COURT OF APPEAL FOR ONTARIO

CITATION: McArthur v. Ontario (Attorney General), 2013 ONCA 668

DATE: 20131105

DOCKET: C56316

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

Lindley Charles McArthur

Applicant

(Respondent/Appellant by way of cross-appeal)

and

Attorney General of Ontario

Respondent

(Appellant/ Respondent by way of cross-appeal)

and

Attorney General of Canada

Respondent

(Respondent/Respondent by way of cross-appeal)

and

Association in Defence of the Wrongly Convicted

Intervener

David Finley and Jennifer Woollcombe, for the appellant

Alan Young, for the respondent Lindley McArthur

Richard Kramer, for the respondent Attorney General of Canada

James Lockyer and Russell Silverstein for the intervener Association in Defence of the Wrongly Convicted

Heard: October 30, 2013

On appeal from the judgment of Justice Michael R. Dambrot of the Superior Court of Justice, dated October 24, 2012.

ENDORSEMENT

[1] Can an offender apply to the Minister of Justice for a ministerial review of his conviction without first applying for leave to appeal to the Supreme Court of Canada? Lindley Charles McArthur posed this question by way of application.

[2] Mr. McArthur was convicted of first degree murder in 1984. His appeal to this court was dismissed in 1989. He did not seek leave to appeal to the Supreme Court of Canada. He remains in custody.

[3] Mr. McArthur maintains that he did not commit the murder and seeks a ministerial review of his conviction based on the centrality of the jailhouse informant evidence to the Crown’s case. There is also the possibility that additional forensic testing could exonerate him. In 1984, there was no screening committee for the use of jail house informants and the technology to test the DNA evidence did not exist at that time but does now. Mr. McArthur has the assistance of the Innocence Project, a clinical programme at Osgoode Hall Law School that investigates claims of potential wrongful conviction.

[4] The application judge answered “yes” to the question that Mr. McArthur posed. He made the following declaration by way of judgment dated October 24, 2012 (the “Declaration”):

THIS COURT DECLARES that upon an application for ministerial review on the grounds of miscarriage of justice being made to the Minister of Justice by or on behalf of a person who has been convicted under an Act of Parliament or a regulation made under an Act of Parliament pursuant to s. 696.1 of the Criminal Code of Canada, it is the duty of the Minister of Justice to determine whether or not the applicant has exhausted his or her rights of judicial review or appeal with respect to the conviction as a pre-condition to conducting a ministerial review beyond a preliminary assessment of the application, subject to review by the Courts. While the Minister must take into consideration the fact that an application under Part XXI.1 is not intended to serve as a further appeal and any remedy available on such an application is an extraordinary remedy, the Minister is not precluded from determining that the applicant has exhausted his or her rights of judicial review or appeal despite the fact that the applicant has not applied for leave to appeal to the Supreme Court of Canada with respect to the conviction.

[5] The Attorney General of Ontario appealed. He argued that the application judge misinterpreted s. 696.1 of the Criminal Code, R.S.C. 1985, c. C-46 and that an applicant must exhaust his or her rights of judicial review or appeal, including seeking leave to appeal to the Supreme Court of Canada, before he or she can seek a ministerial review.

[6] Section 696.1(1) reads as follows:

An application for ministerial review on the grounds of miscarriage of justice may be made to the Minister of Justice by or on behalf of a person who has been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament or has been found to be a dangerous offender or a long-term offender under Part XXIV and whose rights of judicial review or appeal with respect to the conviction or finding have been exhausted.

[7] We would dismiss the Attorney General of Ontario’s appeal. We agree with the analysis and disposition of the application judge, Dambrot J. We would not say it differently, and we could not say it better.

[8] Mr. McArthur cross-appealed, seeking a variation of the terms of the Declaration.

[9] We would dismiss the cross-appeal for the same reason.

[10] However, we make one observation. On a plain reading of the Declaration, it governs the situation where, as here, the applicant has appealed his or her conviction to the appeal court but has not applied for leave to appeal to the Supreme Court of Canada with respect to the conviction. The Declaration does not determine the question of whether the Minister could consider an application in a case where the applicant made no appeal of his or her conviction. That question may arise in a future case.

DISPOSITION

[11] For these reasons, the appeal and cross-appeal are dismissed.

“J.C. MacPherson J.A.”

“E.E. Gillese J.A.”

“C.W. Hourigan J.A.”