Man who killed wife and seeks early parole loses bid to have lower standard applied
Abdul Bari, 53, convicted of 1st-degree murder in Fredericton, used charter argument in faint hope application
A New Brunswick man who beat his estranged wife to death in 2003 and hopes to be granted parole 10 years early has lost his bid to have his so-called faint hope application proceed under an older, lower standard of review based on a charter rights argument.
Abdul Bari, 53, was found guilty in 2004 of first-degree murder in the death of Shaila Akther Bari, 26, in Fredericton, and was sentenced to life in prison with no chance of parole for at least 25 years.
Under the Criminal Code of Canada, anyone convicted of first-degree murder must serve at least 25 years before being eligible to apply for parole.
For Bari, that date would be Feb. 8, 2029.
But he applied last year to the Court of Queen's Bench of New Brunswick for a judicial review, seeking a reduction of his parole ineligibility to 15 years under a now-repealed section of the code commonly known as the "faint hope clause."
Section 745.6 of the code gave convicted killers the opportunity to apply for early parole after serving at least 15 years. It was repealed in 2011 but still applies to crimes committed before that date.
It's a rarely used section and complex process that could require a jury being empanelled.
Chief Justice Tracey DeWare must first review Bari's file to determine whether he has a chance of success of getting through the next stage — his application to a jury.
At a hearing in Fredericton earlier this month, Bari's lawyer, Sarah White of Truro, N.S., argued DeWare should apply the judicial screening threshold that was in place in 2003, at the time of the offence — "a reasonable prospect" of success — not the 2011 threshold of a "substantial likelihood of success."
Applying the higher judicial screening threshold, White argued, would infringe Bari's constitutional right, as set out in Section 11(i) of the Canadian Charter of Rights and Freedoms.
It states if the punishment for an offence changes between the time of the commission and the time of sentencing, the offender has the right to the benefit of the lesser punishment.
White argued the change in the law amounted to an increase in punishment for Bari's crime.
Crown prosecutor Kathryn Gregory countered it was simply a change in the management of his sentence and was not a change in the punishment itself.
On June 22, DeWare ruled the change in the screening mechanism does involve punishment, but the elevated screening standard did not increase the punishment.
"What did this applicant expect at the time he was sentenced in 2004?" she asked. "The applicant expected that he could apply for a reduction in his parole ineligibility after 15 years, and that this written application would be subject to a preliminary screening by a judge to determine if it met the necessary threshold to be taken to a hearing before a jury, where the jury would be instructed to consider five criteria necessary in reviewing the period of parole ineligibility."
I cannot conclude that the applicant's settled expectations of liberty have been thwarted by the 2011 change in screening standard.- Tracey DeWare, chief justice of the Court of Queen's Bench
"The nature of the screening standard in place is not likely where the applicant fixed his focus in appreciating the avenues available to him in 15 years to reduce his period of parole ineligibility," DeWare said in her oral decision.
"I cannot conclude that the applicant's settled expectations of liberty have been thwarted by the 2011 change in screening standard.
"The applicant's settled expectation that he could apply for a reduction of his parole in 15 years and that his application process would be a two-step process remains unchanged from the time of both his crime and his sentence."
Hearing Oct. 1
Bari's application for a reduction in his parole ineligibility is scheduled to proceed under the 2011 standard on Oct. 1.
There has only ever been one other application made in New Brunswick, according to the best knowledge of the lawyers involved, court documents indicate.
According to the New Brunswick Rules of Practice, some of the information that will be reviewed will include Bari's prison conduct, classification and discipline, details from any psychological and psychiatric assessments, his social and family background, and other relevant information regarding his character.
If DeWare decides to forward his application, a jury would be empanelled in Fredericton, where the crime occurred.
If the jury reaches a unanimous decision to reduce his period of parole ineligibility, Bari would be allowed to apply to the parole board for early parole.
Pry bar possible murder weapon
Police found the body of his estranged wife in her single-room apartment on Regent Street on July 22, 2003, after her friends reported her missing.
Her jaw was broken in at least two places, at least four ribs were fractured, the back of her head was cut and blood was coming from her nose and mouth.
Akther Bari died from a combination of a sharp- and blunt-force trauma to the head and chest followed by suffocation.
Forensic evidence revealed a pry bar could have been used to inflict some of her injuries.
Bari's bank card was used to purchase a pry bar from a local Canadian Tire the same day the victim was last seen alive.
Previously convicted of criminal harassment
Akther Bari, a native of Bangladesh, had moved to Fredericton in 1997 as part of an arranged marriage. The couple separated in August 2002, about a year before the murder.
The separation was Akther Bari's decision, according to court records. Bari was "devastated by her actions and felt betrayed," the records state.
A month before the murder, Bari was sentenced for criminal harassment after pleading guilty.
Akther Bari, a part-time business student at the University of New Brunswick, had complained to police about the harassment to try to get a restraining order against her estranged husband.
She had asked her landlord to change her door lock and put iron bars on her window because she was afraid of Bari, the court heard.