Docket: T-729-13
Citation:
2015 FC 710
Ottawa, Ontario, June 5, 2015
PRESENT: The
Honourable Mr. Justice LeBlanc
|
BETWEEN:
|
|
THOMAS WINMILL
|
|
Applicant
|
|
and
|
|
CANADA
(MINISTER OF JUSTICE)
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
In the morning of Sunday September 22, 1991, the
Applicant, his son Robert Winmill, Robert’s wife at the time, Tina Winmill (now
Prevost), and two of Robert’s acquaintances, Christopher Cvetkovic and Brian
Brady, were driving to the farm property of an Applicant’s friend in Port
Colborne, Ontario. Mr. Brady was murdered en route and left in a ditch on a
side road. In the evening, Tina and Robert called the police. As a result of
the information they provided to the police, the Applicant and Mr. Cvetkovic
were arrested for Mr. Brady’s murder but the charges against Mr. Cvetkovic were
dropped a few hours later. The Applicant was tried.
[2]
On October 28, 1992, following a 17-day jury
trial, the Applicant was convicted of first degree murder and sentenced to life
imprisonment with no eligibility of parole for 25 years. His conviction and
sentence were confirmed by the Ontario Court of Appeal on January 28, 1999 (R.
v Winmill, 42 O.R. (3d) 582, [1999] OJ No. 213 (QL)). There was no appeal
to the Supreme Court of Canada.
[3]
On November 2, 2011, the Applicant, with the
assistance of the Innocence Project at Osgoode Hall Law School (the Innocence
Project), applied for Ministerial review of his conviction under section 696.1
of the Criminal Code, RSC, 1985, c C-46 (the Conviction Review
Application). He claimed that there was significant new evidence showing that
his son, Robert Winmill, has now confessed to the murder for which he stands
convicted.
[4]
As required by subsection 3(b) of the Regulations
Respecting Applications For Ministerial Review – Miscarriages of Justice,
SOR/2002-416 (the Regulations), the Minister of Justice (the Minister), through
the Criminal Conviction Review Group at the Department of Justice (CCRG),
conducted a preliminary assessment of the Conviction Review Application. On May
7, 2012, CCRG found that the said Application did not raise any new and
significant evidence that would provide a reasonable basis to conclude that a
miscarriage of justice likely occurred in his case. Therefore, it concluded
that it would not proceed to the second stage of the conviction review process
– the investigation.
[5]
In August 2012, the Innocence Project wrote to
CCRG claiming that a preliminary assessment would be incomplete in this case
without making some effort to determine, given her poor recollection of the
events, what the position of Tina Prevost (Tina) is with respect to Robert
Winmill’s claim that he is responsible for that murder. In particular, the
Innocence Project requested CCRG to compel Tina to testify under oath and allow
it to cross-examine her.
[6]
This request was dismissed on October 18, 2012.
On November 22, 2012, the Innocence Project asked CCRG to reconsider its
decision. The request for reconsideration was denied on January 16, 2013.
[7]
The Applicant seeks judicial review, under
section 18(1) of the Federal Courts Act, RSC 1985, c F-7, of the
Minister’s decision not to proceed to the second stage of the conviction review
process. He claims that the Minister breached the duty of fairness owed to him
by failing to conduct any meaningful investigation into the Conviction Review
Application and in particular, by failing to properly examine Tina.
[8]
For the reasons that follow, the Applicant’s judicial
review application is dismissed.
II.
Background
[9]
This summary of the facts is offered to provide
context to the discussion of the issues arising on this application for
judicial review. To the extent it concerns what led to the Applicant’s
conviction and the appeal before the Ontario Court of Appeal, this summary has
been taken from the judgement of the Court of Appeal.
A. The Conviction
(1)
The Crown’s Case
[10]
The Crown’s case was summarized as follows by
the Ontario Court of Appeal. For ease of reference, the Court of Appeal referred
to Robert Winmill, Tina Winmill and Mr. Cvetkovic as “Robert”,
“Tina”, and “Chris” respectively, and to the
victim, Brian Brady, as the “deceased”:
5 Early in
the morning of September 22, 1991, the deceased arrived at Robert and Tina's
apartment. Robert, Tina, Chris and the appellant were all present in the
apartment. Shortly after his arrival, the deceased began arguing with Robert
about the value Robert had obtained on the sale of property that the two of
them had stolen. The noise awakened the appellant and within a short time he became
involved in the argument.
6 Tempers quickly
cooled and Robert and the deceased left to commit more break and enters. At
dawn, they returned to the apartment with the proceeds of their night's work.
The appellant, Robert, Chris and the deceased stayed up drinking the alcohol
that they had stolen that night. Tina slept. At about 7:30 a.m. she was woken
up and told that they were all leaving to go to a farm of a friend to deliver a
stolen VCR. She showered and prepared to join the group on the trip to the
farm. She said that while she was in the bathroom the appellant came into the
bathroom and told her he was going to "do" Brian. I will refer to
Tina's evidence about her encounter with the appellant in the bathroom in more
detail shortly.
7 Chris
testified that before they left to go to the farm the appellant also told him
that the appellant was going to kill the deceased. The appellant made similar
comments to Robert. No one took the appellant's comments seriously at the time.
Within a short time Robert, Tina, Chris, the deceased and the appellant left
the apartment in Chris' car with the VCR loaded in the trunk. Robert drove. On
the way to the farm he turned off the road and travelled about a half a mile
along an unimproved road where he stopped the car. It was on that isolated
stretch of road that the deceased was stabbed and killed.
8 Robert, Tina and
Chris testified that after they turned onto the back road, the appellant asked
Robert to stop the car so that he could urinate. When the car stopped, the deceased
got out of the car. When the deceased finished urinating at the side of the
road, the appellant stabbed him twice in the abdomen with Chris' knife. He then
slit the deceased's throat.
9 The evidence of
Robert, Tina and Chris, all of whom testified that they saw the appellant stab
and kill the deceased, was central to the Crown's case. The Crown also relied
on what it claimed was an inculpatory statement made by the appellant following
his arrest. According to the arresting officers, upon being told that he was
being arrested for the murder of Brian Brady, the appellant stated, "At 9
o'clock yesterday morning, I was drunk and I couldn't even move." The
Crown alleged that this statement proved that the appellant knew the time of
the deceased's death, and it therefore contradicted the appellant's claim that
he was asleep in the car when the deceased was killed, and was therefore
unaware of the circumstances of the deceased's death.
(2)
The Applicant’s Defence
[11]
The Applicant’ defence was that he was sleeping
in the back of the car when Mr. Brady was killed and that, in any event, he was
physically incapable of committing the murder due to a broken pelvis he had
suffered in a car accident occurring on July 1, 1991.
[12]
The Applicant testified at trial that on Saturday
September 21, 1991, he was at the farm of his friends Earl and Sheila Cyopick
where he had moved temporarily, while recovering from his fractured pelvis. He
said that he was in bed, trying to sleep, when he was awakened by Robert
who suggested that he sleep at his and Tina’s apartment that night instead. The
idea was that he would also spend Sunday at the apartment and return to the
Cyopick farm on Sunday night. The Applicant accepted the invitation.
[13]
Once at Robert and Tina’s apartment, the
Applicant testified that he consumed two or three beers within a short time and
then went to sleep on the couch in a more or less sitting position as a result
of his injuries. He said that Mr. Brady arrived at Robert and Tina’s apartment
while he was asleep and that he was awakened when Mr. Brady and Robert got into
an argument about the fact Robert had sold property that they had stolen
together for too little. The Applicant said he intervened in the argument,
taking Robert's side. He also said that the tension went up a notch when Tina
got involved in the discussion and Mr. Brady responded to her in harsh words. The
situation eventually settled down.
[14]
The Ontario Court of Appeal made the following
account of the Applicant’s evidence on what ensued from that point in the evening
of September 21, 1991 up to the Monday morning (September 23) when he was
arrested by the police:
Robert and the deceased then left briefly to
go to a store. The appellant said at his request they brought him two chocolate
bars. When they returned those present shared some marijuana. Robert and the
deceased then asked Chris if they could use his car. They then left in Chris'
car to commit some break and enters in the Crystal Beach area. It was dawn when
they returned. (…).
15 Among the goods
stolen by Robert and the deceased was some liquor. The appellant took advantage
of the new liquor supply and drank southern comfort, rye, vodka, cognac and
beer. The others, apart from Tina, joined in. During this part of the morning,
Robert, the deceased and Chris in various ways displayed their personal knives.
Chris had to retrieve his knife from the car in order to participate in this display.
16 The
appellant stated that the group, other than Tina, who was sleeping, decided to
go to the Cyopick farm to deliver a recently stolen VCR to Darlene Drake, who
lived at the farm. (…) By the time the appellant left the apartment to go to
the Cyopick farm, he said that he was "pretty wobbly" due to the
alcohol he had consumed.
17 When it was
decided to leave the apartment and go to the Cyopick farm, Robert wakened Tina
so that she could get ready for the trip. When Tina was in the bathroom having
a shower, the appellant entered the bathroom to use the facilities and to
finish cleansing his abdominal wounds where pins had been inserted when he was
provided with a pelvic fixator following his car accident. The appellant
recalled being in the bathroom using the toilet when Tina was in the shower;
however, he denied telling Tina that he was going to kill the deceased. He testified
that while he and Tina were both in the bathroom there was no conversation.
18 The appellant
said that he "crutched" out to the car and sat in the right front
seat beside Robert, the driver. He almost immediately fell asleep. He awakened
to the sound of a dog barking at the side of the car. He immediately recognized
the Cyopicks' Rhodesian Ridgeback and understandably concluded he was at the
Cyopick farm, which was about a 30-minute drive from the apartment. Before the
appellant got out of the car, the others decided to leave. At this time, the deceased
was no longer present. Unknown to the appellant, who said he slept through the
entire trip from the apartment to the farm, the deceased had been killed on the
way from the apartment to the Cyopick farm. The appellant recalled that the
deceased was in the car when the group left the apartment. He did not notice
that he was not in the car when they arrived at the Cyopick farm.
19 As they
left the Cyopick farm, Robert wakened the appellant and asked him about a
bootlegger. He wanted to find a bootlegger to whom he might sell some of the
stolen liquor. At the appellant's direction, they stopped at the house of a
local retired bootlegger. The appellant went into the house and was given a
drink of rye. The others remained in the car. The appellant testified that he
did not try to sell the stolen liquor to this bootlegger because he did not
want his friend, the bootlegger, to be involved with stolen liquor. When the
occupants of the car became impatient, the appellant returned to the car.
20 Once the
appellant was back in the car, he said, he almost immediately fell asleep
again. He next woke up back at the Cyopick farm where he left the car to
urinate. He recalled that Darlene Drake helped him into his pyjamas and he said
that he then went to sleep. He slept until about 9:00 p.m. The appellant did
not recall being at the apartment or going from the apartment back to the farm.
21 The next
morning the police arrived and arrested the appellant for Brady's murder.
According to the appellant, in an interview shortly after his arrest he asked
the arresting officer, Detective Bruno, when the murder was supposed to have
taken place, and was told, "early yesterday morning." This was the
appellant's explanation for having said to the police officers, "At 9
o'clock yesterday morning, I was drunk and I couldn't even move."
[15]
The Applicant testified that he was unable to
walk without assistance of, first a walker, and then crutches, because of his
fractured pelvis. He admitted telling Mr. Brady the night before the murder that
if he didn't keep quiet, “[he] 'll stick [his] crutch
down his throat”, but denied the evidence of Robert, Tina and Chris that
he had killed him or even threatened to kill him before leaving the apartment
to go to the Cyopick farm.
[16]
It was also the Applicants’ defence that he did
not know what happened during the trip when Mr. Brady was murdered; that is during
the period extending from the time he, Robert, Tina, Chris and Mr. Brady left
the apartment to the time when they arrived at the Cyopick farm, a drive that
would normally take 30 minutes. He further argued that except recalling
getting out of the car at the bootleggers and going into the bootlegger's
house, he had no recollection of events from the time the group, minus Mr.
Brady, left the Cyopick farm until the group returned to the Cyopick farm later
in the day.
(3)
The Verdict
[17]
It was accepted at trial that the three main
Crown witnesses, Robert Winmill, Tina and Mr. Cvetkovic, were witnesses of unsavoury
character although, on the surface, Mr. Cvetkovic appeared less untrustworthy
than the other two as he had no criminal record, was steadily employed, was a
relatively recent acquaintance of the Winmills, barely knew the victim and had
no real motive to kill him or to help Robert or Tina.
[18]
As to the Applicant’s mobility at the time the
crime was committed, the evidence was conflicting; the three main Crown
witnesses testifying that they had seen the Applicant walk without the
assistance of crutches, while others, including the Cyopicks, saying that he
was walking only with crutches.
[19]
An orthopaedic surgeon who reviewed the
Applicant’s hospital medical records, testified that patients with a grade two
pelvic fracture, as the Applicant’s, should be ambulatory in 8 to 12 weeks. He
said that the Applicant could have been walking without the assistance of
crutches or a walker within 8 weeks following the surgery and opined that his
walking limitations were not structural in the sense that he would have been
capable of walking if he could withstand the attendant discomfort.
[20]
The jury found the Applicant guilty of first
degree murder.
B.
The Appeal to the Ontario Court of Appeal
(1)
The Grounds of Appeal
[21]
The Applicant advanced three grounds of appeal.
He submitted that the trial judge erred:
a) in failing to adequately caution the jury with respect to the
evidence of Robert Winmill, Tina and Mr. Cvetkovic and in failing to direct the
jury that the evidence of any one of these untrustworthy witnesses could not
provide support for the evidence of either of the other untrustworthy
witnesses;
b) in failing to properly alert the jury to the numerous inconsistencies
in the version of events advanced by these three witnesses and the objectively
demonstrable facts; and
c)
in admitting evidence that the Applicant had
previously worked as a butcher in a slaughterhouse.
[22]
The Court of Appeal rejected all three grounds
of appeal. It found that the trial judge had “bluntly
and unequivocally told the jury that Robert, Tina and Chris were unsavoury
witnesses and that the Crown's case depended on the jury accepting their
evidence”. It further found that the trial judge had “thoroughly, and in a balanced way, reviewed the evidence”
and that his charge was both fair and sufficient. It concluded that having had
the “enormous advantage of seeing and hearing all of
the witnesses, particularly the three witnesses aptly characterized as
unsavoury”, it was opened to the jury to accept the evidence of these three
witnesses to the exclusion of a reasonable doubt.
(2)
The Request to Admit Fresh Evidence
[23]
The Court of Appeal also dealt with a motion
from the Applicant for an order admitting fresh evidence. That evidence consisted
of an affidavit of Beverly Jane Bacon sworn on April 30, 1997, and of her
cross-examination on the affidavit. Ms. Bacon had not testified at trial.
[24]
Ms. Bacon's proposed fresh evidence concerned
statements allegedly made to her by Robert Windmill in September 1991, after
the Applicant was arrested and charged with Brian Brady's murder. In her
affidavit, she stated that Robert telephoned her on three occasions. On the
first two occasions, which occurred the same evening, she stated that Robert
called to tell her that the Applicant had been arrested and charged with that murder
and to ask her to contact the police to “get him out”
because the Applicant “didn't do it.” Robert
also told her, according to the affidavit, that Mr. Brady had had an affair
with Tina. Ms. Bacon stated that on the third occasion, which occurred the
next day, Robert told her about the murder. Ms. Bacon's affidavit sets out
this part of the telephone conversation as follows:
He [Robert] stated that when Brian got out
of the car to urinate, Chris held Brian while Tina stabbed him. Robert stated
that he had to finish the job and had removed the body from the road. Robert
told me that he had been wearing his father's jacket and shoes. He told me that
he had hidden a knife and clothes in a dumpster.
Robert further stated to me that Chris had
deposited the knife in a 45 gallon drum in the garage where he was employed.
Robert stated to me that he, Chris and Tina had gathered the clothes and thrown
them in a dumpster located one or two blocks from Robert's apartment.
[25]
Ms. Bacon stated that she then asked Robert why
he had not provided this information to the police and that Robert responded that
Tina had already contacted the police and that he thought the police would be
arriving at his apartment shortly. Ms. Bacon assumed at the time, according to
her affidavit, that Robert would tell the police that Tina had stabbed Mr.
Brady.
[26]
As a result of these telephone calls, Ms. Bacon
stated having contacted the police as well as the Applicant’s sister, Jacklynn
Lee, who agreed to find a lawyer for the Applicant. She further affirmed that
the day following the third telephone call, she received the visit of Detectives
Bruno and Matthews, who were in charge of the investigation into Mr. Brady’s
murder, and told them what Robert had said to her about the murder. Ms. Bacon
added that from September 1991 to the beginning of the Applicant’s trial in
October 1992, she received regular phone calls from Robert, who, according to
her, maintained that the Applicant had not committed the murder.
[27]
In response to Ms. Bacon’s affidavit, the Crown tendered
affidavits from these two detectives. According to the evidence, both detectives
denied having been told by Ms. Bacon that Robert had said that Tina had stabbed
Mr. Brady, as described in Ms. Bacon's affidavit. They further denied that she
had mentioned anything about the disposal of clothing. Both police officers
stated that the only reference to the disposal of anything was a reference to
the knife that had been used to stab the victim. Detective Matthews, who took
notes during the interview, stated in his affidavit that the majority of the
30-minute interview was spent talking about Robert's criminal activities in a particular
surrounding cottage area.
[28]
Applying the principles guiding the admission
of fresh evidence set out in the Supreme Court of Canada decision in R v
Palmer (1979), 50 C.C.C. (2d) 193 (SCC), the Court of Appeal concluded that
when exposed to the required scrutiny, Ms. Bacon’s proposed fresh evidence was
not reasonably capable of belief and if admitted, would not have likely affected
the verdict. In particular, it found that had Ms. Bacon told the two
detectives about Robert saying that Tina had stabbed the deceased, both Mr.
Bruno and Matthews would have recalled that significant part of the interview,
made a note of it, and done something about it. It further found it difficult
to believe that the Applicant’s sister, Ms. Lee, who had retained counsel for
her brother and who was called as a defence witness, would not have disclosed
the crucial revelations about the murder to the Applicant’s counsel at the time.
[29]
The Court of Appeal noted that Robert Winmill
had made a number of prior inconsistent statements about the murder. It wrote:
91 Moreover,
as I have said, Robert made a number of prior inconsistent statements about the
murder. The last of them was his admission to a defence investigator during the
trial that Chris killed the deceased. His alleged statements to Ms... Bacon
that Tina killed the deceased would have constituted one more entry on a long
list of Robert's prior inconsistent statements, assuming that, if asked, Robert
would have admitted telling Ms... Bacon that Tina stabbed the deceased
[30]
The Applicant’s motion to admit fresh evidence
was dismissed.
C.
The Conviction Review Application
[31]
As I indicated previously, the Conviction Review
Application was filed with the Minister, through CCRG, on November 2, 2011. In
support of his claim that a miscarriage of justice had occurred, the Applicant submitted
the following materials:
a) an affidavit from Robert Winmill, dated September 20, 2011, in which
he admits to killing Mr. Brady and framing the Applicant;
b) an affidavit from a private investigator, Mr. Edward Kaj, dated
September 2010, which states that Robert Winmill confessed to Mr. Brady’s
murder and provided a written statement to that effect;
c) the written statement, dated September 7, 2010, provided to Mr. Kaj
by Robert Winmill;
d) a letter from Robert Winmill to the Applicant, dated July 27, 2010,
in which Robert writes that he will finally tell the truth;
e) a DVD of a videotaped interview of Robert Winmill conducted by two
RCMP officers on August 24, 2010, and the transcript of the interview;
f) an affidavit of his brother, Thomas Winmill Jr., dated October 10,
2011, in which he states having heard Robert confess to the murder of Mr.
Brady;
g) an affidavit of Ms. Ginette Dugas, Robert Winmill’s childhood
friend, dated October 25, 2011, in which she states that Robert Winmill
confessed that he killed Mr. Brady in order to get back at the Applicant; and
h)
an affidavit from Ms. Bacon, above, dated
September 12, 2011, in which she states that Robert Winmill confessed to her
that he, Tina Winmill and Mr. Cvetkovic killed Mr. Brady.
[32]
In its letter dated May 7, 2012, informing the
Applicant that the Conviction Review Application would not proceed to the
investigation stage of the conviction review process, CCRG stated that the
issue to be determined was whether the Conviction Review Application raised “new matters of significance” that could have impacted
on the verdict had they been known to the judge and the jury at the time of the
Applicant’s trial. In this letter, CCRG defined the term “new matters of significance” as follows:
New matters of significance can include any
new information or evidence that was not previously considered by the courts or
by the Minister on a previous application. Information will be considered ‘new’
if it was not considered by the court during your trial or if you became aware
of it only after the court proceedings were over.
Information will be considered ‘significant’
if it is relevant, reasonably capable of belief, and could have affected the
verdict had t been presented at trial.
[33]
CCRG also explained that in determining whether
evidence is new and significant, it was guided by the principles used by the
courts in assessing fresh evidence, referring in particular to the criteria set
out in Palmer, above, as well as to the approach to the admission of
recantations as fresh evidence outlined by the Ontario Court of Appeal in Babinski
v The Queen (1999), 44 O.R. (3d) 695, 135 C.C.C. (3d) 1.
(1)
Robert’s affidavit, letter to the Applicant and
written statement to Mr. Kaj
[34]
CCRG first reviewed Robert’s affidavit, his letter
to the Applicant and written statement to Mr. Kaj, as well as Mr. Kaj’s
affidavit. According to these materials, Robert’s motivation for coming forth
at this point in time was because he no longer deserved the sacrifice the
Applicant had made for him since he had, himself, ended up in prison. As to
the alleged motive for killing Mr. Brady, it was that he had become angry with
the fact Mr. Brady had disrespected the Applicant during the argument occurring
the night before the murder.
[35]
CCRG concluded that this evidence of Robert
Winmill’s recantation was not reasonably capable of belief as:
a) He had a long history of making inconsistent statements and lying;
b) His current incarceration for unrelated convictions for which the
warrant expiry is August 2021 as well as the charges for accessory after the
fact in relation to two murders dating back to 2004 he was facing at the time of
his recantation and which could potentially result in a lengthier incarceration,
were factors that could not be ignored in determining the credibility of his
recent confession;
c) The evidence from the other two Crown eyewitnesses, Tina and Mr.
Cvetkovic, which implicated the Applicant, had not been recanted in one case (Mr.
Cvetkovic) and was reiterated in the other (Tina); and
d)
His alleged motive for the murder, which was to avenge
some minor disrespect directed at the Applicant, was very difficult to
reconcile with him blaming the murder on the Applicant within the hours that
followed the murder and testifying falsely against him at trial.
(2)
The remaining supporting materials
[36]
CCRG then reviewed the remaining supporting
materials to see if it could independently corroborate Robert’s evidence that
he had committed the murder.
[37]
It first examined the August 2010 RCMP
interview. It noted that this interview was held regarding Robert Winmill’s
involvement in the two murders for which he was charged as being an accessory
after the fact. During the interview, Robert informed the two RCMP officers conducting
the interview that he was in the process of taking responsibility for a murder
that happened in Ontario.
[38]
CCRG found that Robert’s admissions during the
interview “closely mirror what was said in his
affidavit and written statement to Mr. Kaj” and that, although the
interview corroborated the fact he had made similar admissions, it could not be
considered as independent corroboration that he had in fact committed the
murder.
[39]
It then reviewed the affidavit of Robert
Winmill’s brother, Thomas Winmill Jr. Again, CCRG found that this affidavit
did corroborate that Robert had stated he committed the murder but did not
independently corroborate Robert having committed the murder. This affidavit
spoke of Robert’s violent character and desire, since adolescence, to get
revenge on the Applicant for leaving his mother. Thomas Jr. also stated in the
affidavit that he had heard Robert, three days after Mr. Brady’s murder, tell
the police on the phone that he was the killer. However, CCRG noted that at
the time of the murder’s investigation and trial, Thomas Jr. never raised this
version of events with the police or with the Applicant’s counsel.
[40]
A similar finding was made regarding the
affidavit of Robert Winmill’s childhood friend, Ginette Dugas. In her
affidavit, Ms. Dugas recounted a conversation she had with Robert just a couple
of days following Mr. Brady’s murder. She said that Robert talked to her about
making sure the Applicant would spend his life in prison because of his abusive
behaviour towards his family by killing Mr. Brady as a mean to get back at the
Applicant. She further stated that she then contacted the police to reveal
what Robert had just said to her but never heard back from them. However, CCRG
noted that Ms. Dugas did nothing further after receiving no response from the
police despite the ongoing prosecution against the Applicant and it found it
difficult to believe that she would have remained silent if she had reasons to
believe that it was Robert, and not the Applicant, who had killed Mr. Brady. CCRG
further found that the version of events described in Ms. Dugas’ affidavit as
to what had happened at the crime scene was inconsistent with the evidence at
trial and that her description of Robert’s motive for killing Mr. Brady was completely
different from the motive put forward by Robert in his own affidavit, which is
that he killed Mr. Brady to avenge the Applicant for the disrespect Mr. Brady had
shown to him the night before the murder.
[41]
As for Ms. Bacon’s affidavit, CCRG ruled that
besides some discrepancies on peripheral matters, it closely mirrored her
earlier affidavit of April 30, 1997 that the Applicant had unsuccessfully
attempted to file fresh evidence before the Ontario Court of Appeal. As a
result, it gave no consideration to this affidavit as it could not be
considered to be “new” evidence for the purposes
of the Conviction Review Application. CCRG further concluded that this most
recent affidavit from Ms. Bacon was, again, only corroboration of Robert
Winmill’s confession, not a corroboration of him having committed the murder.
[42]
Lastly, CCRG noted that of the other persons present
at the scene of the crime – that is the Applicant, Tina and Mr. Cvetkovic -
none ever provided evidence corroborating Robert’s admissions: both Tina and Mr.
Cvetkovic, who is now deceased, testified against the Applicant at trial and
have not recanted their testimony. As for the Applicant himself, he does not
offer any corroboration of Robert’s latest version of events as he testified at
trial that he was asleep in the car during the trip from the apartment to the
Cyopick farm so that he could not recall what he was doing when the car was
pulled over and Mr. Brady was killed.
(3)
Tina’s interview with the Innocence Project
[43]
CCRG dealt specifically with the Innocence
Project’s concern about Tina’s recollection of events following a meeting the
Project had with her in June 2011. Although Tina then confirmed her testimony
at trial that the Applicant had stabbed and killed Mr. Brady, the Innocence
Project found that her recollection of events was poor and not consistent with
her testimony at trial. It also learned that Tina had been diagnosed with
post-traumatic stress disorder (PTSD) as a result of these events and of her
continuing fear of Robert.
[44]
As a result, attempts were made to have Tina see
a clinical psychologist with experience working with the police in using
hypnosis to aid in memory recollection. A first session was held but had to be
postponed as Tina became ill. A second session was scheduled for the week of
October 31, 2011, but had to be cancelled as Tina was arrested the week before -
and detained - on outstanding warrants.
[45]
The Innocence Project suggested to CCRG that the
most effective way to access the truth of Robert’s claim that he is the one who
murdered Mr. Brady was to continue working with Tina to assist her with the
recovery of her fragmented recollection of the events surrounding the murder. CCRG
dismissed that suggestion given the presumptive inadmissibility of evidence
adduced through hypnosis.
(4)
The May 7, 2012 preliminary assessment’s overall
conclusion
[46]
Overall, CCRG found that the Applicant’s Conviction
Review Application did not raise any new and significant evidence that would
provide a reasonable basis to conclude that a miscarriage of justice likely
occurred in the Applicant’s case as this evidence was neither new, nor
significant, was clouded with inconsistencies and was not reasonably capable of
belief.
[47]
In particular, CCRG noted that the possibility
that Robert had perpetrated the crime was presented to the jury at the time of
the trial, since the defence took the position that Robert owed Mr.
Brady money, and therefore had a motive to kill him. It also noted in its
conclusion that evidence that Robert had told a police officer in the next few
days following the murder that he was responsible for the murder, was presented
to the jury.
[48]
CCRG concluded as follows:
Without stronger corroborative evidence,
Robert’s admission is not reasonably capable of belief. He has communicated inconsistent
accounts of the murder over time to various people, including the police, the
court, private investigator Kaj, Ms. Lee, Ms. Dugas and Ms.. Bacon, and there
is nothing to substantiate his current account. He is serving a lengthy
penitentiary sentence and is facing a considerable consecutive sentence for his
outstanding charges should he be convicted. This may be a motive as to why he
is now prepared to accept responsibility for the act that the Applicant was
convicted of.
D.
The Follow-up Correspondence to CCRG’s
Preliminary Assessment regarding Tina’s recollection of events
[49]
In August 2012, the Innocence Project wrote to
the CCRG claiming that any preliminary assessment of the Conviction Review
Application would be incomplete without making some effort to determine what
the position of Tina Winmill was with respect to Robert’s claim that he is
responsible for the murder of Mr. Brady. In particular, the Innocence Project requested
the Minister to compel Tina to testify under oath and to permit it to
cross-examine her on her relevant recollections.
[50]
In letters dated September 4 and October 18,
2012, CCRG dismissed that request on the ground that the position of Tina was
quite clear, based on the materials submitted with the Conviction Review
Application, that the Applicant was the murderer. It added that in a telephone
conversation she had with the Head of CCRG, Mr. Kerry Scullion, on August 28,
2012, Tina was categorical that her trial evidence was accurate and truthful
and that there was never any intention on her part to change her evidence
either because she was mistaken, untruthful or unclear as to what happened at
the scene of the crime.
[51]
On November 22, 2012, the Innocence Project, stressing
the inadequacy of the “informal phone-call
investigation” conducted by Mr. Scullion, sought CCRG to reconsider its
decision “to forgo any formal and effective
investigation of the evidence provided by Ms. Prevost [Tina]”.
[52]
On January 16, 2013, CCRG dismissed the
Innocence Project’s request for reconsideration on the basis that it was
unclear how Tina’s recollection problems related to her PTSD could assist the
Applicant’s Conviction Review Application. In this respect, it reiterated that
:
a) It could well be that Tina is now having recollection problems concerning
an event that took place a long time ago;
b) There was no evidence, however, that she was having recollection
problems as to who committed the murder when she testified shortly after the
event;
c) The information submitted in support of the Applicant’s Conviction Review
Application substantially confirmed her evidence at trial that it was the Applicant
who killed Mr. Brady; and
d)
Tina maintained that the Applicant committed the
murder in her August 28, 2012 telephone conversation with Mr. Scullion and
confirmed that her evidence at trial was truthful.
[53]
CCRG concluded that there appeared to be little,
if any, reason to contact Tina further and reiterated that it was open to the
Applicant to submit additional information for review within the time frame
provided in the preliminary assessment letter of May 7, 2012.
[54]
It is worth mentioning at this stage that on May
31, 2012, a staff physician for the Peterborough and Lindsay sites of the
Ontario Addiction Treatment Centres, Dr. Alan Konyer, who had been treating
Tina since 2006 for substance dependence and chronic bilateral sacroileitis
with chronic pain syndrome, informed the Innocence Project that Tina had felt
unduly pressured and stressed by the plans for another interview under
hypnosis. Dr. Konyer advised that Tina had “experienced
significant prolonged decompensation after a previous similar examination”
and that in his professional opinion, she “would put
herself at high risk of serious prolonged relapse in her mental health and
substance use recovery by submitting to this planned procedure”. He
informed the Innocence Project that he had advised Tina not to agree to this
examination for health reasons.
III.
Issues
[55]
The Applicant claims that the only issue in the
present application for judicial review is whether CCRG breached the duty of
fairness by failing to conduct any meaningful investigation into the Conviction
Review Application. He contends in that regard that CCRG denied him procedural
fairness by failing to exercise its statutory powers to properly investigate
the fresh evidence submitted in support of the said Application.
[56]
Although he accepts that the substance of CCRG’s
preliminary assessment is subject to judicial review on a reasonableness
standard, the Applicant submits that when it comes to the procedures that CCRG
follows in arriving at a decision, the standard of correctness applies as this
is a pure question of law.
[57]
The Minister contends that the issue, as framed
by the Applicant, is too broad as the only decision under review in the present
proceedings is the January 16, 2013 decision dismissing the Innocence Project’s
request for reconsideration of CCRG’s refusal to examine Tina under oath and
permit that she be cross-examined by the Innocence Project. It says that
procedural fairness was met in this regard as the process established under the
Code and the Regulations for reviewing applications for ministerial review is
not akin to a criminal trial, does not require CCRG to examine witnesses under
oath and does not provide an applicant with the right to cross-examine
witnesses.
IV.
Analysis
A.
The Ministerial Conviction Review Process
[58]
The Minister’s authority to review criminal
convictions on grounds of miscarriage of justice is codified in Part XXI.I of
the Criminal Code (the Code). Where the Minister is satisfied, pursuant
to such review, that there is “a reasonable basis to
conclude that a miscarriage of justice likely occurred”, he may either
order a new trial before any court that the Minister thinks proper or refer the
matter to the court of appeal for hearing and determination by that court as if
it were an appeal by the convicted person (subsection 693.3(3)(a)). Otherwise,
the Minister dismisses the application (subsection 693.3(3)(b)).
[59]
According to subsection 696.4 of the Code, the
Minister, in making such a decision, “shall take into
account all matters that the Minister considers relevant” but these must
include :
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 a ministerial review application in relation to the same conviction;
b) Whether the information presented in connection with the application
is relevant and reliable; and
c)
The fact that such a conviction review
application is not intended to serve as a further appeal and that any remedy
available on such an application is an extraordinary remedy.
[60]
The form, content and accompanying materials of
conviction review applications are prescribed by the Regulations, so is the
applications’ review process (subsections 691.1(2) and 692.2(1)).
[61]
According to the Regulations, the Minister must
first conduct a preliminary assessment of the conviction review application. Following
the preliminary assessment, if the Minister determines that there may be a
reasonable basis to conclude that a miscarriage of justice likely occurred,
then the Minister shall conduct an investigation in respect of the application
(subsection 4(1)(a)). When he conducts such investigation, subsection 693.2(2)
of the Code confers on the Minister some of the powers of a commissioner under
Part I of the Inquiries Act, 1985, c I-11.
[62]
If, on the other hand, the Minister determines
that there is no basis for concluding that a miscarriage of justice likely
occurred, the Minister must notify the applicant that no investigation will be
conducted (subsection 4(2)). The applicant then has one year in which to
provide further information in support of his application (subsection 4(3)). If
further information is so provided, then the preliminary assessment is
continued in light of the new information. If further information is provided
by the applicant, but after that period of one year, then the Minister must
conduct a new preliminary assessment (subsection 4(4)).
[63]
In instances where the Minister conducts an
investigation, the Minister shall prepare an investigation report and provide a
copy to the applicant. Here again, the applicant is entitled to provide
further information in support of his application within one year of the date
the report is sent (subsection 5(1)). Where the applicant fails to provide
further information within that period of one year or indicates in writing that
no further information will be provided, the Minister may then proceed to make
a decision under subsection 693.3(3) of the Code.
[64]
The power vested in the Minister under Part
XXI.1 of the Code has been described so far by this Court as “one of exception and prerogative” (Timm v Canada
(Attorney General), 2014 FC 587, at para 9; Bilodeau v Canada (Minister
of Justice), 2011 CF 886, 394 FTR 235, at para 69 [Bilodeau (FC)]; Ross
v Canada (Minister of Justice and Attorney General), 2014 FC 338, at para
32 [Ross]; Thatcher v Canada (Attorney General), 120 FTR 116,
[1997] 1 FC 289, at para 8). A conviction review application is not an appeal
as of right on the merits of the alleged wrongful conviction but rather a
request for an extraordinary and highly discretionary remedy that derives from
the Royal Prerogative of Mercy (Ross, above at para 32).
[65]
In Bilodeau v Canada (Ministre de la Justice),
2009 QCCA 746, [2009] JQ no 3472 (QL)(Leave to appeal to the Supreme Court of
Canada dismissed on October 8, 2009 - no 33216 [Bilodeau (QCCA)] ), the
Quebec Court of Appeal made a thorough analysis of the Minister’s power under
section 696.1 of the Code. In that case, Mr. Bilodeau had challenged before
the Quebec Superior Court the Minister’s decision dismissing his conviction
review application. The issue before the Court of Appeal was whether the
Quebec Superior Court had jurisdiction to entertain Mr. Bilodeau’s proceedings,
given the Federal Court’s exclusive authority to review decisions of “federal boards”, as defined in the Federal Courts
Act. Mr. Bilodeau’s main argument was that the provincial superior courts
were empowered to judicially review the Minister’s decisions under section
696.1 because those decisions raised criminal law issues over which those
courts had jurisdiction.
[66]
The Quebec Court of Appeal dismissed that
argument. It held that the scope of the Minister’s authority to review
convictions on grounds of miscarriage of justice fell “outside
the traditional sphere of criminal law” as “it
begins after legal remedies are exhausted”. It further held that the 2002
amendments which brought into force the provisions of Part XXI.1 of the Code
had not altered, in its essence, the nature of that authority which remains
today, as it has been since it was codified in 1892, a discretionary power
historically considered as one of the forms of exercise of the Royal
Prerogative of Mercy (Bilodeau (QCCA), at para 25).
[67]
In Ross, above, Justice Richard G. Mosley
held that subsection 696.4 of the Code, by directing that the decision on a
conviction review application shall be made taking into account “all matters that the Minister considers relevant”,
had preserved the Minister’s discretion in a broad sense. Although he found
that by specifying certain factors that must be considered relevant, subsection
696.4 had circumscribed the Minister’s discretion, he noted that those factors
mirrored the guidelines adopted in 1994 to guide the Minister in the exercise
of his discretion under what was then section 690 of the Code. He noted that
these guidelines “reflected the 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”, and that they “clearly influenced”
the amendments that led, in 2002, to the enactment of Part XXI.1 (Ross,
at para 33 to 36).
B.
Which Decision is Before the Court?
[68]
As indicated previously, the Minister’s view is
that the only decision under review in these proceedings is CCRG’s decision of
January 16, 2013, dismissing the Innocence Project’s request for
reconsideration of the refusal to compel Tina to be examined and cross-examined
under oath. The Minister claims that CCRG’s decision, dated May 7, 2012, not
to conduct an investigation after completion of the preliminary assessment of
the Applicant’s Conviction Review Application is not reviewable as it was not
challenged by the Applicant and as the motion for leave to commence the present
proceedings sought leave to challenge the January 16, 2013 decision, not the
May 7, 2012, and was granted accordingly by the Court.
[69]
The Minister raises a valid concern. The
Applicant’s Notice of motion, which is dated March 14, 2013, was for an order “allowing the Applicant to commence an application for
judicial review of the decision of the Minister of Justice dated January 16,
2013, and extending the time to file a Notice of Application”. It is also
clear from the grounds of the motion that the focus was on the January 16, 2013
decision.
[70]
In his written submissions, the Minister
explains that the Applicant’s motion was not opposed based on the explanation
given for the delay coupled with the fact the 30-day limitation period to
challenge the January 16, 2013 decision had expired merely a month before the
motion was brought. The Applicant’s motion was granted by Justice Roger T.
Hughes on March 27, 2013. Justice Hughes’ order made it clear that the leave
order sought concerned the January 16, 2013 decision.
[71]
The Minister claims that he would have opposed
the Applicant’s motion had the Applicant made it clear that he intended to
challenge both the January 16, 2013 decision confirming that Tina would not be
compelled to testify under oath and be cross-examined and the May 7, 2012
decision not to conduct an investigation following CCRG’s preliminary
assessment.
[72]
In light of the above, I am satisfied that the
Applicant sought – and was granted - leave to judicially review the January 16,
2013 decision, and no other, and that, as a result, this decision is the only
decision under review in these proceedings.
C.
No duty to Compel Tina to Testify under Oath and
to be Cross-Examined
[73]
The Applicant claims that the statutory reforms
of 2002 introduced into the conviction review process a formalized process
supported by full investigative powers which, on a proper assessment of the
factors set out in Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, at para 21 (Baker)), calls for a high duty of
fairness.
[74]
This means, according to the Applicant, that the
Minister is under a duty to conduct a “neutral and
thorough investigation” before deciding a conviction review application
and that, as a general rule, this duty will be breached where, quoting from Slattery
v Canada (Canada (Human Rights Commission), [1994] 2 FC 574, 73 FTR 161, a
case decided under the Canadian Human Rights legislation, “unreasonable omissions are made, for example where an
investigator failed to investigate obviously crucial evidence”.
[75]
In the context of the present case, the
Applicant argues that the duty to conduct a neutral and thorough investigation
required CCRG to obtain evidence from Tina and that in failing to do so, CCRG
failed to investigate “obviously crucial evidence”
and breached, therefore, the duty of procedural fairness it owed to him.
[76]
The Applicant’s position is premised on the view
that the conviction review process is firmly rooted in the criminal process and
the Code and that the assessment of whether a miscarriage of justice has
occurred is, as a result, a decision more closely associated with the judicial
functions of trial and appellate courts than with administrative
decision-making processes. It assumes in this respect that by conferring on
the Minister some of the powers of a commissioner under the Inquiries Act,
by circumscribing his discretion through subsection 696.4 and by granting
participatory rights to applicants, the 2002 reform has altered the nature of
the power exercised by the Minister.
[77]
However, as we have seen, the case law suggests
otherwise. Despite this reform, and although the conviction review process
remains the only mechanism by which an applicant who has exhausted all appeals
can challenge a wrongful conviction, the power vested in the Minister under Part
XXI.1 of the Code is still “one of exception and
prerogative” and still falls outside the traditional sphere of criminal
law. A conviction review application remains a request for an extraordinary
and highly discretionary remedy that derives from the Royal Prerogative of
Mercy (Timm, above at para 9; Bilodeau (FC), above at para 69 and
125; Ross, above at para 32). In other words, the essence of the
Minister’s authority under Part XXI.1 of the Code has not been altered by the
2002 amendments (Bilodeau (QCCA), above, at para 25).
[78]
I believe CCRG properly characterized the
conviction review process in its letters of October 18, 2012 and January 16,
2013 to the Innocence Project, when it wrote that:
a) An application for ministerial review under section 696.1 of the
Code is a post-conviction non adversarial process and is not conducted as if a
new trial was to take place;
b) Practices and procedures, including pre-trial disclosure, which are
more commonly associated with a criminal trial itself are not applied in the
conviction review process;
c) This process is not a trial where the presumption of innocence
applies and where witnesses are cross-examined by counsel representing an
applicant and it is not a process where an applicant need only raise a
reasonable doubt as to the correctness of his or her conviction;
d)
The role of the Minister under that process is
not to substitute his opinion or views for that of the trier of fact, including
on matters of credibility, or lack thereof, of a witness at trial, unless new
matters of significance, which are to be reviewed in conjunction with all the
evidence adduced at trial, dictate otherwise.
[79]
Therefore, I cannot agree with the Applicant
that the power vested in the Minister is “closely
associated with the judicial functions of trial or appellate courts” and
that, as a result, the content of the duty of fairness owed by the Minister in
exercising that power is at “the high end of the
spectrum”.
[80]
In Bilodeau (FC), above, Justice Johanne
Gauthier, as she was then, reminded that the right provided for under Part
XXI.1 of the Code has yet to be recognized as a fundamental right engaging the
protection of the Canadian Charter of Rights and Freedoms. She also
indicated, and I agree with her, that the same kind of procedural advantages as
those before criminal or civil courts could not be imposed on the exercise of
the royal prerogative (Bilodeau (FC), at para 74 to 79).
[81]
After having conducted an analysis of the
factors set out in Baker, above, Justice Gauthier held that the duty of
fairness owed by the Minister to Mr. Bilodeau included ensuring that a neutral
and thorough investigation be conducted. However, in that case, the Minister
had already conducted a preliminary assessment and had proceeded to the
investigation stage of the conviction review process after having determined, in
accordance with section 4(1)(a) of the Regulations, “that
there may be a reasonable basis to conclude that a miscarriage of justice
likely occurred”.
[82]
In my view, at the preliminary assessment stage
of the wrongful conviction review process, the duty of fairness owed by the
Minister is closer to that established in Thatcher, above, where Justice
Marshall Rothstein, as he was then, held that the Minister was required to act
in good faith and conduct a meaningful review (Thatcher at para 13).
[83]
In light of these principles, I find that CCRG
was under no duty to compel Tina to testify under oath and allow the Innocence
Project to cross-examine her on her alleged poor recollection of events. Furthermore,
there is no evidence on record that representations were ever made to the
Applicant that such a course of action would be carried out, either before or
after the submission of the Conviction Review Application, so as to engage the
legitimate expectation factor set out in Baker.
[84]
Although the Minister now does have some of the
powers of a commissioner under the Inquiries Act, the wording of section
696.2 of the Code suggests that these powers are only available to the Minister
when he conducts an “investigation in relation to an
application under this Part”. The word “investigation”
is not defined in Part XXI.1 of the Code. However, it is well recognized that
regulations can assist in interpreting a legislative provision especially where
the statute and regulations are “closely meshed”
(Monsanto Canada Inc. v Ontario (Superintendent of Financial Services),
2004 SCC 54, [2004] 3 S.C.R. 152, at para 35; R. v Campbell, [1999] 1 S.C.R. 565, at
para. 26; Sullivan and Driedger on the Construction of Statutes (4th ed.
2002), at p. 282). Here, according to section 696.2(1) of the Code, the Minister
shall review a conviction review application “in
accordance with the regulations”. When section 696.2 is read in
conjunction with the Regulations, the word “investigation”
clearly refers to the second stage of the review process where, as I have just
indicated, the Minister has already formed the view that there may be a
reasonable basis to conclude that a miscarriage of justice likely occurred.
[85]
But even then, Justice Gauthier held in Bilodeau
(FC), above, that these powers were conferred on the Minister so as to
provide him with tools to conduct a proper investigation, not to oblige him to
use them in every case (Bilodeau (FC), at para 83). She further held,
in dismissing Mr. Bilodeau’s contention, that the Minister’s agent in charge of
the investigation ought to have compelled some of the trial’s witnesses to
testify under oath, that it was up to the Minister or his agent to decide
whether or not they need to use all of the powers conferred upon them by the
Code (Bilodeau (FC), at para 97).
[86]
Therefore, even if the Minister was entitled to
use his powers under the Inquiries Act at the preliminary stage of the
conviction review process, he would still have a significant measure of
discretion in deciding whether or not to use these powers to compel a witness
to testify under oath.
[87]
Here, as the Minister points out, the Applicant
submitted no evidence that Tina was having any recollection problems as to who
committed the murder when she testified shortly after the events or that she
had given false evidence at trial. Furthermore, the information the Applicant
submitted in support of his Conviction Review Application substantially
confirmed Tina’s evidence at trial that he had committed the murder. As I
indicated previously, the Innocence Project did examine Tina in June 2011 and
she did confirm her testimony at trial that the Applicant had stabbed and
killed Mr. Brady.
[88]
In such context, I agree with the Minister that
there was no necessity for CCRG to speak to Tina, much less to examine her
under oath in order to determine whether she was standing by her trial
testimony as the materials in support of the Conviction Review Application was
clearly indicative that she was.
[89]
The Innocence Project has been urging CCRG to
examine Tina under oath because although she maintained that the Applicant was
responsible for the murder of Mr. Brady, her account of events was inconsistent
with her testimony at trail. However, no particulars with respect to these
alleged inconsistencies were provided in the Conviction Review
Application materials, nor did the Applicant explain how these inconsistencies
may have been significant in the overall context of her testimony at trial.
[90]
The onus was on the Applicant to show that he
met the necessary conditions for the exercise of the Minister’s discretion
under section 696.1 of the Code. The Minister says that what the Applicant
seeks in reality is to have CCRG go on a “fishing
expedition where he would rent the boat and allow the Applicant to do the
fishing”. The language is colourful but as Justice Gauthier pointed out
in Bilodeau (FC), the Minister has no duty to provide a conviction
review applicant with the means to meet the requirements set out in the Code
and even in the context of an investigation, he is not required to “turn over every possible stone” (Bilodeau (FC),
at paras 90 and 119).
[91]
For now, the materials in support of the
Conviction Review Application show that Tina’s version of events as to who
committed Mr. Brady’s murder remains consistent with her testimony at trial and
the alleged inconsistencies in her account of events of June 2011 have not been
substantiated by the Applicant. Thus, Tina’s version of events remains
consistent with the trial testimony of Mr. Cvetkovic’s who, as we have seen,
was found by the Ontario Court of Appeal to be less untrustworthy than Tina and
Robert because of his clean criminal record, steady employment, and lack of motive
to kill Mr. Brady or to help Robert or Tina, whom he barely knew.
[92]
The record shows that Mr. Scullion interviewed
Tina over the phone on August 28, 2012, in the mist of the exchange of
correspondence with the Innocence Project that followed CCRG’s preliminary
assessment. According to CCRG, Tina was categorical that her trial evidence
was accurate and truthful and that there was never any intention on her part to
change her evidence either because she was mistaken, untruthful or unclear as
to what happened at the crime scene. The notes summarizing that conversation
read as follows:
Spoke to Ms. Prevost at the phone number
provided by the Innocence Project on this date at approximately 1:40-1:55.
Explained to her who I was, what we did as a
group. Explained that we had received an application from Thomas Winmill and
explained the process.
I explained to her that her name and
coordinates had been provided to us by the Innocence Project and that we were
following up.
I asked her directly was her trial evidence
truthful? She responded “yes.” I then asked her what Thomas Winmill did on the
day in question. She replied that he had stabbed the victim and with the help
of his son also cut the victim’s throat.
There was no doubt in her mind that Thomas
Winmill had stabbed and killed the victim that morning. She remembers it
clearly. It was in the morning hours.
She added that she is not prepared to change
or recant her evidence that she gave at trial as she was truthful at trial when
she testified.
I asked her if she had any idea as to why
there was some suggestion by the Innocence Project that she had not told the
truth or that she was mistaken when she testified. She replied that it was the
Innocence Project who suggested that she might be mistaken and that medication
she had taken might be preventing her from remembering the events clearly and
that hypnosis would not be a good idea.
I am satisfied based on my conversation with
her that there is no need to interview her further, under oath or otherwise,
given all the facts of this application and the conclusions that were reached
before my conversation with her this date. There is nothing in her comments
that would necessitate changing the conclusion already reached.
[93]
The Innocence Project claims that this “phone call investigation” was inadequate. But again,
an application for ministerial review under section 696.1 of the Code is a
post-conviction non adversarial process. Practices and procedures which are
more commonly associated with a criminal trial are not applied in such
process. Therefore, it was open to CCRG, in my view, to make that verification
the way it did. As I have already indicated, it certainly had no obligation to
compel Tina to provide this information under oath and to allow the Applicant’s
representatives to cross-examine her on the content of the said information.
[94]
The Applicant further claims that the notes of
the telephone conversation between Mr. Scullion and Tina contain a “shocking confession”, that of Robert’s participation
in helping the Applicant cut Mr. Brady’s throat. He contends that this required
further investigation. However, this is not new evidence that the Applicant is
not responsible of Mr. Brady’s murder. It shows that Robert might have been
involved to some degree in the murder but it does not exonerate the Applicant.
What remains clear from those notes is that Mr. Scullion was told by Tina that
there was no doubt in her mind that the Applicant “had
stabbed and killed the victim that morning” and that “she is not prepared to change or recant her evidence that
she gave at trial”.
[95]
I am therefore satisfied that the Minister was
correct in dismissing the Applicant’s request to compel Tina to testify under
oath and to allow the Innocence Project to cross-examine her on her
recollection of the events that lead to Mr. Brady’s murder. The rules of
procedural fairness did not require the Minister to do so.
[96]
The Applicant remains entitled to provide to the
Minister further information raising new matters of significance, in which case
a new preliminary assessment of the Conviction Review Application would have to
be conducted by the Minister as contemplated by section 4(5) of the Regulations.
[97]
In sum, as the Conviction Review Application
stands now, I am not convinced that in order to conduct a meaningful review of
the said Application, CCRG had to compel Tina to testify under oath. Even
considering the issue of procedural fairness from the Applicant’s perspective, I
am not satisfied either that CCRG “failed to
investigate obviously crucial evidence” by not compelling Tina to
testify under oath. For the reasons outlined above, at this point, there was
no reason for CCRG to believe that Tina’s evidence at trial was mistaken,
untruthful or unclear as to who killed Mr. Brady in the early morning of September
22, 1991.
[98]
This is dispositive of the present judicial
review application.
[99]
The Respondent claims that even assuming the
Applicant’s challenge to the May 7, 2012 preliminary assessment was properly
before me, it could not succeed either. I agree.
[100] The Applicant claims in this respect that the May 7, 2012
preliminary assessment is unreasonable as (i) there was no reasonable basis to
find Robert’s recantation not credible, (ii) the impeachment value of the fresh
evidence was not considered, and (iii) the fresh evidence was not considered
in context.
[101] As the Minister points out, this is an attack on the merits of the
May 7, 2012 preliminary assessment, not an attack grounded on procedural
fairness principles. The applicable standard of review here is reasonableness
(Walchuck v Canada (Minister of Justice), 2013 FC 958, 439 FTR 166 at
para 21; Ross, above at para 28). It is well established that reasonableness
is a differential standard. It is concerned mostly “with
the existence of justification, transparency and intelligibility within the
decision-making process” and with whether the decision “falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para 47). As Justice Luc
Martineau stated in Timm, above, the Court “must
takes pain not to substitute itself for the Minister” (Timm, at
para 9).
[102]
Here, CCRG conducted a complete and thorough assessment
of the Applicant’s Conviction Review Application. As we have seen previously,
it assessed the fresh evidence in the context of the trial’s evidence. Each
and every piece of fresh evidence was examined. CCRG found that Robert’s
confession was not reasonably capable of belief and, therefore, was not
credible. It concluded, as a result, that it was not a matter of significance
within the meaning of section 696.4 of the Code. It based that conclusion on
the following considerations:
a) Robert’s long track record of giving inconsistent and false
statements as to who had committed the murder, alternately implicating himself,
the Applicant, Tina and Mr. Cvetkovic;
b) Being incarcerated on a warrant expiring in August 2021 and facing
outstanding charges which could potentially result in a lengthier
incarceration, he had, at the time of his recantation, a motive to lie;
c) The motive he now provides for killing Mr. Brady, which was to
avenge some minor disrespect directed at the Applicant, is very difficult to
reconcile with him blaming the murder on the Applicant within the hours that
followed the murder and testifying falsely against him at trial;
d)
His confession is inconsistent with the trial
evidence of Tina and Mr. Cvetkovic which was believed by the jury and which has
not been recanted in one case (Mr. Cvetkovic) and was reiterated in the other
(Tina); and
e)
The possibility that Robert had perpetrated the
crime was presented to the jury through the position taken by the defence that
Robert owed Mr. Brady money and therefore had a motive to kill him, and through
evidence from a police officer that Robert had claimed responsibility for Mr.
Brady’s murder in the next few days following the crime.
[103] Further, the Court notes that in his affidavit, Robert affirms that
at the time Mr. Brady was killed, the Applicant “was
stumbling around the outside of the car”. This version of events
contradicts the Applicant’s testimony at trial that he had not left the car on
his way to the Cyopick’s farm as he was asleep due to his intoxication from the
drinking at Robert’s apartment.
[104] In Palmer, above, the Supreme Court of Canada cautioned, as
an overriding consideration of the court of appeal’s broad discretionary power
to admit fresh evidence, that it would not serve the interests of justice “to permit any witness by simply repudiating or changing his
trial evidence to reopen trials at will to the general detriment of the
administration of justice”.
[105] The Minister’s conviction review power is a “safeguard
against mistake in the criminal system” but such mistake will only occur
“when new evidence would inevitably lead to a wrongful
conviction” (Walchuck, above at para 31).
[106] Robert is essentially asking the Minister to determine whether he
was lying then, at trial, or now, post-conviction. Either way, one can see
that this was an appropriate ground for CCRG to make an adverse credibility
finding. This finding, in my view, was open to CCRG as a possible acceptable
outcome defensible in respect of the facts and the law.
[107] I also fail to see the impeachment value of Robert’s recantation and
in particular, how it could inevitably lead to the conclusion that the
Applicant was wrongfully convicted for Mr. Brady’s murder. Robert was found to
be an unsavoury, untrustworthy witness at trial, which required the jury to be
alerted to the danger of relying on his evidence; he has a long history of
giving inconsistent statements; and his recantation now is in direct conflict
with the trial evidence given by Tina and Mr. Cvetkovic, evidence that was
believed by the jury and that has never been recanted since. In other words,
his credibility is already significantly compromised. Although CCRG made no
explicit finding in this respect, I am of the view that this transpires from
the entire May 7, 2012 decision, when read as a whole.
[108] I am therefore satisfied that the May 7, 2012 preliminary assessment,
assuming it is reviewable through the present proceedings, is reasonable.
Again, the role of the Court is not to substitute itself for the Minister but
to determine whether this decision falls within the range of possible and
acceptable outcomes. I find that it does.
[109] The judicial review application is dismissed. Both parties are
seeking their costs in these proceedings. I see no reason to depart from the
general rule that costs should be awarded to the successful party.
Email this Content