



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Phillips, 2012
    ONCA 54

DATE: 20120130

DOCKET: C53523

OConnor A.C.J.O., MacPherson J.A. and OConnor
    J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

George Christopher Phillips

Appellant

Vanessa V. Christie, for the appellant

David Lepofsky, for the respondent

Heard and released orally: January 26, 2012

On appeal from the decision of Justice Nordheimer of the Superior
    Court of Justice, dated March 25, 2011.

ENDORSEMENT

[1]

The application judge dismissed Mr. Phillips application under
    s. 745.6(1) of the
Criminal Code
for an order allowing him to proceed to
    a hearing before a jury for a determination as to whether his period of parole
    ineligibility should be reduced (a faint hope hearing).  Mr. Phillips appeals.

[2]

Until recent amendments, s. 745.6(1) of the
Code
set the
    test to be used on an application of this nature as whether the applicant has
    shown, on the balance of probabilities, that there is a reasonable prospect
    that the application will succeed.

[3]

Mr. Phillips argues that the application judge erred because in
    applying the section he used the phrase a realistic probability of success to
    describe the reasonable prospect test set out in the section.  He submits
    that a realistic probability is a higher threshold than a reasonable prospect.

[4]

Mr. Phillips goes on to argue that if we apply the correct test,
    we should allow his application.

[5]

We do not find it necessary to resolve the semantic issue.  In
    our view, Mr. Phillips application does not meet the reasonable prospect test
    set out in the statute.

[6]

We agree with the application judge that the statutory test
    embodies more than merely showing that a case is not hopeless.  The normal
    meaning of the words suggests a higher test.  Moreover, as the application
    judge pointed out, lowering the threshold to having to establish only that a
    case is not hopeless would frustrate the purpose of the judicial screening
    stage.

[7]

In passing, we note that it is generally preferable when a court
    is applying a statutory test to use the language in the legislation.  Inserting
    what are considered to be synonymous words or phrases into an analysis often
    tends to confuse rather than clarify.

[8]

In our view, Mr. Phillips fails to meet the test under s.
    745.6(1).  He was convicted of a cold-blooded execution style planned and
    deliberate murder.  He has not accepted responsibility for his offence nor
    expressed remorse.  He has been far from a model prisoner.  Although in the
    last few years his conduct has improved, his record while in custody is at best
    mixed.  He has a considerable record of institutional misconduct offences.  He
    has participated in educational programs only sporadically and has made minimal
    gains in the anger management programs.  He has not been transferred down the
    security ladder below medium security.

[9]

In these circumstances, we do not consider that there is a
    reasonable prospect that Mr. Phillips will be able to convince 12 jurors that
    his parole ineligibility should be reduced.

[10]

The appeal is dismissed.

D. OConnor A.C.J.O.

J.C. MacPherson J.A.

OConnor J. (
ad hoc
)


