Date: 20100218
Docket: 09‑T‑53
Citation: 2010 FC 164
Montréal, Quebec, February 18, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
DANIEL JOLIVET
Applicant
and
THE MINISTER OF
JUSTICE OF CANADA
and
THE
CRIMINAL CONVICTION
REVIEW
GROUP
Respondents
REASONS FOR ORDER AND ORDER
[1]
This is a motion brought by Daniel Jolivet (the
applicant) for an extension of time to file an application for judicial review
in order to contest a decision by the Minister of Justice (the Minister or the
respondent) dismissing his criminal conviction review application.
Facts
[2]
The facts are not in dispute. The applicant is
currently imprisoned following a criminal conviction. On August 22, 2005,
he submitted an application to the Minister of Justice under Part XXI.1 of
the Criminal Code, R.S.C., 1985, c. C‑46 (the Code) to have
his criminal conviction reviewed. The Code empowers the Minister to review a
conviction to determine whether there has been a miscarriage of justice. The
Criminal Conviction Review Group (CCRG) is responsible for reviewing the
applications, conducting investigations and making recommendations to the
Minister.
[3]
On September 24, 2007, the Minister
rendered a decision dismissing the review application at the preliminary
assessment stage. This initial refusal does not prevent the applicant from
submitting further information and new evidence to have his case reconsidered
(see SOR/2002‑416, section 4). Following the refusal, the applicant
and his counsel took a number of steps to provide the CCRG with information and
submissions regarding that refusal. As a result, the CCRG reviewed the file and
issued a second refusal on May 28, 2008.
[4]
Despite that refusal, the CCRG stated on
July 8, 2008, that following a meeting with the applicant on May 23,
2008, the assessment of the file was ongoing. On September 11, 2008,
counsel for the applicant contacted the CCRG and was informed that as a result
of the reconsideration, the application would be dismissed. On September 17,
2008, she wrote to the CCRG and informed it that the applicant considered his
application conclusively dismissed.
[5]
On October 7, 2008, the applicant then
filed a motion for a writ of mandamus and a writ of certiorari for
constitutional relief before the Superior Court of Québec. On
November 7 of the same year, the respondent served a motion on the
applicant for dismissal for want of jurisdiction.
[6]
However, the Superior Court had already ruled on
a similar dispute, Bilodeau v. Canada (Ministère de la Justice), 2008 QCCS 1036,
EYB 2008‑131204. Justice Brunton of the Superior Court suspended the
hearing of the applicant’s case until the Court of Appeal delivered its final
decision. On April 21, 2009, the Court of Appeal of Québec delivered its
decision and confirmed that only the Federal Court had jurisdiction to hear
disputes involving decisions made by the Minister (Bilodeau v. Canada
(Ministre de la Justice), 2009 QCCA 746, J.E. 2009‑827 (Bilodeau)).
On October 8, 2009, the Supreme Court dismissed the application for
leave to appeal ([2009] S.C.C.A. No. 254). On October 19, 2009, the
applicant filed the motion at bar.
[7]
On December 4, 2009, counsel for the
applicant received a letter from the respondent stating that the applicant’s
file was to be closed, given that one year had elapsed during which no further
information had been received.
Relevant legislation
[8]
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
[9]
Given the importance of the issue and the large
amount of material and case law to be filed, Justice Pinard of this Court
ordered that the motion be heard in the presence of the parties. I therefore
had the advantage of hearing the oral arguments before delivering this
decision.
[10]
Case law has established that four criteria are to
be considered in deciding whether a motion for an extension of time should be
allowed or dismissed: the applicant must have had a continuing intention to
pursue his claim, the case must be arguable, there must be a reasonable
explanation for the delay and there must be no prejudice to the respondent if
the extension is allowed (Grewal v. Canada (Minister of Citizenship and
Immigration), [1985] 2 F.C. 263). This test is flexible and must be applied
in such a way as to ensure that justice is served. It ensues that an
extension of time can still be granted even if one of the criteria is not satisfied
(Canada (Minister of
Human Resources Development) v. Hogervorst, 2007
FCA 41, [2007] F.C.J. No. 37 (QL), paragraph 33).
Continuing intention
[11]
Here, the applicant has clearly shown that he
has always had the intention to contest the Minister’s decision. That intention
has been shown by the action taken on an ongoing basis. For example, he
has been in regular contact for a number of years and followed up on his file
with the CCRG. The applicant expressed his disagreement with the refusals. His
motion before the Superior Court of Québec was filed within the prescribed time,
and he acted quickly following the Supreme Court’s dismissal of the application
for leave in the Bilodeau case. The courses of action he has taken are detailed
at pages 5 and 6 of his Reply Record. I consider this to be clear evidence
that the applicant has always had the intention of contesting the Minister’s
decision.
Defendable case
[12]
The applicant alleges that procedural fairness
was breached numerous times, both in terms of the assessment of the evidence
and the time limits to assess his file. He also submits that there are several
errors of law. Last, he submits that there has been infringement of his rights
under section 7 of the Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982, Schedule B to the Canada
Act 1982 (U.K.), 1982, c. 11.
[13]
Without ruling on the merits or lack thereof of
the Minister’s decision, I consider that the applicant may raise Charter
arguments and allege breaches of procedural fairness. The merits of his case
are certainly not “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
[14]
A feature that favours the motion, or at least
does not militate against it, is that no prejudice to the respondent will
result from the grant of the extension (Grewal, page 279). In this
case, the respondent’s argument did not satisfy me that the respondent would be
prejudiced if the motion is granted.
Reasonable explanation for the delay
[15]
The respondent notes that the applicant has
always been represented by counsel. The respondent submits that, despite the
unequivocal jurisdiction conferred by the Federal Courts Act, the
applicant chose to file a motion before the Superior Court of Québec without
knowing whether that court had jurisdiction to hear his motion. That omission
or negligence as such cannot provide a ground to obtain an extension.
[16]
First, it must be noted that no similar dispute
had been decided before the ruling in Bilodeau. Second, there was
a strong dissent in the Court of Appeal of Québec’s decision. It is true that
it would have been preferable for the applicant to protect his rights before
the Federal Court, but I do not think it can be said that he failed to act with
diligence.
[17]
The respondent rightly points to a certain line
of case law wherein the client must bear the errors of his or her counsel (see Muhammed
v. Canada
(Minister of Citizenship and Immigration), 2003 FC
828, 237 F.T.R. 8). However, this Court states at paragraph 21 of Muhammed
that it is important to keep in mind the objective set out in Grewal,
that is, that justice be done.
[18]
In Construction Gilles Paquette ltée v.
Entreprises Végo ltée, [1997] 2 S.C.R. 299, the Supreme Court held as
follows: “[the] party must not be deprived of his rights on account of an error
of counsel where it is possible to rectify the consequences of such error
without injustice to the opposing party”. Therefore, even if I were to agree
that the proceedings before the Superior Court resulted from an error of
counsel for the applicant, I do not believe that it is a determining factor
here.
[19]
Instead, I believe that the interest of justice
takes precedence.
[20]
In the case at bar, the applicant has always
closely followed the developments in his case and often acted proactively. In
September 2008, there was no official refusal from the Minister; instead,
the applicant assumed that his application had been refused. Once the Bilodeau
decision was confirmed, he acted quickly by filing this motion.
ORDER
THE COURT ORDERS that the motion for an
extension of time be allowed. The applicant shall serve and file his application
for judicial review within 30 days of the date of this order. Without
costs.
“Michel Beaudry”
Certified true
translation
Sarah Burns
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