Docket:
T-1790-10
Citation:
2014 FC 338
Ottawa, Ontario, April 7, 2014
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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DEVERYN DONALD ALEXANDER ROSS
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Applicant
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and
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THE MINISTER OF JUSTICE
AND
THE ATTORNEY GENERAL OF CANADA
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
In a decision rendered on September 29, 2010,
the Minister of Justice refused to grant the applicant a remedy under section
696.1 of the Criminal Code, RSC 1985, c C-42 [the Code] regarding two
convictions for fraud imposed in 1995 and upheld on appeal in 1996. The
applicant seeks judicial review of the Minister’s decision under s 18(1) of the
Federal Courts Act, RSC 1985, c F-7. These are my reasons for granting
the application and returning the matter to the Minister for reconsideration.
I.
BACKGROUND:
[2]
The facts of the events leading to the
applicant’s fraud convictions are complex and still disputed. It is not
necessary to review them in detail for the purpose of this decision. The brief
summary below is offered solely to provide context to the discussion of the
issues that arise on this application. Nothing in these reasons should be taken
as a comment on Mr. Ross’s guilt or innocence as determined at his trial before
the Manitoba Court of Queen’s Bench and reviewed on appeal before the Manitoba
Court of Appeal.
[3]
In 1990, the applicant was a lawyer practising
in Brandon, Manitoba. He joined two of his clients, Mr. William Knight and Mr.
Sheldon Gray, mutual fund salesmen, to launch a Perkins Family Restaurant
franchise project. They agreed to sell “units”,
at a cost of $25,000 each, in a “Perkins Limited
Partnership” (PLP). Most of the investors who bought into the project
were elderly and unsophisticated. They were told that their investments were
guaranteed and that they would receive a nine per cent return. Messrs. Knight
and Gray supplied Mr. Ross with signed forms for each investor purporting to
show that the investors had the experience to evaluate their investment and had
been encouraged to seek independent legal advice. These proved to be false
statements.
[4]
Thirty-four units were sold during the spring
and summer of 1990, raising $850,000. Messrs. Ross, Knight, and Gray assigned
twelve units in the project to themselves, four each, at no cost, paid for out
of the investors’ capital. Each of them resold two units to investors in 1990.
Mr. Ross resold two more units in spring 1991. He accepted $25,000 for each of
these units. One had been in his wife’s name and the other had been in Mr.
Gray’s wife’s name. At his trial, the court found that Mr. Ross had told Mr.
Gray that he sold this second unit at a discount, for $15,000 and had kept the
remaining $10,000 of the actual sale price. The purchasing investor, a Mr.
Simpson, testified that he had believed he was buying the units from another
investor, not from the project organizers.
[5]
In late July 1990, it became apparent that the
budget to build and equip the restaurant was short by at least $300,000. Mr.
Ross set up a second limited partnership in a numbered company, 2613981 (261),
which obtained a bank loan from CIBC for another $400,000 in return for a
pledge of all of PLP’s assets. Mr. Ross transferred PLP’s assets into 261. He
did not advise the investors of this. His counsel argued at trial that Mr.
Ross had relied on Messrs. Knight and Gray to keep the investors informed
throughout but the court did not accept this argument.
[6]
The project began to fall apart in November
1991. The popularity of the restaurant was less than expected and its revenues
declined. A rental payment for the building was missed and the loan was
recalled by CIBC. The 261 partnership was petitioned into bankruptcy by the
bank in June 1992. The remaining assets were sold by the receiver for $185,000
and distribution of the proceeds was contested between the bank and the
investors.
[7]
The Manitoba Securities Commission (MSC)
launched an inquiry. Civil proceedings were initiated against Messrs. Knight
and Gray. In September 1994 they entered guilty pleas to charges under the Manitoba Securities Act. Following a criminal investigation, Mr. Ross was charged
with nine counts of fraud. His trial took place in April-May 1995 before a
judge with no jury. The prosecution called 39 witnesses during the six week
trial; the defence called none. The Crown alleged: that Mr. Ross had stripped
the partnership’s assets by allowing the sale of the unfunded assigned units
(six counts of fraud); that he had sold two units to Mr. Simpson under false
pretences; that he had not disclosed the second partnership, the bank loan, and
the transfer of PLP’s assets into 261 to Mr. Simpson (the seventh count); that
he had failed to disclose the budget shortfall, the new bank loan, and the
transfer of PLP’s assets to the investors in PLP (the eighth count); and that
he had defrauded the Brandon CIBC (the ninth count).
[8]
Mr. Ross was acquitted on the first six
charges. The trial judge held that he might have been negligent, selfish, and
cynical to arrange to pocket such a large share of the proceeds from the
venture, but this did not constitute fraud. He was convicted on the seventh
and eighth charges for concealing information from the investors. He was
acquitted on the final charge, as a letter from Mr. Ross to CIBC, which a bank
manager conceded he may have received, contained an acknowledgment of the
relationship between PLP and 261.
[9]
Mr. Ross’s appeal was argued in December 1995
and dismissed on January 9, 1996. The Manitoba Court of Appeal found that
there was no doubt that Mr. Ross had been the main person involved in the
planning of the entire scheme. He was sentenced to eighteen months in custody
and was disbarred from the Law Society of Manitoba on April 15, 1996. He did
not apply for leave to appeal to the Supreme Court of Canada.
[10]
Following his release, Mr. Ross set out to
collect evidence to challenge his convictions with the assistance of a private
investigator who re-interviewed some of the trial witnesses. A newspaper
reporter also took an interest in the case and made inquiries.
[11]
On May 26, 2004, Mr. Ross filed an application
under s 696.1 of the Code for ministerial review of the two convictions. He
put forward as grounds for that application the non-disclosure of significant
evidence at trial, including evidence that had been available to the Crown in
1995, and new evidence allegedly discrediting certain witness testimony. Two
key items of undisclosed evidence were detailed admissions of guilt by Messrs.
Knight and Gray to the Manitoba Securities Commission (the Settlement Agreement)
and a pre-trial agreement struck between Messrs. Knight and Gray and the
investors in relation to an action against Mr. Ross for professional
malpractice (the Assignment Agreement). Messrs. Knight and Gray agreed to
assign any proceeds received from the Professional Liability Claims Fund of the
Law Society of Manitoba to the investors to offset their losses. As well, one
investor had been repaid by Mr. Knight before the trial. In addition, Mr.
Simpson had, during telephone interviews in the years following the trial with
the journalist, Mr. Dan Lett, and the private investigator, Mr. Brian Savage,
made statements which allegedly contradicted evidence he gave at the trial
concerning the ownership of the additional units he purchased from the applicant.
[12]
Mr. Ross and his counsel at the time of the
trial, Mr. Timothy Killeen, gave evidence in support of the application that
they would have conducted the defence strategy very differently had this
information been known to them. Mr. Ross would have testified in his own
defence and counsel would have attacked the credibility of the witnesses more
aggressively. Instead, Mr Killeen stated, he had deliberately avoided
challenging the evidence of the elderly investors for fear of being seen to be
too harsh on the victims. Moreover, had the information been in his possession,
he would probably have chosen to contest the version of events put forward by
Messrs. Knight, Gray and Simpson by calling Mr. Ross.
[13]
By the time the review application was
submitted, the Manitoba prosecutor at the 1995 trial, Mr. Paul Jensen, had
become a senior counsel in the Federal Prosecution Service. The Federal
Prosecution Service (FPS) was the predecessor to the Public Prosecution Service
of Canada (PPSC) which was created on December 12, 2006. In 2004, the FPS was
part of the Department of Justice, as was the Criminal Conviction Review Group
(CCRG) which supports the Minister in the exercise of his review jurisdiction.
While the FPS reported through departmental channels to the Attorney General of
Canada, that office is also held by the Minister of Justice. Because of
concerns over a possible conflict of interest as a result of this, a senior
member of the Alberta criminal defence bar, Mr. Alex Pringle, Q.C., was
delegated to conduct the investigation and to provide advice to the Minister.
[14]
Mr. Pringle examined the files of the Manitoba
Securities Commission, Manitoba Justice, the Brandon Police Service and the
RCMP, conducted interviews under oath with witnesses and assembled an extensive
documentary record of what had been a fairly complex fraud investigation and
prosecution.
[15]
On May 15, 2008, Mr. Pringle provided a document
entitled “Investigative Report” (the First
Investigative Report) to counsel for the applicant and to the Manitoba Department
of Justice. Extensive written representations were submitted to Mr. Pringle by
the applicant and by Manitoba Justice in response to the First Investigative
Report. Mr. Jensen drafted the response to the First Investigative Report on
behalf of Manitoba Justice, although he was by then no longer an employee of
that Department.
[16]
Mr. Pringle provided his final findings and
recommendations to the Minister on June 22, 2009 in a document entitled “Final
Investigative Report”. In that report Pringle concluded that there was “a reasonable basis upon which the conclusion could be reached
that there was a ‘reasonable possibility’ that [Mr.] Ross would have testified
if the Settlement Agreements had been made available to Mr. Killeen”.
Further Mr. Pringle concluded that “there is a
‘reasonable possibility’ that Mr. Killeen would have changed his approach in
cross-examining the investors” if the defence had received disclosure
of the Assignment Agreement. In drawing those conclusions, Mr. Pringle conveyed
his understanding of the relevant jurisprudence pertaining to fair trial
rights.
[17]
The Final Investigative Report was not disclosed
to the applicant prior to these proceedings despite requests for it from the
applicant’s counsel. On September 29, 2010, the Minister denied the request for
relief from the convictions.
[18]
Mr. Ross filed for judicial review of the
ministerial decision on October 28, 2010. He put forward three grounds for
review. The first was that the Minister was incorrect in law in concluding
that although the non-disclosures and witness credibility issues were
significant, the determining factor was the speculated outcome of the trial in
the event that disclosure had been properly made. The second was that there
was an unacceptable perception of bias stemming from the participation in the
review process by Mr. Jensen, the Crown prosecutor at Mr. Ross’s trial. The
third was that there was procedural unfairness due to the Minister’s
non-disclosure of the final version of the investigation report prior to making
his decision.
II.
DECISION UNDER REVIEW:
[19]
In his decision, the Minister stated that he was
not satisfied that there was a reasonable basis to conclude that a miscarriage
of justice had likely occurred. He reviewed the application, the investigation
reports, all of the information submitted on behalf of the applicant, the trial
judge’s reasons for decision, and the appeal decision. The Minister then
examined the basis for the convictions. He concluded that despite the doubt
cast upon some of the witness testimony, this did not necessarily invalidate
the factual findings at trial and was not so critical to the convictions that a
miscarriage of justice likely occurred. The remaining evidence sufficed to
sustain the convictions, in the Minister’s view.
[20]
As for the non-disclosures, the Minister applied the
two-part Dixon/Taillefer jurisprudential test (R v Dixon, [1998]
1 SCR 244 [Dixon]; R v Taillefer, 2003 SCC 70 [Taillefer])
by which the decision maker must: (1) determine whether the information had any
impact on the verdict, and (2) determine whether there was an impact on the
conduct of the defence and whether the accused was allowed to make full answer
and defence. The Minister disagreed with Mr. Pringle’s ultimate finding that
there was a reasonable possibility that Mr. Ross would have conducted his
defence differently, preferring to take the view that there was no impact from
the non-disclosures on the conduct of the defence. This was the position
argued by Mr. Jensen. The Minister also adopted the Manitoba Court of Appeal’s
view that Mr. Ross was the controlling mind in the investment scheme and that a
different defence would not have resulted in a different trial outcome.
III.
ISSUES:
[21]
The relevant sections of the Code and the
Regulations, Ministerial Review – Miscarriages of Justice, SOR/2002-416,
are set out in an Annex to these reasons.
[22]
At the outset of these proceedings, the
applicant sought production of the Final Investigative Report under Rule 317 of
the Federal Courts Rules. The respondent objected on the ground that it
contained solicitor-client privileged information. When the application came on
for hearing before this Court the applicant brought a motion for directions
under Rule 318 with respect to the Minister’s objection. I directed that the
respondent file the Final Investigative Report in a sealed form with written
representations in support of the asserted claim of privilege. Following
the hearing, the Minister elected to release the Final Investigative Report subject
to the redaction of paragraphs 556, 567 and 606-613. Having considered further
representations from the parties on the privilege issue, I upheld the
Minister’s decision to redact those paragraphs: Ross v Canada (Justice), 2013 FC 757.
[23]
The redacted paragraphs contain Mr. Pringle’s
recommendations to the Minister. While I have read them, they have not been
relied upon by the respondent and have formed no part of my decision.
[24]
The parties were given the opportunity to make
additional submissions upon the release of the redacted version of the Final
Investigative Report. In doing so, the applicant acknowledged that the key
factual findings in that report did not differ in any significant respect from
the findings in the First Investigative Report. He conceded that there was, as
a result, no natural justice requirement for the respondent to advise him of
any new factual allegations. In light of this, I consider that the issue of
procedural fairness arising from the non-production of the Final Investigative
Report is now moot and do not propose to deal with it further.
[25]
In their written representations and during the
course of the hearing, counsel for the applicant referred to documentary
evidence in the record and made submissions in support of their position that
Mr. Ross is factually innocent of the two counts of fraud of which he was
convicted. It is not the role of this court to make that determination and I do
not intend to address that evidence or those submissions. I note, however, that
the evidence may be admissible and relevant if the matter were to be referred
to the Manitoba Court of Appeal for further consideration or a new trial
ordered; two options open to the Minister of Justice in the exercise of his
discretion.
[26]
The remaining issues in this matter are as
follows:
1.
What are the applicable standards of review?
2.
Did the Minister err in law in his application
of the test for ministerial review?
3.
Did the involvement of Mr. Jensen in the review
process give rise to a reasonable apprehension of bias?
IV.
ANALYSIS:
A.
Standard of Review:
[27]
The Supreme Court of Canada established in Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir] at para
57, that “existing jurisprudence may be helpful in
identifying some of the questions that generally fall to be determined
according to the correctness standard”.
[28]
The standard of review for a Minister’s decision in an
application for review of a conviction has been determined to be reasonableness
(Daoulov v Canada (Attorney General), 2008 FC 544 aff’d 2009 FCA 12; Jolivet v Canada (Attorney
General), 2011 FC 806; Bilodeau v Canada (Attorney General), 2011 FC
886; Timm v Canada (Attorney General), 2012 FC 505).
[29]
The applicant argued at the outset of the proceedings
that the standard of review for the application of the legal test in a ministerial
review should be correctness, given that the question of what constitutes a “miscarriage of justice” is a question of law which is
of central importance to the legal system as a whole, transcending this
particular case. That argument was not accepted by Justice Manson in Walchuk
v Canada (Minister of Justice), 2013 FC 958, [2013] FCJ no 1030 at paras
20-21 relying upon Agraira v Canada (Minister of Public Safety and Emergency
Preparedness), 2013 SCC 36, [2013] SCJ no 36 at paras 48-50. I adopt Justice
Manson’s reasoning and conclude that I am unable to depart from the
jurisprudence establishing reasonableness as the standard.
[30]
Applying the reasonableness standard, the Court
must be concerned with the existence of justification, transparency and intelligibility
within the decision-making process. It is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law: Dunsmuir, above, at paras
47, 51, and 53. It is not for the Court to substitute its own assessment of the
evidence or the material provided for that of the Minister. For the reviewing
court, the issue is whether the decision, viewed as a whole in the context of
the record, is reasonable: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para 3.
[31]
The standard of review for questions of procedural
fairness, and specifically when a reasonable apprehension of bias is proposed,
has been found to be correctness in previous jurisprudence: Wheeldon v
Canada (Attorney General), 2013 FC 144 at para 20; Tremblay v Canada
(Attorney General), 2012 FC 1546 at para 16; Singh v Canada (MCI),
2013 FC 201 at para 36; Canadian Union of Postal Workers v Canada Post Corp,
2012 FC 975 at paras 20-21. Deference to the decision-maker is not at
issue: Ontario (Commissioner Provincial Police) v MacDonald, 2009
ONCA 805, 3 Admin LR (5th) 278 at para 37. The task for the Court
is to determine whether the process followed by the decision-maker satisfied
the level of fairness required in all of the circumstances: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para
43. In this instance, the question is whether Mr. Jensen’s involvement rendered
the process unfair.
B.
Did the Minister err in law in his application
of the test for ministerial review?
[32]
The underlying application to the Minister was
not an appeal as of right on the merits, but a request for an extraordinary
remedy. The powers given to the Minister under Part XXI.I of the Code derive
from the Royal Prerogative of Mercy and are highly discretionary: Bilodeau c
Canada (Ministre de la Justice), 2009 QCCA 746 at para 25; McArthur v Ontario (Attorney General), 2012 ONSC 5773 at para 54. In exercising that discretion
the Minister must act in good faith and conduct a meaningful review: Thatcher
v Canada (Attorney General), [1996] FCJ No 1261
(QL), [1997] 1 FC 289 at para 13.
[33]
Section 696.4 of the Code directs that the
decision shall be made taking into account “all matters
that the Minister considers relevant”. This preserves the Minister’s
discretion in a broad sense. However, the section also specifies certain
factors that must be considered relevant and which thereby circumscribe the
Minister’s discretion. These are:
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(a) whether the
application is supported by new matters of significance that were not
considered by the courts or previously considered by the Minister in an
application in relation to the same conviction or finding under Part XXIV;
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a) la question de savoir si la demande repose sur de nouvelles
questions importantes qui n’ont pas été étudiées par les tribunaux ou prises
en considération par le ministre dans une demande précédente concernant la
même condamnation ou la déclaration en vertu de la partie XXIV;
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(b) the
relevance and reliability of information that is presented in connection with
the application; and
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b) la
pertinence et la fiabilité des renseignements présentés relativement à la
demande;
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(c) the fact that an
application under this Part is not intended to serve as a further appeal and
any remedy available on such an application is an extraordinary remedy.
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c) le
fait que la demande présentée sous le régime de la présente partie ne doit
pas tenir lieu d’appel ultérieur et les mesures de redressement prévues sont
des recours extraordinaires.
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[34]
These factors are not exhaustive and the
Minister is free to take other factors into consideration so long as they are
relevant to the purpose of the Act: Yu v Canada (Minister of Public Safety
and Emergency Preparedness), 2011 FC 819 [Yu] at para 15. The
purpose of s 696.1 and its related provisions is to determine whether a
miscarriage of justice likely occurred as provided in s 696.3(3)(a).
[35]
The reference to “new
matters of significance that were not considered by the courts” at s 696.4(a)
reflects the language of guidelines adopted in 1994 to guide the Minister in
the exercise of his discretion under what was then section 690 of the Code.
Among other things not pertinent to this application, those guidelines stated:
4. Applications under section 690 should
ordinarily be based on new matters of significance that either were not
considered by the courts or that occurred or arise after the conventional
avenues of appeal had been exhausted.
5. Where the applicant is able to identify such
“new matters,” the Minister will assess them to determine their reliability.
For example, where fresh evidence is proffered, it will be examined to see
whether it is reasonably capable of belief, having regard to all of the
circumstances. Such “new matters” will also be examined to determine whether
they are relevant to the issue of guilt. The Minister will also have to
determine the overall effect of the “new matters” when they are taken together
with the evidence adduced at trial. In this regard, one of the important
questions will be: “is there new evidence relevant to the issue of guilt which is
reasonably capable of belief and which, taken together with the evidence
adduced at trial, could reasonably have affected the verdict?”
6. Finally, an applicant under section 690, in
order to succeed, need not convince the Minister of innocence or prove
conclusively that a miscarriage of justice has actually occurred. Rather, the
applicant will be expected to demonstrate, based on the analysis set forth,
that there is a basis to conclude that a miscarriage of justice likely
occurred.
Patricia Braiden & Joan Brockman, “Remedying
Wrongful Convictions Through Applications to the Minister of Justice under
Section 690 of the Criminal Code” (1999) 17 Windsor YB Access
Just 3 at 9.
[36]
These guidelines reflected principles that had
been developed by the appellate courts in dealing with claims of miscarriages
of justice and which had been incorporated within the conviction review process.
While not binding, the guidelines framed the exercise of the Minister’s
discretion and clearly influenced the legislation subsequently adopted by
Parliament: An Act to amend the Criminal Code and to amend other Acts,
SC 2002, c 13, s 71, amending the review provisions of the Code.
[37]
In this case, the question before the Minister
was whether, on the basis of the “new matters” put
forward in the investigation, there was a reasonable basis to conclude that a
miscarriage of justice likely occurred. In considering that question, the
Minister acknowledged that he was guided by the above referenced appellate
court principles including those developed subsequent to the formulation of the
1994 guidelines.
[38]
The “new matters”
in this case included both fresh evidence that was not available at the
applicant’s trial and evidence that was available but was not disclosed to the
applicant and his counsel by the Crown.
(1)
The “fresh evidence”
[39]
The test for the consideration of fresh evidence
in the appellate context was set out in Palmer v The Queen, [1979] SCJ
No 126 (QL), [1980] 1 S.C.R. 759 [Palmer]. The question to be asked is
whether the evidence, if found to be credible, is of such strength or probative
force that it might, taken with the other evidence adduced, have affected the
result? This is essentially the principle set out in guideline 5 above.
[40]
The fresh evidence here was of statements made
by the witness Mr. Simpson in post-conviction telephone calls with Mr. Savage
and Mr. Lett. That evidence, if available at trial, may have supported an
inference that Mr. Simpson was mistaken in his recollection with regard to what
he had been told by Mr. Ross regarding the origins of the two units he
purchased for $50,000. Mr. Pringle’s considered view, having interviewed both
Messrs. Ross and Simpson and having examined the evidence adduced at trial, was
that the new evidence would not have made a difference in the outcome had it
been available at the trial.
[41]
In his decision, the Minister responded to
several questions posed by Mr. Pringle regarding the likely effect of this new
evidence. He concluded that the new evidence did not invalidate the findings of
the trial court upheld by the Court of Appeal, that it did not provide a
reasonable basis to conclude that a miscarriage of justice likely occurred and
that there was sufficient remaining evidence to sustain the conviction
regardless of whether Simpson was mistaken about the representations made by
Mr. Ross as to the origins of the units being purchased.
[42]
These findings by the Minister are not seriously
challenged by the applicant in these proceedings. I am satisfied that they are
reasonable as they are justified, transparent and intelligible and defensible in respect of the facts and the law.
(2)
The “undisclosed evidence”
[43]
Other information submitted in support of the
application falls within the category of evidence under the control of the
Crown during the trial and not disclosed to the defence. In appellate
proceedings this category has been found to call for the application of a very
different test than that in Palmer, bearing not on what the trial
court would have made of the evidence but on whether the defence’s approach to
the case would have been affected had it been disclosed.
[44]
In Dixon, above, at para 36 the Supreme
Court set out a two-step analysis for determining whether the right to make
full answer and defence had been impaired by the non-disclosure of relevant
information. The first step was to consider whether the undisclosed information
affected the reliability of the conviction. If so, a new trial should be
ordered. But even if the undisclosed information did not in itself affect the
reliability of the result at trial it was necessary to consider its effect on
the overall fairness of the trial process. This would include the lines of
inquiry with witnesses and opportunities to collect additional evidence that
may have been available to the defence if the relevant information had been
disclosed.
[45]
The Supreme Court revisited this topic in Taillefer,
above, at paras 77-79, 99. The Court pointed out that the analysis called for
in Dixon was substantially different from that required by Palmer
which focused on the impact of fresh evidence on the results of the trial.
Moreover, the burden on the party seeking to have fresh evidence admitted under
Palmer is more stringent – a probable affect on the outcome – whereas
the test where non-disclosure was in issue under Dixon was that of a
reasonable possibility that the outcome or the fairness of the trial process
were affected. To measure the impact on the overall fairness of the trial, the
appellate court must consider what realistic opportunities to explore possible
uses of the undisclosed evidence were lost.
[46]
This was discussed in Taillefer at para
99:
99 As noted earlier, the method of analysis prescribed by Dixon consists of two separate steps. The first involves assessing the impact of
the fresh evidence on the result of the trial. The second requires that the
appellate court assess the impact of the fresh evidence on the overall fairness
of the trial. Thus the infringement of the accused’s right to make full answer
and defence may arise from a reasonable possibility that the failure to
disclose had an impact on the overall fairness of the trial even if it cannot
be concluded that the verdict might have been different. To measure the impact
of the non-disclosure on the overall fairness of the trial, it must be asked
what “realistic opportunities to explore possible uses of the
undisclosed information for purposes of investigation and gathering evidence
were lost” (Dixon, at paragraph 36 (emphasis in original)). It does not
seem, from the reasons of Beauregard J.A., that the impact of the fresh
evidence on the overall fairness of the trial was even examined. By reviewing
the items of fresh evidence one by one, and comparing them to the evidence
presented at trial, Beauregard J.A. assessed the potential impact of each piece
of evidence on the jury’s verdict, without inquiring into the possible
unrealistic uses of that evidence by the defence. In my opinion, had he done
that, his conclusions would have been very different. Several parts of the
fresh evidence could have been used by the defence at trial, whether to impeach
the credibility of certain witnesses and the credibility of the Crown’s theory
or to gather new evidence.
[47]
In his decision, the Minister noted that while
applications for ministerial review under s 696.1 were not at issue in
these cases he found the principles set out in Dixon and Taillefer
to be useful in exercising his discretion in this matter. In my view, the
Minister was bound not only to rely on the Supreme Court jurisprudence as a
guide to the exercise of his discretion but to apply the principles set out
therein within the framework of the authority granted him by Parliament under s
696.1. Having agreed that the applicable principles to determine the
application are those that have been set out by the courts in dealing with the
effects of non-disclosure at trial, it was not open to the Minister to apply
them erroneously.
[48]
Mr. Pringle had determined that a number of
documents and other information had not been disclosed to the applicant prior
to his trial. These included the Manitoba Securities Commission Settlement
Agreements and the Assignment Deal. He found that there was a reasonable basis
to conclude that the Crown did not meet its disclosure obligations under R v
Stinchcombe [1991] 3 S.C.R. 326 with respect to documentation that had been
collected in the parallel investigation conducted by the Manitoba Securities
Commission. Commission counsel knew about the Assignment Deal before Ross’s
criminal trial was scheduled to commence and the Settlement Agreements were
executed on the opening day of the trial. While it does not appear that Mr.
Jensen had possession of this information during the trial and that the
nondisclosure was likely inadvertent, Mr. Pringle was satisfied that due to the
extensive cooperation that occurred between the Commission investigation and
the criminal investigation conducted by the RCMP and Brandon Police Service,
there was a reasonable basis to conclude that the information should have been
disclosed to the applicant before his trial.
[49]
Mr. Pringle’s view was that this evidence, and
other information of lesser significance which he discusses in detail, would
not have changed the outcome if it had been available at trial. In particular,
he concluded that the Assignment Deal did not rebut or put into question any of
the factual underpinnings that were found to have been proven in order to
return convictions on counts seven and eight. Despite the fact that Mr.
Simpson was to recover at least part of his losses from the proceeds of the
deal he testified truthfully at the trial that he had recovered nothing as of
that date and was not asked whether he had any expectations of recovery.
Moreover, he and the other investors were credible when they testified that
they knew nothing about the transfer of assets worth $700,000 from PLP to 261
or that a bank loan secured by the assets had been taken out for $400,000.
[50]
Mr. Ross and his defence counsel had become
aware of the Settlement Agreements before his conviction appeal was argued
before the Manitoba Court of Appeal. Mr. Ross did not seek to have the
evidence of the Settlement Agreements introduced as fresh evidence on the
appeal because, as he acknowledged in his submissions to Mr. Pringle, the
evidence was not capable on its own of satisfying the fourth stage of the test
in Palmer.
[51]
Mr. Pringle similarly concluded, applying the
lesser onus of proof approved by the Supreme Court in Dixon, that
there was no reasonable possibility that the introduction of the Settlement
Agreements, or other evidence not disclosed to the applicant and his counsel,
would have affected the verdict. Counsel for the applicant conceded in his
response to the First Investigative Report that the non-disclosures would not
support a finding that the convictions were unreliable at the first stage of
the Dixon-Taillefer test. On this application, the applicant took the position
that the case comes down to the effect of the non-disclosures on the fairness
of the trial.
(3)
Affect of the non-disclosures on the fairness of
the trial
[52]
In his final report, Mr. Pringle considered what
impact the non-disclosed evidence had on the overall fairness of Mr. Ross’s
trial in the sense of whether the non-disclosure infringed his right to make
full answer and defence. It is clear from Mr. Pringle’s analysis that he was
not convinced that disclosure of the evidence would have made a difference in
the outcome. However, based on his understanding of the Dixon-Taillefer test,
he was obliged to consider not what would have happened but what might
have happened if the required disclosure had been made. This is consistent
with the explanation of the test by the Supreme Court in R v Illes, 2008
SCC 57 at paras 25 and 27:
25 With respect to the first prong of the Dixon test, it
is important to note that the issue here is not whether the undisclosed
evidence would have made a difference to the trial outcome, but rather whether it could have made a difference. More precisely, the issue the appellate
court must determine is whether there is a reasonable possibility that the
additional evidence could have created a reasonable doubt in the jury's mind.
See R. v.
Taillefer, [2003] 3 S.C.R. 307, 2003 SCC 70, at
para. 82.
. . .
27 With respect to the second prong of the Dixon test, an appellant need only establish a
reasonable possibility that the overall fairness of the trial process was
impaired. This burden can be discharged by showing, for example, that the
undisclosed evidence could have been used to impeach the credibility of a
prosecution witness (see Taillefer,
at para. 84), or could have assisted the defence in its pre-trial
investigations and preparations, or in its tactical decisions at trial (see R. v. Skinner, [1998] 1 S.C.R. 298, at para. 12 (Cory J., for
the Court)).
[53]
Similarly in R v Skinner, [1998] 1 SCR
298 at paras 8 -12, the Supreme Court concluded that the appellant would be
entitled to a new trial if he could show that the non-disclosure of a witness
statement affected the overall fairness of the trial process. In that matter,
there was a reasonable possibility that had the undisclosed statement been
produced by the Crown, it could have affected the defence’s decision not to
call evidence. The Court noted that on appeal, it is impossible to reconstruct
the trial process and determine exactly how the defence might have used the
undisclosed evidence.
[54]
The issue for Mr. Pringle was whether the non-disclosures
deprived the accused of certain evidence, information or investigative
resources that could have made a difference to Mr. Ross’s trial. In
considering this issue, Mr. Pringle took into account, in particular, the
evidence of the defence counsel, Mr. Killeen, that he would have significantly
altered his approach at trial if he had had disclosure of the Settlement
Agreements. Mr. Pringle agreed with Mr. Killeen that there were significant
differences between the evidence given by Messrs. Knight and Gray at the
preliminary inquiry and their admissions in the Settlement Agreements that
could have been put to them in cross-examination at the trial.
[55]
Having analysed the evidence that he had
collected against the second part of the Dixon-Taillefer test, Mr.
Pringle found that there was a “reasonsable possibility”
that Mr. Ross would have testified in his own defence and that his counsel may
have changed his approach in cross examining the investors if the Settlement
Agreements and the Assignment Deal had been disclosed at trial. The Minister
disagreed with these conclusions.
[56]
Mr. Pringle was the Minister’s delegate to
conduct the investigation under s 696.2(3) of the Code. It was open to the
Minister not to accept Mr. Pringle’s advice and views in making the ultimate
decision. However, in light of his departure from Mr. Pringle’s advice, to meet
the standard of reasonableness the Minister was under a heightened duty to
explain the reasons for his disagreement: Yu, above, at para 25, citing Singh
v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC
115 at paras 12-13; Grant v Canada (Minister of Public Safety and Emergency
Preparedness), 2010 FC 958, [2010] FCJ no 386; and Vatani v Canada
(Minister of Public Safety and Emergency Preparedness), 2011 FC 114 at
paras 8-9.
[57]
The Minister did not interview the witnesses or
read the volumes of documents assembled in the investigation. Within the broad
range of acceptable outcomes open to him in the exercise of his discretion, it
was not open to the Minister to err in his assessment of important material
facts.
[58]
As the applicant submits, Mr. Killeen, Mr.
Ross’s trial counsel, gave uncontradicted evidence that the undisclosed
Settlement Agreements would have fundamentally altered the dynamics of the
trial. Those agreements together with inconsistent preliminary inquiry
testimony from Messrs. Knight and Gray would have been sufficient not only to
discredit the two men, but to demonstrate that they had deceived Mr. Ross as
well as the investors. The undisclosed Assignment Deal would have provided a
basis to question the credibility of the investors in general and that of Mr.
Simpson in particular. These witnesses, Messrs. Knight and Gray and the
investors, were at the heart of the Crown’s case on counts 7 and 8 on which Mr.
Ross was convicted. The undisclosed documents also go directly to the pivotal
issue of whether Mr. Ross would have testified if he had known of them.
[59]
The Minister references a passage in Mr.
Killeen’s affidavit to support his conclusion that Mr. Ross would not have
testified because of the risks associated with cross-examination. He states:
As suggested by Mr. Killeen in his affidavit
filed in support of Mr. Ross’s application, there were many risks associated
with him testifying. Mr. Killeen correctly points out that Mr. Ross would have
had to testify on a large number of points on a nine count indictment and his
evidence would have contradicted that of many of the crown witnesses, including
Mr. Simpson, on a multitude of issues. He would face considerable and
undoubtedly difficult cross examination such that, on the recommendation of his
trial counsel, he chose not to testify as was his right.
[60]
However, this passage refers to the situation as
Mr. Killeen perceived it to be at the trial in 1995, before he learned of the
non-disclosed evidence, not what he thought later when he was aware of its
significance. Mr. Killeen’s evidence as a whole in his affidavit and viva
voce testimony under oath is that there was “every
possibility” that he would have advised Mr. Ross to testify had the
Settlement Agreements been disclosed.
[61]
To Mr. Killeen, disclosure of the agreements
would have “fundamentally altered the dynamics of the
trial”. It is clear, as Mr. Pringle found from his interviews, that Mr.
Ross was willing to testify and had, in fact, provided his counsel with a
detailed account of what his evidence would consist of even before the
preliminary inquiry.
[62]
In rejecting these findings, the Minister chose
to substitute his own analysis of the evidence for that of Mr. Pringle, who had
the opportunity to directly observe and evaluate the evidence of both Messrs.
Ross and Killeen in the interviews he conducted with them. In doing so, the
Minister seriously misinterpreted the full force of Mr. Killeen’s evidence.
Moreover, he failed to take account of Mr. Pringle’s assessment of Mr. Ross’s
own evidence on this point:
Certainly in my view Mr. Ross would have been
willing to testify in his own defence if Mr. Killeen felt that he should.
Although it was several years later when I examined Mr. Ross on two occasions
in Winnipeg, I did not get the sense that he was afraid or reluctant to provide
his account under oath as to what occurred in this matter - rather my
impression was quite the contrary.
[63]
I agree with the applicant that the Minister
erred in his consideration of the second aspect of the Dixon-Taillefer
test. The question to be decided was whether the applicant received a fair
trial as a result of the non-disclosure, not whether the outcome would have
been affected.
[64]
The Minister accepted Mr. Pringle’s view that
the disclosure of the information could have led to a different defence
approach. But he then erred in merging the Palmer and Dixon/Taillefer
tests in concluding that the result would not have changed and in deciding from
this that no miscarriage of justice was likely to have occurred. In doing so,
the Minister engaged in a largely speculative discussion of what effect
different approaches by the defence to the questioning of key witnesses would
have had on the outcome had the applicant been in a position to consider how to
make use of the undisclosed evidence.
[65]
The Minister’s disposition of the application is
consistent with the 1994 guidelines, in the sense that he focused his attention
on whether the undisclosed evidence “could reasonably
have affected the verdict”. However, it is not consistent with the
evolution of the appellate jurisprudence since then. While a request for a
remedy under s 696 is not an appellate proceeding, the Minister had accepted to
be guided by that jurisprudence but then erred in its application. The
interpretation of the legislative framework under which the Minister exercises
his discretion must not be static but evolve with the development of the
jurisprudence.
(4)
Did the involvement of Mr Jensen give rise to a
reasonable apprehension of bias?
[66]
A reasonable apprehension of bias may be raised where
an informed person, viewing the matter realistically and practically and having
thought the matter through, would think it more likely than not that the
decision maker would unconsciously or consciously decide the issue unfairly: Committee
for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369
at p 394.
[67]
As noted above, Mr. Jensen transferred from
Manitoba Justice in 2003 to become the senior federal prosecutor in Manitoba in the employ, at that time, of the FPS which was then within the Department of
Justice. Since 2006 criminal litigation on behalf of the Attorney General of
Canada is conducted by the PPSC. Under the Director of Public Prosecutions
Act, SC 2006, c 9, the Director of the PPSC exercises the authority of the
Attorney General in federal prosecutions. The Office of the Director is a
separate department and no longer part of the Department of Justice. It
remains open to the Attorney General to issue instructions to the Director and
to assume the conduct of any prosecution but such instructions must be
published in the Canada Gazette.
[68]
Concerns about Mr. Jensen’s involvement in this
matter as an employee of the FPS were drawn to the attention of the Department
of Justice when the s 696 application was first filed. As a result, the CCRG
agreed that the matter should be referred to outside counsel and Mr. Pringle
was appointed as the Minister’s delegate under s 696.2(3) of the Code to
conduct the investigation.
[69]
Mr. Jensen was interviewed under oath as a
witness by Mr. Pringle twice in April and May 2006. The interviews touched on
matters of fact and on Mr. Jensen’s views about core issues in the case, including
disclosure. His responses were relied upon by Mr. Pringle and incorporated in
the First Investigative Report.
[70]
Mr. Jensen drafted and signed “on behalf of Manitoba Justice” the 114-page response to
Mr. Pringle’s First Investigative Report. The decision to involve Mr. Jensen
in the preparation of Manitoba’s response was apparently made by the provincial
department on the grounds of economy. Mr. Ross’ counsel wrote to that
department to express concern at Mr. Jensen’s involvement on November 7, 2008.
The Manitoba Assistant Deputy Attorney General replied on December 3, 2008 that
“Manitoba Justice makes no apologies for this decision
[…] We will not burden the taxpayers of Manitoba with the expense of hiring
outside counsel who would just have to talk to Mr. Jensen in any even to learn
the file.”
[71]
Counsel for the applicant also wrote to Mr.
Pringle to express their concern and to register their objection to Mr.
Jensen’s involvement in the review process. In his final report, Mr. Pringle
noted the objection to Mr. Jensen’s participation. He agreed that it would have
been preferable for Manitoba Justice to have used other counsel to prepare the
written submissions but did not consider that it had any impact on his
independence in reviewing the application. The written submission provided on
behalf of Manitoba was simply argument and it was immaterial, in Mr. Pringle’s
view, who prepared that argument as he was interested in the substance not the
author. He gave it no greater weight by reason that it had been prepared by Mr.
Jensen.
[72]
The applicant submits that he was entitled to a
fair and impartial assessment of the issues raised in his application in the
response prepared by Manitoba Justice. Mr. Jensen was a witness in the review
process. His dual role, as witness and advocate, violated the rules of
professional conduct. The problem, in the applicant’s view, is not that his
conduct would cause Mr. Pringle to be biased but rather that the Minister had
to sit in judgment on questions of non-disclosure by his employee and the
submissions that he had provided and evidence given under oath. The personal
and professional interests of Mr. Jensen were implicated in the application to
the Minister. There is no indication in the Minister’s decision that he
addressed his mind to this concern.
[73]
It is not for this Court to determine whether
Mr. Jensen’s involvement as both witness and advocate violates Manitoba’s rules of professional conduct. I note, however, that while at Manitoba Justice,
Mr. Jensen had complained to his superior about harassment allegedly targeted
against him personally by Mr. Ross from 1995 to 2001. Moreover, the potential
conflict of interest arising from his employment with the FPS was sufficiently
apparent at the outset of the ministerial review that the CCRG thought it
necessary to retain Mr. Pringle’s services as delegate rather than to conduct
the investigation in-house. It is conceivable, as the applicant argues, that
another counsel, looking at the matter objectively on behalf of Manitoba Justice
without any of the history that Mr. Jensen brought to the file would have come
to different conclusions with respect to the issues raised on the application.
[74]
In the circumstances, I think it is clear that
Mr. Jensen should not have been involved in preparing Manitoba’s response to
the First Investigation Report despite his deep knowledge of the file.
[75]
To establish a reasonable apprehension of bias
on the part of the decision-maker stemming from a lack of impartiality on the
part of one or more participants in the process, it is generally considered
necessary to demonstrate that this had an influence on the decision maker. See
for example Lim v Association of Professional Engineers (Ontario),
(2011) 274 OAC 292 (Div Ct) at para 108 and Van Rassel v Canada (R.C.M.P.), [1987] 1 FC 47. In this instance, the relevant decision-maker is the
Minister, not Mr. Pringle.
[76]
It is arguable, as the applicant contends, that
the Minister’s conclusion that Mr. Ross would never have testified even if he
had received the disclosures prior to trial, rested on Mr. Jensen’s forceful
argument to that effect rather than on Mr. Pringle’s more thoughtful and
careful analysis. However, there is no explicit reference to the Manitoba response in the Minister’s decision or other clear indication that he had relied
on Mr. Jensen’s intervention.
[77]
The threshold for establishing bias or a
reasonable apprehension of bias is high. The grounds
for the finding must be serious and substantial: Wewaykum
Indian Band v Canada, [2003] 2 S.C.R. 259 at para 76. The presumption is that a decision maker will act
impartially: Zundel v Citron, [2000] 4 FC 225 (FCA), leave to appeal to
SCC refused, [2000] SCCA no 332.
[78]
In the absence of any clear demonstration that
the Minister relied on Mr. Jensen’s argument to the exclusion of the evidence
and representations in the record as a whole, I am unable to find that the
decision was tainted by bias or a reasonable apprehension of bias.
V.
CONCLUSION:
[79]
The exercise of the Minister’s discretion under
the framework established by Parliament in the Code for the review of criminal
convictions must evolve with the principles established by the jurisprudence of
the Supreme Court of Canada for dealing with criminal convictions in appellate
proceedings. I find that the Minister’s decision in this matter did not conform
to those principles as they had developed by 2010 in relation to the effect of
the undisclosed evidence on the fairness of the applicant’s trial.
[80]
Applying the standard of reasonableness I find
that the decision lacks justification, transparency and intelligibility and
does not fall within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law. Accordingly, the application will
be granted with costs in favour of the applicant, and the matter remitted to
the Minister for reconsideration.
[81]
I do not think it
appropriate for the Court to direct the Minister to grant a specific remedy
under s 696.3 of the Code, as requested by the applicant. Nor do I consider it
appropriate to specify a period of time within which the Minister is to render
a decision. That
responsibility rests with the Minister and not with the Court.
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