Date: 20100217
Docket: 09-T-60
Citation: 2010 FC
163
Montréal, Quebec, February 17,
2010
Present: The Honourable Mr. Justice Beaudry
BETWEEN:
MICHEL BILODEAU
Moving
Party
and
MINISTER OF JUSTICE
OF
CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is a motion by Michel Bilodeau (the moving
party) for an extension of time to file an application for judicial review to
quash the decision of the Minister of Justice dated November 28, 2007.
Facts and procedural
history
[2]
On December 23, 1971, the moving party was
convicted of non‑capital murder and sentenced to life imprisonment. On
February 21, 2001, he made an application for ministerial review to the
Minister of Justice under Part XXI.1 of the Criminal Code, R.S.C. 1985,
c. C‑46 (the Code) to have his criminal conviction reviewed. The
Code gives the Minister the power to review a conviction to determine whether a
miscarriage of justice has occurred. The Criminal Conviction Review Group (the
CCRG) is responsible for reviewing and investigating the applications, and
making recommendations to the Minister. The CCRG received the application for
review on May 2, 2001.
[3]
On November 17, 2005, in response to the
CCRG’s investigation reports, the moving party made submissions in support of
his application. Two years later, on November 28, 2007, the Minister
determined that there were no reasonable grounds for concluding that a
miscarriage of justice had occurred and dismissed the application for review.
[4]
On December 27, 2007, the moving party
filed a motion for a writ of certiorari in the Superior Court of Québec to
quash the Minister’s decision. The respondent then filed a motion to dismiss on
January 4, 2008. On March 18, 2008, the Superior Court granted the
motion to dismiss and declined jurisdiction (Bilodeau v. Canada (Minister of Justice), 2008 QCCS 1036, EYB 2008-131204). The moving party appealed that decision.
On April 21, 2009, the Court of Appeal of Québec confirmed that the
Federal Court alone has jurisdiction to hear disputes related to the Minister’s
decisions on conviction review applications (Bilodeau v. Canada (Minister of
Justice), 2009 QCCA 746, J.E. 2009-827). On October 8, 2009, the
Supreme Court of Canada dismissed the application for leave ([2009] S.C.C.A. No. 254).
On November 9, 2009, the moving party filed this motion.
Relevant
legislation
[5]
Federal Courts Act, R.S.C. 1985, c. F-7.
|
18.1 (1) An application for judicial
review may be made by the Attorney General of Canada or by anyone directly
affected by the matter in respect of which relief is sought.
(2) An application for judicial review in
respect of a decision or an order of a federal board, commission or other
tribunal shall be made within 30 days after the time the decision or order
was first communicated by the federal board, commission or other tribunal to
the office of the Deputy Attorney General of Canada or to the party directly
affected by it, or within any further time that a judge of the Federal Court
may fix or allow before or after the end of those 30 days.
|
18.1 (1) Une demande de contrôle
judiciaire peut être présentée par le procureur général du Canada ou par
quiconque est directement touché par l’objet de la demande.
(2) Les demandes de contrôle judiciaire
sont à présenter dans les trente jours qui suivent la première communication,
par l’office fédéral, de sa décision ou de son ordonnance au bureau du
sous-procureur général du Canada ou à la partie concernée, ou dans le délai
supplémentaire qu’un juge de la Cour fédérale peut, avant ou après
l’expiration de ces trente jours, fixer ou accorder.
|
Analysis
[6]
Given the importance of the issue, and the sheer
volume of the documents and case law to be produced, Justice de Montigny of
this Court ordered that the motion be heard in the presence of the parties. I
therefore had the benefit of hearing oral submissions before rendering this decision.
[7]
According to the case law, four factors are to
be considered in determining whether a motion for an extension of time must be
granted or dismissed: there must have been a continuing intention on the part
of the moving party to bring the application; the case must be arguable; there
must be a reasonable explanation for the delay; and the extension of time must
not cause any prejudice to the opposing party (Grewal v. Canada (Minister of
Employment and Immigration), [1985] 2 F.C. 263 (C.A.)). This test is
flexible and must be geared to ensure that justice is done. Accordingly, an
extension of time can still be granted even if one of the criteria is not satisfied
(Canada (Minister of
Human Resources Development) v. Hogervorst, 2007 FCA
41, [2007] F.C.J. No. 37 (QL) at para. 33).
Continuing intention
to challenge the decision
[8]
The moving party submits that it is clear from
the steps he took in the Superior Court, Court of Appeal of Québec and Supreme
Court of Canada that he has always intended to challenge the Minister’s
decision by applying for judicial review of the decision. I agree that the
facts of this case, in particular the Quebec court proceedings and the fact that the moving party has always
complied with the deadlines in those cases, show that there has always been a
continuing intention to file the application.
Arguable
case
[9]
The moving party contends that the entire
decision‑making process leading to the Minister’s refusal was tainted by
irregularities that violate the rules of natural justice and his rights under
the Canadian Charter of Rights and Freedoms, Part I of The Constitutional
Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
He also alleges that there were errors of law in the standard applied and
errors in the assessment of the evidence.
[10]
Without making any ruling on the merits of the decision,
I am of the opinion that the moving party may make Charter arguments and invoke
a breach of procedural fairness. It certainly cannot be said that “the merits
of [his] case are so slight that it should be dismissed at this stage” (Marshall
v. Canada, 2002 FCA 172, [2002] F.C.J. No. 669 (QL) at para. 24).
Reasonable
explanation for the delay
[11]
The moving party submits that the jurisdictional
question of the Superior Court of Québec is genuinely significant and has some
merit. He points out that he was within the time limit when he filed his motion
before the Superior Court and that he acted quickly following the Supreme Court
decision.
[12]
The respondent notes that the moving party has
been represented by counsel at all times. He submits that, despite the
unequivocal jurisdiction indicated in the Federal Courts Act, the moving
party chose to file an application before the Superior Court of Québec, without
knowing whether that court had jurisdiction to consider his application. He
also did not file an application for judicial review before the Federal Court
to preserve his rights. Such failure or neglect in itself cannot be a ground
for an extension of time.
[13]
It should be noted first that no similar case
had been ruled on prior to the decision in Bilodeau. Second, the decision
of the Court of Appeal of Québec in that case involves a significant dissenting
opinion. It is true that it would have been preferable for the moving party to
protect his rights before the Federal Court, but I do not think that it can be
said that he did not act with diligence.
[14]
The respondent rightly notes that a certain line
of cases establishes that clients must bear the consequences of their lawyers’
errors (see the summary of the lines of cases in Muhammed v. Canada (Minister of Citizenship and Immigration), 2003 FC 828, 237 F.T.R. 8). However, paragraph 21 of Muhammed
states that it is important to retain the objective of Grewal, that is,
that justice be done.
[15]
The Supreme Court, in Construction
Gilles Paquette Ltée v. Entreprises Végo Ltée, [1997] 2 S.C.R. 299 at para. 21, stated that “[the] party must not be deprived of his rights on
account of an error of counsel where it is possible to rectify the consequences
of such error without injustice to the opposing party”. Therefore, even if it
is accepted that the proceedings before the Superior Court and the Court of
Appeal resulted from an error by counsel for the moving party, I do not believe
that this is a determinative factor in this case.
[16]
Rather, I am of the opinion that the interests
of justice should prevail here.
Prejudice
[17]
A fact that favours the application, or at least
does not militate against it, is that no prejudice to the respondent results from
the grant of the extension (Grewal, page 279). Here, the respondent’s arguments
have not satisfied me that he would be prejudiced should the motion be granted.
ORDER
THE COURT ORDERS that the motion for an
extension of time be granted. The moving party shall serve and file his
application for judicial review within 30 days of the date of this order,
without costs.
“Michel Beaudry”
Certified true
translation
Tu-Quynh Trinh
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