ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-439451
DATE: 20121024
B E T W E E N :
LINDLEY CHARLES McARTHUR
Alan Young , for the Applicant
Applicant
- and -
THE ATTORNEY GENERAL OF ONTARIO
David A. Finley and Jennifer Woolcombe , for the Respondent Attorney General of Ontario
Respondent
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
- and -
ASSOCIATION IN DEFENCE OF THE WRONGFULLY CONVICTED
Intervener
Richard Kramer and Roy Lee , for Respondent Attorney General of Canada
Russell Silverstein and James Lockyer , for the Intervener
Heard: June 4, 2012
M. Dambrot J. :
[ 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? Section 696.1 of the Criminal Code , R.S.C., 1985, c. C-46 provides for applications for ministerial review on the grounds of miscarriage of justice only to offenders whose rights of judicial review or appeal with respect to their conviction have been exhausted. The applicant, who was convicted of murder and appealed unsuccessfully to the Court of Appeal, has never sought leave to appeal to the Supreme Court. He seeks a declaration that he is not required to seek leave to appeal to the Supreme Court in order to exhaust his appeal rights, and as a result, the Minister has jurisdiction to review his application.
BACKGROUND
[ 2 ] The applicant was convicted of first degree murder in 1984. An appeal from his conviction was dismissed by the Ontario Court of Appeal in 1989. He did not seek leave to appeal to the Supreme Court of Canada. The Innocence Project is a clinical program at Osgoode Hall Law School that investigates claims of potential wrongful conviction. The applicant retained the Innocence Project in 2007 and filed an application pursuant to s. 696.1 of the Criminal Code in 2010. The evidentiary foundation for his conviction included the testimony of jailhouse informants. It did not include DNA testing, because the necessary technology did not then exist. His application focuses on the evolving legal perspective about jailhouse informants, and the development of DNA testing as a reliable forensic tool. In his application, the applicant asked the Minister to conduct DNA testing of certain trial exhibits.
[ 3 ] In a letter dated June 22, 2010, counsel for the Minister of Justice, who was the General Counsel/Director of the Criminal Conviction Review Group (“CCRG”), advised the applicant that the CCRG would conduct a preliminary assessment of his application pursuant to s. 696.1 prior to deciding whether or not the case would proceed to the investigative stage. Counsel warned the applicant that the AGO takes the position that the Minister has no right to review a conviction unless the applicant has sought leave to appeal to the Supreme Court of Canada. He said that as a result, should the CCRG determine that DNA testing would assist in its review, the Attorney General of Ontario (“AGO”) might refuse to provide the trial exhibits to the Minister.
[ 4 ] On May 24, 2011, counsel for the AGO, who was the Deputy Director, Crown Law Office – Criminal, wrote to counsel for the Minister, advising him that the position of the AGO was that the applicant was “not entitled to avail himself of the s. 696.1 review process” and that while the AGO would continue to cooperate with the Minister, he would “defer” the Minister’s “request for assistance (such as you made in your e-mails to me dated April 5 and 6/11) until such time as Mr. McArthur has ‘exhausted’ his appellate remedies in accordance with s. 696.1 .” The Deputy Director went on to say his office “was cooperating with the Innocence Project in arranging and organizing the DNA testing of investigative and trial exhibits pertaining to Mr. McArthur’s case. This is, of course, a separate matter.”
[ 5 ] The Minister’s e-mails of April 5 and 6, 2011 are not in the record. As a result, I do not know what assistance the Minister sought of the AGO, and what assistance was “deferred.” However, in the circumstances, it is a reasonable inference that the AGO denied the Minister the opportunity to undertake DNA testing, the very thing that the AGO was prepared to do himself as a “separate matter.”
[ 6 ] On June 9, 2011, counsel for the Innocence Project wrote to the Deputy Director advising him that Mr. McArthur had not sought leave to appeal to the Supreme Court of Canada “because of insufficient funds.” He asked the Deputy Director to confirm that the AGO was unwilling to respond to any requests for information and assistance from the CCRG with respect to cases which have not been appealed to the Supreme Court of Canada.
[ 7 ] On July 21, 2011, the Deputy Director reiterated the AGO’s position concerning the Minister’s jurisdiction, but declined to agree that his office was unwilling to respond to requests from the CCRG in cases where no appeal was taken to the Supreme Court. He said, “This is too broad a statement. We approach requests on a case by case basis.”
[ 8 ] The record discloses that in similar cases, although they were aware of the jurisdictional issue raised by Ontario, the Provinces of Manitoba, Saskatchewan and New Brunswick have not raised it with the CCRG. The position of the remaining provinces and territories is not before me.
[ 9 ] On November 15, 2011, the applicant brought this application under the Rules of Civil Procedure , R.R.O. 1990. Reg 194, seeking a declaration that:
The statutory requirement under s. 696.1 of the Criminal Code that a convicted offender must “exhaust” his or her “rights of judicial review or appeal with respect to the conviction” does not require the offender to seek leave to appeal to the Supreme Court of Canada as a precondition to the Minister of Justice assuming jurisdiction to review the conviction pursuant to s. 696.2 of the Criminal Code.
THE POSITIONS OF THE PARTIES
[ 10 ] The applicant takes the position that the phrase “rights of judicial review or appeal” in s. 696.1 does not include the right to seek leave to appeal. The AGO, of course, takes the opposite view. The Minister takes the position that s. 696.1 should be interpreted flexibly, to allow the Minister to determine on a case-by-case basis whether an applicant must seek leave to appeal. The intervener reaches the same conclusion as the applicant, but goes on to agree that, as a matter of discretion, the Minister may insist on an applicant applying for leave to appeal.
[ 11 ] While the Minister takes the position that s. 696.1 should be interpreted flexibly, that is only his ultimate position. His primary position is that I should not pronounce on the scope of the Minister’s exercise of discretion until such time as the Minister has issued a decision. I will refer to this position as “prematurity.” He goes on to argue that in any event, the Federal Court has exclusive jurisdiction to review the Minister’s exercise of discretion under s. 696.1 . I underscore that all of the other parties urged me to decide this matter on the merits.
ANALYSIS
The Preliminary Objections Raised by the Minister
Exclusive Jurisdiction of the Federal Court
[ 12 ] Am I precluded from granting the declaration sought because the Federal Court has exclusive jurisdiction to review the Minister’s exercise of discretion?
[ 13 ] Section 18(1) (a) of the Federal Courts Act , R.S.C., 1985, c. F-7 provides that the Federal Court has exclusive jurisdiction “to issue an injunction, writ of certiorari , writ of prohibition, writ of mandamus or writ of quo warranto , or grant declaratory relief , against any federal board, commission or other tribunal (emphasis added).” It is common ground that by virtue of s. 2(1) of the Federal Courts Act , the Minister, in exercising the jurisdiction in Part XXI.1 of the Criminal Code , falls within the definition of “federal board, commission or other tribunal.” Based on this provision, the Minister argues that the Federal Court has exclusive jurisdiction to hear this application.
[ 14 ] At first blush, s. 18(1) does not appear to stand as an impediment to this Court’s jurisdiction to entertain this application, for the simple reason that no relief is sought “against” the Minister. I am not being asked to review an exercise of discretion by the Minister. Indeed, I am advised that the Minister has made no decision concerning the availability of s. 696.1 to the applicant. The “decision” that prompted this application is the AGO’s decision to “defer” the Minister’s request for assistance until such time as Mr. McArthur has ‘exhausted’ his appellate remedies in accordance with s. 696.1 . As the AGO candidly conceded in his factum, the position that he communicated to the applicant and the Minister concerning the interpretation of s. 696.1 “impacts on the applicant’s statutory right to pursue an application under s. 696.1 for ministerial review of his conviction.”
[ 15 ] But counsel for the Minister says that it is no answer to say that the Minister has not yet made a decision. Remedies may be given under s. 18(1) of the Federal Courts Act to prohibit or enjoin a decision-maker from making a decision or to compel a decision-maker to make a decision, in appropriate circumstances, and that the power to grant declaratory relief is similarly broad. In my view, on a closer reading of the Federal Courts Act , the exclusive declaratory jurisdiction of the Federal Court does not appear to be as broad as counsel for the Minister would have it.
[ 16 ] By virtue of s. 18(3), the Federal Court’s exclusive jurisdiction to grant declaratory relief can only be exercised on an application for judicial review made under s. 18.1. The extent of the power of the Federal Court to grant declaratory relief on judicial review is described in s. 18.1(3)(b): to “declare invalid or unlawful … a decision, order, act or proceeding of a federal board, commission or other tribunal.”
[ 17 ] It is true, of course, that the exercise of exclusive jurisdiction by the Federal Court under s. 18 does not depend on the existence of a “decision or order,” and may be invoked when a federal board, commission or other tribunal has unlawfully failed or refused to do any act or thing, has unreasonably delayed in doing such act or thing, has made an unlawful or invalid decision or order, has embarked upon an unlawful or invalid act or proceeding or has made a finding which is not a decision or order. ( See Krause v. Canada , 1999 9338 (FCA) , [1999] 2 F.C. 476 (C.A.) at para 24 and Morneault v. Canada (Attorney General) (C.A.) , 2000 15737 (FCA) , [ 2001] 1 F.C. 30; [2000] F.C.J. No. 705 (C.A.) at para 42.) Nonetheless, at a minimum, for a matter to be reviewable under s. 18.1, it must emanate from a federal board, commission or tribunal ( Morneault , para. 43 .)
[ 18 ] I undertake this impertinent excursion through the jurisdiction of another court simply to make one point: the declaration sought here is not a declaration that falls within the exclusive jurisdiction of the Federal Court as described in s. 18 and s. 18.1 of the Federal Courts Act . It is not made in an application for judicial review, it is not made in respect of any matter that emanates from the Minister and it is not an application for a declaration declaring invalid or unlawful any decision, order, act or proceeding of the Minister. Section 18 does not appear to oust the jurisdiction that I am asked to exercise here.
[ 19 ] When considering whether the jurisdiction of this Court has been ousted, two things must be remembered. First, any derogation from the jurisdiction of the provincial superior courts in favour of the Federal Court requires clear and explicit statutory language (see Canada (Attorney General) v. TeleZone Inc. , 2010 SCC 62 , [2010] 3 S.C.R. 585 at para. 42 ). As I have endeavoured to show, there is no such language here. And second, as noted by Lalonde J. in Professional Institute of the Public Service of Canada v. Canada (Attorney General) , [2000] O.J. No. 2510, at paragraph 30 (leave to appeal to the Divisional Court refused, [ 2000] O.J. No. 5306 .), this Court’s jurisdiction to grant d eclaratory relief is not limited to administrative law or judicial review. This Court routinely grants declarations of rights in virtually all substantive areas of the law. I would add that it is a common task of provincial superior courts to interpret provisions of the Criminal Code . I am unable to conclude that I am precluded from entertaining the application made in this case.
[ 20 ] While it is true that the Minister’s future decisions under s. 696.1 of the Criminal Code may be constrained by declarations granted by provincial superior courts, this is a commonplace reality, and does not prevent such declarations being made where appropriate. Exclusive jurisdiction cannot be acquired by inference.
[ 21 ] I well appreciate that the distinctions I am making could, in some circumstances, be employed in an effort to circumvent s. 18(1). But that is not this case. In this case, the applicant has no complaint with the Minister, at least so far. His complaint is with the AGO. In the past, the Minister has not treated the failure to apply for leave to appeal to the Supreme Court of Canada as an absolute bar to relief under s. 696.1 . By embarking on a preliminary consideration of this matter, the Minister is apparently not treating it as a bar in this case, at least at the preliminary stage of his review. Despite this, the applicant faces a serious problem. The AGO is not bound to accept the Minister’s view of the matter, and quite clearly does not. If the applicant wants to seek judicial intervention to declare that the AGO’s position is wrong, his only recourse is in this Court. His application does not fall within the exclusive jurisdiction of the Federal Court. Indeed, it does not fall within s. 18(1) of the Federal Courts Act at all.
Prematurity
[ 22 ] There can be no doubt that an application under s. 696.1 is a request for the exercise of a discretion now placed in the hands of the Minister that descends from the historical royal prerogative of mercy (see Thatcher v. Canada (Attorney General) , 1996 4092 (FC) , [1996] F.C.J. No. 1261 (T.D.), at paras. 8-9 and Bilodeau c. Canada , 2009 QCCA 746 at para. 25 , leave to appeal to S.C.C. dismissed [2009] S.C.C.A. No. 254.) Considerable deference is owed to decisions made by the Minister in the course of an investigation pursuant to s. 696.1 . It is well-recognized that it is generally inappropriate to interfere with ongoing proceedings of this nature. But in my view, the applicant does not seek an order interfering with the Minister’s consideration of the matter. Why would he? The Minister is conducting a preliminary examination of his application, just as the applicant asked him to.
[ 23 ] What the applicant really wants is to stop the AGO from interfering with the Minister’s process. He objects to the AGO appropriating to himself the Minister’s determination of whether or not the applicant has exhausted his rights of judicial review or appeal. It may be that he has cast the net too wide in his drafting of the declaration he seeks, or at least too wide for me, an issue I will return to later, but I am not constrained by the applicant’s drafting.
[ 24 ] I do not consider this application to be an interference with the Minister’s ongoing proceeding, and I do not consider this application to be premature.
DISPOSITION
[ 63 ] I grant an injunction to the applicant on the following terms:
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.
[ 64 ] No costs were sought in the Notice of Application, in any of the facta, or in oral argument, and none are ordered.
M. Dambrot J.
RELEASED: October 24, 2012
COURT FILE NO.: CV-11-439451
DATE: 20121024
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N :
LINDLEY CHARLES McARTHUR
Applicant
- and -
THE ATTORNEY GENERAL OF ONTARIO
Respondent
- and –
THE ATTORNEY GENERAL OF CANADA
Respondent
- and -
ASSOCIATION IN DEFENCE OF THE WRONGFULLY CONVICTED
Intervener
REASONS FOR JUDGMENT
DAMBROT J.
RELEASED: October 24, 2012