Date: 19990629
Docket: T-924-98
BETWEEN:
WILLIAM R.,
Applicant,
- and -
THE HONOURABLE A. ANNE McLELLAN,
MINISTER OF JUSTICE AND
ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] On this application for judicial review of a decision by the Honourable A. Anne McLellan, Minister of Justice of Canada 1, wherein she dismissed the Applicant"s plea for mercy to have her intervene with respect to his criminal convictions pursuant to s.690 of the Criminal Code 2, the issue is whether , in making the decision, she breached the duty of fairness owed to the Applicant.
A. Factual background
[1] On 17 September 1987, the Applicant was charged with having sexually assaulted his step-daughter, T., and his step-daughter"s friend, S.F., between the dates of 1 February 1987 and 1 July 1987.
[2] On 1 October 1987, a medical examination of T. was conducted by Dr. Oosterhuis. The results of this examination were not placed before the jury at the applicant"s trial.
[3] On 27 September 1988, the Applicant was convicted of the sexual assaults, and was subsequently sentenced to three years imprisonment. On 25 November 1988, the Applicant filed a Notice of Appeal citing judicial errors. On 13 December 1988, a written medical report providing details of the examination conducted on T. on 1 October 1987 was prepared by Dr. Oosterhuis and delivered to the Applicant"s counsel on 19 December 1988.
[4] In July 1989, the Applicant"s counsel submitted the appeal factum citing judicial error during the trial, but without any reference to "fresh evidence". On 13 September 1990, the appeal was heard and subsequently dismissed by the Alberta Court of Appeal. In a letter dated 3 April 1990, the Applicant"s counsel sent him a copy of the written medical report that had been prepared by Dr. Oosterhuis. Subsequently, on the basis that the contents of the medical report might have had an effect on the outcome of his trial were they before the jury, the Applicant complained to the Law Society of Alberta regarding the conduct of the Crown prosecutor, his own counsel, and the judge presiding at the trial for failing to procure or disclose the medical report. This complaint was dismissed.
[5] On 19 September 1995, the Applicant submitted an initial application for mercy under s.690 to the Minister which was later supported by detailed information and argument concerning the history of the case.
B.Section 690 and the duty on the Minister
[6] Section 690 reads as follows:
| s. 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. |
[7] The duty of fairness owed to the Applicant under s.690 has been decided by Rothstein J. in Thatcher v. Canada [1997] 1 C.F. 289 , and I agree with his opinion stated at 297 as follows:
Section 690 of the Criminal Code codifies and delegates to the Minister of Justice the discretion of the sovereign in respect of one aspect of the royal prerogative of mercy (see Wilson and The Queen, Re (1987), 35 C.C.C. (3d) 316 (Man.C.A.), at page 323, per Monnin C.J.M.). The nature of this type of proceeding is outlined by Lord Diplock in de Freitas v. Benny, [1976] A.C. 239 (P.C.), at page 247:
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 manner 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 by Rothstein J.]
| 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. |
| 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. |
| Having regard to the nature of proceedings under section 690 and the consequences to the individual, I am of the view that the content of the Minister's duty of fairness under section 690 is less than that applicable to judicial proceedings. In 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. The convicted person should have a reasonable opportunity to state his case. However, proceedings under section 690 do not constitute an appeal on the merits. There is no general right of disclosure to everything considered by the Minister or his officials. |
| Serious applications will usually arise from some new matter indicating it is likely that there has been a miscarriage of justice. To the extent that the Minister's investigation discovers new relevant information, the convicted person should have adequate disclosure of that new information. The manner in which the Minister discloses the new relevant information - be it actual documents or only the gist of the information obtained by the Minister - will depend on the circumstances of each case, having regard to the right of a convicted person to have a reasonable opportunity to state his case. |
Exceptionally, as a result of new information that is substantial and would provide a reasonable basis for a finding of miscarriage of justice, the Minister may find it necessary to consider material in police or prosecution files. In such a case, the material, or at least the gist of the material the Minister or his officials review, if not already known by the applicant would have to be disclosed to him. But there is no general obligation on the Minister to review police and prosecution files or to disclose those files merely because of a request by a convicted person. [Emphasis added]
[8] In the present case, since at the time of making the s.690 application the Applicant had served his full sentence and had been released from custody, the s.7 Charter 3 right engaged is with respect to infringement on the Applicant"s liberty, being the criminal convictions only. The Minister accepted the application for consideration on this basis. Since there is no issue that the Minister acted in good faith, the only issue is whether a meaningful review was conducted, in which the Applicant was provided with a reasonable opportunity to state his case.
1. Was a meaningful review conducted?
[9] In her decision, the Minister stated that the exercise of her discretion was informed by certain governing principles outlined in the decision of her predecessor with respect to the application in Thatcher referred to above. These principles are as follows:
| 1. The remedy provided in section 690 is an extraordinary remedy. It is used to ensure that no judicial error was committed where all conventional avenues of appeal have been exhausted. |
| 2. Section 690 does not exist to allow the Minister simply to substitute a ministerial opinion for a jury verdict or a decision on appeal. The mere fact that I may have a different opinion concerning the evidence submitted to the court does not empower me, under section 690, to grant a remedy. |
| 3. As well, the procedure established by section 690 is not intended to create a fourth level of appeal. It will generally be necessary to do more than repeat the same evidence and argument presented at trial and before the appellate courts. Applicants who apply under section 690 and base their arguments solely on alleged lacunae in the evidence or points of law that have already been submitted to the court and examined may expect that their applications will be denied. |
| 4. Applications submitted under section 690 should generally be based on significant new issues that were not considered by the courts or that arose after the conventional avenues of appeal had been exhausted. |
| 5. When the applicant is able to present "new points", the Minister will evaluate them to determine their reliability. For example, if new evidence is presented, it will be examined so that it may be determined whether it is reasonably trustworthy, having regard to all of the circumstances. Such "new points" will also be examined so that it may be determined whether they are relevant to the question of guilt. The Minister must further determine the overall effect of the "new points" when they are considered together with the evidence presented at trial. On this point, one of the important questions to ask will be: "Is there new evidence relevant to the question of guilt which is reasonably trustworthy, and which, when taken together with the evidence presented at trial, might reasonably have had an impact on the verdict?" |
| 6. Lastly, an applicant who applies under section 690 is not required, in order to succeed, to satisfy the Minister of the accused's innocence or to prove beyond a doubt that there was in fact judicial error. Rather, the applicant must establish, having regard to the analysis set out above, that there is evidence from which it could be concluded that there was probably judicial error. 4 |
[10] Thus, as stated in principles four and five, generally the Minister will not consider exercising a positive discretion unless the hurdle of establishing "new points" is first crossed. To cross this hurdle, the outline of the Applicant"s principal argument is this: the exact results of the medical examination, and the opinion of the examining doctor based thereon, were not known until after the trial; had the results and opinion been known before the trial, and considered by the jury, the result would have been different; and the blame for the results and opinion not being known before the trial rests with the Crown counsel conducting the trial, all to the prejudice of the Applicant.
[11] With respect to this argument, in her decision, the Minister said this:
| I observe that the report on the October 1, 1987 examination of T. was prepared on December 13, 1988, and thus it came into existence after the trial but not before the appeal. The Crown could not be faulted for failing to disclose what it did not have or what was not even in existence at trial. The Defence could have requested a report, given its knowledge of the fact of the examination, and its results, but declined to do so for tactical reasons. |
The medical report of T.'s examination was prepared in response to the request from the Applicant's trial counsel. The Applicant's counsel had the report before the Applicant's appeal was heard. However, the report was not the subject of any ground of appeal, and was not advanced as 'fresh evidence' on appeal. The Applicant's trial counsel, in his correspondence to his client, acknowledged that he was aware that the defence could have diligently pursued the production of the report in time for trial but chose not to do so. Presumably this course was chosen for the tactical reasons noted above. The Applicant knew before trial that T. had undergone a medical examination and knew the results of it. Since the report was only prepared by the doctor at the request of the Applicant's counsel when the trial had ended, it cannot be said that the Applicant was unfairly prejudiced in these circumstances. 5
[12] From these observations, the Minister concluded as follows:
| At trial, the jury convicted the Applicant on offences involving both complainants after weighing the evidence and deciding issues of credibility. The jury heard from each complainant, whose narrative of the event giving rise to the charges was mutually corroborative, even though there were differences in testimony concerning the acts of vaginal penetration. The Applicant testified on his own behalf. However, the jury, by convicting him, was convinced beyond a reasonable doubt of his guilt, despite the lack of any physical evidence of sexual assault on either of the two complainants. |
| The medical report is not fresh evidence, or "a new matter of significance" that has come to light after conventional avenues of appeal had been exhausted. The fact of the examination and its results were known to the Applicant and his counsel before trial, through information provided by the Applicant's wife. I am of the view that the contents of the medical report, when taken with the other evidence adduced at trial, could not reasonably be expected to have affected the verdict. 6 |
[13] Therefore, the Minister concluded that the responsibility for the medical evidence question was squarely within the control of the Applicant throughout the judicial proceedings, and, thus, found that the "new points" hurdle was not crossed by the Applicant in his s.690 application. This is a conclusion that the Minister is certainly entitled to reach. I find that, given the detailed analysis conducted by the Minister to reach this conclusion, a most meaningful review was conducted.
2. Was the Applicant provided with a reasonable opportunity to state his case?
[14] The Applicant argues that the Minister"s own published procedure was not followed in considering his application, and, as a result, the Minister breached the duty of fairness owed to him.
[15] The procedure established by the Minister has essentially five stages: first, the assessment of the application for new and significant information; second, if the first stage is passed, investigating the new information provided and gathering other new information as required; third, upon the investigation being completed, preparing an investigation brief summarizing the information obtained as a result; fourth, sending the investigation brief to the Applicant for review and comment; and fifth, upon receiving any comments from the Applicant, placing the matter before the Minister for decision.
[16] In the present case, the Applicant argues that, since he did not receive an investigation brief, and was not allowed further comment before the Minister made her decision, that the Minister breached the duty of fairness owed to him. In response, the Minister says that, since, on the material filed by the Applicant, he did not pass the first stage, no investigation was conducted, and, therefore, no further comment was sought.
[17] I find that it is implicit in the procedures established by the Minister that further comment is sought from an Applicant only if the investigative stage is reached and engaged. Since this is not the situation in the present case, I find that the Applicant"s argument is unsustainable, and, indeed, he received a most reasonable opportunity to state his case.
[18] Accordingly, this application is dismissed. I make no award as to costs.
"Douglas R. Campbell"
Judge
TORONTO, Ontario
June 29, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-924-98
| STYLE OF CAUSE: WILLIAM R., |
| - and - |
| THE HONOURABLE A. ANNE McLELLAN, MINISTER OF JUSTICE AND ATTORNEY GENERAL OF CANADA, |
DATE OF HEARING: TUESDAY, JUNE 22, 1999
PLACE OF HEARING: EDMONTON, ALBERTA
REASONS FOR ORDER BY: CAMPBELL J.
DATED: TUESDAY, JUNE 29, 1999
APPEARANCES: Mr. Marvin Bloos
| For the Applicant |
| Mr. Kirk Lambrecht |
| For the Respondent |
| SOLICITORS OF RECORD: Beresh DePoe Cunningham |
| 300 McClean Block |
| 10110, 107 Street |
| Edmonton, Alberta |
| T5J 1J4 |
| For the Applicant |
| Morris Rosenberg |
| Deputy Attorney General |
| of Canada |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 19990629
Docket: T-924-98
Between:
| WILLIAM R., |
Applicant
| - and - |
THE HONOURABLE A. ANNE McLELLAN,
MINISTER OF JUSTICE AND
ATTORNEY GENERAL OF CANADA,
Respondent
REASONS FOR ORDER AND ORDER
__________________
1 Hereafter referred to as "the Minister".
2 R.S.C., 1985, c. C-46.
3 Section 7 of the Charter of Rights and Freedoms reads: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".
4 Applicant"s Record, p.681-682.
5 Ibid., p.686.
6 Ibid., p.687.