A New Brunswick man convicted in 2004 of first-degree murder in the beating death of his estranged wife will have to wait a couple of months to learn if he passed the first phase of his "extremely rare" and complex request to be granted parole 10 years early.
Abdul Bari's lawyer argued his so-called faint-hope application before Court of Queen's Bench Chief Justice Tracey DeWare in Fredericton on Thursday.
"This is a man who is not the same person that he was 16 years ago," said Sarah White of Truro, N.S.
Bari, 53, was sentenced to life in prison with no chance of parole for at least 25 years for killing Shaila Akther Bari, 26, in Fredericton in 2003.
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.
But Bari applied last year for a judicial review, seeking a reduction of his parole ineligibility to 15 years under a now-repealed section of the code commonly known as the "faint hope clause."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 It was repealed in 2011 but still applies to crimes committed before that date.
"We're not here to justify, to minimize, to take away from Ms. [Akther] Bari's life in any way," White told the court.
The purpose of such applications is "to call attention to changes which have occurred in the applicant's situation which might justify imposing a less harsh penalty," she said, citing the Supreme Court of Canada.
White described Bari as a "peaceful prisoner" and "model inmate" and pointed to the "evolution" of his acceptance of responsibility for his offence.
She presented a report from Bari's parole officer who noted an improvement in his understanding of his risk factors and improved victim empathy.
"I don't remember ever seeing Mr. Bari being able to talk about what he had done to his wife without tears in his eyes," the parole officer wrote.
White said Bari can't change what he has done. He can only look forward and try to be a positive member of society in every aspect of his life.
The judge said Bari's prison record is very positive, and he has done well during his community releases.
But she questioned whether he's "painting himself as the victim."
"There still seems to be this almost suggestion that it happened because of the actions of Mrs. Bari leading up to the murder and that is concerning to me," said DeWare.
The couple separated about a year before the murder, and Bari later learned that Akther Bari had an abortion, the court heard.
White said she doesn't believe Bari is "victim blaming." She thinks it's a translation issue. Bari is originally from Bangladesh and his English is not good, she said. He had a Bengali interpreter with him in court on Thursday.
Crown challenges credibility
Crown prosecutor Rodney Jordan challenged Bari's credibility, questioning how he can now claim to accept full responsibility for his actions when he maintains he still doesn't remember exactly what happened the night of the murder.
In addition, Bari told the psychologist retained by the defence a "new version" of events, according to Jordan.
Bari said he went to Akther Bari's apartment that night to "punish" her.
There was a person in bed under the covers and although he said he didn't know who it was, he "proceeded with his plan anyway" and beat the person with a crowbar, said Jordan.
"In the world I come from, it's totally worse because that means you were prepared to kill … some random person," the Crown prosecutor argued. "That's chilling."
Jordan said he doesn't dispute that Bari has made progress over the years.
"But the reward for that is more temporary absences going forward, more freedom, moving from a medium-security institution to a low-security institution" — not a 10-year reduction in parole ineligibility.
Could be precedent-setting
Bari's case could be precedent-setting for the province.
"There hasn't been an application like this in New Brunswick," according to his lawyer.
The judge described it as "an extremely rare procedure."
"There's no roadmap for this in New Brunswick, much to my dismay, so it's going to take time to thoroughly review the materials and provide a thoughtful and comprehensive decision," said DeWare.
"I'm going to do my best to get a decision to you before year's end."
DeWare must determine whether Bari has a chance of success of getting through the next stage of the application process — a jury reviewing his case and unanimously deciding to reduce his period of parole ineligibility.
Bari would then be allowed to apply to the parole board for early parole.
Pry bar possible murder weapon
Police found the body of Akther Bari in her single-room apartment on Regent Street on July 22, 2003, after her friends reported her missing. She was on a bed with pillows over her face.
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.
She died from a combination of a sharp- and blunt-force trauma to the head and chest followed by suffocation, the trial heard.
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.