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.
