Neutral citation: 2001 FCT 798
Ottawa, Ontario, Monday the 16th day of July 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
NICHOLAS BONAMY
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
[1] At issue in this application for judicial review is whether the Minister of Justice ("Minister") may delegate to lawyers within the Criminal Conviction Review Group of the Department of Justice ("CCRG") authority to determine whether an application for mercy made under section 690 of the Criminal Code, R.S.C. 1985, c. C-46 merits consideration by the Minister.
The Facts
[2] Nicholas Bonamy was convicted on February 15, 1996 in the Alberta Provincial Court of the offence of theft of money exceeding $5,000.00 and was sentenced to serve a term of imprisonment of seven and one half years. An appeal to the Alberta Court of Appeal and an application for leave to appeal to the Supreme Court of Canada were unsuccessful.
[3] On August 25, 1998, Mr. Bonamy applied to the Minister under section 690 of the Criminal Code for a new trial. The principal basis on which the application to the Minister was brought was that the Alberta court was said not to have had jurisdiction to have tried Mr. Bonamy for an offence which he asserted took place in British Columbia.
[4] By letter dated December 3, 1999, Mr. Bonamy was advised that his application did not meet the criteria which would allow a favourable exercise of ministerial discretion. Relatively detailed reasons were given for that decision which was made by a lawyer within the CCRG.
[5] The nub of the decision contained in the December 3, 1999 letter was as follows:
As stated at the outset, the role of the Minister of Justice in section 690 applications is not to retry a case or act as yet another level of appeal. Something more will ordinarily be required than simply a repetition of the same evidence and arguments that were placed before the appellate courts. Applicants under section 690 who rely solely on technical weaknesses in the evidence, or on arguments of law that were put before the court and considered, can expect to find that their applications will be refused. On that basis, I regret to inform you that your application has failed to raise any "new matter" that merits consideration by the Minister or further investigation for section 690 relief.
[6] The letter concluded:
If you have new information that was not considered by the courts, you may forward that information and supporting documents to our attention. The new information will be assessed to determine whether it is capable of raising an issue that may provide the Minister of Justice with a basis for granting a section 690 remedy.
The Issue
[7] While Mr. Bonamy raised a number of issues in his written submissions before this Court it was acknowledged in oral argument that the only question which this Court has jurisdiction to consider is whether the negative December 3, 1999 decision should be set aside on the ground that the Minister failed to have any involvement in the review of Mr. Bonamy's application.
[8] Mr. Bonamy asserted that by virtue of the Minister's failure to review personally his application, Mr. Bonamy's right, guaranteed by section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Charter"), not to be deprived of liberty except in accordance with the principles of fundamental justice was violated.
The Statutory Provision
[9] Section 690 of the Criminal Code is as follows:
| 690. The Minister of Justice may, on an application for the mercy of the Crown by or on behalf of a person who has been convicted in proceedings by indictment or who has been sentenced to preventive detention under Part XXIV, (a) direct, by order in writing, a new trial or, in the case of a person under sentence of preventive detention, a new hearing, before any court that he thinks proper, if after inquiry he is satisfied that in the circumstances a new trial or hearing, as the case may be, should be directed; (b) refer the matter at any time to the court of appeal for hearing and determination by that court as if it were an appeal by the convicted person or the person under sentence of preventive detention, as the case may be; or (c) refer to the court of appeal at any time, for its opinion, any question on which he desires the assistance of that court, and the court shall furnish its opinion accordingly. |
690. Sur une demande de clémence de la Couronne, faite par ou pour une personne qui a été condamnée à la suite de procédures sur un acte d'accusation ou qui a été condamnée à la détention préventive en vertu de la partie XXIV, le ministre de la Justice peut_: a) prescrire, au moyen d'une ordonnance écrite, un nouveau procès ou, dans le cas d'une personne condamnée à la détention préventive, une nouvelle audition devant tout tribunal qu'il juge approprié si, après enquête, il est convaincu que, dans les circonstances, un nouveau procès ou une nouvelle audition, selon le cas, devrait être prescrit; b) à tout moment, renvoyer la cause devant la cour d'appel pour audition et décision comme s'il s'agissait d'un appel interjeté par la personne déclarée coupable ou par la personne condamnée à la détention préventive, selon le cas; c) à tout moment, renvoyer devant la cour d'appel, pour connaître son opinion, toute question sur laquelle il désire son assistance, et la cour d'appel donne son opinion en conséquence. |
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Analysis
[10] The uncontradicted evidence is that since 1995 a standard practice has evolved at the Department of Justice for assessing section 690 applications. That practice involves a four-step review process comprised of: the initial assessment, the investigation, the preparation of an investigation brief, and the decision by the Minister.
[11] With respect to the first step, when a completed application is received a lawyer in the CCRG is to examine the information provided and compare it with trial and appellate records. If the application reveals new and significant information not available at trial or on appeal which could have affected the outcome of the case, the application goes on to the next step.
[12] In the present case, Mr. Bonamy's application was rejected by a lawyer in the CCRG at the first step. Mr. Bonamy retained the right to re-apply under section 690 with new information.
[13] Mr. Bonamy argued before this Court that no statutory provision allows the Minister to make rules pertaining to section 690 applications and that permission to apply for the Minister's consideration is not to be "doled out" arbitrarily by employees of the Department of Justice. Mr. Bonamy relied upon the remarks of Rothstein J., as he then was, in Thatcher v. Canada (Attorney General), [1997] 1 F.C. 289 (T.D.) at page 298 that "[i]n exercising his discretion under section 690, the Minister must act in good faith and conduct a meaningful review, provided that the application is not frivolous or vexatious".
[14] Mr. Bonamy also relied upon the decision of the Supreme Court of Canada in Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 at page 742 to the effect that while a body entrusted with a statutory power may adopt its own procedure, and may employ staff for all preliminary work, in the end the body must come to its own decision.
[15] In my view, the answer to Mr. Bonamy's submissions is found in the nature of the royal prerogative of mercy and proceedings under section 690 of the Criminal Code.
[16] The nature of those proceedings were considered in Thatcher, supra. There, at page 297, Justice Rothstein began by quoting Lord Diplock in de Freitas v. Benny, [1976] A.C. 239 (P.C.) at page 247 as follows:
Except in so far as it may have been altered by the Constitution the legal nature of the exercise of the royal prerogative of mercy in Trinidad and Tobago remains the same as it was in England at common law. At common law this has always been a matter which lies solely in the discretion of the sovereign, who by constitutional convention exercises it in respect of England on the advice of the Home Secretary to whom Her Majesty delegates her discretion. Mercy is not the subject of legal rights. It begins where legal rights end. A convicted person has no legal right even to have his case considered by the Home Secretary in connection with the exercise of the prerogative of mercy. In tendering his advice to the sovereign the Home Secretary is doing something that is often cited as the exemplar of a purely discretionary act as contrasted with the exercise of a quasi-judicial function. [Emphasis added in original.]
[17] Justice Rothstein, commencing at paragraph 9, continued as follows:
While the observations of Lord Diplock must now be read in Canada in light of the Charter, they do provide some guidance as to the nature of the proceedings. Except in so far as the Charter requires, proceedings under section 690 are not the subject of legal rights. An application for mercy is made after a convicted person has exhausted his legal rights. Therefore, although the Minister is under a duty of fairness under the Charter, the duty must be considered with regard to the fact that there is no continuing lis between the Crown and the applicant.
That the function of the Minister of Justice under section 690 is an "exemplar of a purely discretionary act" is reflected in the wide allowance given to the Minister to exercise his discretion. There are no statutory provisions directing the Minister as to the manner in which he should exercise his discretion. There are no requirements as to the type of investigation the Minister must carry out under section 690.
Further, no rules of procedure have been laid down. There does not appear to be a limitation on the number of applications that can be made under section 690 by a convicted person or when such applications must be made. Moreover, there is no appeal from the decision of the Minister under this section.
Consequences of the Decision upon the Applicant
An adverse decision by the Minister in exercising his discretion under section 690 can result in the continuation of a lengthy, if not lifetime, incarceration of a convicted person. This deprivation of liberty is what engages the applicant's rights under section 7 of the Charter, and requires that the Minister act fairly in exercising his discretion. However, it is important to remember, even in the context of the Charter, that the applicant is asking for mercy. In this respect, there is no lis between the applicant and the Minister, and the applicant has already had the full benefit of the Charter in the antecedent judicial proceedings leading to the conviction.
[18] This makes it clear that as long as the requirements of the Charter are met, proceedings under section 690 are not the subject of legal rights. The Minister is required by the Charter to act in a manner consistent with the right of a person not to be deprived of liberty except in accordance with the principles of fundamental justice. Aside from that imperative there are no directions to the Minister as to how applications for mercy are to be investigated.
[19] The legal officer who reviewed Mr. Bonamy's application swore, and was not cross-examined upon his evidence, that:
1. In April of 1994, the then Minister of Justice formally articulated the principles that guide the exercise of the discretionary powers found in section 690. Those principles include:
i. The procedure created by section 690 is not intended to create a fourth level of appeal. Something more is ordinarily required than simply a repetition of the same evidence and arguments made before the trial and appellate courts.
ii. Applications under section 690 should ordinarily be based on new matters of significance that either were not considered by the courts or that occurred after the conventional avenues of appeal had been exhausted.
iii. Where an applicant is able to identify such "new matters", the Minister will assess them to determine their reliability.
[20] The legal officer also swore that since 1995 applications under section 690 are reviewed pursuant to the four-step process previously referred to.
[21] The Minister has through the principles articulated in 1994 recognized that applications which raise a real suggestion of a miscarriage of justice will usually stem from the discovery of some new matter of significance. The Minister has through the process implemented in 1995 determined that where new matters are identified the Minister will assess them to determine their reliability.
[22] The first step in the process requires a lawyer in the CCRG to ascertain initially whether the application discloses new and significant material which could have affected the outcome of the case. Where a negative assessment is made, the lawyer's decision is subject to judicial review, as in the present case. Further, an applicant may at any time file a further section 690 application with additional information.
[23] I am unable to conclude that this procedure is inconsistent with, or in violation of, Mr. Bonamy's rights as guaranteed under the Charter. The procedure with its attendant rights to review and to re-apply amply meets the requirement of fairness and is in accord with the principles of fundamental justice. Because section 690 proceedings are not otherwise the subject of any legal rights and because Parliament has not mandated that the Minister must personally participate in a screening process, the conclusion that Mr. Bonamy's Charter rights were not infringed is dispositive of this application for judicial review.
[24] Mr. Bonamy did not assert that the reviewing legal officer failed to consider relevant information or submissions, or that the officer considered irrelevant matters. For the reasons set out above, notwithstanding the articulate submissions of Mr. Bonamy, the application for judicial review must be dismissed. In view of the relative lack of jurisprudence on the point, I do not consider this to be an appropriate case for any award of costs.
[25] One further matter requires comment. The respondent argued that in any event the powers given to the Minister in section 690 of the Criminal Code may be delegated pursuant to subsection 24(2) of the Interpretation Act, R.S.C. 1985, c.1-21, as amended.
[26] As a matter of law, whether a power to delegate exists depends upon the intent of Parliament as that intent may be ascertained from the language of the legislation, the subject matter of the discretion and other relevant considerations: Ramawad v. Canada (Minister of Manpower and Immigration), [1978] 2 S.C.R. 375. It is unnecessary in this proceeding for me to consider the extent to which all of the Minister's powers under section 690 may be delegated. I note however, without deciding the point, that it may be that after an initial assessment is conducted the extraordinary and unique nature of the Minister's power under section 690 is such that it cannot be delegated.
ORDER
[27] IT IS HEREBY ORDERED AND ADJUDGED THAT:
The application for judicial review is dismissed without costs.
"Eleanor R. Dawson"