Date: 20100218
Docket:
09-T-52
Citation: 2010 FC 176
Montréal,
Quebec, February 18, 2010
PRESENT: The
Honourable Mr. Justice Beaudry
BETWEEN:
LOUIS-PHILIPPE
ROCHON
Moving Party
and
THE
MINISTER OF JUSTICE OF CANADA
and
THE CRIMINAL CONVICTION REVIEW GROUP
Respondents
REASONS FOR ORDER AND ORDER
[1]
By this motion,
Louis-Philippe Rochon (the moving party) is seeking an extension of time to
file an application for judicial review (mandamus and certiorari)
in order to have set aside a decision dismissing his application for review of
his criminal conviction made by the Minister of Justice (the Minister or the
respondent).
Facts and procedural background
[2]
The moving party is
currently incarcerated as a result of a criminal conviction. On
February 6, 2004, he submitted an application under Part XXI.1
of the Criminal Code, R.S.C., 1985, c. C‑46 (the Code) to the
Minister of Justice in order to have his criminal conviction reviewed. The Code
confers on the Minister the power to review a conviction to determine if a
miscarriage of justice has been committed. The Criminal Conviction Review Group
(CCRG) is responsible for reviewing applications, conducting investigations
and making recommendations to the Minister.
[3]
On
March 28, 2007, the Minister made a decision to dismiss the
application for review at the preliminary assessment stage. Despite this
initial dismissal, the moving party had one year to submit additional evidence
and information to have the preliminary decision changed (see SOR/2002‑416,
s. 4).
[4]
Following this
initial dismissal, the moving party and his counsel, Mr. Asselin (former
counsel), undertook several steps with the CCRG to obtain clarification
about the decision and requested the documents consulted by the CCRG that were
referred to in the decision. On December 3, 2007, the CCRG advised
the moving party to enquire at the Access to Information and Privacy
Office (the Office) to obtain the requested documents and information.
[5]
On
January 9, 2008, the former counsel filed an access to information
request with the Office. On January 17, 2008, through the
lawyer handling the application for review of a co‑accused, the
moving party learned that the new CCRG policy regarding access to
information and disclosure requests is to not communicate the information directly
to the moving party or to the moving party’s representative; from now on, the
moving party must go through the access to information process.
[6]
Finally, on
April 14, 2008, the application was definitively dismissed as the one‑year
period had expired and no additional evidence was submitted.
[7]
Meanwhile, the moving
party spoke with Projet Innocence Québec and retained the services of another
counsel, who is currently the solicitor of record. On
December 11, 2008, he obtained, through his counsel, the disclosure
of information from the Office. Dissatisfied with this information, he filed
an access to information request on March 26, 2009, with
the Commission d’accès à l’information du Québec and with the Service de police
de la Ville de Montréal. The latter rejected his request on
June 19, 2009.
[8]
On April 8, 2009, the
Commission d’accès à l’information du Québec refused the moving party’s request
and suggested that he proceed through the federal access to information
agencies, as the CCRG is a federal agency. The counsel then filed a request
with the federal agency on May 26, 2009. On this same date, she also
sent a request for disclosure of information to the Royal Canadian
Mounted Police (RCMP). On June 15, 2009, the Office of the Privacy Commissioner
of Canada responded that it was not able to
assist the moving party in his efforts because the request was not
subject to its jurisdiction. On June 29, 2009, counsel said she
received a call from the RCMP access to information informing her that it was a
special request and would require a considerable amount of time
to handle it. Counsel stated that she never received any other
information from the RCMP.
[9]
In his affidavit, the
moving party stated that he still intended to challenge the decision. He also
said that, following the dismissal at the preliminary assessment stage, he
wanted to proceed by way of mandamus before the Superior Court of
Quebec, in order to obtain the requested documents and be able to present new evidence.
However, he decided to suspend the filing of his mandamus application
and to proceed by way of access to information mechanisms, as there was
at that time a similar case before the Superior Court of Quebec (affidavit of
Louis‑Philippe Rochon, paras. 36 to 39). The case of Bilodeau v. Canada (Ministre de la Justice), 2009 QCCA 746, J.E. 2009-827, was on
appeal to the Court of Appeal of Quebec when the moving party obtained
disclosure from the Office.
[10]
Finally, on April 21,
2009, the Court of Appeal of Quebec made its decision and confirmed that
only the Federal Court has jurisdiction to hear cases concerning
decisions made by the Minister. The Supreme Court of Canada dismissed
the application for leave to appeal on October 8, 2009 ([2009]
S.C.C.A. No. 254). On October 20, 2009, the moving party filed this
motion for an extension of time.
Relevant legislation
[11]
Federal Courts Act, R.S.C. 1985, c. F‑7.
|
18.1 (1) An application for judicial review may be made by
the Attorney General of Canada or by anyone directly affected by the matter
in respect of which relief is sought.
|
18.1 (1) Une demande de contrôle
judiciaire peut être présentée par le procureur général du Canada ou par
quiconque est directement touché par l’objet de la demande.
|
|
(2) An application for judicial review in respect of a
decision or an order of a federal board, commission or other tribunal shall
be made within 30 days after the time the decision or order was first
communicated by the federal board, commission or other tribunal to the office
of the Deputy Attorney General of Canada or to the party directly affected by
it, or within any further time that a judge of the Federal Court may fix or
allow before or after the end of those 30 days.
|
(2) Les demandes de contrôle judiciaire
sont à présenter dans les trente jours qui suivent la première communication,
par l’office fédéral, de sa décision ou de son ordonnance au bureau du
sous-procureur général du Canada ou à la partie concernée, ou dans le délai
supplémentaire qu’un juge de la Cour fédérale peut, avant ou après
l’expiration de ces trente jours, fixer ou accorder.
|
Analysis
[12]
In light of the
importance of the issue, the scope of the documents and the case law to
produce, Justice Pinard of our Court ordered that the motion be heard in the
presence of the parties. I therefore had the benefit of hearing the oral
arguments before making this decision.
[13]
The case law teaches
us that there are four things to consider when deciding whether a motion for an
extension of time is to be granted or dismissed: there must be a continuing
intention on the part of the moving party to bring his or her application;
there must be an arguable case; there must be a reasonable explanation for the
delay and the extension of time must not cause any prejudice to the other party
(Grewal v. Canada (Minister of Employment and Immigration), [1985] 2
F.C. 263 (C.A.)). These criteria are flexible and must be applied in
such a way that justice is done. It follows that an extension may be granted
even if one of the criteria has not been satisfied (Canada (Minister of Human Resources
Development) v. Hogervorst,
2007 FCA 41, [2007] F.C.J. No. 37 (QL) at paragraph 33).
Continuing intention
[14]
The moving party
stated that he always intended to challenge the dismissal of his application
for review. He claimed that the steps undertaken with the CCRG and subsequently
through various access to information agencies to obtain the documents referred
to in the decision show this intention. I therefore accept that
the facts demonstrate that the moving party intended to challenge the
Minister’s decision, but, unfortunately, as we will see further on, he did not
provide a reasonable explanation for the delay in doing so.
Arguable case
[15]
The moving party
essentially alleged that the Minister’s decision was based on evidence
that was not disclosed to him. He stressed that he cannot really
challenge the merits of the decision because he does not have access to the
documents in question. Even though he did not argue it clearly, I am
willing to accept that this argument could be raised as a breach of procedural
fairness. Without deciding on the merits of the Minister’s
decision or the lack thereof, I do not believe that the merits of
this case are so slight that it should be dismissed at this stage (Marshall
v. Canada, 2002 FCA 172, [2002] F.C.J. No. 669 (QL) at paragraph 24).
Prejudice
[16]
I am not satisfied
that the respondent will experience significant prejudice if the motion for an
extension of time is granted.
Reasonable explanation
[17]
I do not believe that
the moving party satisfied this criterion. In fact, he stated that he always
intended to challenge the decision to dismiss his application for review. He
also said that, following the dismissal at the preliminary assessment
stage, he wanted to proceed by way of mandamus before the Superior Court
of Quebec, in order to obtain the requested documents and be able to present
new evidence. However, he decided to wait until the final judgment in Bilodeau.
[18]
I have difficulty
with this argument because, if we consider the dates of the events, we find
that the initial dismissal of the moving party’s application for review is
dated March 28, 2007, and the final confirmation is
dated April 14, 2008. On January 4, 2008, the
respondent brought a motion to dismiss in Bilodeau. The Superior
Court made its decision on March 18, 2008, that is, before the final
dismissal of the moving party’s application for review. The decision of the
Court of Appeal of Quebec is dated April 21, 2009. The
moving party waited 18 months, namely, from April 14, 2008, to
October 20, 2009, before filing his motion with the Federal Court.
[19]
I also find that the
moving party never sought judicial review of the administrative decisions on
the access to the documents that he wished to obtain.
[20]
In dockets 09-T-53
and 09-T-60, the moving parties commenced legal proceedings before the Superior
Court of Quebec. In this case, the moving party did no such thing. He could
have at least attempted to obtain consent from the respondent to have
his case suspended until there was a final determination in Bilodeau. I
therefore consider that the explanation given by the moving party to justify
his delay in filing an application for judicial review is unreasonable, in
light of the circumstances.
[21]
Nor can I assume that
it was an error on the part of one of his counsels, as there is no
allegation or evidence to that effect.
[22]
Although I
recognize that the criteria in Grewal are flexible, I am of the opinion
that the lack of a reasonable explanation for the extension prevails
and, unfortunately for the moving party, his motion for an extension to
challenge the final decision of April 14, 2008, is dismissed.
[23]
As for the moving
party’s motion with regard to an extension of time for a mandamus application
in order to force the respondent to provide him with the documents, I find that
the moving party could have filed a complaint with the Information Commissioner
under section 30 of the Access to Information Act, if he was
dissatisfied with the respondent’s response of December 3, 2007. He
could have applied for a review under section 41 of the same Act, following a
negative decision from the Commissioner.
ORDER
THE COURT ORDERS that the moving party’s motion for an
extension of time be dismissed. Without costs.
“Michel Beaudry”
Certified
true translation
Susan
Deichert, Reviser
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