Date: 20090121
Docket: A-242-08
Citation: 2009 FCA
12
CORAM: DÉCARY
J.A.
NOËL J.A.
BLAIS J.A.
BETWEEN:
ANTHONY DAOULOV
Appellant
and
ATTORNEY GENERAL OF CANADA
and
CRIMINAL CONVICTION REVIEW GROUP
Respondents
Heard at Montréal, Quebec, on
January 14, 2009.
Judgment delivered at Ottawa, Ontario, on January 21,
2009.
REASONS FOR JUDGMENT BY: BLAIS
J.A.
CONCURRED
IN BY: DÉCARY
J.A.
NOËL
J.A.
Date:
20090121
Docket: A-242-08
Citation: 2009 FCA 12
CORAM: DÉCARY
J.A.
NOËL
J.A.
BLAIS
J.A.
BETWEEN:
ANTHONY DAOULOV
Appellant
and
ATTORNEY GENERAL OF CANADA
and
CRIMINAL CONVICTION REVIEW GROUP
Respondents
REASONS FOR JUDGMENT
[1]
This
is an application for judicial review from a decision dated April 29, 2008, by
Justice Orville Frenette of the Federal Court, Anthony Daoulov v. Attorney
General of Canada and Criminal Conviction Review Group, 2008 FC 544.
[2]
This
case concerns a decision by Martin Lamontagne, a lawyer with the Criminal
Conviction Review Group (CCRG) of the Department of Justice Canada, to the
effect that there was no reasonable basis to conclude that a miscarriage of
justice had likely occurred in the appellant’s case.
[3]
Section
696.4 of the Criminal Code reads as follows:
|
696.4 In making a decision under subsection 696.3(3), the
Minister of Justice shall take into account all matters that the Minister
considers relevant, including
(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 an
application in relation to the same conviction or finding under Part XXIV;
(b)
the relevance and reliability of information that is presented in connection
with the application; and
(c)
the fact that an application under this Part is not intended to serve as a
further appeal and any remedy available on such an application is an
extraordinary remedy.
|
696.4 Lorsqu’il
rend sa décision en vertu du paragraphe 696.3(3), le ministre de la Justice
prend en compte tous les éléments qu’il estime se rapporter à la demande,
notamment :
a) la
question de savoir si la demande repose sur de nouvelles questions
importantes qui n’ont pas été étudiées par les tribunaux ou prises en
considération par le ministre dans une demande précédente concernant la même
condamnation ou la déclaration en vertu de la partie XXIV;
b) la
pertinence et la fiabilité des renseignements présentés relativement à la
demande;
c) le fait
que la demande présentée sous le régime de la présente partie ne doit pas
tenir lieu d’appel ultérieur et les mesures de redressement prévues sont des
recours extraordinaires.
|
[4]
In
accordance with the above section, when making a decision on the appellant’s
application to have his conviction reviewed, the Minister has the obligation to
take into account all matters that the Minister considers relevant.
[5]
The
respondents acknowledge that the decision of the Attorney General’s prosecutor
to order a stay in the criminal proceedings resulting from the private
complaint filed by the appellant constitutes a new fact under paragraph 696.4(a)
and that the application is not an appeal within the meaning of paragraph
696.4(c).
[6]
In
terms of the test for the relevance and reliability of this new fact, as stated
at paragraph 696.4(b), the evidence on record having led to the
appellant’s conviction is to the effect that he had a large quantity of heroin
in his possession at the time of his arrest and that he apparently made a free
and voluntary oral statement to police officers subsequent to his arrest. The
appellant’s allegations regarding the role of the informer, whom he now
believes he can identify as a certain Mr. Di Capua, lie in the realm of
speculation. In my opinion, the appellant has failed to demonstrate how the
staying of the abovementioned proceedings could have influenced his conviction
if the judge and jury had known this fact. The record allowed the Minister’s
delegate to conclude that there was no miscarriage of justice within the
meaning of section 696.3 of the Criminal Code.
[7]
On
this point, I refer to the comments of the Chief Justice of the Supreme Court
in R. v. Leipert, [1997] 1 S.C.R. 281, paragraph 21, quoted by Justice
Proulx of the Court of Appeal of Québec in R. v. D’Aragon, 150 C.C.C.
(3d) 272:
[21] .
. . The court held that the usefulness of the information was speculative and
that mere speculation that the information might assist the defence is
insufficient. If speculation sufficed to remove the [informer] privilege,
little if anything would be left of the protection which the privilege purports
to accord.
[8]
In
fact, at the time of his trial, the appellant had already abandoned the idea of
having Mr. Di Capua testify, for strategic reasons.
[9]
Mr.
Lamontagne concluded that the new evidence filed by the appellant was
irrelevant and unrelated to the evidence that had led to his conviction. In his
opinion, this new evidence would not have affected the verdict in respect of
the appellant. That conclusion is entirely reasonable.
[10]
In
reviewing Mr. Lamontagne’s decision, the trial judge applied the standard of
review of reasonableness. He based this conclusion on the four criteria set
forth in Dunsmuir v. New Brunswick, 2008 SCC 9, namely (a) the existence
of a privative clause or right of appeal; (b) the relative expertise of the
tribunal (or the administrative body) on the question at issue; (c) the
objectives of the governing statute; and (d) the nature of the problem.
[11]
In
my opinion, the trial judge was correct to conclude that the standard of review
applicable to the decision of the Minister’s delegate was reasonableness.
[12]
In
concluding that the appellant failed to show that Mr. Lamontagne’s decision was
unreasonable, Justice Frenette did not commit any error warranting the
intervention of this Court.
[13]
I
would dismiss the appeal with costs.
“Pierre
Blais”
“I
agree.
Robert
Décary, J.A.”
“I
agree.
Marc
Noël, J.A.”
Certified
true translation
Sarah
Burns
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-242-08
Appeal of a decision by Justice Orville
Frenette of the Federal Court, dated April 29, 2008.
(2008 FC 544)
STYLE OF CAUSE: Anthony Daoulov v. Attorney
General of Canada and Criminal Conviction Review Group
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: January
14, 2009
REASONS FOR JUDGMENT BY: BLAIS
J.A.
CONCURRED IN BY: DÉCARY
J.A
NOËL
J.A.
DATED: January
21, 2009
APPEARANCES:
|
Anthony
Daoulov
|
FOR THE APPELLANT
|
|
Jacques
Savary
|
FOR THE RESPONDENTS
|
SOLICITORS OF RECORD:
|
|
|
|
John
H. Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENTS
|
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