Docket:
A-392-15
Citation: 2016 FCA 250
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CORAM:
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NADON J.A.
STRATAS J.A.
RENNIE J.A.
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BETWEEN:
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THOMAS WINMILL
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Appellant
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and
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CANADA (MINISTER OF JUSTICE)
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Respondent
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REASONS FOR JUDGMENT
STRATAS
J.A.
[1]
Mr. Winmill appeals from the
judgment dated June 5, 2015 of the Federal Court (per LeBlanc J.) that
dismissed his application for judicial review of certain decisions of the
Minister of Justice: 2015 FC 710.
[2]
Mr. Winmill had applied
under section 696.1 of the Criminal Code, R.S.C. 1985, c. C-46 for
Ministerial relief against his conviction for first degree murder. The combined
effect of the decisions of the Minister was to dismiss Mr. Winmill’s
application.
[3]
The procedure for reviewing
an application for Ministerial review of a criminal conviction is set out in
sections 696.1 to 696.6 of the Criminal Code and the Regulations
Respecting Applications for Ministerial Review—Miscarriages of Justice,
SOR/2002-416. The Minister dismissed Mr. Winmill’s application during the “preliminary assessment” phase of the review process.
This phase is governed by subsection 4(1) of the Regulations.
[4]
During the preliminary
assessment phase, if the Minister “determines that
there may be a reasonable basis to conclude that a miscarriage of justice
likely occurred,” the application proceeds to the next phase, the
investigation phase: paragraph 4(1)(a) of the Regulations. On the other
hand, if the Minister “is satisfied that there is no
reasonable basis to conclude that a miscarriage of justice likely occurred,”
then the Minister “shall not conduct an investigation”:
subparagraph 4(1)(b)(ii) of the Regulations.
[5]
In determining whether there
is a “reasonable basis to conclude that a miscarriage
of justice likely occurred,” the Minister “shall
take into account all matters that the Minister considers relevant,”
including “whether the application is supported by new
matters of significance,” “the relevance and
reliability of information presented in support of the application,” “the fact that an application…is not intended to serve as a
further appeal,” and the fact that “any remedy
available on such an application is an extraordinary remedy”: Criminal
Code, section 696.4.
[6]
In this case, on the basis
of information filed in support of the application and further information
received by the Minister, discussed below, the Minister was satisfied there was
no reasonable basis to conclude that a miscarriage of justice likely occurred
and further investigation was warranted. Therefore, under subparagraph 4(1)(b)(ii)
of the Regulations, he was obligated to dismiss the application and did so.
[7]
Before the Federal Court,
the parties differed concerning what was being reviewed. Mr. Winmill maintained
that all of the Minister’s decisions were in issue. The Minister submitted that
only the last decision made by the Minister, a reconsideration decision, was in
issue. The Federal Court agreed with the Minister but nevertheless dealt with
all the decisions, finding them reasonable.
[8]
During argument in this
Court, the Minister conceded that the appeal should proceed on the basis that
all of the Minister’s decisions should be reviewed. This is a fair and
appropriate concession.
[9]
The parties agree that the
standard of review is reasonableness. I agree. The Minister’s decision turns
largely on the weighing and assessment of facts to decide whether a qualitative
threshold is met—specifically whether there may be a reasonable basis to
conclude that a miscarriage of justice likely occurred (paragraph 4(1)(a)
of the Regulations) or whether “there is no reasonable
basis to conclude that a miscarriage of justice likely occurred”
(subparagraph 4(1)(b)(ii) of the Regulations). The Minister’s
determinations on applications for relief are protected by a privative clause:
subsection 696.3(4) of the Criminal Code.
[10]
Though a factually-suffused
decision such as this normally attracts a high degree of deference, section
696.1 applications concern the applicant’s liberty interests, a matter of great
significance. Therefore, while “[r]easonableness is a
deferential standard” (see Dunsmuir v.
New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at para. 47), deference here does not resemble anything close
to handing the Minister a carte
blanche. Far from it.
[11]
We are a reviewing court
obligated to enforce the rule of law and legislative standards. In a case like
this, we must ensure that during the preliminary assessment phase the Minister
followed a methodology appropriate to the purposes of the legislative framework
and had a firm evidentiary basis for the decision. What we cannot do is engage
in our own de novo weighing and assessment of facts, substituting our
conclusions for those of the Minister.
[12]
I conclude that during the
preliminary assessment phase in this case the Minister followed a methodology
appropriate to the purposes of the legislative framework. The Minister
carefully considered the information offered in support of the application. With
the legal standard in R. v. Babinski (1999), 44 O.R. (3d) 695, 135 C.C.C. (3d) 1 (Ont. C.A.)
front of mind (see appeal book, page 72), the Minister went further and
interviewed a witness to the crime, Ms. Tina Prevost. In a fact-based,
discretionary decision, the Minister, mindful of the legislative standards set
out above, declined to investigate the matter further through the use of the
investigatory powers set out in section 696.2 (2) of the Criminal Code.
In particular, the Minister declined to examine Ms. Prevost under oath and make
her available for cross-examination conducted by those acting on behalf of Mr.
Winmill.
[13]
Mr. Winmill submits that the
Minister was obligated to do just that. To evaluate this submission, we must
review the Minister’s assessments of the evidence and determine whether a firm
evidentiary basis underlies the Minister’s judgment calls.
[14]
In my view, the Minister had
a firm evidentiary basis for the decision. In support of the section 696.1
application is an affidavit sworn by Mr. Winmill’s son, Robert. In that
affidavit, Robert confesses to the murder and purports to exonerate his father.
The Minister found that this was neither new nor significant evidence. At Mr.
Winmill’s trial, the jury had before it a cellblock confession by Robert that
he was the murderer, supported by a motive to murder; the jury nevertheless
found that Mr. Winmill, not Robert, was the murderer. This finding was
supported by other evidence, including the evidence of another trial witness,
Mr. Cvetkovic. Mr. Cvetkovic, now deceased, identified Mr. Winmill as the
killer.
[15]
The Minister also noted that
Robert “has communicated inconsistent accounts of the
murder over time to various people…and there is nothing to substantiate his
current account.” The Minister searched for independent corroborating
evidence demonstrating that Robert committed the murder—as opposed to
corroborating evidence that Robert made admissions to have committed the
murder—and found none. Finally, the Minister noted that Robert may have had a
motive to confess to the murder to exonerate his father, as he was facing
charges that, if convicted, would place him in jail for a lengthy period of
time; the confession was not necessarily against his interests.
[16]
This evidence shows that the
Minister had a firm evidentiary basis to conclude that Robert’s confession was
neither “new” nor “significant”
evidence, and could not be used to show that there “may
be a reasonable basis to conclude that a miscarriage of justice likely
occurred,” such that further investigation was warranted. Put another
way, the Minister had an acceptable and defensible basis to conclude that
Robert’s confession could not supply any reasonable basis to conclude that a
miscarriage of justice likely occurred, and so no further investigation was warranted.
In a case like this, it is no part of our task under the reasonableness
standard to reweigh and reassess this evidence finely or to second-guess
acceptable and defensible conclusions reached by the Minister.
[17]
At its highest, the
information supplied to the Minister by Ms. Prevost during the interview
suggests only that Robert may have assisted in the killing; in no way does it
exonerate Mr. Winmill. This is not inconsistent with Ms. Prevost’s trial
testimony that Mr. Winmill killed the victim. Indeed, in the interview, Ms.
Prevost strongly reiterated Mr. Winmill’s role in the killing. This is seen
from a portion of the note of the interview:
I explained to [Ms.
Prevost] that her name and coordinates had been provided to us by the Innocence
Project [which was acting on Mr. Winmill’s behalf] 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 [Robert] 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.
[18]
In considering whether there
was any reasonable basis for concluding that a miscarriage of justice likely
occurred and whether any further investigation was warranted, the Minister was
entitled to consider this information alongside all of the other evidence and
conclude that there was no such basis.
[19]
Overall, I agree with the
following observations of the Federal Court (at paragraphs 87-89 and 91):
[87] Here, as the
Minister points out, [Mr. Winmill] submitted no evidence that [Ms. Prevost] 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 [Mr. Winmill] submitted in support of his
Conviction Review Application substantially confirmed [Ms. Prevost’s] evidence
at trial that he had committed the murder. As I indicated previously, the
Innocence Project did examine [Ms. Prevost] in June 2011 and she did confirm
her testimony at trial that the Applicant had stabbed and killed [the victim].
[88] In such
context, I agree with the Minister that there was no necessity for [the
Criminal Convictions Review Group of the Department of Justice] to speak to
[Ms. Prevost], 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 [the Criminal Convictions Review Group of the
Department of Justice] to examine [Ms. Prevost] under oath because although she
maintained that [Mr. Winmill] was responsible for the murder of [the victim],
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 [Mr. Winmill] explain
how these inconsistencies may have been significant in the overall context of
her testimony at trial.
…
[91] For now, the
materials in support of the Conviction Review Application show that [Ms.
Prevost’s] version of events as to who committed [the] 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 [Mr. Winmill]. Thus,
[Ms. Prevost’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 [Ms. Prevost] and Robert because of his
clean criminal record, steady employment, and lack of motive to kill [the
victim] or to help Robert or [Ms. Prevost], whom he barely knew.
[20]
Mr. Winmill also submits
that the Minister failed to disclose the note detailing the Minister’s
interview of Ms. Prevost and this worked procedural unfairness because the note
discloses inconsistencies between Ms. Prevost’s trial testimony and other
evidence. Mr. Winmill adds that the letter from the Minister to Mr. Winmill
regarding the interview was misleading.
[21]
On the facts of this case, I
reject this. Where the undisclosed information is material and might
conceivably support the need for further exploration of the matter—i.e.,
where it is or suggests that there is a new or significant matter that could be
capable of showing that there was likely a miscarriage of justice—there may
well be a finding of procedural unfairness arising from its non-disclosure. But
that is not the case here. In the Minister’s interview, Ms. Prevost did not
depart from her earlier testimony that Mr. Winmill committed the killing—she
confirmed it. None of the undisclosed information was capable of being, in
whole or in part or relating to, a new or significant matter that could be
capable of showing that there was likely a miscarriage of justice.
[22]
Mr. Winmill submits that the
Minister cannot make a credibility assessment of Robert during the preliminary
assessment phase based only on a paper record. I disagree. First, in this case,
the Minister went further and interviewed Ms. Prevost; the decision was not
just on a paper record. Second, as mentioned above, the Minister is
legislatively empowered to assess whether the information in support of the application
raises “new matters of significance” and whether
it has “relevance” and “reliability.”
Beyond that, the Minister may consider “all matters…the
Minister considers relevant.” These legislative standards contemplate
that the Minister may take into account the credibility of the information
supplied in support of the application.
[23]
Although invited by counsel
for Mr. Winmill, I decline to define in this case for all time the exact legal
responsibilities of the Minister when engaged in a preliminary assessment of a
section 696.1 application. It is unnecessary to do so. On the facts of this
case, it is enough to find that the Minister followed a methodology appropriate
to the purposes of the legislative framework and had a firm evidentiary basis
for dismissing this application at the preliminary assessment stage.
[24]
Therefore, despite the able
submissions of Ms. Gonsalves and Mr. Schumann, I would dismiss the appeal with
costs.
"David Stratas"
“I agree
M. Nadon J.A.”
“I agree
Donald J. Rennie J.A.”
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