Alan Young

The applicant, who pled guilty to manslaughter in 1986, sought a post-conviction disclosure order from the Crown in aid of an application for a Ministerial Review under s. 696.1 of the Criminal Code, claiming he had falsely confessed and was wrongfully convicted.

The Superior Court of Justice dismissed the application for a disclosure order as premature (because the applicant had not exhausted his appeals) and moot (because the Crown had already disclosed all available documents).

However, the court granted declaratory relief, holding that the superior court has jurisdiction under s. 24(1) of the Charter to make post-conviction disclosure orders in aid of a Ministerial Review, and that convicted persons do not need the Crown's consent to communicate with public officials regarding their convictions.

The applicant, convicted of first-degree murder and unsuccessful on appeal to the Court of Appeal, sought a declaration that he was not required to seek leave to appeal to the Supreme Court of Canada before applying for ministerial review of his conviction under s. 696.1 of the Criminal Code.

The Attorney General of Ontario argued that all appeal avenues, including a leave application to the Supreme Court, must be exhausted before ministerial review could proceed.

The court held that although the phrase “rights of judicial review or appeal” includes the right to seek leave to appeal to the Supreme Court, the concept of exhaustion must be interpreted flexibly.

Determining whether appeal rights have been exhausted is a discretionary screening decision for the Minister of Justice, not the provincial Attorney General.

The court declared that the Minister may determine that appeal rights are exhausted even where no leave application to the Supreme Court has been made.

The applicant, convicted of first-degree murder in 1984, sought a declaration that section 7 of the Charter requires the Crown to preserve all Stinchcombe disclosure material for the lifetime of the offender.

She alleged her section 7 rights were violated because autopsy photographs from her trial were lost or destroyed.

The court dismissed the application, finding that even if a post-appeal duty to preserve evidence exists, the loss of the photographs was adequately explained given the passage of time and lack of retention policies in the 1980s.

Furthermore, the applicant suffered no prejudice as the photographs would not have assisted in demonstrating her innocence.

In a Charter application brought by a person convicted of first degree murder seeking a declaration that evidence in homicide cases must be preserved for the lifetime of the offender, the respondent Attorney General moved to strike portions of affidavit evidence and parts of the amended notice of application and constitutional question.

The impugned affidavits contained second‑hand information about other alleged wrongful conviction investigations and lost evidence.

The court held the affidavit material could remain in the record for the limited purpose of illustrating the types of evidence that may be lost post‑conviction, but not to prove the truth of the allegations in those other cases.

However, paragraphs in the amended notice of application and notice of constitutional question relying on alleged loss of evidence in other cases were struck because the applicant lacked standing to advance constitutional claims based on those matters.

The motion was therefore granted in part.