2022 NBCA 53, 2022 NBCA 53

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 3-21-CA ABDUL BARI APPELLANT ABDUL BARI APPELANT - and - - et - HIS MAJESTY THE KING RESPONDENT SA MAJESTÉ LE ROI INTIMÉ Bari v. R., 2022 NBCA 53 Bari c.

R., 2022 NBCA 53 CORAM: The Honourable Chief Justice Richard The Honourable Justice Baird The Honourable Justice French CORAM : l’honorable juge en chef Richard l’honorable juge Baird l’honorable juge French Appeal from decisions of the Court of Queen’s Bench: June 22, 2020, and December 18, 2020 Appel d’une décision de la Cour du Banc de la Reine : le 22 juin 2020 et le 18 décembre 2020 History of case: Decisions under appeal: 2020 NBQB 112 2020 NBQB 250 Preliminary or incidental proceedings: N.A.

Historique de la cause : Décisions frappées d’appel : 2020 NBQB 112 2020 NBQB 250 Procédures préliminaires ou accessoires : s.o. Appeal heard: September 16, 2021 and June 29, 2022 Appel entendu : le 16 septembre 2021 et le 29 juin 2022

Judgment rendered: September 23, 2022 Reasons for judgment by: The Honourable Chief Justice Richard Concurred in by: The Honourable Justice Baird The Honourable Justice French Jugement rendu : le 23 septembre 2022 Motifs de jugement : l’honorable juge en chef Richard Souscrivent aux motifs : l’honorable juge Baird l’honorable juge French Counsel at hearing: For the appellant: Ben Reentovich For the respondent: Patrick McGuinty and Rachel Anstey THE COURT This appeal is from two decisions issued by the Court of Queen’s Bench on a “faint hope” application under s. 745.6 of the Criminal Code .

The first decision addresses the constitutionality of certain provisions of the Criminal Code and the second is the ultimate decision on the faint hope application. While the first decision is found to have been in error, the second decision is upheld, and the appeal is therefore dismissed. Avocats à l’audience : Pour l’appelant : Ben Reentovich Pour l’intimé : Patrick McGuinty et Rachel Anstey LA COUR Le présent appel porte sur deux décisions rendues par la Cour du Banc de la Reine dans le contexte d’une requête fondée sur la disposition de la « dernière chance » prévue à l’art.~745.61 du Code criminel .

La première décision porte sur la constitutionnalité de certaines dispositions du Code criminel et la seconde constitue la décision définitive sur la demande fondée sur la disposition de la dernière chance. Bien que la première décision soit jugée erronée, la seconde décision est confirmée et l’appel est donc rejeté. The following is the judgment delivered by RICHARD C.J.N.B. I.

Introduction [ 1 ] When capital punishment was abolished in Canada and a new classification system for murder was introduced, the maximum sentence of imprisonment for life without eligibility for parole for 25 years was tempered with a provision entitling an offender to apply to a jury for a reduction of the period of parole ineligibility after 15 years. This provision is known as the “faint hope clause.” [ 2 ] Over the years, the faint hope regime has changed. In 1997, a judicial screening mechanism

was introduced to ensure that only cases with a “reasonable prospect” of success would go on to be considered by a jury. In 2011, the faint hope regime was abolished for crimes committed after December 2, 2011, and a stricter threshold test was introduced. Since then, only those cases with a “substantial likelihood” of success are submitted to a jury, regardless of the test in place when the offence was committed, or the offender was sentenced. [ 3 ] The constitutional validity of the retrospective application of this new threshold test is one of two grounds raised in this appeal.

The other ground asks whether, on application of the proper test, this case should be submitted to a jury. [ 4 ] In my view, retrospectively changing the threshold test from “reasonable prospect” to “substantial likelihood” of success violates s. 11(

i) of the Canadian Charter of Rights and Freedoms and cannot be saved by s. 1 , which provides that the rights and freedoms guaranteed in the Charter are subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society .” This said, when the proper test is applied in the present case, I conclude there is no reasonable prospect for Mr. Bari’s application to succeed before a jury. As a result, and for the reasons set out below, I would dismiss the appeal. II.

Analysis [ 5 ] On September 28, 2004, at the culmination of a trial by judge and jury, Abdul Bari was found guilty of first degree murder for the 2003 premeditated killing of his wife, Shaila Bari. He was sentenced to imprisonment for life without eligibility for parole for 25 years. An appeal to this Court was unsuccessful ( Bari v. R., 2006 NBCA 119 , 308 N.B.R. (2d) 247), as was an application for leave to appeal to the Supreme Court ( R. v. Bari, [2007] S.C.C.A. No. 236 (QL)). [ 6 ] After 15 years of incarceration, Mr.

Bari turned to the faint hope clause and applied to the Chief Justice of the Court of Queen’s Bench to have a jury empanelled to consider a reduction in the number of years he must serve before being eligible for parole. [ 7 ]

Section 745.61 of the Criminal Code sets out the gatekeeping role of the Chief Justice (or a designate) in an application under the faint hope clause. The Chief Justice must first determine whether the applicant has met a certain threshold to justify the application being heard by a jury. If so, a jury is empanelled. If not, the applicant may apply again later unless the Chief Justice decides otherwise.

In determining whether the threshold has been met, the Chief Justice considers the same criteria a jury would consider if one were empanelled. [ 8 ] If a jury is empanelled, it must consider the criteria set out in s. 745.63(1). The jury must be unanimous when deciding to reduce the number of years of imprisonment without eligibility for parole but need not be when either substituting a lesser number of years of parole ineligibility, or immediately terminating parole ineligibility. For this determination, a two- thirds majority will suffice.

Of course, the jury does not decide whether parole should be granted, as this decision befalls the Parole Board of Canada under the authority of the Corrections and Conditional Releases Act , S.C. 1992, c. 20 . [ 9 ] The legislated threshold to be applied by the Chief Justice at the initial screening stage of the application changed between the time Mr. Bari murdered his wife and the time he applied for a reduction in the number of years before being eligible for parole.

In 2003, the judicial determination was based on whether an applicant had shown, on a balance of probabilities, that there was a reasonable prospect that the application would succeed. When Mr. Bari applied under the faint hope clause, the retroactive amendments to s. 745.61(1) that were enacted in 2011 now required him to show, “on a balance of probabilities, that there is a substantial likelihood that the application will succeed” (emphasis added). [ 10 ] Upon applying for a reduction in his parole ineligibility, Mr.

Bari challenged the constitutionality of the retrospective application of the new threshold test, arguing this violated his right to benefit from the lesser punishment guaranteed by s. 11(

i) of the Charter . The Chief Justice of the Court of Queen’s Bench rejected this argument. In Bari v. R., 2020 NBQB 112 , [2020] N.B.J. No. 171 (QL) (the “ Charter challenge decision”), she held that, although the 2011 change to the judicial screening threshold under the faint hope clause amounted to a change in punishment, this did not increase Mr. Bari’s punishment for the purposes of s. 11 (i). Noting that Mr.

Bari’s application would always be subject to judicial screening, the Chief Justice stated, “[t]he 2011 amendment did not have an impact on the applicant’s settled expectations of how this process would unfold, it simply changed the threshold of the screening mechanism already in place” (para. 29).

[ 11 ] Having found no Charter violation, the Chief Justice determined whether, on application of the current threshold, Mr. Bari’s application should be heard by a jury. In Bari. v. R. , 2020 NBQB 250 , [2020] N.B.J. No. 344 (QL) (the “judicial screening decision”), she concluded Mr. Bari had failed to establish, on a balance of probabilities, that there was a substantial likelihood that 12 jurors would unanimously decide he should have an opportunity for early parole. While acknowledging that the evidence, with several letters of support, showed Mr.

Bari had been a “model prisoner,” she found 12 jurors would simply be unable to overlook his persistent self-victimization. A . Does the retrospective application of the substantial likelihood threshold violate Mr. Bari’s Charter rights?

(1) History of the faint hope threshold [ 12 ] In this overview, I borrow from Doherty J.A. ’s reasons for the Court of Appeal for Ontario in R. v. Dell , 2018 ONCA 674 , [2018] O.J. No. 4094 (QL) , leave to appeal refused, [2018] S.C.C.A. No. 389 (QL), at paras. 11-26, and from the most thorough review of the evolution of the faint hope regime, found in R. v. Jenkins , 2014 ONSC 3223 , [2014] O.J. No. 2660 (QL) , at paras. 8-40 , per Pomerance J. See also R. v. Simmonds , 2018 BCCA 205 , [2018] B.C.J.

No. 991 (QL) , at paras. 20-28 . [ 13 ] The faint hope clause was introduced in 1976 when capital punishment was abolished. It applied to cases of murder or high treason, for which a sentence set parole ineligibility over 15 years. In its first iteration , the faint hope clause lacked a screening mechanism. In our province, an application for a reduction in the period of parole ineligibility required the Chief Justice of the Court of Queen’s Bench to empanel a jury to consider the matter.

To be successful, the application had to garner the support of at least two thirds of the jury. [ 14 ] In 1996, Parliament made three significant changes to the faint hope regime: see

An Act to amend the Criminal Code (judicial review of parole ineligibility) and another Act , S.C. 1996, c. 34 , which came into force on January 9, 1997. First, a judicial screening mechanism was introduced. Under the new provision, a hearing could be held before a jury provided the Chief Justice or a designate first determined an applicant had shown, on a balance of probabilities, that there was “a reasonable prospect” that the application would succeed before a jury.

The reasons for implementing a screening mechanism were (1) to save on judicial resources, and (2) to avoid needlessly subjecting the friends and families of victims to the anguish that a meritless application would cause. A second change to the faint hope process required an applicant to have jury unanimity, as opposed to two thirds, to succeed.

Finally, offenders convicted of more than one murder could no longer apply for a reduction in the period of their parole ineligibility. [ 15 ] Several courts interpreted the 1996 screening threshold “as setting a relatively low bar intended to prevent applications being brought before a jury that had no realistic chance of success” ( Dell , at para. 20 ). See also Simmonds , at para. 106 ; and R v. Kent, 2001 MBQB 350 , [2001] M.J. No. 575 (QL), at paras. 43-44 .

As Pomerance J., of the Ontario Superior Court of Justice, observed in Jenkins , this was “akin to asking whether the application was ‘hopeless’” (para. 21). In R. v. Phillips , 2012 ONCA 54 , [2012] O.J. No. 652 (QL) , the Court of Appeal for Ontario distanced itself from such an

interpretation, observing that “lowering the threshold to having to establish only that a case is not hopeless would frustrate the purpose of the judicial screening stage” (para. 6). This

interpretation arrived too late. By then, Parliament had already amended the faint hope regime, specifically to raise the bar so that only cases with a realistic chance of success would proceed to the jury stage: see the remarks made by the Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada, before the House of Commons Standing Committee on Justice and Human Rights on October 19, 2009 (House of Commons, Standing Committee on Justice and Human Rights, Evidence , 40-2, No. 38 at 1535-1545, reproduced in R. v. Khela , 2021 BCSC 1949 , [2021] B.C.J. No. 2155 (QL) , at para. 60 ). [ 16 ] This amendment came into effect in 2011 with

An Act to amend the Criminal Code and another Act , S.C. 2011, c. 2. The regime was abolished for crimes committed after that Act came into force. As for crimes committed beforehand, the regime continues, subject to certain changes.

The principal change is to the screening stage threshold, such that an application will now be considered by a jury only when the Chief Justice (or a designate) is satisfied, “on a balance of probabilities, that there is a substantial likelihood that the application will succeed.” [ 17 ] Several courts have held that “[t]he 2011 amendments to the judicial screening process imposed a significantly more stringent threshold than had the 1996 amendments”: Dell , at para. 25 , referring to Jenkins , at paras. 14, 26-32 ; R. v. Gayle , [2013] O.J. 4124 (QL) , at paras. 7-12 ; R. v.

Morrison , 2012 ABQB 619 , [2012] A.J. No. 1061 (QL) , at para. 42 ; Adrian Clive Paul v. H.M.Q. , 2014 ONSC 1285 , [2014] O.J. No. 896 (QL) , at paras. 4-8 ; and R. v. Point , 2016 ABQB 496 , [2016] A.J. No. 912 (QL) , at paras. 17-37 . [ 18 ] Other amendments adopted in 2011 include setting strict time limits within which an application

must be made and increasing to at least five years the time when a further application may be made, if at all, following an unsuccessful one.

(2) Charter challenges [ 19 ] Both the 1996 and the 2011 sets of amendments introduced changes that were to apply retrospectively to offenders who had already been sentenced and who were subjected to a period of parole ineligibility of more than 15 years. In the former, these offenders would now be subjected to a threshold test before their application could be heard by a jury and would then require jury unanimity for their application to succeed. In the latter, the offenders would have to meet an even more stringent test before their application could proceed to a jury.

Unsurprisingly, the retrospective application of both sets of amendments was constitutionally challenged. [ 20 ] Constitutional attacks on the retrospective application of changes to the faint hope regime have primarily focused on one or the other of these two sections of the Charter : 11 Any person charged with an offence has the right […] (

h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and (

i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. 11 Tout inculpé a le droit : […]

h) d’une part de ne pas être jugé de nouveau pour une infraction dont il a été définitivement acquitté, d’autre part de ne pas être jugé ni puni de nouveau pour une infraction dont il a été définitivement déclaré coupable et puni;

i) de bénéficier de la peine la moins sévère, lorsque la peine qui sanctionne l’infraction dont il est déclaré coupable est modifiée entre le moment de la perpétration de l’infraction et celui de la sentence. [ 21 ]

Section 7, which guarantees everyone “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice,” has also been invoked. [ 22 ] Several cases have gone to appeal, but the Supreme Court has yet to address the constitutionality of the retrospective application of the 1996 or 2011 amendments.

Following is a chronological review of appellate and other salient cases, two of which postdate the Charter challenge decision in the case before us. [ 23 ] First, in 2008, Brunton J., of the Quebec Superior Court, addressed the retrospective application of the 1996 amendments to the faint hope clause: Fabrikant v. Quebec (Attorney General) , 2008 QCCS 1637 , [2008] Q.J. No. 3463 (QL) , aff’d 2014 QCCA 240 , [2014] Q.J. No. 892 (QL) . [ 24 ] In Fabrikant , the offender shot and killed four persons at Concordia University, in Montreal, wounded a fifth and used force to take two others hostage.

He was convicted of numerous offences, including four counts of first degree murder, for which he received the mandatory sentence of life imprisonment without eligibility for parole for 25 years. In 1993, when he was sentenced, the law entitled him to bring a faint hope application to a jury after serving 15 years of his sentence and allowed the period of parole ineligibility to be reduced by a majority of two thirds of jury members. In 1996, the judicial screening mechanism and

the jury unanimity rule were introduced and, in 2011, the more stringent screening threshold was established. Mr. Fabrikant argued the retrospective application of the new rules violated his Charter rights under ss. 7 and 11(i) . The judge designated by the Chief Justice did not agree; neither did the Court of Appeal of Quebec. [ 25 ] Both Brunton J. and the Court of Appeal held that Mr. Fabrikant could not “avail himself of the protection in

section 11(

i) of the Charter in the circumstances because he is no longer a ‘person charged with an offence/inculpé’, within the meaning of that expression in the constitutional text, but rather a person already convicted of an offence” (appeal decision, at para. 37). As for s. 7 of the Charter , the Court held that the amendments had “merely changed the procedure” and did not “substantively change [his] right to apply for a reduction in parole ineligibility” (para. 44), nor did it change his “substantive rights in respect of his sentence or the terms of his release” (para. 45). The reasoning held in Fabrikant relating to s. 11(

i) of the Charter does not appear to have been followed in other provinces. In fairness, Fabrikant was decided before the Supreme Court rendered key decisions that shaped the

interpretation of ss. 11(

h) and (i). [ 26 ] Second, in Jenkins , the Ontario Superior Court of Justice addressed a case quite like the present one, although, in that case, s. 11(

h) of the Charter was invoked whereas here Mr. Bari relies on s. 11 (i). Both cases considered the change of threshold from reasonable prospect to substantial likelihood. [ 27 ] In 1998, Mr. Jenkins murdered his sister and, in 2001, he was convicted of first degree murder. At the time of the offence, the judicial screening threshold under the faint hope provisions required a “reasonable prospect” of success. By the time Mr. Jenkins was eligible to make a faint hope application, the threshold had become a “substantial likelihood” of success. Mr.

Jenkins challenged the retrospective amendments, claiming the stricter standard constituted additional punishment and violated his rights under s. 11 (h). [ 28 ] Pomerance J. concluded the 2011 amendment concerns punishment and acknowledged the substantial likelihood standard was “more exacting” than the previous standard (para. 31); however, she held it does not increase the punishment because it did not fundamentally change the nature of the sentence imposed at the time of conviction.

In coming to this conclusion, Pomerance J. considered the offender’s expectations of liberty at the time of sentencing, holding that Mr. Jenkins’ expectations with respect to the faint hope clause remained unchanged from the time he was sentenced. While acknowledging the retrospective changes may hypothetically result in longer periods of incarceration for some offenders, Pomerance J. cautioned against losing sight of the focus on the offender’s settled expectations at the time of sentencing.

She was of the view that these expectations would not have included the specific screening standard for faint hope applications: Applying this “context-specific” test in the case at hand [the test in Canada (Attorney General) v. Whaling , 2014 SCC 20 , [2014] S.C.J. No. 20 (QL)], what were the settled expectations of the applicant with respect to faint hope? At the time the applicant was convicted of first degree murder, the 1997 screening standard was already in place. Therefore, the applicant would have expected:

a) that, after 15 years, he could apply for a reduction in his parole ineligibility period;

b) that his written application would be subject to a preliminary screening of merit by a judge. He would only receive a hearing before a jury if he passed the screening threshold; and

c) if a hearing before a jury were held, the jury would be instructed to consider five criteria in assessing whether the period of parole ineligibility should be reduced. Beyond that, the jury would be given a broad discretion to determine whether the offender is entitled to clemency. These expectations remain intact. They have not been affected by the legislative amendment. [paras. 95-96] [ 29 ] Jenkins was followed in R. v. Rowe, 2015 ONSC 2576 , [2015] O.J.

No. 2696 (QL), where, as in both Jenkins and the case before us, the court was invited to consider the constitutionality of the retrospective application of the 2011 amendment from the “reasonable prospect” to the “substantial likelihood” screening threshold. However, as Pomerance J. observed in R. v. Abram , 2019 ONSC 3383 , [2019] O.J. No. 3001 (QL) , para. 11 , Jenkins was decided before the Court of Appeal for Ontario’s decision in Dell , discussed below, and questioned whether Jenkins was still good law. The decision in R. v. Liu , 2022 ONCA 460 , [2022] O.J.

No. 2759 (QL) , also discussed below, revealed her doubt was justified. [ 30 ] The third case of note is Simmonds , where the offender was convicted of a first degree murder

committed in 1995 and was sentenced in 2000. In the same interval, Parliament introduced judicial screening of faint hope applications,limiting matters to be submitted to a jury to those that had a reasonable prospect of success. Mr. Simmonds’ application was filed in 2014after the judicial screening threshold had been changed to the more stringent substantial likelihood test. Invoking s. 11(

i) of the Charter,he challenged the retrospective application of judicial screening as unconstitutional, arguing his faint hope application should not besubjected to any judicial screening. The application judge did not find any violation of s. 11(i).

The Court of Appeal for British Columbiadisagreed but held the violation was a reasonable limit justified under s. 1 of the Charter. [31] Writing for the Court, Dickson J.A. concluded, “the introduction of judicial screening into thefaint hope regime increased the punishment for murder by reducing an offender’s previously direct access to a jury to seek clemency viareduced parole ineligibility” (para. 5).

To reach this conclusion, she considered that, in the case of first degree murder, parole eligibility,coupled with the opportunity to engage in the faint hope process, is part of the sentence itself rather than simply part of the conditions ofthe sentence. She then relied on R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, and R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906,and held that under s. 11(

i) of the Charter the offender is entitled to the application of the most beneficial provisions when that paroleeligibility is changed between the time of the offence and the time of sentencing. Her reasoning is as follows: […] The 25-year period of parole ineligibility forms part of the arsenal of sanctions to which an offender is liable upon conviction and itis imposed for the purpose of deterrence and denunciation. However, the opportunity to engage the faint hope process after 15 yearsmitigates the harshness of the sentence.

Accordingly, that process, included in the sentencing scheme to promote the rehabilitative effortsof offenders and drawn to the offender’s attention at the time of sentencing, is part of the overall punishment for the offence of firstdegree murder [references omitted]. I also conclude that the introduction of judicial screening increased the punishment for first degree murder. It seems to me that, to theextent a mitigating feature of a sentence is limited, reduced or withdrawn by legislation the harshness of the punishment is, as a matter oflogic, correspondingly increased.

That is what occurred in 1997, when Parliament introduced judicial screening into the faint hoperegime. Under the provisions in force when Mr. Simmonds committed his offence, an offender had a right to direct access to a jury toseek clemency by way of reduced parole ineligibility. The introduction of judicial screening limited that opportunity, albeit modestly andfor good cause. [paras. 88-89] Dickson J.A. went on to find the violation was justified under s. 1. Applying the test formulated in R. v. Oakes, (CSC),[1986] 1 S.C.R. 103, [1986] S.C.J.

No. 7 (QL), she explained that the introduction of judicial screening by the 1996 amendments (1)addressed a pressing and substantial objective; (2) was rationally connected to that objective; and (3) impaired s. 11(

i) as minimally asreasonably possible in the circumstances. She accepted that “the retrospective 1997 judicial screening amendments represented areasonable constitutional compromise between the impact on offenders and societal interests” (para. 107). [32] Fourth is the decision of the Court of Appeal for Ontario in Dell, which, like Simmonds, was acase involving an applicant under the faint hope regime who committed her offence when the regime gave direct access to a jury withoutjudicial screening. Ms.

Dell murdered her husband in December 1995, was arrested in 1997 and, upon being convicted of first degreemurder in 2001, was sentenced to life imprisonment without eligibility for parole for 25 years. At the time the offence was committed,the faint hope provisions entitled her to apply to a jury for a reduction of parole ineligibility after 15 years. At the time of her sentencing,the process had been amended to require judicial screening under the reasonable prospect threshold before the application could proceedto a jury. When Ms.

Dell brought her faint hope application in 2013, the screening mechanism had been amended to the strictersubstantial likelihood standard. Ms. Dell challenged the retrospective application of these amendments, claiming they infringed her rightsunder ss. 7 and 11(

h) and (

i) of the Charter. The application judge did not find any violation of Ms. Dell’s Charter rights. The Court ofAppeal disagreed. [33] Doherty J.A., writing for the Court, found Ms. Dell was entitled to have her faint hopeapplication heard by a jury as the law stood at the time of her offence, reasoning that the screening mechanism increased her punishmentby decreasing her chances of obtaining some reduction in parole ineligibility, thereby contravening her right under s. 11(

i) of the Charter.In coming to this conclusion, Doherty J.A. focused on the impact of the introduction of judicial screening on Ms. Dell’s reasonablesettled expectations of liberty and security, as articulated in K.R.J. and Whaling, holding: First and foremost, the introduction of the judicial screening mechanism took from the appellant the absolute right she had under thelegislation, as it existed when she committed murder, to personally, or through counsel, make a plea directly to a jury for clemency asreflected by a reduction in her period of parole ineligibility.

Unless one makes the entirely unwarranted assumption that all applicationsdismissed at the judicial screening stage would inevitably fail before a jury, the insertion of judicial screening means that someoffenders, who would have had their parole ineligibility reduced by the jury, lose the benefit of that reduction. The introduction of ajudicial screening step in the “faint hope” process that necessarily eliminates some cases from the jury’s consideration will inevitablymake the overall process less advantageous from the offender’s perspective: Simmonds, at para. 94.

The negative impact of the judicial screening mechanism on the offender’s liberty expectations is made all the more obvious by the 2011 amendments. The change from the 1996 standard of “reasonable prospect” to the 2011 standard of “substantial likelihood” means that those applications that have a “reasonable prospect” of success before the jury, but not a “substantial likelihood” of success will be rejected at the judicial screening phase and never get before the jury.

Consequently, offenders who, even in the eyes of the reviewing judge, have a reasonable prospect of having their parole ineligibility reduced by the jury will never have the opportunity to make that case to the jury, because they do not clear the greater hurdle of establishing “a substantial likelihood” that the jury would decrease the period of parole ineligibility. Put in functional terms, some offenders, who have a reasonable prospect of obtaining a reduction in their parole ineligibility from a jury, will not after the 2011 amendments ever have the opportunity of putting their case to a jury.

They will instead serve their full period of parole ineligibility [references omitted]. […] […] The impact on the appellant’s reasonable liberty expectation, […] is very real and significant. [paras. 75-76, 86] [ 34 ] Regarding s. 1 of the Charter , Doherty J.A. found the analysis in Simmonds persuasive regarding the introduction of a screening mechanism in 1997, but not so when considering the 2011 amendments.

He explained that the 2011 provisions “go far beyond the screening out of meritless applications and foreclose applications which have a reasonable prospect of success before the jury” (para. 100). [ 35 ] Finding the retrospective amendments violated her s. 11(

i) Charter right, the Court granted Ms. Dell the benefit of the lesser punishment reflected in the faint hope provisions as they stood at the time she committed the murder. In other words, she was entitled to bring her faint hope application directly before a jury. Since Dell , it has been common practice in Ontario for judges to apply the screening threshold that was in force at the time of the offence (see R. v. Gatenby, 2021 ONSC 3535 , [2021] O.J. No. 2931 (QL); R. v. Atkins, 2021 ONSC 3457 , [2021] O.J. No. 2659 (QL); R. v. Anthony McPherson, 2019 ONSC 5049 , [2019] O.J. No. 4645 (QL)); Abram ; R. v.

Al-Shammari , 2022 ONSC 4113 , [2022] O.J. No. 3177 ( QL) ). [ 36 ] The fifth case of note is Khela , where, as in the present matter, a screening mechanism was in place at the time the offence was committed, but the threshold had changed by the time the faint hope application was filed. Khela pitted the conclusion reached in Simmonds against the one in Dell . It was decided after R. v. Soomel , 2020 BCCA 118 , [2020] B.C.J.

No. 744 (QL) , where the Court of Appeal for British Columbia observed that Simmonds remained at odds with Dell and that, although there had been constitutional challenges to the substantial likelihood threshold test, it had not been necessary to decide these because the courts found that, in the circumstances of those cases, the outcome would have been the same regardless of the threshold applied: Soomel , at para. 10, referring to R. v. Yu , 2014 BCSC 206 , [2014] B.C.J. No. 3550 (QL) , at paras. 8-10 ; MacMillan v. British Columbia (Attorney General) , 2015 BCSC 2298 , [2015] B.C.J.

No. 2708 (QL) , paras. 7-9 ; R. v. Chow , 2016 BCSC 781 , [2016] B.C.J. No. 887 (QL) , at para. 4 ; and R. v. Soomel , 2018 BCSC 2240 , [2018] B.C.J. No. 6915 (QL) , at para. 6 . As explained below, Khela brought the issue to a head in British Columbia. [ 37 ] Mr. Khela was convicted of first degree murder in 2004 for a murder he committed in 2002. At the time of the murder and conviction, the faint hope provisions required judges to screen applications on the “reasonable prospect” standard. By the time Mr.

Khela made his faint hope application, the screening standard had been amended to the “substantial likelihood” threshold. In considering Mr. Khela’s application, Harvey J. held he would have found Mr. Khela’s application to have a reasonable prospect of success before a jury under either the more relaxed

interpretation of the threshold in Kent , or the stricter

interpretation in Phillips , but he did not find, on a balance of probabilities, that Mr. Khela would have a substantial likelihood of success before a jury and therefore denied his application. Mr. Khela proceeded with a Charter challenge. [ 38 ] The Crown conceded that the retrospective application of the amendments infringed Mr. Khela’s rights under s. 11(

h) but argued the breach was justified under s. 1. On this issue, Harvey J. noted that the Court of Appeal for British Columbia, in Simmonds , focused on the introduction of judicial screening in 1997 when concluding that the application of a reasonable prospect threshold was a reasonable limit to the s. 11(

i) right, whereas, in Dell , the Court of Appeal for Ontario “considered the breach using the lens of the heightened 2011 screening” (para. 32). Harvey J. differentiated this case from Simmonds and held that the violation of s. 11(

h) could not be justified under s. 1. Using the Oakes approach, and applying both Simmonds and Dell , he found the legislative objectives in the 2011 amendments to be within Parliament’s powers; however, adopting Dell , he concluded “the 2011 amendments are not rationally connected to the stated objective but, rather, overshoot it, by a large margin” (para. 80). He also followed Dell in concluding that the “substantial likelihood threshold precludes more than just meritless applications” (para. 99), therefore concluding the minimal impairment test was not met either.

Finally, he found the threshold implemented with the 2011 amendments was not proportional to the objectives sought and therefore could not be justified under s. 1. [ 39 ] The final notable case is Liu . Like the present case, it involved a conviction for first degree

murder at a time when the regime in place provided for judicial screening under the reasonable prospect threshold, and a faint hopeapplication filed after the 2011 amendments. In addition, as in the present case, the application judge applied the substantial likelihoodtest. On appeal, this was found to be in error. In a short decision, the Court of Appeal for Ontario noted the Crown’s concession of a s.11(

i) violation and concluded as follows: We agree with the parties that the court’s reasoning in Dell leads to the conclusion that elevating the judicial screening threshold foroffenders like the appellant who committed murder or high treason between January 9, 1997 and December 2, 2011 from a “reasonableprospect” to a “substantial likelihood” of success significantly increased the appellant’s risk of serving a longer period of incarcerationand therefore had the effect of retrospectively increasing his punishment contrary to s. 11(

i) of the Charter, and that the violation cannotbe justified under s. 1.

(3) Conclusion regarding the Charter challenge [40] The prevailing view in current Canadian jurisprudence is the one adopted in Dell, which Khelaand Liu apply to facts like the present ones. Since I fully agree with Doherty J.A.’s analysis and conclusions in Dell, it would serve nopurpose repeating it. Suffice it to say I agree the faint hope process is part of Mr. Bari’s punishment.

When he was sentenced, hispunishment had two components: (1) mandatory life imprisonment with no parole for 25 years, as pronounced by the sentencing judge;and (2) a statutorily provided opportunity to have his parole ineligibility reviewed by a jury after 15 years, subject to judicial screening ofhis application applying the reasonable prospect test. Increasing one of the components of the punishment to make it more difficult tobenefit from the faint hope regime, in my view, increases the sentence and results in Mr.

Bari no longer having had the benefit of thelesser punishment, which was guaranteed to him by s. 11(

i) of the Charter. I adopt as my own the reasoning in Dell and, as was done inKhela and Liu, hold that it also applies to the change of threshold from the reasonable prospect test to that of substantial likelihood. [41] I also adopt the reasoning in Dell and Khela in holding that the violation of s. 11(

i) created bythe retroactive application of a higher threshold is not saved by s. 1 of the Charter. As Doherty J.A. stated in Dell, the reasoning inSimmonds that the violation is saved under s. 1 is persuasive, but it does not withstand scrutiny when considering the heightenedthreshold. [42] As was the case in Khela, no evidence was led to justify the 2011 amendment, although wewere referred to then Justice Minister Rob Nicholson’s remarks before the House of Commons Standing Committee on Justice andHuman Rights on October 19, 2009 (House of Commons, Standing Committee on Justice and Human Rights).

In those remarks, hestated that the proposed amendments would “tighten up the faint hope application procedure to screen out the most unworthy of these[…].” He noted that the threshold test was described in the jurisprudence as being “relatively low” and that the goal of increasing it wasto make it “tougher” so as to “prevent less worthy applications from going forward.” [43] As did Doherty J.A., I find that the 2011 amendments “go far beyond the screening out ofmeritless applications and foreclose applications which have a reasonable prospect of success before a jury” and thereby “overshoot, by alarge margin, the objective of the legislation” (para. 100).

Like him, and like Harvey J. in Khela, I conclude these amendments are notrationally connected to the government’s stated objective, nor do they minimally impair a faint hope applicant’s s. 11(1) right. [44] At the time she rendered the Charter challenge decision, the Chief Justice of the Court ofQueen’s Bench did not have the benefit of Khela and Liu. It was then unclear whether the reasoning in Dell would be confined to caseswhere the offence was committed before a new threshold was introduced. Subsequently, Khela and Liu clarified that this reasoning alsoapplies to the change of the threshold test.

I agree with this conclusion. As I choose to adopt the reasoning in Dell and apply it as wasdone in Khela and Liu, it follows that I must conclude the Charter challenge decision in the present case was the result of an error of law.The reasonable prospect threshold should have been applied in assessing Mr. Bari’s application. What remains is defining the reasonableprospect test. [45] Recall that, after the introduction of the reasonable prospect threshold in 1997, some courtsconsidered this threshold to be very low, akin to asking whether the application is hopeless: See R. v. D.E.K., 2001 MBQB 350, [2001]M.J.

No. 575 (QL), para. 44; R. v. Rochon, 2011 ONSC 5061, [2011] O.J. No. 3831 (QL), paras. 6 and 11; R. v. Sedore, [2008] O.J. No.2705 (Sup. Ct.), paras. 28-31; and R. v. Schaefler, (ON SC), [2009] O.J. No. 3175 (Sup. Ct.), para. 7. In Phillips, theCourt of Appeal for Ontario rejected this characterization of the test, stating that “the statutory test embodies more than merely showingthat a case is not hopeless” (para. 6). I agree the threshold should not be framed as hopelessness. As the Court pointed out, it is preferableto use the language in the legislation.

Building on this, Pomerance J. noted, in Al-Shammari, that a judge considering the reasonablepossibility must “be guided by the statutory language, which is, on its face, self-explanatory” (para. 12). I adopt her characterization ofthe test:

It asks whether it is reasonable to expect that a jury might reduce the parole ineligibility period. This need not be the only rational or reasonable outcome available on the record. If it falls within a range of reasonable outcomes, it qualifies as a reasonable prospect of success. Where an offender can point to rehabilitative progress, remorse, maturation, and a commitment to pursuing a prosocial lifestyle, those factors will weigh in favour of a jury hearing. [para. 12] [ 46 ] In my respectful view, this approach should have been taken in the present case.

As it was not, it now falls on us to determine whether, on application of the reasonable prospect threshold, a jury should be empanelled to hear Mr. Bari’s application. In making this determination, we owe no deference to the conclusion reached by the Chief Justice of the Court of Queen’s Bench since she applied the wrong threshold test; however, it is trite law that we owe deference to any findings of fact she might have made. B. On application of the proper threshold, should the matter have been referred to a jury? [ 47 ] As the screening judge considering Mr.

Bari’s application under the faint hope clause, the Chief Justice of the Court of Queen’s Bench was to determine, based on written material, whether Mr. Bari had shown, on a balance of probabilities, that there is a reasonable prospect that 12 jurors would agree to reduce the number of years of his parole ineligibility. She had to consider the same criteria that a jury would consider if one were empanelled: s. 745.61(2). They consist of the following, as set out in s. 745.63(1): (

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. [ 48 ] In Al-Shammari , Pomerance J. examined some of the underlying values the faint hope regime was intended to underscore. Under the heading “Rehabilitation, Clemency, and Human Dignity,” she examined these concepts as they apply in the faint hope process. I am in general agreement with the review she undertakes in paragraphs 20 to 31 of her decision, but I will not reproduce her analysis.

Suffice it to say, I adopt her conclusion: Within this context, mercy should not be confused with unprincipled leniency or subjective sentimentality, at least as it relates to judicial screening. The jury hearing a faint hope application does not apply a legal test and does not give reasons for its verdict. However, the judge who screens the application is called upon to articulate why there is or is not a prospect of success, applying a standard to predict the outcome of a process that has no standard. This is why a screening decision is not so much a prediction as an independent evaluation.

This evaluation must be rooted in the evidence. However, it must view the evidence through the lens of human dignity, accounting for the innate capacity of human beings to change, and the amorphous nature of clemency. [para. 31] [ 49 ] I now turn to assessing the criteria through this lens to determine whether, on a balance of probabilities, Mr. Bari has shown there is a reasonable prospect that he would be successful in obtaining a reduction in his parole ineligibility.

As Pomerance J. noted in Al-Shammari , “a reasonable prospect of success is not ‘any’ prospect, however remote. […] The prospect of success must be one that is reasonable” (para. 10). [ 50 ] As I will explain below, if there is any impediment to a reasonable prospect that Mr. Bari’s application might be successful, it will stem from the assessment of the nature of the offence and his character. Since the victim’s family did not provide any information, that criterion has no effect. As for Mr. Bari’s conduct while serving his sentence, I accept that this criterion favours him.

I agree with the description given by the Chief Justice of the Court of Queen’s Bench in the judicial screening

decision: With very few exceptions, Mr. Bari has been a model prisoner. The limited disciplinary issues in Mr. Bari's correctional file are minor in nature. Mr. Bari has worked in the correctional facilities, followed his program recommendations and continued his education. It must be acknowledged that Mr. Bari’s correctional file is stellar. Mr.

Bari has provided several letters of support from individuals within the penal system who are universal in their praise of his efforts during his incarceration. [para. 44] [ 51 ] Also of relevance, in addition to the favourable letters from correctional officers or others within the penal system, are the numerous letters from family and community members that were provided in support of Mr. Bari’s application. With one exception, these can generally be considered as favourable to Mr. Bari’s case. The exception is the letter of support provided from Zia Khan, Imam and Chaplain at the Springhill Institution.

In this letter, the author writes: Mr. Bari over the years has expressed his deepest remorse for the victim and wished that event would have been only in a horrid dream rather than real life. He takes full responsibility for his actions. However, I must aver that, Mr. Bari is also a victim in all of this. He came to Canada to seek a good life. He married in order to raise a family (all I have ever heard from his mouth is that he wanted a family). One might say that it is he that caused all this; this will only be a jejune understanding; rather, he has lost his spouse, he lost his youth and his life behind bars.

If one ponders all the circumstances leading to his crime, one might discern that every wrong situation had to line up in order for this extremely peaceful person to commit such an atrocity. I have only read it in fiction novels. Call it bad luck, fate, destiny; it is sorrowful. After working 28 years in different institutions; I can reassure you that a person like Mr. Bari is an anomaly in the system. Everyone makes blunders, some bigger than others; but I believe with Mr. Bari’s track record, he should be given a second chance at life on the outside.

He does not have a violent bone in his body and I say this without reservation. I am the same person who after so many years of work, has written a dozen supporting letters; if this has any weight at all. [ 52 ] The Chief Justice of the Court of Queen’s Bench expressed strong disagreement with some of these statements. As she points out, “Mr. Bari is not in his present situation because of bad luck, fate or destiny,” but rather because “he was convicted of the premeditated murder of his wife” (para. 56). In rejecting that letter, I would use stronger language.

First, as will be seen below, it took years before Mr. Bari would express remorse for murdering his wife. Second, Mr. Bari is solely responsible for losing his wife and his youth and for living behind bars. In no way is Mr. Bari a victim of these circumstances, although, again as will be seen below, he has viewed, and perhaps continues to view, himself in that light. Third, it cannot be said that “every wrong situation” conspired to cause an “extremely peaceful” Mr. Bari to commit the premeditated murder of his wife.

Given the nature of the offence for which he was convicted, he cannot be described in this manner. His actions show otherwise. His crime was planned and deliberate. He killed a defenceless woman while she slept in her apartment, repeatedly bludgeoning her, possibly with a pry bar, and then suffocating her to death. In the aftermath, he tried to deflect suspicion away from himself. This cold-blooded, premeditated killing is not the result of “bad luck, fate or destiny,” nor was it a mere “blunder.” It cannot be said that Mr.

Bari “does not have a violent bone in his body.” While I accept that people who have committed violent crimes can rehabilitate themselves and become peaceful and productive members of society, I cannot view Mr. Bari as a victim of an unfortunate set of circumstances that led him to commit “a blunder.” [ 53 ] This said, I will not hold the words of the Imam against Mr. Bari because I am unable to discern whether he relayed his own observations or Mr. Bari’s sentiments. I will, however, consider the fact that Mr.

Bari chose to submit such a letter in support of his faint hope application. [ 54 ] I turn now to consider in more detail the nature of the offence and the character of the offender. [ 55 ] In describing Mr. Bari’s background and setting out the facts indicating his character, I borrow liberally from reports adduced in evidence and the previous court decisions in this matter, identifying the authors only as needed. I draw many of the background facts from the report of Dr. Andrew Starzomski, a psychologist who, in 2020, conducted a risk assessment at the request of Mr. Bari’s counsel.

In his comprehensive report, Dr. Starzomski explains that his report is premised on both the facts contained in a lengthy document obtained from the Springhill correctional institution and those that Mr. Bari outlined to him in their interviews. [ 56 ] Abdul Bari was born in 1967 in the Pabna District of Bangladesh, an agricultural region a few

hours west of the capital, Dhaka. He was raised in a large family consisting of eight brothers and four sisters. Their father passed away when Mr. Bari was seven years old. While the family certainly experienced several challenges, overall Mr. Bari had what one might describe as a good upbringing. [ 57 ] One of Mr. Bari’s older brothers studied in Canada and eventually became employed at the University of New Brunswick. He sponsored several family members to come to Canada, including Mr. Bari, who relocated to Fredericton in 1993. [ 58 ] While living in Canada, Mr.

Bari developed a relationship with a young woman in Bangladesh, Shaila, who, at the age of 18, became his wife and, in 1996, relocated to Fredericton. The couple, as well as other family members, lived with Mr. Bari’s brother until they moved into their own apartment. [ 59 ] Mr. Bari was employed with the laundry service of a Fredericton hotel and occasionally picked up other jobs. It appears he was a good employee. Meanwhile, Ms. Bari had various part-time jobs. Eventually, she completed academic upgrading and enrolled as a part-time business student at the University of New Brunswick.

The couple planned that she would attend university first and that Mr. Bari would do so after her studies. [ 60 ] Both Mr. Bari and his wife became Canadian citizens in 1998. The couple lived in relative harmony over the next few years. However, this would change in 2002. In August of that year, the couple separated, a situation Mr. Bari appears to have had trouble accepting. Dr. Starzomski describes the aftermath of the separation in these words: The couple began living separately in August 2002. Mr.

Bari said this was because Shaila requested that they live apart for six months to allow her to focus on her academics. She found him an apartment about 5 minutes from the building where they had lived together and where she continued to reside. Information on file (2007 Community Assessment) suggested that the couple seemed to be experiencing conflict because Shaila was moving away from the more traditional female role that Mr. Bari was expecting from her, and she was becoming more involved with other opportunities at school and in the community.

He told me that they spent a few weekends together early in his dual-residence period but she reportedly stopped permitting him to visit when she learned he had contacted her mother and told her he had been asked to move out of their apartment. There is information indicating that in September 2002 Mr. Bari went to Shaila’s apartment and requested sex, became upset and grabbed a knife and she fled to a friend’s apartment. In the present interviews Mr. Bari said that did not happen. Mr. Bari reportedly made statements to friends and in letters to Shaila’s family that if she did not return to him he would kill her.

Mr. Bari asserted to me that he did not make remarks about intending to kill her and indicated that idea is the product of inaccurate translation from Bengalese to English. By the autumn of 2002 Shaila requested that Mr. Bari stop contacting her. She sought enhanced security from her room/suite from the landlord but this was not completed. There is information on file, as reviewed in Dr. Theriault’s 2014 report and the 2006 appeal decision, outlining various situations of unwanted in-person contact by Mr. Bari in the autumn of 2002 that led to a charge of Harassment in December 2002. Mr.

Bari was ultimately convicted for that offence on June 16, 2003 and sentenced to 6 months of probation. [ 61 ] Mr. Bari told Dr. Starzomski he believed his wife was cheating on him and spoke of having received recurrent anonymous/obscene phone calls during their estrangement and especially in the weeks before the murder. There is nothing on file to corroborate any of these statements. He claims he wanted to ask his wife why she was tormenting him, but, again, there is no corroborating evidence that she behaved in this manner. [ 62 ] Dr. Starzomski continues: Mr.

Bari told me that he was becoming increasingly distressed and troubled by the lack of information from Shaila about her activities and their future together. He told me that he sent a letter to her family indicating he hoped she might experience punishment (including physical harm but not death) for the anguish and pain she was causing him. He described himself as being “cuckoo” and not thinking straight about the situation the longer it went on. [ 63 ] In June 2003, Ms. Bari “reportedly initiated divorce proceedings,” but Mr. Bari claims he was unaware of this. He claims he would have accepted this.

[ 64 ] In contrast to this account of the events preceding the murder, this is how, in the 2006 appeal decision, this Court summarized the evidence adduced at trial: Shortly after their separation and during the months of September, October, November and early December 2002, Mr. Bari frequently harassed Ms. Bari by attending at her apartment unannounced and showing up, without any apparent reason to be there, in places where she was present. She complained to the police about the repetitive nature of the harassment in an attempt to obtain a restraining order against him.

She asked her landlord to change her door lock and to block her windows with iron bars because she was afraid of her husband and wanted more security. In late September, she called the police to report that Mr. Bari had gone to her apartment unannounced and wanted to have sexual intercourse. She explained that after she refused, he became upset and went in the kitchen to get a knife and that, afraid for her safety, she had fled to a neighbour’s apartment. A police officer immediately met with her at her neighbour’s apartment, but later, after a discussion with Mr.

Bari, it was decided that the incident did not justify an application for a restraining order. In early October 2002, she again contacted the police and spoke with crisis intervention officers. She informed them of her continuing fear for her safety as she had just told Mr. Bari that she had consulted a lawyer and that they would never reunite as a couple as far as she was concerned. She again contacted the police the following month to inform them of Mr. Bari’s continuous harassment. In December 2002, she again met with a police officer. This time, she informed the officer that Mr.

Bari had threatened to harm her and had told her “what he was capable of” before putting an abrupt end to the telephone conversation. [para. 12] [ 65 ] The harassing behaviour led to Mr. Bari being charged. He pled guilty. The chronology set out by this Court continues as follows: Mr. Bari’s devastation over the separation and his feelings of betrayal were communicated to a psychiatrist before the June 16, 2003, court appearance [the sentencing hearing for the harassment offence]. On Mr. Bari’s behalf, a letter from the psychiatrist was introduced in evidence at the sentencing hearing. Mr.

Bari’s state of mind was also reflected in letters he wrote, some of which were sent to relatives in Bangladesh. The tone and content of these letters indicate that Mr. Bari’s hope for reconciliation eventually turned to despair and later to anger, to the point that he stated that if Ms. Bari did not return to him, she should not be allowed to live. In

summary, it is fair to say that the letters, much like the discussions Mr. Bari had with his consulting psychiatrist, essentially depict a husband devastated by his separation from his wife; a jealous, possessive, angry, humiliated and betrayed man, stripped of everything of value to him; a man unable to cope with his separation and his estranged wife's lifestyle. [para. 5] [ 66 ] From the information provided to him, this is Dr. Starzomski’s understanding of the events surrounding Ms.

Bari’s murder: On the evening of July 15, 2003, after he reportedly consumed about 5 beer over the course of the evening at a couple of different bars, Mr. Bari went to Shaila’s apartment. He told me that he wanted to teach her a lesson for causing him so much pain and went to her home to do this. The lesson, he said, was that he wanted her to experience some enduring pain to remind her of how much pain she had caused him. He said he took a prybar as a means to ensure he would be able to enter the building and her apartment. Mr.

Bari told me there was no answer when he rang the bell and he reportedly proceeded to the back door of the building and found it open and went to her apartment where he used the [pry bar to] gain entry. He said he went to the bed and saw there was someone under the blankets in the bed but could not tell who it was as the head was covered. While he considered it most likely the person was Shaila, he said at the time he also thought it could have been one of her friends. He said he struck the person four or five times and then left the apartment after just a few minutes.

He said he did not say anything while he was in the apartment. He denied any attempt to suffocate the person. He summed up his account by stating he was not the same person he usually is when he committed this offence (“I know now it was right, I was cuckoo, I lost my mind”). He said he immediately thought that he should call the police or call for an ambulance. He said it occurred to him the next day that it was possible Shaila could have died from the attack.

He said he has felt badly about not seeking help for her afterwards. [ 67 ] This is how this Court described these events: On July 15, 2003, Shaila Bari studied at the library on the university campus for an exam she was to undertake the next day. She was last seen alive walking at approximately 9:30 pm and was last heard from about an hour later when she spoke to a friend by telephone. Ms. Bari’s laptop computer reveals activity until 1:17 am on July 16, 2003, and none thereafter.

Ms. Bari did not attend for her exam on July 16, 2003. In fact, no one heard from her after July 15, 2003. Her disappearance eventually led the police to investigate and on July 22, 2003, Ms. Bari's body was found in her small apartment. She was lying in bed with pillows over her face. Subsequent investigation revealed that Ms. Bari had died from a combination of a sharp and blunt force trauma to the head and chest followed by suffocation. There was no evidence of either robbery or sexual assault. Ms. Bari’s jaw had been broken in at least two places and blood was noted coming from her nose and mouth.

She had suffered a cut to the head behind the ear and bruising to her chest. It was later discovered that at least four ribs were fractured. [paras. 6-8] [ 68 ] While Mr. Bari denied his involvement in his wife’s murder, the circumstantial evidence was overwhelming.

It was proven he had purchased a Mastercraft pry bar from a local Canadian Tire store on July 15, 2003, using his bank card; his whereabouts between 1:53 a.m. and 5:41 a.m., on July 16, 2003, could not be accounted for; on July 24, 2003, he asked a co- worker to go purchase a pry bar for him (the co-worker refused and reported this to the police); the police found a pry bar of the type Mr. Bari had purchased in an area surrounding the building where Ms.

Bari was killed; in the same area, the police had previously found latex gloves that were not available for retail purchase in Fredericton but were used by commercial establishments, including the hotel where Mr. Bari worked; Ms. Bari’s DNA was found on the gloves; a subsequent search of Mr. Bari’s residence led to the discovery of another Mastercraft pry bar as well as letters written by Mr. Bari in which he expressed his feelings regarding his separation from his wife. [ 69 ] One can see the reasoning process that led the jury to conclude Mr. Bari was guilty of the planned and deliberate killing of his wife.

Mr. Bari did not accept his wife’s rejection of their marriage. He harassed her and tried to get her family to intervene to get her back together with him. In letters to others, he threatened her well-being. When it became clear that his wife would not return to him, he decided she should not live. For use in the crime, he purchased a pry bar at a Canadian Tire store and took gloves from his place of work. He went out to bars and consumed a few glasses of beer and then, late in the night, he broke into his wife’s apartment, where he bludgeoned her and suffocated her to death. He discarded the pry bar and gloves.

When he realized he might be asked to produce the pry bar he had purchased using his bank card, he asked a co-worker to go purchase another one for him. When that co-worker refused, Mr. Bari managed to acquire another pry bar, which the police eventually found at his residence. [ 70 ] Throughout the investigation and the court process that followed, Mr. Bari claimed innocence. He even suggested other possible suspects. He did not accept responsibility for his crime, and he showed no remorse. Over a decade would pass between the time of the murder and when he finally admitted his guilt.

He did so during an assessment conducted by a forensic psychiatrist for the preparation of a parole eligibility report. At the time, he maintained he could not remember much of the details, although he said he did not intend to kill his wife, only to harm her. The psychiatrist describes the revelation in the following terms: Mr. Bari has in the past denied his offence. In his original criminal profile report of December 2, 2004, he denied the offence, indicating that at the time of her death, his wife had been dating several men and on the night of the offence, she had an argument with one of them.

In his 2007 psychological assessment he denied the offence, indicating that the conviction was under appeal. He also denied writing any threatening letters, indicating that he was merely communicating concern about his wife’s lifestyle to her family, and he denies the harassment charges for which he had pled guilty. I note from review of community assessments that, at least until 2007, the date of his last community assessment, that Mr. Bari’s family supported him in his claim that he was innocent. In his conversation with me, Mr. Bari admitted to the murder of his wife.

As discussed above, he and his wife separated in the summer of 2002, purportedly so that she could spend more time on her studies, although, as noted above, Mr. Bari was concerned that there may be other reasons and he became increasingly concerned about this over time. He continued to visit his wife at her apartment although after one visit he was approached by police and told that he should have no contact with her. Mr. Bari indicates that following this, he avoided contact with his wife, except on one occasion when he claims that she told him that he could go pick up mail at the residence.

He denies the substance of the criminal harassment charge; that is, he denies that he was harassing his wife or following her at the mall or school or that he was appearing in her windows. He does acknowledge that he pled guilty to the criminal harassment charge in June of 2013 although maintains that he did not really understand the legal issue at the time. Mr. Bari indicates that prior to the murder, he was feeling lonely and sad. It appears that he was particularly heartbroken when he learned that his wife had had an abortion -- he reports that the child was his.

The centrality of this issue continues to loom large; in conversation, Mr. Bari was at his most distressed when discussing this issue. It appears to him, culturally, that the abortion marked the end of all that he had worked for; Mr. Bari described the abortion as “most unacceptable murder on creator”. As noted above Mr. Bari indicates that he began to drink “to forget her” (his wife). Mr. Bari also claims that immediately preceding the murder he was subject to harassing phone calls which he believed to come from his wife or her friends.

He indicates that these included such things as calling him names, and on at least one occasion he reports hearing what he believes to be the sound of sexual activity which he attributed to his wife.

On the date of the murder Mr. Bari indicated that he had been drinking. He was somewhat vague in discussing the actual mechanics of the murder indicating that “I can't much remember”. However, he does recall that he felt angry at the time and he claims that his intent was not to kill his wife but rather to harm her noting “I want to make the damage her”. [Judicial screening decision, para. 8] [ 71 ] To put this in context, for over a decade, Mr. Bari denied his guilt to the point of trying to deflect suspicion on other possible suspects and deceiving his family by causing them to believe he was innocent.

Then, when he was assessed for parole eligibility, he admitted his guilt but tried to minimize the situation by denying both his earlier harassment behaviour and his intention to kill his wife, and especially the planned and deliberate nature of the murder. [ 72 ] Then, in 2020, in contemplation of a faint hope application, through Mr. Bari’s counsel, Dr. Starzomski was hired to undertake a psychological risk assessment, which he summarized in a report dated September 16, 2020. In Dr. Starzomski’s opinion, Mr.

Bari again sought to minimize the seriousness of the situation, by denying both the details of his harassment behaviour and his statements to family members that he would kill his wife. Regarding Ms. Bari’s harassment allegations, he stated he did not believe she was afraid of him “but may instead have simply wanted to keep him from seeing what she was doing.” While he admitted having sent letters to her family, he denied threatening her life, “indicating he hoped she might experience punishment (including physical harm but not death).” In Dr. Starzomski’s eyes, Mr.

Bari also sought to play down his blameworthiness, stating he only wanted Ms. Bari to experience some pain but did not want to kill her, adding he only took the pry bar with him to enter the building and her apartment. Astonishingly, he claimed he was not sure it was his wife he was bludgeoning, although he did admit it was most likely her, and he denied any attempt to suffocate his victim. Even more astonishingly, he informed Dr.

Starzomski he wanted to appeal his conviction “to have an opportunity to tell the Court his side of the situation (including acknowledging that he was guilty of the crime that led to her death).” This statement is simply preposterous. Mr. Bari had ample opportunity to admit his guilt before 2014. His appeal was decided in 2006, and his application for leave to appeal to the Supreme Court was dismissed in 2007. [ 73 ] Not only did Mr. Bari deny his guilt throughout the court proceedings, but he also denied it for years to the correctional authorities. Dr.

Starzomski reports that, when he was admitted to the Springhill Institution on October 1, 2004, Mr. Bari refused to participate in the psychological component of the intake assessment due to his pending appeal. If this had merely been an exercise of his right to silence, one could not fault Mr. Bari; however, Dr. Starzomski reports Mr. Bari went on to suggest the murder could have been committed by one of the men with whom Ms. Bari had been spending time. Thus, he was not exercising his right to silence but rather peddling lies to implicate others.

This, and the fact he had convinced his family he was innocent, makes his desire to admit his guilt to this Court wholly unbelievable. [ 74 ] In his application to the screening judge, Mr. Bari claims he “had started to take responsibility [for his] offence in 2011” though he admits it is not documented. What is documented is that Mr. Bari was engaged in psychological programming after his admission of guilt to Dr. Theriault in 2014. The psychiatric/psychological assessments conducted over the years have generally remained constant. Mr.

Bari has not been diagnosed with any mental disorder, nor has he shown traits associated with antisocial, borderline or other personality disorders. It is not necessary to detail the test descriptions and results that are part of the record and reviewed in Dr. Starzomski’s report. Suffice it to say these show Mr. Bari poses a low-level risk for general violence and a moderate level risk for domestic violence. This has been constant since 2014 and was confirmed by Dr. Starzomski’s 2020 assessment.

People with that kind of risk profile are said to be able to function successfully in the community so long as they are managing dynamic factors well and collaborating in a consistent and effective way with justice system caseworkers. [ 75 ] While Mr. Bari’s psychiatric/psychological profile has positive features, it cannot be said that there is no cause for concern. Had Mr. Bari acknowledged his guilt from the outset, he would have benefited from 15 years of psychological programming before being able to engage the faint hope regime.

However, his persistent denial and lies delayed the commencement of psychological programming designed to minimize his risk in the community. Even to this day, he tends to minimize the brutality of his crime by denying his previous harassment of Ms. Bari and claiming he did not want to kill her but rather cause her pain. [ 76 ] Recall that the murder of Shaila Bari was found to have been planned and deliberate. From the evidentiary record, the jury necessarily concluded Mr.

Bari acquired the equipment that he used in the commission of the offence (the pry bar and gloves that were later found in the vicinity of the murder scene) and he set out to kill his wife. Mr. Bari’s account − that he only intended to cause her pain and he did not attempt to suffocate her − is inconsistent with both the forensic evidence adduced at trial and the jury’s findings. [ 77 ] The following paragraph captures the screening judge’s ultimate reason for dismissing Mr. Bari’s faint hope application: Returning to the question in this matter – should Mr.

Bari’s application be brought before a jury, is there a substantial likelihood that it

will succeed? I find myself arriving at the conclusion that it will not, despite Mr. Bari’s stellar prison record and the progress he has made since his conviction. While it is difficult not to acknowledge Mr. Bari’s positive conduct since his conviction, as well as the significant support he enjoys, the stark reality remains – Mr. Bari continues to believe he is a victim. While it would seem that his thinking and attitudes have evolved to the point that he now recognizes that Mrs. Bari was the ultimate victim, he nonetheless continues to focus on his losses.

In my view, this is a factor that 12 jurors will simply be unable to overlook. To the extent that Mr. Bari does not appear to recognize, even now, that his incarceration is related solely to his own actions will, in my view, cause considerable consternation to some if not all jurors. [Emphasis in original; judicial screening decision, para. 53] [ 78 ] Because the screening judge applied the wrong threshold test, no deference is owed to her conclusion.

It falls to us to consider the factors enumerated in s. 745.63(1) and apply the appropriate threshold test, which, as noted above, is the reasonable prospect standard as defined in Phillips and applied in Al-Shammari . I accept that Mr. Bari has, for the most part, been a model prisoner. I accept he has family and community support. I also recognize that, since 2014, he has received psychological programming designed to help him reintegrate into society. While these factors support his application, it is impossible to overlook Mr.

Bari’s continued denial of established facts of his harassment behaviour preceding his murderous conduct and his continual minimizing of his state of mind. He continues to maintain he did not intend to kill his wife but only to hurt her, and this, in the face of compelling evidence that proved beyond a reasonable doubt not only that he intended to kill her but also that her murder was planned and deliberate.

This denial and minimization, considered together with a psychological profile that puts him at moderate risk for domestic violence, leads me to conclude that there is no reasonable prospect that 12 jurors would view his application favourably and reduce the number of years of parole ineligibility. III. Disposition [ 79 ] For the reasons set out above, I would dismiss Mr. Bari’s appeal. Version française du jugement rendu par LE JUGE RICHARD, J.C.N.-B. I.

Introduction [1] Lorsque la peine de mort a été abolie au Canada et qu’un nouveau système de classification a été introduit pour le meurtre, la peine maximale d’emprisonnement à perpétuité sans admissibilité à la libération conditionnelle pendant 25 ans a été atténuée par l’ajout d’une disposition, appelée « disposition de la dernière chance », qui donnait à un contrevenant le droit de demander à un jury la réduction de sa période d’inadmissibilité à la libération conditionnelle après avoir purgé 15 ans. [2] Au cours des années, le régime de la dernière chance a changé.

En 1997, un mécanisme de sélection judiciaire prévoyait que seules les demandes qui présentaient une « possibilité réelle » de succès seraient présentées à un jury. En 2011, le régime de la dernière chance a été aboli pour les crimes commis après le 2 décembre 2011 et un critère préliminaire plus exigeant a été établi.

Depuis lors, seules les demandes qui présentent une « probabilité marquée » d’être accueillies sont examinées par un jury, peu importe le seuil ou le critère préliminaire qui était en place lorsque l’infraction a été commise ou lorsque le contrevenant a été condamné à sa peine. [3] La constitutionnalité de l’application rétrospective de ce nouveau critère préliminaire est un des deux moyens soulevés dans le présent appel. L’autre moyen porte sur la question de savoir si, en application du critère approprié, la présente affaire devrait être soumise à un jury.

[4] À mon avis, le fait de modifier de manière rétrospective le critère préliminaire, en le faisant passer de la « possibilité réelle » à la « probabilité marquée » de succès de la demande, porte atteinte à l’ alinéa 11i) de la Charte canadienne des droits et libertés et cette atteinte n’est pas protégée par l’article premier de la Charte , qui prévoit que les droits et libertés garantis par la Charte sont restreints « par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d’une société libre et démocratique ».

Cela dit, lorsque le critère approprié est appliqué en l’espèce, je conclus qu’il n’y a aucune possibilité réelle que la demande de M. Bari soit accueillie par un jury. En conséquence, et pour les motifs qui suivent, je rejetterais l’appel. II. Analyse [5] Le 28 septembre 2004, à l’aboutissement d’un procès devant un juge siégeant avec un jury, Abdul Bari a été déclaré coupable de meurtre au premier degré pour le meurtre prémédité de son épouse, Shaila Bari, en 2003. Il a été condamné à l’emprisonnement à perpétuité sans admissibilité à la libération conditionnelle avant d’avoir purgé 25 ans en prison.

Il a interjeté appel à notre Cour et cet appel a été rejeté ( Bari c. R. , 2006 NBCA 119 , 308 R.N.-B. (2 e ) 247). Sa demande de pourvoi à la Cour suprême a également été rejetée ( R. c. Bari, [2007] C.S.C.R. n o 236 (QL)). [6] Après avoir purgé 15 ans en prison, M. Bari a eu recours à la disposition de la dernière chance et présenté une demande à la juge en chef de la Cour du Banc de la Reine afin qu’elle constitue un jury chargé d’examiner la possibilité de réduire le nombre d’années qu’il devait purger en prison avant d’être admissible à la libération conditionnelle. [7] L’

article 745.61 du Code criminel décrit le rôle de gardien du juge en chef (ou du juge qu’il désigne) dans le cadre d’une demande présentée sous le régime de la disposition de la dernière chance. Le juge en chef doit d’abord déterminer si le requérant a satisfait à un certain critère préliminaire justifiant que la demande soit entendue par un jury. Dans l’affirmative, un jury est constitué. Sinon, le requérant doit présenter une autre demande plus tard, à moins que le juge en chef n’en décide autrement.

Afin de déterminer s’il a été satisfait au critère préliminaire, le juge en chef se penche sur les mêmes critères que devrait examiner un jury s’il était constitué. [8] Si un jury est constitué, il doit examiner les critères établis au paragraphe 745.63(1).

Si le jury décide qu’il y a lieu de réduire le nombre d’années que doit purger le contrevenant avant d’être admissible à la libération conditionnelle, il doit prendre cette décision à l’unanimité, toutefois, il peut décider de substituer à ce délai préalable un nombre d’années inférieur ou supprimer immédiatement l’inadmissibilité à la libération conditionnelle sans que cette décision doive être prise à l’unanimité. Dans ce cas, une majorité des deux tiers des membres du jury est suffisante.

Il va sans dire que le jury n’est pas habilité à décider si la libération conditionnelle doit être accordée, car cette décision relève de la Commission des libérations conditionnelles du Canada en vertu de la Loi sur le système correctionnel et la mise en liberté sous condition , L.C. 1992, ch. 20 . [9] Le critère préliminaire établi par la loi, et que doit appliquer le juge en chef en procédant à une sélection judiciaire initiale de la demande, a été modifié entre le moment où M.

Bari a tué son épouse et le moment où il a présenté sa demande de réduction du nombre d’années à passer en prison avant d’être admissible à la libération conditionnelle. En 2003, la décision judiciaire était fondée sur la question de savoir si un requérant avait démontré, par prépondérance des probabi

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