R v Abram, 2019 ONSC 3383

Application granted. The Applicant is entitled to a hearing before a jury to request that his parole ineligibility period be reduced.

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The Applicant was convicted of the first-degree murder of his 17-month-old stepson in 2005. He received the mandatory sentence of life imprisonment with no parole eligibility for 25 years. Having served more than 15 years of his sentence, the Applicant applied for a faint hope hearing where it will be asked that his parole ineligibility period be reduced. S 745.61 of the Criminal Code requires that such applications be screened for merit before a jury hearing is granted.

The primary purpose of the s 745 hearing is to call attention to changes which have occurred in the applicant’s situation that might justify imposing a less harsh penalty upon the applicant (R v Swietlinksi, [1994] 3 SCR 481). The Applicant was given the benefit of the lower screening standard, meaning, whether there is a “reasonable prospect of success” due to the uncertainty in the law, as well as this being the standard imposed at the time the offence was committed. If success falls within a range of reasonable outcomes, it qualifies as a reasonable prospect of success. Further, Gladue bears on whether the Applicant should have the right to make an application before a jury which applies in this case.

This Court considered victim impact statements, the community impact, the Applicant’s character and conduct in the institution, as well as his remorse/acceptance of responsibility. Many correctional records reported that the Applicant had a deep understanding of what he did, and a compelling need to make amends by becoming a better person. His community was eager to have him return. The most striking features of this case is the level of unqualified support offered by correctional officials towards the Applicant.

The Crown attempted to argue that the Applicant failed to accept full responsibility because he was unwilling to enrol in treatment programs aimed at sex offenders. The Court stated that the absence of sexual motivation did not affect the characterization of the crime but bears on whether the Applicant requires treatment as a sex offender. Because professionals within the correctional system had concluded there is no need for such treatment, the Applicant cannot be faulted for abiding by the recommendations of institutional officials. The Crown also attempted to argue a comment made in a psychological assessment 12 years ago showed his lack of remorse. The comments made then do not reflect the applicant’s current conceptualization of his crime. The prospect of success is therefore reasonable when one considers the Applicant’s present character, institutional history, adherence to Indigenous traditions, and his ongoing commitment to personal growth.