Jennifer Woolcombe

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 appellants were convicted of first-degree murder, conspiracy to murder, and possession of explosives in relation to a contract killing.

The Crown's case relied heavily on the testimony of an unsavoury witness who had pleaded guilty to manslaughter in exchange for his testimony.

The appellants appealed their convictions on multiple grounds, primarily focusing on errors in the trial judge's charge to the jury.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge failed to give an adequate Vetrovec warning regarding the unsavoury Crown witnesses, improperly gave a Vetrovec-like warning regarding a defence witness, and failed to instruct the jury properly on a hearsay statement.