Docket: T-1063-13
Citation:
2014 FC 587
[UNREVISED CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, June 20, 2014
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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RICHARD TIMM
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant is challenging the legality of a
Ministerial decision dated May 27, 2013, informing him that his new application
for a review of his criminal conviction would not be proceeding to the
investigation stage. Essentially, the applicant contends that the decision is
unreasonable and contrary to section 7 of the Canadian Charter of Rights
and Freedoms, the Constitution Act being Schedule B to the Canada Act 1982
(U.K.), 1982, c.11 (Charter).
[2]
In 1995, the applicant was convicted of the
first degree murders of his adoptive parents. His appeal from the verdict was
dismissed by both the Quebec Court of Appeal and by the Supreme Court of
Canada. Any person who has been convicted of an offence under a federal act or
regulation, and who considers themself to be a victim of a miscarriage of
justice may, under section 696.1 of the Criminal Code, RSC 1985, c C-46
(Code), apply to the Minister of Justice (Minister) for a review in accordance
with the regulations.
[3]
In July 2001, the applicant submitted a first
application for review to the Minister under section 4 of the Regulations Respecting
Applications for Ministerial Review – Miscarriages of Justice, SOR/2002-416 (Regulations). The application for review was
dismissed on an interlocutory basis on October 22, 2009, and in a decisive
manner on October 21, 2010. The applicant’s application for judicial review of
the interlocutory decision was dismissed by the Court on March 30, 2011, while
on May 2, 2012, the application for judicial review of the Minister’s final
decision met the same fate: Timm v Canada (Attorney General of Canada),
2012 FC 505, [2010] FCJ No 556; affirmed by 2010 FCA 282, [2010] FCJ
No 1398; leave to appeal to the Supreme Court of Canada refused [2012] SCCA No
502.
[4]
Still unsatisfied, on May 2, 2013, the applicant
submitted a second application for review of his conviction to the Minister. By
letter dated May 27, 2013, the applicant was informed that the Minister would
not be conducting a new preliminary assessment, given that the applicant had
not adduced any new evidence or facts. The applicant interpreted this latest
refusal as a negative decision on the Minister’s part and asked the Court to
make various declaratory conclusions. Although such decisions are discretionary
in nature, the Minister is obliged to act fairly and cannot act in an arbitrary
manner, or disregard fundamental rights or Charter values, when determining
whether an investigation into a possible miscarriage of justice is warranted: Daoulov
v Canada (Attorney General), 2009 FCA 12, 388 NR 54. On the merits, a
Ministerial decision is reviewable on a reasonableness standard.
[5]
There is no dispute with regard to applicable
law. According to the provisions of the Regulations, the Minister must conduct
a preliminary assessment of the file based on the factual evidence adduced by
the applicant (para 3(b)). Following the preliminary assessment, the Minister must conduct an investigation in respect of the
application if the Minister determines that there may be a reasonable basis to
conclude that a miscarriage of justice likely occurred
(para 4(1)(a)). If, on the other hand, the Minister is satisfied that
there is no reasonable basis to conclude that a miscarriage of a justice likely
occurred, the minister must notify the applicant that no investigation will be
conducted (ss. 4(2)). The applicant then has one year in which to provide
further information in support of the application (ss. 4(3)). If further
information is provided by the applicant, the Minister will conduct a new
preliminary investigation in light of the new information (para 4(5)). However,
if the applicant informs the Minister that no further information will be
provided (para 5(2)), or if the applicant fails to provide such information
within one year, the Minister may then issue a final decision which will
definitively dispose of the application for review of the criminal conviction,
pursuant to section 696.4 of the Code. This is what transpired on October 21,
2010.
[6]
It is now time to examine the reasonableness of
the second Ministerial refusal dated May 27, 2013. There is no need here to
repeat the arguments of the parties, which are well developed in their
respective memoranda and to which I gave thorough consideration in light of the
oral submissions made at the hearing. In this case, intervention is unwarranted.
In substance, I agree with counsel for the respondent’s argument that the
Ministerial decision not to proceed with a new preliminary investigation is in
every respect reasonable. To begin with, the applicant had ample opportunity, in
the year following the first preliminary assessment, to provide the Minister
with additional information. Further, the Minister’s conclusion that the
applicant, in 2013, had failed to provide any new facts that would warrant a
new preliminary assessment, undoubtedly falls “within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC
9 para 47.
[7]
I concur with the respondent’s counsel that in
his second review application, the applicant adduced no new evidence or facts. Incidentally,
I am not bound by the decisions of Prothonotaires Tabib and Morneau, who
dismissed two motions to strike made by the Minister. I am reviewing the
Minister’s decision on a reasonableness standard, while they were obliged to
apply the more rigourous test of Rule 221 of the Federal Courts Rules,
SOR/98-106: Grenier v Canada (Revenue Agency), 2014 FC 504. We are now
at the merits of the application for review. I have the benefit of having
studied all of the evidence in the record and of having considered all of the legal
and factual arguments of the parties in light of past decisions. It is clear
that the applicant, by means of his second review application, is attempting to
present in a new light allegations that were already made in his first application
for review or restate the same points that have already been decided by the
Court. Whether one considers the question of absence of reasonable grounds to
conclude that a miscarriage of justice likely occurred through the lens of res
judicata (including the concept of issue estoppel) or abuse of
process, the matter is now closed, barring any new facts or evidence, of which
there is none. Incidentally, it is too late for the applicant to submit
arguments that might have been made against the contents, findings and recommendations
found in the 2009 report by the Criminal Conviction Review Group (CCRG).
[8]
It should be noted that in 2009, Isabel J. Schurman,
the Minister’s representative and Kerry Scullion, Director / General Counsel at
the CCRG, conducted a thorough and detailed analysis. The following were
considered in the preliminary assessment: the entire criminal record before the
Superior Court and the Court of Appeal, the exhibits, as well as all relevant
documentation on the disappearance of the hacksaw, the filing of the exhibits
and the incriminating statements. Moreover, my colleague on the Court, Justice
Harrington, had already found the report to be reasonable. At paragraph 48 of
his decision (Timm v Canada (Attorney General of Canada), 2012 FC
505, [2010] FCJ No 556), he writes: “Although
Mr. Timm does not share the CCRG’s opinion on the assessment and the
interpretation of the evidence and attempts to present his own analysis, he has
not demonstrated that the preliminary assessment completed by Ms. Schurman
and Mr. Scullion was unreasonable.” In addition, the Minister had
the legal opinion written by Jean-Marc Labrosse, a former Ontario Court of Appeal
judge. If we consider, for example, whether or not there existed a “written
incriminating statement” that might have been used to obtain a search warrant
or the apparent disappearance of the hacksaw, at the risk of repeating myself, there
are no new facts or evidence that would warrant setting aside the Minister’s
decision refusing the applicant, once again, in 2013.
[9]
Lest we forget, the Minister’s power is one of
exception and prerogative. It is extraordinary in nature and the Court, in a
judicial review, must take pains not to substitute itself for the Minister. The
applicant at the hearing before me spoke of [translation]
“something (that had been) wrongly decided”. He acknowledged that the
Minister and the judges who had previously reviewed the matter had acted in
good faith. Nevertheless, they were misled, argued the applicant. According to
him, it was the police officers who were at fault, and then it was the CCRG,
which did [translation] “shoddy”
work. A serious injustice had therefore occurred. The problem is that the facts
about which the applicant complains were not discovered in 2013. They had been
brought, or could have been brought, to the attention of the CCRG and the
Minister in a timely manner well before 2013. To this day, according to the
applicant, there continue to be [translation]
“questions without answers”. This may be regrettable, but it is not, in
and of itself, evidence of a [translation]
“miscarriage of justice”. There must be some end to litigation.
[10]
The Minister did not act in a capricious or
arbitrary manner. Despite the comment, which is somewhat surprising at first
glance, cited by the applicant from the letter, dated May 27, 2013, from Mr.
Larocque ([translation] “only one piece of evidence in support of a conviction will be
adduced as evidence and annotated by the Crown”), I am not satisfied that the
alleged error would be determinative. Moreover, the impact of R v Taillefer;
R v Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307, argued once again by the
applicant today, had already been considered in 2009. The CCRG, despite [translation] “numerous irregularities
in the conduct of the police in the applicant’s file”, concluded that [translation] “all of the allegations of
fabrication of evidence and conspiracy had been made during the trial or appeal.
There is no piece of evidence, new or old, to support the allegations of fabrication
of evidence in this matter”. It is not enough to claim the violation of
a constitutional right to convince the Minister to reassess an application for
review. There have to be reasonable grounds on which to conclude that a
miscarriage of justice may have occurred. The Minister decided otherwise, and I
must respect his decision, as the Minister’s refusal has not been shown to be
unreasonable by the applicant.
[11]
For these reasons, the application for judicial
review is dismissed, with costs.
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