cancer three years ago has given him a different perspective.

Defence argues that he does not need full insight and that concerns for release should involve having a good relapse plan, a strong network and continued employment. [ 126 ] The Crown argues that there is no substantial likelihood that a unanimous jury would grant Mr. Morrison’s application to proceed to the Parole Board. The Crown points to the horrific nature of the offence, the victim impact statements and what it says are troubling discrepancies in the record. [ 127 ] Mr.

Morrison is an intelligent individual with excellent verbal skills, registering in the 90 th percentile for cognitive abilities and the 88 th percentile for verbal abilities respectively. On many occasions he has demonstrated a reluctance to admit fault. He claims to have no memory of the events surrounding the murder of his second wife. This has been explained by different people on a number of different suggested bases, including a combination of the effects of alcohol and the medication he was taking at the time of the murder.

It has also been suggested that he simply cannot come to terms with what he has done therefore does not remember. Mr. Morrison cannot articulate why he was angry at his wife. Certain of his personality testing was said to be unreliable, meaning that he was attempting to manipulate the results in a fashion to show himself in a more favourable light. While he was an active participant in many programs, his remorse and acceptance of responsibility is limited and stated in general terms only.

There is no true understanding of how he came to murder his wife or how to prevent himself from becoming situationally violent in the future. The Crown argues that there is significant evidence that Mr. Morrison does not fully understand his problems with anger and rejection and that his approach to future

disappointment is abstract and simplistic and does not mediate his high risk of future spousal violence. 7. Analysis [ 128 ] I have addressed the

interpretation of the new statutory screening test as it has an impact on the determination at bar. The written materials suggest that Mr. Morrison’s application is not hopeless and would most likely have passed this approach to the reasonable prospect test. However, the new test requires more and the task of the screening judge is to assess the likelihood all jurors will decide to impose a less harsh penalty by changing the period of parole ineligibility. [ 129 ] There are numerous factors at play in this application and the materials filed point in two very different directions.

Factors supporting a reduction in parole include the fact that Mr. Morrison is at a Minimum Security Unit and no concerns have been noted. Furthermore, Mr. Morrison has clearly been a model prisoner in many respects. In particular, his charitable work and mentorship of other inmates are to be commended. He has addressed some of his psychological issues in a series of courses and counselling sessions. He has managed to abstain from alcohol and drugs while incarcerated. Mr.

Morrison has willingly participated in a number of treatment programs including the High Intensity Family Violence Program and has made some progress. He has been cooperative and helpful towards other participants and staff. [ 130 ] Yet, there are numerous factors supporting the Crown’s position that there is no substantial likelihood that a jury would find in favour of a reduction in Mr. Morrison’s parole eligibility. [ 131 ] First, the murder of Ms. Janice Morrison was particularly horrific. The Defence rightly points out that there is no such thing as a non-serious first-degree murder.

By definition, an offence that qualifies for a faint hope application must be serious. However, the fact Parliament included the nature of the offence as a mandatory statutory factor indicates that it intended for juries, and judges hearing the screening application, to place the offence somewhere on a continuum This murder involved the aggravating factor of being against an intimate partner. It was planned over a period of time and involved different timing and strategies, and culminated in a brutal attack at Ms. Morrison’s workplace. It came after several weeks during which Mr.

Morrison engaged in a campaign of terror against Ms. Morrison, her family and her friends, in a manner designed to instill fear. He destroyed Ms. Morrison’s property and threatened her in a manner calculated to invoke the utmost terror. He succeeded and Ms. Morrison filed a Restraining Order just over two weeks before she was killed, her last weeks spent in hiding. [ 132 ] Mr. Morrison also spent considerable time documenting the murder of Ms. Morrison. These notes describe what looks very much like excitement as he planned the death of his second wife. Mr. Morrison also penned a disturbing note intended for Ms.

Morrison’s mother just days before the crime that describes her daughter’s murder in callous detail. [ 133 ] The murder was carried out in public as Ms. Morrison was leaving work. On the day of the murder, Mr. Morrison lay in wait all afternoon for Ms. Morrison. When she went to her vehicle, Mr. Morrison shot her twice in the back. As Ms. Morrison made her way back to the elevators and collapsed, Mr. Morrison walked up to her and said “I’ll teach you for doing me wrong.” He then loaded another shell into the shotgun and shot her at close range in the back of the head. After months of terrorizing Ms.

Morrison, her family and her friends, and even as he fired the last, fatal shot from close range, Mr. Morrison continued to insist that he was in fact the victim. [ 134 ] Second, Mr. Morrison’s record contains a series of troubling discrepancies. A common trend emerges in the written materials provided: that being a persistent inability to recognize the role that his own emotions, specifically the frustration, resentment, jealousy and anger that he seems to habitually exhibit in his intimate relationships, played in the murder of Ms. Morrison. In particular, while Mr.

Morrison has shown some remorse, he has also consistently demonstrated an unwillingness to confront emotional issues contributing to the index offence. He has repeatedly changed his explanation of previous incidents of violence, such as the 1984 assault on his first wife. That attack also followed a period during which Mr. Morrison became absorbed in a cycle of jealousy and rage, convinced, even obsessed, with thoughts that his first wife was having an affair. [ 135 ] Prior to the murder of Ms. Morrison, Mr. Morrison also suspected her of seeing someone else. On July 10, 1995, Mr.

Morrison telephoned Kathleen Holliday in a state of rage, convinced that Ms. Morrison was seeing someone else. Mr. Morrison threatened to kill her “friend” if he ever found out who he was. Mr. Morrison’s jealousy, anger and sense of rejection, also led him to suspect his first wife of infidelity during the dissolution of his first marriage. The same cycle of jealousy and resentment that led to the 1984 assault against his first wife, reemerged in 1995 and culminated in the murder of Ms. Morrison. Mr.

Morrison fails to draw such a connection between the two incidents however, in particular the role his own destructive emotions played in his dissolution of relationships and the ensuing

violence. [ 136 ] He claims to have no memory of violent incidents leading up to the murder of his wife. This inability to confront the memories associated with the index offence has been repeatedly noted in a series of reports and assessments. He tends to distance himself from the emotional aspects of his crime. This behaviour has been noted over and over in di

[…]