R v Point, 2016 ABQB 496

Court of Queen’s Bench of Alberta Citation: R v Point, 2016 ABQB 496 Date: 20160907 Docket: 991109405Q1 Registry: Calgary Between: Her Majesty the Queen Respondent - and - Deborah Louise Point Applicant _______________________________________________________ Reasons for Judgment of the Honourable Chief Justice Neil Wittmann _______________________________________________________ Introduction [ 1 ] Deborah Louise Point, (“the Applicant”) or (“Point”) was arrested on July 22 nd , 1999 and convicted of the second degree murder of Audrey Trudeau (“Trudeau”).

Point’s conviction occurred in Calgary on November 17 th , 2000. She was sentenced to life imprisonment, with 20 years’ parole ineligibility on January 12, 2001. [ 2 ] On October 15 th , 2014, Point filed an application seeking a reduction in her parole ineligibility from 20 years, pursuant to s. 745.6(1) of the Criminal Code of Canada . [ 3 ] On that date, Point had served at least 15 years of her sentence as defined by s. 746 of the Criminal Code .

[4] By an Order made by this Court on November 7th, 2014, I directed Correctional Service of Canada (“CSC”) to provide areport detailing every aspect of Point’s conduct while incarcerated, including her character and conduct while serving her sentence andany relevant information pertaining to the nature of the offence for which she was convicted. A further Order was made on the application of Point on September 9th, 2015 directing a copy of the relevant records of the institutional files of Point in the possession ofCSC be provided to counsel.

The Court has received a document entitled “Material Relating to the Offence” and a second volume ofdocuments entitled “Documents Referenced by Crown on The Application to Reduce Parole Eligibility”. Similarly, Point’s counsel hasfiled a document entitled “Excerpts from Correctional Records of Deborah Point.” [5] I must now decide whether to allow Point’s application to be heard by a jury. Criminal Code Provisions [6] The applicable sections of the Criminal Code are as follows: 745.6

(1) Application for judicial review - Subject to subsections (2) to (2.6), a person may apply, in writing, to the appropriate ChiefJustice in the province in which their conviction took place for a reduction in the number of years of imprisonment without eligibility forparole if the person (

a) has been convicted of murder or high treason; (a.1) committed the murder or high treason before the day on which this paragraph comes into force; (

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. 745.61 Judicial screening - On receipt of an application under subsection 745.6(1), the appropriate Chief Justice shall determine, or shalldesignate a judge of the superior court of criminal jurisdiction to determine, on the basis of the following written material, whether theapplicant has shown, on a balance of probabilities, that there is a substantial likelihood 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 substantial likelihood that the application willsucceed, the Chief Justice or judge shall consider the criteria set out in paragraphs 745.63(1)(

a) to (e), with any modifications that thecircumstances require. 745.63

(1) Hearing of application - The jury empanelled 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 eitherorally or in writing, at the discretion of the victim, or in any other manner that the judge considers appropriate.

(2) Definition of “victim” - In paragraph (1)(d), “victim” has the same meaning as in subsection 722(4).

(3) Reduction - The jury hearing an application under subsection (1) may determine that the applicant’s number of years ofimprisonment without eligibility for parole ought to be reduced. The determination to reduce the number of years must be by unanimousvote.

Case Law [7] A number of authorities were cited by the Applicant and the Crown and additional authorities were referred to by the Courtas follows: [8] R v Morrison, 2012 ABQB 619; R v Jenkins, 2014 ONSC 3223; R v Oczko, 2012 ABQB 121; R v Ryan, 2010 ABQB 87; Rv Humaid, 2015 ONSC 5345; R v Swietlinski, (SCC), [1994] 3 SCR 481; R v Dulay, 2009 ABCA 12; R v Dulay, 2007CarswellAlta 2320; R v Paul, 2014 ONSC 1285; R v Jenkins, 2014 ONSC 3969; R v McAuley, 2012 ONSC 3732; F.H. v McDougall,

2008 SCC 53; R v Poitras, 2012 ONSC 5147; R v Schaefler, (ON SC), [2009] OJ No 3175; R v Sedore, [2008] OJNo 2705; R v D.E.K., 2001 MBQB 350; R v Yu, 2014 BCSC 206; R v Chow, 2016 BCSC 781; R v Gayle [2013] OJ No 4124. History of the Faint Hope Provisions of the Criminal Code [9] The “faint hope”, or early parole eligibility regime was created in 1976 as part of a Parliamentary compromise that resultedin the abolition of capital punishment. Major amendments to the

section occurred in 1997 and 2011. [10] Prior to 1997, an applicant had an automatic right to have an early parole eligibility application heard before a jury. With the1997 amendments to the Criminal Code, judicial screening of the application was required before a jury was empanelled. If a judgedecided that the test articulated in the Criminal Code was not met by the applicant, the applicant’s case never went to a jury.

Thus,applicants could be denied an opportunity to have a jury decide whether parole ineligibility would be changed. [11] Other aspects of the 1997 amendments increased the requirement for a jury vote for a reduction in parole ineligibility from a 2/3 majority, to a unanimous vote. Prior to the Criminal Code amendments of March 23rd, 2011, proclaimed in force December 2nd,2011, the standard of proof to be applied by the screening judge was as stated in

section 745.61(1) “... whether the applicant has shown,on a balance of probabilities, that there is a reasonable prospect that the application will succeed”. [12] The 2011 amendments changed that standard to “... whether the applicant has shown, on a balance of probabilities, that thereis a substantial likelihood that the application will succeed”. [13] Thus, the standard of proof which I must apply to this application is whether the applicant has shown, on a balance ofprobabilities, that there is a substantial likelihood that the application will succeed.

To apply this standard of proof, I must have regard tothe criteria in the Criminal Code that a jury would employ if the matter were to go before it, as well as the requirement of unanimity bythat jury. The Purpose of the Faint Hope Provision [14] In Swietlinski, the Supreme Court of Canada considered the purpose of the Faint Hope provisions of the Criminal Code asthey stood prior to 1997.

Lamer CJ, stated at p 492-3 that the compromise between supporters and opponents of the death penalty was itsreplacement by long term imprisonment without parole, or a minimum time period for parole in the case of second degree murder of 10years which could be extended to 25 years on the jury’s recommendation. [15] Notwithstanding this compromise, Parliament enacted the Faint Hope provisions allowing a serving prisoner, who had served15 years, to take an application before a jury to reduce the period of parole ineligibility meted at sentencing.

The procedure and itspurpose, Lamer CJ said, at pp. 492-493: ... is one for reassessing the long term imprisonment imposed by law (in the case of first degree murder) or by a judge (in the case ofsecond degree murder). The purpose of a reassessment procedure, especially when it takes place 15 years after the initial decision, isnecessarily to re-examine a decision in light of new information or factors which could not have been known initially.

It follows that theprimary purpose of a s.745 hearing is to call attention to changes which have occurred in the applicant’s situation and which might justifyimposing a less harsh penalty upon the applicant. (emphasis in original) Lamer CJ also pointed out that a jury considering a parole ineligibility application must make a “discretionary decision as to theminimum length of sentence that the applicant must serve”: at p 494.

To do this, a number of factors must be assessed and weighed as awhole at arriving at a conclusion. [16] Although the decision in Swietlinski was not without a dissent on the merits, every justice agreed with the reasons of LamerCJ as to the purpose of the Faint Hope provisions. The Screening Test [17] The guiding

section for the nature of the test including the standard of proof is

section 745.61(1). The elements of the test arethat for an applicant to succeed, she must show: 1. On a balance of probabilities, 2. There is a substantial likelihood 3. That the application will succeed [18] In order to apply this test, I am mandated to “consider the criteria set out in paragraphs 745.63(1)(

a) to (

e) with anymodifications that the circumstances require”. [19] Those criteria, it is important to note, are the criteria that a jury empanelled to hear an application “shall consider”. In otherwords, the screening judge is to consider the same criteria that a properly instructed jury would consider in determining whether thenumber of years of imprisonment without eligibility for parole ought to be reduced. They are:

1. The character of the applicant; 2. The applicant’s conduct while serving the sentence; 3. The nature of the offence for which the applicant was convicted; 4. Any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and 5. Any other matters that the judge considers relevant in the circumstances. [ 20 ] The

interpretation of the nature of the test and its application is not, in my view, settled. A review of some of the case law on the issue will demonstrate this proposition. [ 21 ] A helpful

summary is contained in Yu where Madam Justice Kloegman stated at paragraph 20 as follows: Thus it is clear that the developing case law and legislative changes have resulted in a requirement for an increasingly higher threshold degree of merit to be reflected by the facts of an applicant’s particular case. At the current time, substantial likelihood of success has been described as “a probability or promise of succeeding … [t]hat is … of real value; or valid” ( R. v. Poitras , 2012 ONSC 5147 at para. 19 ), and a “truly meritorious” case ( R. v. Gayle , [2013] O.J. No. 4124 (S.C.J.) ).

All the cases decided under the new s.745.61 agree that “substantial likelihood” creates a more stringent test than “reasonable prospect of success”, regardless of whether that latter test is defined as a realistic probability or something less: ( Poitras; Gayle; R. v. Morrison , 2012 ABQB 619 at para. 30 ; R. v.

McAuley , 2012 ONSC 3732 at para. 14 ). [ 22 ] In Poitras , Rutherford J reviewed the 2011 threshold for initial judicial screening and posed the question at paragraph 19 as to how much “greater merit” must an application with a “substantial likelihood” of success have than one with a “reasonable prospect of success”? He characterized the new test this way, still at paragraph 19: A balance of probabilities threshold 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 is more probable than not that the application has a substantial likelihood of success. The Oxford Dictionary (Toronto: Oxford University Press, 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 than not that the application has a probability or promise of succeeding. That is, the likelihood is of substance; of real value; or valid.

A case of some real merit, or some substantive merit, has a substantial likelihood of success. [ 23 ] In McAuley , Ratushny J, referenced the difference between “the reasonable prospect” old statutory test and the “substantial likelihood” test means that the new test is “more stringent” and thus requires a higher threshold than the old test: para 14. The statements in Yu , Poitras and McAuley referred to above appear to have been adopted in Chow in applying the new test. [ 24 ] In Morrison , Martin J of this Court did an exhaustive analysis of the substantial likelihood test beginning at paragraph 13.

She references Poitras and Rutherford J’s quote above at paragraph 19, as well as D.E.K. where Oliphant J (as he then was) explained the reasonable prospect test was described as “relatively low” or “not hopeless”: paras 40, 44. Subsequent cases to the contrary, as noted by Martin J at paragraph 26, included R v Phillips , 2012 ONCA 54 , where the Court expressed that something more was required even under the reasonable prospect test than to show that the case not was hopeless.

Similarly in Dulay , the central issue was whether the screening judge “moved into the role of the jury by weighing conflicting evidence”: para 8. Dulay was decided under the old test as to whether there was a reasonable possibility that a jury will reduce parole ineligibility. [ 25 ] Returning to Morrison , Martin J. considered in depth the meaning of “substantial likelihood” beginning at paragraph 30 and concluding at paragraph 43. In doing so, Martin J considered the meaning of “substantial likelihood” in other areas of the law including section 515(10) (

b) of the Criminal Code . She also commented on the role of the screening judge as moving from a limited weighing of the evidence to a “real probability or prospect that all members of the jury will reduce the parole ineligibility period”: para 41. She also made it clear that the role of the screening judge is to assess the substantial likelihood of the applicant’s ultimate success before a jury which requires the screening judge to consider the evidence in greater depth and to weigh the factors when assessing whether the jury will decide the case in a certain way.

To do so is not to usurp the role of the jury: para 42. [ 26 ] In Jenkins , the factual background was that the applicant was convicted of the first degree murder of his sister, having shot her five times at close range as part of a plan to kill both of his parents as well to inherit the family’s money.

He was convicted of first degree murder and for nine years denied his involvement in the crime, insisting that others broke into the house and killed his sister; however, before the application judge, he acknowledged that he caused his sister’s death and planned to kill both parents, but also maintained the shooting was accidental which did not square with the evidence at trial and the jury’s verdict of first degree murder: paras 1-5. Pomerance J reviewed the statutory test, reviewed the decisions in Poitras , R v Gayle [2013] OJ No 4124 and Morrison, and stated as follows at para [14]: (

a) A substantial likelihood of success is a more stringent standard than a reasonable prospect of success, though it is difficult to concretely define the difference between the two; (

b) In applying the standard, the judge must take into account that, while screening is based on a paper review, the jury will be presented with oral testimony, which tends to be more evocative than documentary evidence; (

c) The judge must consider the broad discretion of the jury to grant clemency. The jury is to consider the five statutory criteria, but is not to apply any specific legal standard in assessing whether the period parole ineligibility should be reduced; (

d) Given the breadth of the jury's discretion, the role of the judge is not so much to assess whether an application will succeed, but rather, whether it should succeed. As I explained in para. 46 of my decision on the constitutional issue:

...in faint hope cases, it is always open to the jury, as a matter of law, to allow an application. This flows from the breadth of the jury's discretion. The question for the screening judge is not whether it is open to the jury to reduce parole ineligibility. That option is available in every case. Nor is the question what a jury will actually do in a given case. That requires a level of prescience that no judge can claim. What we are really asking as judges is whether a jury should allow the application.

It remains open to a jury in any case to allow an application, but Parliament has stemmed the tide of cases that will make it to that stage. It has built a judicial dam at the front end of the process. (

e) Under the old “reasonable prospect” test, the question was whether there was some evidence on which a reasonable jury could properly reduce the offender's parole ineligibility period. Under the new test, the question is whether there is evidence on which a reasonable jury, acting judiciously, would be substantially likely to reduce the offender's parole ineligibility period. [ 27 ] This

summary is useful but I have difficulty with the learned justice’s

summary in point (

d) above. She said that the role of the judge is “not so much to assess whether an application will succeed, but rather whether it should succeed”. Although I understand the reasoning, I pause to question whether the proper statutory

interpretation of the word “will”, in the context, ought to be read as “should”. This

interpretation by Pomerance J appears to have arisen because of her concern that no judge could properly claim to predict what a jury will do but could claim what a jury should do. [ 28 ] Standing alone, that analysis makes sense. However, in my view, it ignores the modifiers to the prediction of what a jury will do. What a jury “will” do is modified by whether there is a substantial likelihood that the jury will do it.

That is what the screening judge must decide. [ 29 ] I agree with Pomerance J, referring to the new standard of proof, that “Parliament has stemmed the tide of cases that will make it to that stage. It has built a judicial dam at the front end of the process.” [ 30 ] In other words, Parliament has made it much more difficult for an applicant to get his or her case in front of a jury.

While being mindful of the admonition of Rutushny J in McAuley at paragraph 14 that resorting to synonymous words to explain statutory words is not helpful, and acknowledging that the new test is more stringent and imposes a higher threshold than the old test, I do, as she did, look at the plain ordinary meaning of “substantial” and “likelihood”.

So too, did Rutherford J in Poitras . [ 31 ] However, I depart from the definition or meaning of “substantial” as set out by Rutherford J in Poitras where he cited the Oxford Dictionary (Toronto: Oxford University Press, 1998) as defining “substantial” as “of real importance value or validity”.

That publication, like so many other dictionaries, contains another definition of the adjective as “of ample or considerable size or amount”. [ 32 ] Given the context in which the adjective is used in the test I prefer this characterization when used in the phrase “substantial likelihood”. [ 33 ] “Likelihood,” however, is, as stated by both Ratushny J in McAuley and Rutherford J in Poitras , synonymous with probable. [ 34 ] So, the test is whether on a balance of probabilities, there is an ample or considerable amount or quantity of probability such that a jury will decide to reduce the years of parole ineligibility.

The application of the test will require the screening judge to engage in a limited weighing of the evidence. [ 35 ] But that is not all. The first modifier, that is “whether on a balance of probabilities” means whether it is more probable than not. As stated by Rothstein J. for a unanimous court in F.H. v McDougall at paragraph 49 , there is only one standard of proof in civil cases and that is proof on a balance of probabilities which simply means that a judge must determine whether it is more likely than not that an alleged event occurred.

Transposing that to the test in the Criminal Code , there is no basis to interpret the mandated standard of “balance of probabilities” any differently in a criminal case where that standard is mandated by either the Criminal Code , as here, or by binding case law. [ 36 ] Thus, the question is whether it is more likely than not, that there is an ample or considerable amount or quantity of probability such that a properly instructed jury, acting reasonably, will reduce the years of parole ineligibility. Perhaps it is not so much a judicial dam created by a Parliament but rather a Berlin Wall.

Some may escape but many will be turned back. [ 37 ] This test requires a limited weighing of the totality of the evidence. The test must be applied to the criteria and the criteria will be dealt with in turn on the basis of the written materials before me. Character of the Applicant [ 38 ] This criterion was the subject of an extensive submission by the Crown. Nothing the Crown asserted was specifically disputed by Point. Point is now 55 years of age and the eldest child in her 2 parent family.

Her parents had some difficulty adjusting to Point’s sexual orientation but she otherwise enjoyed a happy and healthy childhood. Point is a lesbian. Her parents and siblings continue to support her despite her murder conviction. [ 39 ] Point completed high school, attended some post -secondary education and prior to her conviction had steady employment both as a roofer and at the Rocky View General Hospital in Calgary. In prison, she has continued to maintain employment in the facility and has risen through the ranks to more and more responsible positions.

She has letters of support from the prison Chaplain, volunteer prison workers, her mentoring group and individual mentors. All of these letters express glowing support for Point. [ 40 ] Point does not have any known psychological or psychiatric disorders. She admitted to a gambling addiction which she had before the murder of Trudeau and took counselling for this addiction before and after that event. [ 41 ] Point has shown to be industrious and has behaved well in prison and is an active and dependable volunteer.

[42] To this day, Point maintains her innocence despite her conviction for the murder of Audrey Trudeau. The details of thecircumstances surrounding the offence and the comments of the trial judge on sentencing will be dealt with later.

The Crown assertsthere is inconsistency in her testimony at the trial in that she changed it when it matters, but is specific in detail when the evidencedoesn’t directly relate to an issue surrounding the circumstance of the offence. [43] At the trial, Point testified that she and Trudeau were in an intimate relationship and seemingly confirmed this at her intake assessment in March 2001.

However, in a psychological assessment August 16th, 2012, Point stated that she and Trudeau were neverromantic partners and said the same thing in an interview for the preparation of the Judicial Review / Parole Eligibility Report by CAC. [44] Point’s submission with respect to her character, is that the conviction for murder is the only entry on Point’s criminal recordand that by all accounts she was a productive member of society prior to her arrest for the murder of Trudeau and has continued to be aproductive, engaged and reliable member of the prison community at the Edmonton Institute for Women.

The Applicant’s Conduct while Serving the Sentence [45] The materials disclose that Point has, throughout her incarceration, conducted herself positively and has attained minimumsecurity status. She has a high number of privileges at the Edmonton Institute for Women, including perimeter clearance. She has beensteadily employed in a maintenance capacity, has volunteered on a regular basis as the Inmate Committee Chair. Point is described ashaving a strong work ethic.

After 10 years of her sentence, when she had exhausted all her appeals, she engaged in 3 substantivecounselling programs, all the while maintaining her innocence and non-involvement with the murder of Trudeau. Because Pointmaintained her innocence, she has received no counselling pertaining to the crime, nor discussed the crime or the underlying factors thatcontributed to it, nor has she conducted herself in any way so as to take responsibility for her crime or shown any insight into what led tothe murder of Trudeau. Notwithstanding this, she has been described as a model prisoner.

The Nature of The Offence For Which The Applicant WasConvicted [46] A volume of materials relating to the offence was submitted by the Crown.

These materials included the Sentencing Decision of Madam Justice Bensler January 12th, 2001, the appeal decisions from the sentence and the conviction, photographs, a number ofVictim Impact Statements and 388 pages of the trial testimony of Point. [47] Remembering that Point was tried before a Judge and Jury, it fell to the trial judge, Madam Justice Bensler, to find facts uponwhich to base her decision as to the number of years of parole ineligibility between 10 years and 25 years, the range by virtue of theprovisions of the Criminal Code of Canada, s. 745.4.

The jury recommended 20 years of parole ineligibility. Madam Justice Bensleragreed. In the exercise of her discretion, relying on R v Shropshire, (1995) (BC CA), 90 CCC (3d) 234, the factorsshe considered included the character of the offender, the nature of the offence and the circumstances surrounding the commission of theoffence. [48] Madam Justice Bensler found there was overwhelming evidence against Point that she committed the murder of Trudeau,despite Point’s evidence denying any involvement with the death.

Madam Justice Bensler indicated that throughout the 7 week trial, shefound Point demonstrated no remorse for what she described as a “heinous” crime and that Point portrayed no emotion, appeared cold,callous and calculating and uncaring while on the witness stand. [49] The nature of the murder, in terms of pathological evidence, was described by Madam Justice Bensler as “a savage, brutalslaying and subsequent dismemberment”. The cause of death was multiple chop wounds with no or little defensive wounds. The chopwounds were inflicted to the back of Trudeau’s head while she was still alive.

Madam Justice Bensler also found that Trudeau was a kindperson, loved and respected by her family and friends and had graciously offered her home, for at least a few months, to Point. Point wassuspected of stealing cash from Trudeau to support her gambling addiction and used Trudeau’s line of credit to the extent ofapproximately $5,000.00 to support her addiction. [50] Madam Justice Bensler further described the killing as “an evil and cowardly surprise attack on a benefactor who had treatedMs.

Point with nothing but kindness”. [51] Madam Justice Bensler then indicated that Point dismembered the body, placed it in a green garbage bags and into boxes,packaged up a bloody comforter and shoes that Trudeau had been wearing, called Trudeau’s place of work and told them Trudeau wouldnot be in to work the next day and told Trudeau’s family and friends and the police that Trudeau had left in a hurry to take care of someimportant business. [52] Two days later, Point called a friend to assist in the transportation of the boxes to another friend’s garage and told the friendthat the boxes contained computer equipment.

Point concealed the boxes behind a wall of other stored items in the friend’s garage andreturned to Trudeau’s residence and resided there until she was asked to leave by Trudeau’s sister. All the while Point was usingTrudeau’s vehicle and Trudeau’s credit card to purchase gas and cigarettes. Madam Justice Bensler concluded by saying “I have nohesitation in classifying this case as a most serious and aggravated, sadistic murder which falls well beyond what our Courts have termed‘an ordinary second degree murder’”. Victim Impact Statements

[ 53 ] The Victim Impact Statements completed at the time of the sentencing included statements from Trudeau’s sisters and mother. One of her sisters and mother submitted Victim Impact Statements for the purpose of this hearing. All of the statements are profoundly moving. They describe the devastation, both emotional and physical, suffered by Trudeau’s family. Trudeau’s sister’s Victim Impact Statements in 2016 describes the lingering sense of loss, stress, sleeplessness, weight gain, crying, emotional disability. They are heart wrenching.

Analysis [ 54 ] It is clear from the authorities that the consideration of the criteria against the standard of proof involves the exercise of judicial discretion and a limited weighing of the evidence. [ 55 ] Point’s denial of any involvement in the death of Trudeau is significant.

In this case, I am of the view that Point’s denial of involvement in light of what the trial judge describes as “overwhelming evidence” that Point not only committed a brutal murder, but also dismembered the body and stored it in a friend’s garage, renders this case such that there is a substantial likelihood a jury will not reduce the 20 years parole ineligibility. [ 56 ] The case authority cited by Point’s counsel where some accused have not admitted responsibility for their involvement in a murder are not persuasive. [ 57 ] Point submits that Humaid is persuasive and cites Rutherford J commenting on how “odious” first degree murder is.

In Humaid , Rutherford J stated at paragraph 25: However, Parliament created the Faint Hope Clause remedy for such crimes, and the evidence is that, as of 2010 juries had granted relief by reducing the parole ineligibility period in 145 out of 178 cases that had been allowed to proceed by jury determination ( R v Poitras at para. 18 ).

That success rate of over 81% shows that Canadian juries have found, not infrequently, that there are circumstances involving reformation, redemption and renewal in which an up-to-date review of all the circumstances in the application of the limited clemency held out by the Faint Hope Clause are appropriate. [ 58 ] In Humaid , the applicant was convicted of first degree murder by stabbing his wife.

Humaid denied, while incarcerated, that he deliberately planned the murder but it is significant that in a later correctional report he took full responsibility for his offence and indicated he not only took his wife’s life and destroyed his own, but irrevocably impacted the lives of family members and friends: para 11. [ 59 ] I acknowledge that Poitras seems to be persuasive authority that notwithstanding the high burden of proof, even in the case where there is overwhelming evidence of a cold blooded killing, the conduct of the applicant while incarcerated balanced against a denial of any involvement in the killing or acceptance of responsibility may persuade a screening judge to send the matter to a jury.

In so doing Rutherford, J relied on the success rate of over 81% referred to in the quote above, repeated in Humaid . However, Rutherford, J did made the point that the 81% of faint hope applications judges sent on to full hearings was a statistic borne of “the old threshold”: para. 21. Also, Rutherford, J characterizes “substantial” as having “substance, validity or value to the likelihood that the applicant would, in some measure succeed on this application”: para 32. As articulated above it is my view that the words “substantial” was intended to convey more than “substance, validity or value” and attracts an

interpretation meaning that the likelihood must quantitatively be higher than the previous test indicated. [ 60 ] In addition, returning to Swietlinski , a screening judge would do well to remember the purpose of the faint hope provision and the guidance given by the Supreme Court of Canada by Lamar CJ where he states that the primary of a s. 745 hearing is to call attention to changes which have occurred in the applicant’s situation which might justify imposing a less harsh penalty on the applicant. [ 61 ] In assessing the criteria against the new standard, as a screening judge, I am not convinced that a jury would unanimously reduce the years of parole ineligibility for Point.

As indicated in Oczko , were this case to go to a jury they would be instructed that it is their decision, according to the criteria, to decide whether to change Point’s eligibility for parole. The Crown, as in Oczko , would argue that Point has not changed during her incarceration; that her situation has not changed. Although the jury would have a discretion, I am of the view there is not, on a balance of probabilities, a substantial likelihood that the application will succeed. [ 62 ] For the above reasons, the application is dismissed. Heard on the 5 th day of June, 2016.

Dated at the City of Calgary, Alberta this 7 th day of September, 2016.

Neil Wittmann C.J.C.Q.B.A. Appearances: Alain Hepner, QC/Kelsey L. Sitar for the Applicant Sarah Clive/Hyatt Mograbee, Crown Prosecutors for the Respondent