COURT FILE NO.: CV-15-540441

DATE: 2019/06/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Bradley John Albon

Applicant

– and –

The Attorney General of Ontario

Respondent

Alan Young and Golnaz Nayerahmadi for the Applicant

Alex Alvaro and Dan Guttman for the Respondent

HEARD: April 25, 2019

PERELL, J.

REASONS FOR DECISION

A. Introduction and Overview

[1] In 1983, Cindy McCauley was murdered in Brantford, Ontario. Approximately three years later, in 1986, Bradley John Albon pled guilty to manslaughter, and he was convicted for Ms. McCauley’s murder. Mr. Albon appealed his sentence but not his conviction. On appeal, his sentence was reduced from ten years to seven years. He served his sentence. In 2009, twenty-six years after the murder, Mr. Albon claimed that he had falsely confessed and that he was innocent. Mr. Albon claimed that Paul Fitzgerald was the perpetrator of Ms. McCauley’s murder.

[2] In 2012, the Innocence Project, an NGO and a clinical course of Osgoode Hall Law School, investigated Mr. Albon’s case, and it decided to assist him in seeking an exoneration from his conviction pursuant to s. 696.1 (Applications for Ministerial Review — Miscarriages of Justice) of the Criminal Code.[^1] Section 696.1 provides a process for the Minister of Justice to exonerate a person who can show that justice has miscarried and that he or she was wrongfully convicted.

[3] A critical component of a Ministerial Review is that the applicant provide evidence to the Minister of “new matters of significance that were not considered by the courts or previously considered by the Minister”. To gather evidence for the s. 696.1 application, the Innocence Project requested information from the Ministry of the Attorney General of Ontario (the “Crown”) and from the Brantford Police Service, which had investigated Ms. McCauley’s murder and which was investigating Mr. Fitzgerald for historic sexual assaults, including an alleged assault of Mr. Albon.

[4] The Crown says that it provided what information it could find, but Mr. Albon submits that the disclosure he received from the Crown was incomplete. Relying on s. 24 (1) of the Canadian Charter of Rights and Freedoms,[^2] Mr. Albon brings an application to this superior court and requests: (a) a declaration that post-conviction, a superior court has jurisdiction pursuant to s. 24 (1) of the Charter to make post-conviction disclosure orders; (b) an order requiring the Attorney General of Ontario (the Crown) to disclose 29 items relevant to Mr. Albon’s conviction or to make a good faith effort to locate the items; and (c) a declaration that convicted persons are not required to obtain the consent of the Crown to communicate regarding their convictions with public officials.

[5] The Crown submits that Mr. Albon’s application for declarations and for a disclosure order should be dismissed as premature or as moot. The Crown also submits that the Mr. Albon’s application should be dismissed on its merits because: (a) there is no Charter-based right to post-conviction disclosure from the Crown; (b) if there is an obligation on the Crown to provide post-conviction disclosure, then, in the circumstances of his case, Mr. Albon does not qualify for a post-conviction disclosure order; and (c) if there was an obligation on the Crown to provide post-conviction disclosure, it has been discharged.

[6] For the reasons that follow, I am dismissing Mr. Albon’s application for a post-conviction disclosure order, but I am not dismissing his requests for declaratory relief with respect to the superior court’s jurisdiction to make post-conviction disclosure orders.

[7] By way of an overview or my Reasons for Decision, Mr. Albon’s application for a post-conviction disclosure order is premature and moot. It is premature because, as I shall explain below, he has not satisfied several preconditions for a Ministerial Review. In particular, he has not satisfied the precondition of having exhausted his rights of appeal from his allegedly wrongful conviction. His application for a post-conviction disclosure order is, in any event, moot because the Crown has satisfied its post-conviction disclosure obligations, which I shall describe below.

[8] Although, Mr. Albon’s application is moot, I shall exercise the court’s discretion to decide several significant issues about the Crown’s post-conviction disclosure obligations and about the superior court’s jurisdiction to make post-conviction disclosure orders because it is strongly in the public interest for the court to express an opinion on these uncertain legal issues, which are very likely to recur in other cases alleging a wrongful conviction.

[9] With respect to the issue of the criteria for the exercise of the superior court’s jurisdiction to make a post-conviction disclosure order, it is my tentative opinion that the superior court has Charter-based and common law and equitable jurisdictions to make a post-conviction disclosure order if the following criteria are satisfied: (a) the preconditions for a Ministerial Review have been satisfied; (b) the Minister has refused to make an investigatory order (under subsections 696.2 (2) or (3) of the Criminal Code); (c) there is a strong prima facie case that there has been a miscarriage of justice; (d) there is a reasonable possibility that a post-conviction disclosure order would provide evidence of new matters of significance that were not considered by the courts or previously considered by the Minister; and (e) the new matter(s) of significance would assist the applicant on the Ministerial Review application in demonstrating that there has been a miscarriage of justice. Using this jurisdiction, a lacuna in the fundamental principles that protect the innocent from unfair or wrongful convictions is filled.

[10] Finally, I conclude and declare that convicted persons are not required to obtain the consent of the Crown to communicate regarding their convictions with public officials.

B. Legislative Background

[11] Section 696.1 of the Criminal Code (Applications for Ministerial Review — Miscarriages of Justice) and SOR/2002-416, which is the regulation respecting applications for Ministerial Review and which sets out the form for a Ministerial Review application, are set out in Schedule A to these Reasons for Decision.

[12] As the discussion below will reveal much turns on the circumstances that: (a) s. 696.1 of the Criminal Code makes a precondition to a Ministerial Review application that the applicant have exhausted his or her rights of appeal; and (b) a critical component of a Ministerial Review is that the applicant provide evidence to the Minister of “new matters of significance that were not considered by the courts or previously considered by the Minister”.

C. Factual Background

1. The Homicide and the Homicide Investigation

[13] Cindy McCauley, a fifteen-year old girl, was last seen by her mother shortly after 5:00 p.m. on November 28, 1983.

[14] On December 1, 1983, Ms. McCauley was found dead in Brantford, Ontario on the edge of Lake Mohawk. She was found face down in shallow water, kneeling (not prone) with an approximately 60-lb concrete block on her back. Her winter coat was pulled over her head and one of her arms was out of the coat.

[15] The homicide was investigated by the Brantford Police Service. The investigating officers were Detective Ron Belair and Detective Ray Fitzpatrick. Keith Swanson was the Crown Attorney in Brantford at the time.

[16] There was a post-mortem autopsy conducted by Dr. John Hillsdon-Smith. It revealed no serious bodily injuries and no drugs or alcohol were found in Ms. McCauley’s body. The cause of death was noted as asphyxiation from stomach contents. This finding was consistent with drowning, though asphyxiation could have been the result of hypothermia, positional asphyxia, or other causes. Dr. Hillsdon-Smith concluded that there was no microscopic evidence of drowning and that the cause of death was asphyxiation due to widespread aspiration of stomach contents into both lungs.

[17] According to Detective Raymond Fitzpatrick’s police notebook, Dr. Hillsdon-Smith called the Brantford Police and theorized that Ms. McCauley died somewhere else and was moved to the lake and the concrete block was put on top of her.

[18] Mr. Albon (born February 12, 1969) was a classmate and former boyfriend of Ms. McCauley. The Brantford police identified Mr. Albon as a suspect, but they accepted his alibi that on November 28, 1983, Mr. Albon and his friend, Gary Gamble, had made plans to meet Ms. McCauley, but she did not show for their planned meeting. Mr. Gamble confirmed this alibi.

[19] The Brantford police were unable to identify a perpetrator, and the McCauley murder case became a cold case for two-and-a-half years until March of 1986.

2. Mr. Albon’s Confession

[20] In the evening of March 7-8, 1986, Mr. Albon was with Paul Fitzgerald, an older man. They were in a motel room, taking drugs and drinking alcohol. They had sex. Mr. Albon says that it was a sexual assault.

[21] Mr. Albon says that during the evening Mr. Fitzgerald persuaded him to confess that he had murdered Ms. McCauley. Over twenty years later, Mr. Albon said that he agreed to confess to Ms. McCauley’s murder because he believed that he would spend three years in prison, which would have allowed him to escape the abuse he had been suffering and have a fresh start when released. Mr. Albon says that in the middle of the night, Mr. Fitzgerald called a lawyer to drive Mr. Albon to the police station to make the false confession.

[22] On March 8, 1986, in the early morning, Mr. Albon attended the police station with his legal counsel, John Renwick, and Mr. Albon did confess to having drowned Ms. McCauley. Mr. Albon told the police: “I grabbed her and put her under the water.” Mr. Albon’s confession provided little detail as to what he had done or why he had done it, and the detectives did not extract more detail. His original statement reads in full: “I arranged to meet her that night, then we ended up at the park, then we talked, then for some reason, I got angry with her. I grabbed her and put her under the water.”

[23] Decades later, Dr. Timothy Moore, Professor of Psychology at York University and an expert in police interrogations and false confessions, reviewed the confession and the transcript of the police interview, and he concluded that the statement and the circumstances under which it was taken have the hallmarks of falsity. He opined that the reliability of Mr. Albon’s statements during this interview was seriously compromised by the manner in which the statements were elicited, thus rendering the confession useless as a foundation for inferring culpability.

[24] Mr. Albon was charged with murder.

[25] After Mr. Albon confessed that he had grabbed her and put her under the water, the detectives sought the opinion of a second pathologist, Dr. David E.L. King, who received the autopsy report and indicated that the cause of death was drowning.

[26] There is a controversy between the parties about the problem that Mr. Albon’s confession was inconsistent with his alibi, which had been accepted by the police three years before the confession. Because of the alibi, Mr. Albon says that the detectives arranged to have Mr. Albon meet with Mr. Gamble for the purposes of having Mr. Gamble recant his evidence that provided Mr. Albon with the alibi. Mr. Albon says he met with Mr. Gamble in a room at the police station, and he attempted to convince Mr. Gamble to change his story. The outcome of the meeting was that Mr. Gamble said that he did not remember Mr. Albon leaving to see Ms. McCauley, but, nevertheless, Mr. Gamble agreed that it was possible that Mr. Albon might have left.

3. Conviction and Post-Conviction

[27] Mr. Albon was ordered tried as an adult. For the trial, will-say statements were prepared by the detectives from their investigative notes. The investigative notes indicate that Mr. Fitzgerald was interviewed. The notes indicate that Mr. Fitzgerald told the police that Mr. Albon had confessed to him about a week before Mr. Albon turned himself in to the police. Mr. Fitzgerald said that on the night before Mr. Albon gave himself up, Mr. Albon and he talked for awhile and then Mr. Albon decided to give himself up.

[28] Mr. Fitzgerald has never admitted to having been responsible for Ms. McCauley’s death.

[29] Mr. Albon pleaded guilty to manslaughter, and on August 20, 1986, at the age of seventeen, he was sentenced to ten years in prison.[^3]

[30] In 1989, represented by Marc Rosenberg, later Mr. Justice Rosenberg of the Ontario Court of Appeal, Mr. Albon appealed his sentence to the Court of Appeal. The sentence appeal was granted, and on October 16, 1989, the sentence was reduced to seven years.[^4]

[31] Mr. Albon has never appealed his conviction. Mr. Albon has never applied for an extension of time to appeal his conviction.

[32] During his incarceration at Warkworth Institution, in a series of sessions with Lynn Stewart, a penitentiary psychologist, Mr. Albon again confessed to having murdered Ms. McCauley. In a report dated October 5, 1988, Ms. Stewart wrote:

According to Brad's account, he had broken up with her two weeks previously but had remained friends. The day of the offence he and the victim arranged to meet around 6:00 p.m. He had been playing in a band and had adopted the fashion of a rocker, wearing his hair long and sporting an earring. As they walked by a river, she taunted him about this, calling him a "faggot". He responded by pushing her into the shallow water on the edge of the river and ducking her under. When she surfaced, she again taunted him; this continued several times until she stopped struggling and he realized with a shock that she was dead. He placed a cement block over her body to hide it. He insists that he did not realize that what he was doing could kill her, she hadn't indicated that she was in trouble and to this extent Brad believes that she participated in her own death. The next day, he went to the school principal to confess, changed his mind, and eventually got caught up in a pattern of denial, which he has maintained until very recently.

[33] Mr. Albon served his sentence, and in 1992, he was released.

[34] During and after his imprisonment until 2009, Mr. Albon made no formal claim of innocence, nor did he make a request to any authority involved in the case to locate and preserve materials relating to his conviction. Both his trial lawyer and appeal lawyer destroyed their files.

4. The Pursuit of Exoneration: the Innocence Project Investigation

[35] On October 3, 2009, Mr. Albon attended at the Brantford Police Service to file a complaint of historic sexual assault against Mr. Fitzgerald. Mr. Albon also asserted a claim of innocence in relation to the 1986 conviction putting the blame on Mr. Fitzgerald. Mr. Albon says that he was subjected to prolonged sexual abuse at home and at the hands of Mr. Fitzgerald.

[36] The Brantford Police Service decided to investigate the sexual assault allegation against Mr. Fitzgerald but not to re-investigate the homicide.

[37] As part of the investigation of the sexual assaults, Mr. Fitzgerald was interviewed. The interview was videotaped. Mr. Fitzgerald denied the allegations and he also denied killing Ms. McCauley.

[38] The officers investigating the sexual assault claim declined to lay charges against Mr. Fitzgerald. Foreshadowing, here it should be noted that recently charges were laid against Mr. Fitzgerald for several historic sexual assaults and among the alleged victims is Mr. Albon.

[39] In 2011, Mr. Albon retained James Lockyer to investigate whether he had been wrongfully convicted, and the Brantford Police Service assigned Detective Mark Whitworth, who had not been involved in the original investigation, to assemble whatever materials he could relating to the McCauley homicide.

[40] Sometime in late 2011 or early 2012, there was a break in the relationship between Mr. Lockyer and Mr. Albon, and on April 30, 2012, Mr. Albon wrote to the Innocence Project seeking assistance in pursuing his exoneration for a wrongful conviction. Among other things, Mr. Albon advised the Innocence Project that Mr. Fitzgerald had told Mr. Albon’s friend, Tracey Robbins-Lunn, that he had committed the murder, which confession Ms. Robbins-Lunn had posted on her Facebook page.

[41] On July 18, 2012, Amit Thakore and Frances Mahon of the Innocence Project met with Detective Whitworth. He acknowledged some concerns about the probity of the original investigation, but he also expressed skepticism about Mr. Fitzgerald's purported confession to Ms. Robbins-Lunn.

[42] By this time, Detective Whitworth had located Detective Belair's notes in the investigative file. Copies of Detective Belair's notes were provided to the Innocence Project. Detective Whitworth had not located Detective Fitzpatrick's notes, which were not in the police file. Detective Fitzpatrick had retired from the Brantford Police Service in 2005. Detective Whitworth approached Detective Fitzpatrick in 2012, but Detective Fitzpatrick advised he could not locate his notes.

[43] The Innocence Project, however, had copies of the will-say statements of both investigators that had been prepared for the trial. The will-say statement of Detective Fitzgerald was forty-one legal size pages in length, typed, and single-spaced.

[44] On July 27, 2012, Ms. Mahon of the Innocence Project wrote to Riun Shandler of the Crown Law Office – Criminal. She requested access to the complete police investigative file.

[45] Mr. Shandler, who was later appointed a judge of the Ontario Court of Justice, responded, and he met with Mr. Thakore and Ms. Mahon on October 4, 2012. Mr. Shandler advised them that apart from Detective Belair's notes, there was nothing remaining of the original police file. Mr. Shandler said that he and Detective Whitworth were, however, attempting to locate whatever materials could be retrieved and that they had made inquiries of the Centre for Forensic Studies and Correctional Services Canada. Mr. Shandler obtained what was left of the trial Crown's brief and provided the materials to the Innocence Project.

[46] Over the next year, there was some correspondence and there may have been some telephone calls between Mr. Thakore and Mr. Shandler, and on July 25, 2013 Mr. Thakore wrote Mr. Shandler and provided Mr. Albon’s consent for the release of the Correctional Services’ report and a CD containing crime scene photographs.

[47] During the next fourteen months, the Innocence Project largely focussed on obtaining information relating to forensic pathology issues. The Innocence Project was seeking to obtain an autopsy review from Dr. Michael Pollanen, Chief Forensic Pathologist for Ontario.

[48] On October 2, 2013, Mr. Shandler met Professor Alan Young of the Innocence Project. Without success, Professor Young sought the assistance of Detective Whitworth to interview witnesses and he sought to have Dr. Pollanen review the autopsy report and the notes by Dr. Hillsdon-Smith, the first pathologist, and Dr. King, the second pathologist.

[49] On October 8, 2013, Professor Young met Mr. Shandler and Detective Whitworth. Detective Whitworth told Professor Young he had interviewed Mr. Fitzgerald, who told him he had entered into a sexual relationship with Mr. Albon only after he got out of jail. Professor Young regarded this as a lie and suggested that Mr. Fitzgerald had been sexually involved with the Mr. Albon as early as 1983.

[50] The Innocence Project consulted with an independent expert forensic pathologists, among them Dr. Markesteyn. Dr. Markesteyn indicated that the available evidence did not prove death by drowning and that, in all likelihood, the deceased was already dead when placed in the lake.

[51] In November 2014, Mr. Shandler was appointed to the Ontario Court of Justice. Lorna Bolton assumed responsibility for the Albon file.

[52] On November 17, 2014, Professor Young wrote to recently appointed (May 30, 2014) Brantford Chief of Police Geoffrey Nelson. Professor Young asked Chief Nelson for the assistance of Detective Whitworth when conducting interviews with potential witnesses.

[53] On January 19, 2015, the Innocence Project met with Ms. Bolton and provided her with an itemized list of outstanding documents. Ms. Bolton made efforts to obtain these materials.

[54] The itemized list focused on two categories of specific documents that the Innocence Project knew existed at one time; i.e.: (1) documents relating to Mr. Fitzgerald; and (b) documents relating to Mr. Albon’s alibi. The Crown says that the list was the first time that the Innocence Project made a particularized, as opposed to omnibus general request, for documents relating to the McCauley murder investigation.

[55] On February 9, 2015, Ms. Bolton advised the Innocence Project that the original investigative file was not retained and Detective Whitworth had done his best to re-assemble what he could.

[56] On February 24, 2015, Professor Young wrote a six-page letter to Ms. Bolton threatening legal action. The Innocence Project demanded unrestricted access to the police file.

[57] On June 2, 2015, Alex Alvaro took over carriage of the file from Ms. Bolton, and on June 18th, Professor Young reiterated to Mr. Alvaro in an email that the Innocence Project intended to apply for declaratory relief.

[58] Mr. Alvaro continued his efforts to obtain materials relating to the McCauley homicide.

[59] On July 30, 2015, Mr. Alvaro contacted Chief Nelson and asked him to have someone re-approach Detectives Belair and Fitzpatrick (both of whom were retired) to determine if they had anything in their personal possession respecting the investigation. Detective Fitzgerald was re-approached, and this time he located his notes.

[60] As it happened, also on July 30, 2015, the Innocence Project was interviewing Mr. Fitzgerald. He indicated that because of his fear of being unjustly charged with the McCauley murder, he decided to speak to Mr. Albon about confessing to the murder. Mr. Fitzgerald said that he and Mr. Albon were at a motel, drinking and doing drugs. He said that Mr. Albon confessed to him and that he urged Mr. Albon to turn himself in. Mr. Fitzgerald also said that two Brantford Police detectives had visited him while he was imprisoned at Burtch Correctional Facility in 1986. He said the detectives threatened to charge him as an accessory in the death of Cindy McCauley.

[61] On July 31, 2015, Mr. Alvaro provided to the Innocence Project the 2009 DVD interview between the Brantford Police Service and Mr. Albon.

[62] On September 30, 2015, Mr. Alvaro provided the notes of Detective Fitzpatrick relating to the McCauley homicide. The notes were redacted, which was unacceptable to the Innocence Project.

[63] On January 12, 2016, Mr. Alvaro asked Chief Nelson whether a further search for outstanding items would be worthwhile. Chief Nelson agreed to make another search. Mr. Alvaro sent to Chief Nelson the list of the items to assist him in the search. Mr. Alvaro also asked Chief Nelson to contact other retired officers to determine if they had retained their notebooks.

[64] On January 26, 2016, Professor Young sent to Mr. Alvaro a further request, which Mr. Alvaro forwarded to Chief Nelson.

[65] On January 27, 2016, Mr. Alvaro contacted the Brantford Crown Office and asked the Crown Attorney at the time, George Orsini, to determine if that office had any further materials respecting the McCauley homicide. On February 19, 2016, Mr. Orsini advised Mr. Alvaro that the Brantford Crown Office had forwarded everything in its possession to Mr. Shandler in December 2012.

[66] On February 4, 2016, Chief Nelson forwarded to Mr. Alvaro the results of his further search for materials. These materials were subsequently sent to the Innocence Project.

[67] On February 8, 2016, Ms. McCauley’s sister, Colleen McCauley, notified the Innocence Project that Ms. McCauley had wanted to confront Mr. Fitzgerald about his abuse of Mr. Albon.

[68] On June 1 and 13, 2016, at the invitation of Mr. Alvaro, Professor Young and other members of the Innocence Project attended at the Crown Law Office - Criminal to review the investigative materials that had been collected, including the unredacted notes of Detective Fitzpatrick.

[69] On August 3, 2018, the Innocence Project requested that the Crown produce the Brantford Police Service’s entire file of its investigation of Mr. Fitzgerald, which included his video-taped interview in 2010. The file was produced to the Innocence Project on September 17, 2018. It was then discovered that Mr. Fitzgerald had discussed that Mr. Albon had confessed to him that he had committed the murder some time before Mr. Albon went to make a confession to the police.

[70] On March 29, 2019, Mr. Fitzgerald was arrested and charged with a number of sexual assaults involving numerous complainants, including Mr. Albon. The allegations are historic in nature.

[71] The Crown says that to the best of its knowledge, it is not in possession of any materials that might constitute new and significant evidence of Mr. Albon’s innocence and, in particular, it says that it is not in possession of the items listed in Appendix A of Mr. Albon’s Record in this Application. The Crown says that if any of these items come into its possession, it will produce them to Mr. Albon.

[72] Chief Nelson of the Brantford Police stated that the police, through the efforts of Detective Whitworth, made concerted efforts to reconstruct the case files through extensive searches and by reaching out to retired officers. He confirmed that all locations where materials may have been stored were searched and all material relating to Mr. Albon have been turned over to the Crown Law Office Criminal. He promised that if anything more was found it would be turned over to the Crown.

D. Procedural Background

[73] In 2016, relying on s. 24 (1) of the Charter, Mr. Albon commenced this court application against the Crown for declarations and for a post-conviction disclosure order. At the time that the court application was commenced, Mr. Albon had not commenced an application for a Ministerial Review under s. 696.1 of the Criminal Code.

[74] Mr. Albon’s application in the superior court was supported by a voluminous record (2,633 pages) comprised of affidavits from the Mr. Albon and from Innocence Project caseworkers. The affidavits in the record, which are still before the court, detail: (a) why Mr. Albon asserts that he was innocent and wrongfully convicted; and (b) his efforts to secure full disclosure from the Crown and the police of the investigation and prosecution material with respect to the McCauley murder case.

[75] In Mr. Albon’s application to the court, he sought a declaratory judgment that a superior court has jurisdiction under s. 24 (1) of the Charter to make post-conviction disclosure orders. In his court application, he applied for, among other things, the following declaration:

A declaration that the protection of the innocent is a principle of fundamental justice contained within s. 7 of the Charter; and that one concrete application of this general principle is the right of a convicted offender, seeking to review a conviction after exhausting rights of appeal, to apply to a Superior Court for orders of production and disclosure

[76] In 2016, the Crown moved to strike Mr. Albon’s application on the following grounds: (a) he does not have standing because he has not exhausted his rights of appeal; (b) the superior court should decline to exercise its discretion to consider a constitutional declaration where the relief sought is available under the Criminal Code; (c) a application for an order under s. 24 (1) of the Charter cannot be brought in aid of a Ministerial Review application that has not yet been made; and (d) convicted offenders who have completed their sentence have no Charter right to material previously disclosed before their trial and they have no Charter protected right to post-conviction disclosure.

[77] The Crown’s motion to strike was heard by Justice Pollock on July 25, 2016, and while her decision was under reserve, on August 29, 2016, Mr. Albon did apply to the federal Minister of Justice for a Ministerial Review. This application removed just one of the Crown’s objections to Mr. Albon having brought a court application.

[78] On September 28, 2016, the Crown was advised by the Federal Crown’s Criminal Code Review Group that Mr. Albon had brought an application under s. 696.1 of the Criminal Code. The Federal Crown subsequently requested from the (provincial) Crown a log of the materials that had been provided to the Innocence Project.

[79] Although it is ultimately up to the Minister to decide,[^5] the Federal Crown’s Criminal Code Review Group requested the (provincial) Crown's views respecting whether Mr. Albon's rights of appeal had been exhausted.

[80] Meanwhile, on October 24, 2016, Justice Pollak dismissed the Crown’s motion to strike Mr. Albon’ application.[^6] The Crown sought leave to appeal.

[81] On December 6, 2016, the Crown advised the Federal Crown’s Criminal Code Review Group that Mr. Albon had not exhausted his rights of appeal. The (provincial) Crown declined to comment about whether the Minister had a jurisdiction to consider an application under s. 696.1 of the Criminal Code for a Ministerial Review notwithstanding that Mr. Albon, the applicant, had not exhausted his rights of appeal.

[82] On February 20, 2017, Justice Kiteley granted leave to appeal from Justice Pollock’s decision.[^7]

[83] On November 11, 2017, the Divisional Court granted the appeal, and it ordered a re-hearing of the Crown’s motion to strike the court application.[^8]

[84] While the rehearing of the motion to strike was pending, on August 16, 2018, the Minister of Justice dismissed Mr. Albon’s application for a Ministerial Review. The Minister sent Mr. Albon a letter stating that the Minister would not entertain Mr. Albon’s application because Mr. Albon had not exhausted his conviction appeals. Mr. Albon did not seek judicial review in the Federal Court of the Minister’s decision.

[85] Subsequently, with the rehearing of the Crown’s motion to strike still before the court, the Crown decided to withdraw its motion to strike, and the parties agreed that the court should decide Mr. Albon’s application for declaratory relief and for a post-conviction disclosure order on its merits.

[86] Mr. Albon’s application for declarations and for a post-conviction disclosure order was argued on April 25, 2019, and I reserved judgment.

E. Is Mr. Albon’s Application Moot?

[87] The fundamental dispute between the parties is about whether post-conviction, the superior court should order the Crown to produce a list of items requested by Mr. Albon. As I shall explain below, Mr. Albon’s application for a post-conviction disclosure order in aid of his application for Ministerial Review is premature. His application is also moot because I am satisfied that the Crown has produced or will produce all the documents it has in its possession or control. No purpose would be served by making a post-conviction disclosure order in the circumstances of the immediate case.

[88] After Mr. Albon’s omnibus, unparticularized, demand for documents associated with the McCauley murder case (which it needs to be kept in mind occurred almost four decades ago), the Crown did the best that it could to provide all the documents it could locate. Also keeping in mind, the passage of time and the absence of modern retention practices, it is not surprising that documents may have gone missing. It should also be recalled that Mr. Albon’s former lawyers understandably did not retain their copies of the documents for four decades. There is nothing nefarious about the loss of the documents.

[89] There are no known documents in the possession of the Crown or the police that have not been disclosed to the Innocence Project. Neither the Crown nor the police has refused to search for documents or to provide documents if found. The Crown and police have made reasonable and repeated efforts to locate documents and anything else related to the original investigation and trial. The police and the Crown have found a significant number of documents, all of which have been turned over to Mr. Albon. Without conceding any obligation to do so, the Crown has promised that if any more documents are found, they will be disclosed to Mr. Albon. Mr. Albon has shown that some mistakes have been made in finding documents but there is no evidence of stonewalling or actions taken other than in a good faith effort to respond to Mr. Albon’s requests for disclosure.

[90] A case is said to be moot when the dispute between the parties has been resolved, has vanished or faded away. With some exceptions, a court will not hear or decide a case that is moot.[^9] The general rule of mootness is that courts will not decide hypothetical or academic questions and will decline to hear a case where the outcome has no practical effect.

[91] There are exceptions to the mootness rule, and the court has a jurisdiction to hear a moot proceeding in the interests of justice.[^10] Where there is no live dispute between the parties but there is the prospect that the contentious legal issue that prompted the proceedings will repeat itself and remain unresolved and evasive of review, then the court may hear the matter notwithstanding its mootness. In circumstances where the court is in a position to make a fully informed decision and it is strongly in the public interest for the court to express an opinion on a legal issue that is uncertain but likely to recur, a court may decide to hear a case that is moot.[^11]

[92] While no single factor is dispositive, important factors that govern the court’s discretion to hear a moot matter are: (1) whether, despite the absence of a live controversy, the matter will be fully argued and the court will be able to make a fully informed decision; (2) whether the influence of the judgment on the disputed issue will have practical value in other cases; (3) whether the issue in the case is a matter of public importance of which a resolution would be in the public interest; and (4) whether, the court’s activism in deciding the issue is appropriate having regard to its role and the role of the other branches of government.[^12]

[93] In my opinion, Mr. Albon’s case about the disclosure of documents is moot and I therefore dismiss the application for a post-conviction disclosure order. It is, nevertheless, in the interests of justice to hear and decide Mr. Albon’s court application for declarations. The case for declarations has been very fully argued and the court is fully informed of the issues. There is an enormous factual and legal brief. The issues Mr. Albon raises are serious and important and go to the very heart of the administration of criminal justice. It is appropriate for the superior court to weigh in on these issues having regard to its role and the role of the other branches of government. The issues are certain to arise again, and, indeed, the discussion below reveals the ongoing recurrence of uncertainties about the Crown’s obligations post-conviction to disclose information to a convicted person seeking to prove his or her innocence and about the court’s jurisdiction to make post-conviction disclosure orders.

[94] I conclude that Mr. Albon’s request for a disclosure order in so far as it raises requests for declaratory relief should not be treated as moot because it is strongly in the public interest for the court to express an opinion on the uncertain legal issue of post-conviction disclosure.

F. Is Mr. Albon’s Application Premature?

[95] I shall now explain why it is the case that Mr. Albon’s court application is premature. The explanation begins by noting that there are preconditions to the Minister exercising his authority under s. 696.1 of the Criminal Code. Section 696.1 (1) states:

Application

696.1 (1) An application for ministerial review … may be made to the Minister … by … a person who has been convicted of an offence … and whose rights of … appeal with respect to the conviction … have been exhausted.

[96] Although, as noted above, Mr. Albon did not do so when he originally commenced this court application, he has now brought an application for a Ministerial Review. The Crown, however, has advised the Minister that Mr. Albon’s rights of appeal have not been exhausted, and the Minister has, therefore, decided to dismiss the Ministerial Review application. The Minister has refused to consider the application until Mr. Albon has exhausted his rights of appeal.

[97] Mr. Albon submits, however, that an appeal to the Court of Appeal of his conviction is a futility because apart from needing an extension of time to appeal, the appellate court would have to allow him to withdraw his guilty plea, and he says that he does not have a jurisprudentially sound basis for asking an appellate court to allow the withdrawal of the guilty plea as a precondition to launching an appeal. He says that it would be a misuse of court process to launch a groundless appeal solely for the purpose of engaging an appellate court in a request for a disclosure order in aid of what he really wants, which is a Ministerial Review.

[98] Respectfully, in my opinion, Mr. Albon’s submission is all of unnecessary and self-injurious.

[99] Nobody other than Mr. Albon is suggesting that his appeal would be groundless or an abuse of process because it was being launched solely for the purpose of engaging an appellate court in a request for a disclosure order. As I shall explain below, the Court of Appeal does have the jurisdiction to make a post-conviction disclosure order, but in the worst case for Mr. Albon (where the Court of Appeal dismissed his application for an extension of time to appeal, or dismissed his application to withdraw his guilty plea, or dismissed his motion for a post-disclosure order for the purposes of the appeal, or dismissed the appeal itself), then Mr. Albon will have satisfied the preconditions for a Ministerial Review, because he will have exhausted his rights of appeal, which is a precondition for the Minister assessing the matter and moving forward with a Ministerial Review. For the purposes of perfecting his Ministerial Review application, Mr. Albon wins by losing his appeal and exhausting his appeal rights.

[100] The precondition for a Ministerial Review is that the applicant have exhausted his or her rights of appeal. Mr. Albon has not yet attempted to exhaust his rights of appeal. Obviously, there is no precondition that Mr. Albon have a successful appeal, because such a precondition would make the Ministerial Review superfluous once a new trial or acquittal was ordered by the appellate court.

[101] It follows that Mr. Albon’s court application for a post-conviction disclosure order from the superior court in aid of his application for a Ministerial Review is premature. Thus, in the immediate case, no post-conviction disclosure order can be made by the superior court because of prematurity. This is another reason for dismissing Mr. Albon’s application for a post-conviction disclosure order, but I shall for the reasons expressed above not treat his application for declarations as premature or moot, and I shall go on to address his requests for declaratory relief about the Crown’s post-conviction disclosure obligations and about the court’s jurisdiction to make post-conviction disclosure orders.

G. Is a Court Application Unnecessary Because Post-Conviction Disclosure is Already Available under s. 696.1 of the Criminal Code?

[102] Before addressing the matters of the Crown’s post-conviction disclosure obligations and about the court’s jurisdiction to make post-conviction disclosure orders, it is necessary to address a central point about which the parties have substantially different positions.

[103] It is Mr. Albon’s position that there is a serious problem in the scheme of a Ministerial Review – a so called Catch 22 – that yields a Charter violation and the need for court intervention under s. 24 (1) of the Charter. It is the Crown’s position that there is no problem in the legislative scheme and no need for the superior court to make post-conviction disclosure orders because the Criminal Code invests the Minister with the power to make post-conviction disclosure orders.

[104] In this regard, s. 696.2 of the Criminal Code directs the Minister upon receipt of an application for Ministerial Review to review the application in accordance with the regulations. Section 3 of SOR/2002-416 requires the Minister to conduct a preliminary assessment. Following the preliminary assessment, if the Minister determines that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred, then the Minister shall conduct an investigation in respect of the application (subsection 4(1)(a)). When he or she conducts such investigation, subsection 693.2(2) of the Code confers on the Minister some of the powers of a commissioner under Part I of the Inquiries Act, 1985, c I-11. If, however, after a preliminary assessment the Minister determines that there is no basis for concluding that a miscarriage of justice likely occurred, the Minister must notify the applicant that no investigation will be conducted (subsection 4(2)). The applicant then has one year in which to provide further information in support of his application (subsection 4(3)). If further information is so provided, then the preliminary assessment is continued in light of the new information. If further information is provided by the applicant, but after that period of one year, then the Minister must conduct a new preliminary assessment (subsection 4(4)).

[105] The Crown submits that the superior court should decline to consider Mr. Albon’s Charter challenge because post-conviction disclosure is already available under the Criminal Code. In other words, the Crown submits that Mr. Albon should ask the Minister to exercise his or her powers under s. 696.2 (2) of the Criminal Code which empower the Minister with the powers of a commissioner under Part I of the Inquiries Act.

[106] The Crown’s submission, however, is partially true and partially false. It is true that after the preconditions for a Ministerial Review are satisfied that the Minister may make an investigatory order pursuant to subsections 696.2 (2) or (3) of the Criminal Code, and this would empower the Minister to order the Crown and the police to disclose evidence to Mr. Albon post-conviction.

[107] There is, however, a three-branched problem for an applicant in animating the Minister to exercise his or her powers under the Inquiries Act and these problems make the Crown’s submission largely false.

[108] The first branch of the problem for an applicant is that the Minister is under no obligation to exercise his or her discretion under subsections 696.2 (2) or (3) to order an investigation. The powers given to the Minister derive from the Royal Prerogative of Mercy and are highly discretionary.[^13] The Minister must act in good faith in conducting the initial assessment, but the Minister is under no obligation to conduct an investigation as part of the initial assessment and it is up to the Minister to decide whether to use the powers under the Inquiries Act.[^14] While a Ministerial Review may spontaneously energize the Minister to order an investigation that could yield new matters of significance, a Ministerial Review is not a means to request a disclosure order.

[109] If a Ministerial Review application survives the preliminary assessment, the Minister may use his or her powers of investigation. However, applications may not survive this assessment simply because they have failed to obtain the requisite information for the Minister. In other words, the Minister may make a post-conviction disclosure order; however, there is no right to apply to the Minister to obtain a post-conviction disclosure order.

[110] The second branch of the problem - and this is a major Catch 22 problem - is that the Minister is unlikely to order an investigation and make a post-conviction disclosure order unless the application for a Ministerial Review is “supported by new matters of significance that were not considered by the courts or previously considered by the Minister.” A very prominent feature of the prescribed application form for a Ministerial Review is that the applicant must provide a description of the new matters of significance that support the application.

[111] The nub of the problem is that the applicant may made need an investigation to determine whether there is new matters of significance that were not considered by the courts or previously considered by the Minister, but there is no provision in the Criminal Code that provides a mechanism for the convicted person to compel disclosure from the police or the Crown of new matters of significance that were not considered by the courts or previously considered by the Minister.

[112] The Ministerial Review process is reactive and not proactive. The Minister will not exercise his or her discretion in the absence of new and significant evidence. The application form (Form No. 1: Application for Ministerial Review – Miscarriages of Justice), set out in Schedule A, requires the Applicant to include a “Description of the New Matters of Significance that Support this Application”. The regulations that govern the ministerial review process require the applicant to list “a description of the new matters of significance that support the application, if any” as one of the requirements of an application for ministerial review. In outlining the Ministerial Review process under s. 696.1, government documents state that, “if your application does not present new and significant information, you will be informed that your application will not proceed to the investigation stage.”

[113] The third branch of the problem is that if the Minister does decide to investigate, there is no guarantee that the information will be shared with the applicant. In Thatcher v Canada (Minister of Justice),[^15] the Supreme Court concluded that the Minister has no duty to disclose information that he or she obtains during the investigation. Justice Rothstein held that it is not bad faith or a dereliction of duty by the Minister not to grant disclosure. Justice Rothstein stated at paragraph 15 of his decision:

15. Exceptionally, as a result of new information that is substantial and would provide a reasonable basis for a finding of miscarriage of justice, the Minister may find it necessary to consider material in police or prosecution files. In such a case, the material, or at least the gist of the material the Minister or his officials review, if not already known by the applicant, would have to be disclosed to him. But there is no general obligation on the Minister to review police and prosecution files or to disclose those files merely because of a request by a convicted person.

[114] The absence of means to obtain post-conviction disclosure has been identified as a problem in two Royal Commissions of Inquiry about wrongful convictions. In the Milgaard Inquiry, the Honourable Edward MacCallum noted that a convicted person does not have coercive power to gain access to documents such as police and Crown files, nor does a convicted person have any right to compel witnesses to be interviewed.[^16]

[115] In the Driskell Inquiry, the Honourable Patrick LeSage stated:[^17]

Driskell could not launch an application until he had sufficient disclosure to satisfy the Department of Justice standard for launching a section 696.2 review. However, the WPS would not make disclosure for purposes of a section 696.2 review until Driskell’s application was made. This is a classic “Catch-22” situation.

[116] Thus, the Crown is mistaken in its submission that post-conviction disclosure orders from the superior court are unnecessary because post-conviction disclosure is already available under s. 696.1 of the Criminal Code. The situation remains that while sometimes there will be an investigation and disclosure orders made, there is no assurance to a convicted person that the Minister will or must make a post-conviction disclosure order. Thus, it is necessary to continue the analysis and determine whether the Crown has any post-conviction disclosure obligations and whether the court has the jurisdiction to enforce the Crown’s post-conviction disclosure obligations.

H. Does a Convicted Person have a Charter-based Right to Post-Conviction Disclosure?

[117] Mr. Albon submits that he has a right guaranteed by s. 7 of the Charter to post-conviction disclosure from the Crown and that this right may be enforced pursuant to s. 24 (1) of the Charter. This is disputed by the Crown.

[118] As will be discussed further below, post-conviction, the Crown’s disclosure obligations arise sequentially in two contexts; namely: (a) for a conviction appeal; and (b) for an application for a Ministerial Review under s. 696.1 of the Criminal Code.

[119] Mr. Albon’s court application raises the issue of whether a convicted person; i.e., a person who is guilty and no longer presumed to be innocent of criminal activity has a Charter protected right or remedy of the disclosure by the Crown of evidence that is relevant to proving his or her innocence in aid of an application for a Ministerial Review.

[120] In this part of my Reasons for Decision, I shall discuss whether Mr. Albon’s request for post-conviction disclosure engages any Charter protected right. I conclude that Mr. Albon’s right to security of the person is potentially engaged.

[121] Sections 1, 7, and 24 (1) of the Charter state:

Guarantee of Rights and Freedoms

Rights and freedoms in Canada

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Legal Rights

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Enforcement of Guaranteed Rights and Freedoms

Exclusion of evidence bringing administration of justice into disrepute

24 (1) Anyone whose rights or freedoms, as guaranteed by the Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[122] To demonstrate that government action has infringed s. 7 of the Charter, a plaintiff must demonstrate that: (a) the action interferes with or deprives individuals of life, liberty, or security of the person; and (b) the deprivation is not in accordance with a principles of fundamental justice.[^18]

[123] It is obvious that Mr. Albon’s right to life has not been violated, and the Crown submits that that he has no right to post-conviction disclosure because Mr. Albon’s right to liberty has not been violated since he is no longer incarcerated. The Crown further submits that Mr. Albon’s right to security of the person has not been violated because a conviction affects only a person’s reputation and this triggers only a low level of anxiety that does not rise that affects the security of the person.

[124] While I agree that Mr. Albon’s right to life and right to liberty are not affected in the circumstances of the immediate case, I disagree with the Crown’s submission that his Charter protected rights are not engaged post-conviction. I agree with Mr. Albon’s argument that a convicted individual’s security interest of the person is impacted by a wrongful conviction. While Mr. Albon is no longer incarcerated, a wrongful conviction has a serious and profound effect on his psychological integrity. The impact is greater than that the ordinary stress or anxiety of the vicissitudes of life.[^19] If Mr. Albon is innocent and his ability to prove his innocence is frustrated or impaired, then his security of the person interest is interfered with and is frustrated.

[125] I also add that while Mr. Albon’s right to liberty is not affected in the circumstances of the immediate case that will not be the case of others post-conviction who remain incarcerated and who assert their innocence and that they have been wrongfully convicted.

[126] Former Supreme Court Justice Peter Cory, in The Inquiry Regarding Thomas Sophonow,[^20] noted the following consequences of a wrongful conviction to the convicted person: loss of liberty, reputation, enjoyment of life, normal experiences (e.g., starting a family), social intercourse, and civil rights; humiliation and disgrace; pain and suffering; foregone developmental experiences (e.g., education and work); physical assaults while in prison; prison discipline; the effects on the claimant’s future (e.g., the prospects of marriage, social status, physical and mental health, and social relations); and the effects of post-acquittal statements by public figures, police officers, and the media.

[127] Justice Cory stated that the stigma from a wrongful conviction can linger for a lifetime; he stated:

To wrongfully convict someone of a crime, particularly that of murder, is to forever damage the reputation of that person. The damaged reputation is bound to have lasting and bitter effects on the individual in all aspects of his life, whether at work or with his neighbours and with his family. […] [T]here is always a difficulty in obtaining employment, and…there will be a loss of income, loss of job training, loss of possibility of job promotion and loss of pension benefits, which may never be recouped. […] The reputation as a criminal follows the wrongfully convicted person everywhere. It is a blight upon his family life and its shadow is cast upon his loved ones. It poisons the atmosphere of his work. It is present in his neighbourhood and infests his relations with his neighbours. It follows him remorselessly and the infectious virus is present wherever he may settle. It is inescapable and appears to be incurable. […] There can be no doubt of the great stigma that is attached to a murderer.

[128] Justice Cory also noted that wrongful convictions affect society at large, by instilling a “lack of confidence in police and the courts” and “a fear that anyone may be wrongfully convicted and imprisoned.”

[129] I conclude that Mr. Albon has demonstrated if the Crown breaches any obligations to make post-conviction disclosure in aid of his Ministerial Review application to prove his innocence that would interfere with or deprive him of security of the person. For other persons the matter of post-conviction disclosure may affect not only their security of the person but also their liberty interest.

I. Is the Interference with the Right to Security of the Person (or Liberty) in Accordance with the Principles of Fundamental Justice?

[130] As already noted above, to demonstrate that government action has infringed s. 7 of the Charter, a plaintiff must demonstrate that: (a) the action interferes with or deprives individuals of life, liberty, or security of the person; and (b) the deprivation is not in accordance with a principles of fundamental justice. In this section of my reasons, I address the principles of fundamental justice factor.

[131] The principles of fundamental justice are not rights, but principles that qualify the protected rights of life, liberty and security of the person. And, thus, a person may be deprived of his or Charter rights only in accordance with the principles of fundamental justice.[^21] To demonstrate that government action has infringed s. 7 of the Charter, a plaintiff must identify and define the relevant principles of fundamental justice that apply, and then show that the infringement or deprivation of rights does not accord with the identified principles.[^22]

[132] I have already concluded that Mr. Albon’s security of the person is affected by government action associated with his application for a Ministerial Review in which he seeks exoneration for what he alleges was a wrongful conviction.

[133] The immediate case raises the issue whether there is a significant societal consensus that it is a principle of our justice system that the Crown be obliged to disclose and produce evidence in aid of a convicted person’s application for a Ministerial Review under s. 696.1 of the Criminal Code to prove that he or she was wrongfully convicted and is innocent. There is no doubt that the Crown has constitutionally entrenched obligations pre-conviction; the issue in the immediate case, is the extent to which these obligations extend post-conviction and whether they extend to a Ministerial Review.

[134] Principles of fundamental justice are basic tenets of the Canadian legal system.[^23] To establish that a rule or principle is a principle of fundamental justice, the plaintiff must show that it is a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.[^24]

[135] The fundamental principle that is engaged in the immediate case is the principle that the innocent must not be convicted or punished. The protection of the innocent is a principle of fundamental justice.[^25]

[136] In Reference Re British Columbia Motor Vehicle Act,[^26] Justice Lamer, as he then was, stated:

From time immemorial been part of our system of laws that the innocent not be punished. This principle has long been recognized as an essential element of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and on the rule of law. It is so old that its first enunciation was in Latin actus non facit reum nisi mens sit rea.”

[137] In R. v. Hill,[^27] Justice Charron stated:

The dictum that it is better for ten guilty persons to escape than for one innocent person to go to jail has long been a cornerstone of our criminal justice system…. Consequently, many safeguards have been created within that system to protect against wrongful convictions. Despite the presence of such safeguards, however, miscarriages of justice do occur. When an innocent person is convicted of a crime that he or she did not commit, it is undeniable that justice has failed in the most fundamental sense.

[138] I conclude that the protection of innocence is the relevant principle of fundamental justice that provides the foundation for post-conviction disclosure obligations and for the court’s jurisdiction to make post-conviction disclosure orders in appropriate cases.

J. What are a Person’s Charter- Based Rights to Disclosure Orders Pre-Conviction and Post-Conviction?

[139] The jurisprudence confirms that the Crown has post-conviction disclosure obligations that if breached may be enforced by the superior court and by appellate courts.

[140] As the discussion next will reveal, before his or her conviction, there is no doubt that an accused person has a Charter protected right to disclosure from the Crown. These pre-conviction rights need to be understood because they influence the extent or scope of the Crown’s obligations post-conviction. Indeed, the Crown’s post-conviction obligations emerge out of its pre-conviction obligations. Pre-conviction, an accused person is presumed to be innocent, but that presumption no longer prevails post-conviction, and as will be discussed below, post-conviction, the analysis of the convicted person’s Charter rights changes, as does the Crown’s disclosure obligations.

[141] The Crown’s pre-conviction obligations to provide disclosure were recognized as principles of fundamental justice even before the Charter came into force. Section 53l (a) of the Criminal Code, which was enacted in 1953-1954, entitles an accused "to inspect without charge the indictment, his own statement, the evidence and the exhibits, if any" and imposes a duty the Crown to disclose all relevant evidence to the defence, regardless of whether that evidence would assist the accused or not.[^28] The Crown is under a duty to provide disclosure necessary for an accused to make full answer and defence.[^29]

[142] The Crown’s duty to disclose information to an accused pre-conviction was elevated to a constitutional principle of fundamental justice in R. v. Stinchcombe.[^30] The Charter right to disclosure emerges from the right to make full answer and defence. As the Supreme Court stated in Stinchcombe: “The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted.”

[143] Unless the information is privileged, pre-conviction, the Crown is obliged to make timely disclosure to an accused of all information in the Crown's possession that is relevant, which is to say that pre-conviction, the Crown is obliged to disclose any information for which there is a reasonable possibility that it may assist the accused in any aspect of the exercise of the right to make full answer and defence.[^31]

[144] Pre-conviction, an accused is entitled to relevant evidence, but the police and the Crown are under no obligation to provide irrelevant documents or every documents relating to a case[^32] or to engage in a fishing expedition or to disclose documents it cannot obtain.[^33] An accused does not have constitutional right to an adequate police investigation[^34] or to direct the conduct of the investigation or to conscript the investigators to undertake investigatory work.[^35] The Crown has a duty to respect the rules of privilege, to protect the identity of informers and to respect the integrity of a continuing investigation and may delay the disclosure of information for these purposes.[^36]

[145] Post-conviction, as noted above, the Crown’s disclosure obligations arise sequentially in two contexts; namely: (a) for an appeal; and (b) for an application for Ministerial Review.

[146] A review of the case law reveals that a convicted person has a constitutionally protected right to disclosure for the purposes of his or her appeal and that the overall rationale for this right, the fundamental principle that protects innocent persons from conviction, remains the same post-conviction; however, the resolution of disclosure disputes on appeal has a different analytical framework than described in Stinchcombe because: (a) a convicted accused is no longer presumed innocent and the opposite is presumed; and (b) a convicted person has also exhausted his or her right to make full answer and defence.[^37]

[147] In in R. v. Trotta,[^38] the Ontario Court of Appeal addressed the availability of post-conviction disclosure through the appellate route. The Trottas were convicted on a variety of charges associated with the death of their eight-month old child. The convictions were based in part on the evidence of Dr. Randal Smith who had performed a second autopsy of the infant victim. The Trottas appealed their conviction, and while their appeal was pending, they brought what I shall call a meta-meta-motion. It was a meta-meta motion because it was a motion in aid of other motions. More precisely, the Trottas moved for post-conviction disclosure of material in aid of a planned motion for the admission of fresh evidence, which, in turn, was in aid of adding a ground of appeal. The ground of appeal was that Dr. Randal Smith was an incompetent and also a partisan expert witness for the Crown. The Trotta’s meta-meta motion was for disclosure of evidence about Dr. Randal Smith’s work in seventeen other prosecutions involving infant deaths.

[148] The Court of Appeal dismissed the Trotta’s meta-motion for post-conviction disclosure, but the point to emphasize for present purposes is that the Court of Appeal: (a) accepted that there was a Charter-based obligation on the Crown to make post-conviction disclosure; and (b) articulated the criteria for when the Crown’s disclosure obligation was triggered.

[149] Justice Doherty, who wrote the judgment for the Court of Appeal, stated that the post-conviction law arose out of the pre-verdict phase of the criminal process and there was no reason why the Crown's disclosure obligations should not continue through the appellate process because the protection of the innocent is as important on appeal as it is pre-conviction.

[150] Justice Doherty stated that to obtain a disclosure order, the convicted person must demonstrate: (a) a reasonable possibility that the material sought would be admissible as fresh evidence or could obtain fresh evidence the could assist on the motion to adduce fresh evidence; and (b) a reasonable possibility that the evidence to which the disclosure request is connected may be received as fresh evidence on appeal.[^39] Justice Doherty stated:[^40]

25. The Crown's disclosure obligation on appeal must recognize and give full value to an accused's broad rights of appeal and the rationale underlying those rights. The Crown's disclosure obligation on appeal must extend to any information in the possession of the Crown that there is a reasonable possibility may assist the accused in the prosecution of his or her appeal. In the present case, the applicant seeks disclosure in aid of a proposed fresh evidence motion. To obtain production, the applicant must first demonstrate a connection between the request for production and the fresh evidence he proposes to adduce. The applicant must show that there is a reasonable possibility that the material sought could assist on the motion to adduce fresh evidence. By assist, I mean yield material that will be admissible as fresh evidence, or assist the applicant in developing or obtaining material that will be admissible as fresh evidence. The applicant must next demonstrate that there is some reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal. Unless the appellant can make both links, there is no reasonable possibility that the material sought could assist in the prosecution of the appeal and consequently, no reason for this court to require the Crown to disclose it.

[151] Justice Doherty concluded that the second criterion for a post-conviction disclosure order in aid an appeal was not satisfied, and, the Court of Appeal, therefore dismissed the Trottas’ meta-meta motion for post-Conviction disclosure.

[152] It is of interest to note that the Trottas’ appeal of their convictions was dismissed by the Court of Appeal and they then appealed to the Supreme Court of Canada. On the appeal to the Supreme Court, the Trottas were successful in a motion for the admission of fresh evidence about the work of another Dr. Smith at the Ontario Coroner’s Office; i.e. Dr. Charles Smith, not Dr. Randal Smith. The Supreme Court ordered a new trial for the Trottas. The Supreme Court stated that the issue of issue of post-conviction disclosure raised by the Trottas was moot and should therefore be left for another day for the Supreme Court to consider.

[153] That said, Justice Doherty’s decision in Trotta stands as the current statement of the law as to the circumstances when an appellate court can make a post-conviction disclosure order in aid of an appeal. With the Trotta decision, there is no doubt that the appellate court has the jurisdiction to make post-conviction disclosure orders and that the appellate court’s jurisdiction is animated by the fundamental principle that the protection of the innocent is as important on appeal i.e., post-conviction as it was pre-conviction.

[154] Moving on to the second context for post-conviction; i.e., disclosure in aid of a convicted person’s application for a Ministerial Review, that the Crown may have a post-conviction disclosure obligation was recognized in Chaudhary v. Ontario (Attorney General).[^41]

[155] Since the Chaudhary case concerns the Crown’s obligation to preserve documents post-conviction, at first impression, the case might not appear to be a case about post-conviction disclosure obligations. However, upon analysis, this first impression about the Chaudhary case is wrong; the rationale for the Charter-based obligation to preserve evidence that was found to exist in Chaudhary is that the Crown has a Charter-based obligation to preserve evidence that might later be disclosed to exonerate a convicted person. It is the Crown's obligation to disclose associated with safeguarding innocence that gives rise to the Crown’s antecedent duty to preserve relevant evidence.

[156] In the Chaudhary case, in 1984, Mr. Chaudhary was convicted of first-degree murder. His appeal was dismissed as was his application for leave to appeal to the Supreme Court of Canada. In 1997, he retained the Innocence Project, and he brought an application for a Ministerial Review. In 2010, in aid of the Ministerial Review application, he brought a court application for a declaration that information that would be subject to disclosure under R. v. Stinchcombe be preserved for the lifetime of the offender.

[157] In a decision affirmed by the Court of Appeal, Justice Dambrot dismissed this application for a declaration relating to evidence retention. Justice Dambrot explained that a Charter remedy under s. 24 (1) could only be ordered if Mr. Chaudhary’s personal Charter rights had been infringed or denied, which had not occurred because Mr. Chaudhary had suffered no prejudice from the non-preservation i.e., the loss of certain autopsy photographs of the victim. He was not prejudiced because the photographs would not have assisted him in proving his innocence and with the passage of many years, the loss of the photos was satisfactorily explained. Having found no Charter breach, no remedy under s. 24 (1) of the Charter could be ordered.

[158] For present purposes, what is significant about the Chaudhary case is that Justice Dambrot discussed the Crown’s disclosure obligations post-conviction, and he accepted that there was a Charter-based obligation that could be enforced under s. 24 (1) of the Charter. At paragraphs 59-61 of his decision, Justice Dambrot stated:

The Duty to Disclose Relevant Information after Appeals Are Exhausted

59. The Crown's duty to disclose relevant information to the accused before trial flows from the presumption of innocence, and the right of an accused to make full answer and defence, which is a principle of fundamental justice protected by s. 7 of the Charter. The Crown's duty to disclose relevant information to an appellant pending appeal no longer relates to the presumption of innocence, but flows from an appellant's rights of appeal and the rationale underlying those rights. Once appellate rights are exhausted, disclosure can no longer advance the pursuit either of full answer and defence, or of any right of appeal. But that can hardly be the end of the matter.

60. At the core of the Crown's duty to make disclosure is the fundamental principle that the innocent must not be convicted or punished. It falls squarely within the duty of Crown counsel as it is understood in Canada that evidence tending to exonerate a person convicted of a crime that comes to the attention of the Crown even after all appellate rights have been exhausted must be disclosed. This flows from the well-accepted principle that "prosecuting counsel should regard themselves rather as ministers of justice assisting in its administration than as advocates." (See the judgment of Locke J. in Boucher v. the King, 1954 CanLII 3 (SCC), [1955] S.C.R. 16 I have no doubt that this is a constitutional principle, although I need not decide that issue in this case. But if I am right that such a duty exists, it is nonetheless much narrower than the duty to disclose before trial, or even during the appellate process. It is focused on true innocence, not on building a defence.

The Duty to Preserve Relevant Evidence After Appeals Are Exhausted

61. At last, I come to the basis of the Charter violation alleged by the applicant: an asserted duty on the Crown to preserve evidence after all appeals are exhausted. It follows from what I have said under the last heading that in my view, the Crown has an obligation to preserve evidence that comes into its possession after appellate rights are exhausted that tends to exonerate a person convicted of a crime, and that this may well be a constitutional principle. […]

[159] It would follow from the decision in Chaudhary v. Ontario (Attorney General), which was affirmed by the Court of Appeal, that the superior court has the jurisdiction to make a post-conviction disclosure order in aid of a Ministerial Review. The crucial question then becomes the criteria for making an order. I shall return to the criteria topic below.

[160] That the Crown has obligations to disclose information in aid of a convicted person’s pursuit of overturning of an alleged wrongful conviction and that the superior court has the jurisdiction to make such an order was recognized in the Manitoba case of R. v. Hyra.[^42]

[161] In this case, Mr. Hyra was convicted of criminal harassment. His appeal was dismissed. His application for leave to appeal to the Supreme Court of Canada was dismissed. His application for a Ministerial Review was dismissed. He then applied to the superior court for post-conviction disclosure. Justice C.W. Martin said that there were two issues on the motion: (1) whether the court had jurisdiction to make the order; and (2) the merits of the disclosure requests. On the matter of the court’s jurisdiction, Justice Martin stated:

11. […] dealing with the jurisdiction issue, I agree with Mr. Hyra that generally this court, as a Superior Court, has jurisdiction to deal with requests for post-appeal disclosure. Ultimately, in the appropriate case, common sense dictates that a party must have redress to the courts for a proper and legitimate disclosure request as there is no other venue in the event of a dispute respecting such an issue. This in itself is not so novel. Such jurisdiction flows from two overlapping sources, prosecution policies and the common law.

[162] I agree with Justice Martin that there are two sources for the superior court’s jurisdiction to make post-conviction disclosure orders in aid of an application for Ministerial Review. First, the superior court has the jurisdiction to make post-conviction disclosure orders as a court of competent jurisdiction to order Charter remedies. With respect to the remedial power of the superior court, in Doucet-Boudreau v Nova Scotia (Department of Education),[^43] the Supreme Court of Canada stated that the power of the superior courts under s. 24 (1) to make appropriate and just orders to remedy infringements or denials of Charter rights is part of the supreme law of Canada.

[163] The remedy of a disclosure order in aid of an application for a Ministerial Review is analogous to other exercises of the Court’s jurisdiction to make orders of disclosure. In P.(D.) v Wagg, the Court of Appeal for Ontario ruled that a superior court has the jurisdiction to order disclosure and production to facilitate the pursuit of a civil claim.[^44] Justice Rosenberg stated that a superior court has original and plenary jurisdiction in all civil and criminal matters including inherent jurisdiction to control and regulate its process and to prevent this from being abused or obstructed.[^45]

[164] The second source of the superior court’s jurisdiction to make post-conviction disclosure orders is its inherent jurisdiction and its common law and equitable jurisdiction. Given the Charter-based jurisdiction for making a post-conviction disclosure order, I do not need to elucidate this jurisdiction. I shall simply say that it would be odd to the point of being perverse if the superior court did not have the jurisdiction to make a post-conviction disclosure order for the purpose of aiding a person to prove that he or she was wrongly convicted in criminal proceedings when the superior court has the civil law jurisdiction to make a Norwich Order in aid of a person pursuing his civil law rights.

[165] The issue of whether the superior court has the jurisdiction to make post-conviction disclosure orders in aid of an application for a Ministerial Review was a central aspect of the recent British Columbia case of Roberts v. British Columbia (Attorney General).[^46] As I read the case, however, it stands for the propositions that regardless of whether the superior court has the jurisdiction, it ought not to exercise that jurisdiction because whether there should be an investigation and disclosure orders are matters for the Minister to decide when considering a Ministerial Review application and if the Minister errs, then his or her decision is subject to judicial review and the Federal Court would then be the proper place to resolve the matter of post-conviction disclosure orders.

[166] In Roberts v. British Columbia (Attorney General), in 1995, Mr. Roberts was convicted of three counts of first-degree murder and one count of attempted murder. His appeal of his conviction was dismissed. He did not seek leave to appeal to the Supreme Court of Canada. Mr. Roberts persisted in claiming innocence, and in 2009, the University of British Columbia’s Innocence Project took on his case. In 2017, in anticipation of bringing a Ministerial Review application, Mr. Roberts filed a petition seeking an order that the Crown make certain exhibits and evidence available for DNA testing. The Crown did not dispute that DNA testing had much advanced in the two decades since the murder convictions, but the British Columbia Crown disputed whether new testing could be adequately conducted and whether it could provide any information that would be relevant to the conviction verdict. Much like Mr. Albon in the case at bar, Mr. Roberts submitted that there was a Catch 22 in the Ministerial Review application procedure because without a disclosure order, he could not meet the threshold for a Ministerial Review.

[167] Justice Silverman concluded that depending upon the particular circumstances untested DNA could be a matter of significance at the preliminary assessment stage of an application pursuant to the s. 696.1 of the Criminal Code for a Ministerial Review. Thus, Mr. Roberts could bring his Ministerial Review application and it would be for the Minister to decide whether to exercise his or her inquiry powers. The Minister’s decision would be subject to judicial review by the Federal Court, which could consider whether the Minister failed in respect of Mr. Robert’s Charter rights. In these circumstances, the superior court should decline to exercise its jurisdiction to provide a post-conviction disclosure order because there was an existing process created by Parliament aimed at achieving that same goal. Thus, Justice Silverman stated:[^47]

108. The Minister's decision is subject to judicial review in Federal Court. She is required to provide a copy of her decision under s. 696.3(3) of the Code to an applicant (Regulations, s. 6). If unsuccessful on application to the Minister, the petitioner would be entitled to apply to the Federal Court for judicial review. The Minister's ultimate decision, as well as any preliminary decisions, are capable of being the subject of a judicial review. On such a review, it would be open to the petitioner to argue that the Minister failed to respect Charter values as part of his challenge of the merits of her decision.

109. The process set out in the Code, in the absence of it not being Charter compliant, is a complete answer to the Charter application before this Court.

110. The Court should decline to exercise its inherent jurisdiction or its jurisdiction under s. 24 (1) of the Charter, to offer the discretionary relief sought by the petitioner in circumstances where Parliament has enacted a process of review in the Code.

[168] With one quibble, I agree with and would adopt Justice Silverman’s decision or approach in Roberts v. British Columbia (Attorney General). I agree that the idea that the superior court has the jurisdiction to make a post-conviction disclosure order. I agree that the superior court’s jurisdiction should not be exercised until after a Ministerial Review application is made. I agree that on a judicial review application that the Federal Court can review the Minister’s decision about whether information should be disclosed to the applicant and that the Federal Court can provide a Charter-based remedy pursuant to s. 24 (1) of the Charter. I agree that in most cases, the superior court should allow the matter of post-conviction disclosure to be resolved by the Minister subject to judicial review by the Federal Court.

[169] My quibble is that I would not subscribe to an absolute rule that the superior court should decline to exercise its inherent jurisdiction or its jurisdiction under s. 24 (1) of the Charter and require the applicant to seek its Charter relief from the Federal court in every case. In perhaps the majority of cases, it would be appropriate for the superior court to decline to exercise its jurisdiction, but ultimately it is the superior court’s responsibility to administer criminal justice in its jurisdiction and to clean up its own messes about wrongful convictions.

[170] By way of a summary of the lessons to be learned from the case law discussed above, it shows that in certain circumstances post-conviction, there is a Charter-based obligation to disclose evidence for the purposes of an appeal and for the purposes of a Ministerial Review. The jurisprudence also reveals that the superior court has the jurisdiction to make post-conviction disclosure orders.

K. The Criteria for a Post-Conviction Disclosure Order

[171] This brings the analysis to the topic of what are the criteria for making a post-conviction disclosure order in aid of a convicted person’s Ministerial Review application. In this regard, I would adopt the analytical, contextual, and functional approach used by Justice Doherty in designing the criteria for post-conviction disclosure orders for the purposes of an appeal and apply that approach to establishing the criteria for a post-conviction disclosure order.

[172] That approach leads to the tentative opinion that the criteria for a post-conviction disclosure order in aid of a Ministerial Review is that the convicted person must demonstrate that: (a) the preconditions for a Ministerial Review have been satisfied; (b) the Minister has refused to make an investigatory order (under subsections 696.2 (2) or (3) of the Criminal Code); (c) there is a strong prima facie case that there has been a miscarriage of justice; (d) there is a reasonable possibility that a post-conviction disclosure order would provide evidence of new matters of significance that were not considered by the courts or previously considered by the Minister; and (e) the new matter(s) of significance would assist the applicant on the Ministerial Review application in demonstrating that there has been a miscarriage of justice.

[173] This opinion is tentative because the criteria for a post-conviction disclosure order will ultimately have to be developed in cases that are not moot or brought prematurely.

L. Must Convicted Persons Obtain the Consent of the Crown to Communicate regarding their Convictions with Public Officials?

[174] Finally, I come to the matter of whether convicted persons must obtain the consent of the Crown to communicate regarding their convictions with public officials.

[175] Although Mr. Albon and the Crown dedicated a great deal of time and argument in developing and responding to this question in the run up to Mr. Albon’s application to this court and in their respective factums, the short answer is that convicted persons do not need the consent of the Crown to communicate regarding their convictions with public officials.

[176] Mr. Albon’s request for a declaration was unnecessary and odd. Neither he nor the Crown identified any statutory authority that would empower the Crown to impede Mr. Albon’s ability to speak to public officials. The Crown denied that it controlled access to other public officials. The record rather shows that Mr. Albon repeatedly approached and spoke to public officials. Those officials were entitled to confer with the Crown or even to direct requests relating to criminal matters to the Crown, especially when such requests are related to disclosure, engage complex or novel legal issues, or involve the expenditure of public funds.

[177] Mr. Albon asked the police to conduct an investigation on his behalf. This was an inappropriate request because the police are not private detectives, and, in any event, it was not for the Crown to direct the police about investigations. The police are entitled to decide whether or not they will conduct a criminal investigation. The Crown cannot give permission or direct the police and in Mr. Albon’s case, they did not interfere with Mr. Albon’s interactions with the police.

[178] While Mr. Albon’s request for a declaration is both unnecessary and odd, I shall out of respect to the parties’ arguments declare the obvious that convicted persons do not need to obtain the consent of the crown to communicate regarding their convictions with public officials.

M. Conclusion

[179] For the above reasons, Mr. Albon’s application for a disclosure order is dismissed, but I declare that: (a) there is a Charter-based right to post-conviction disclosure for the purposes of appeals and for applications for Ministerial Review; (b) the superior court has the jurisdiction to make post-conviction disclosure orders in aid of an application for Ministerial Review; and (c) convicted persons are not required to obtain the consent of the Crown to communicate regarding their convictions with public officials. Order accordingly. This is not a case for costs.

Perell, J.

Released: June 5, 2019

Schedule A

Applications for Ministerial Review — Miscarriages of Justice: Legislative Background

[180] Section 696.1 of the Criminal Code states:

Applications for Ministerial Review — Miscarriages of Justice

Application

696.1 (1) 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.

Form of application

(2) The application must be in the form, contain the information and be accompanied by any documents prescribed by the regulations.

Review of applications

696.2 (1) On receipt of an application under this Part, the Minister of Justice shall review it in accordance with the regulations.

Powers of investigation

(2) For the purpose of any investigation in relation to an application under this Part, the Minister of Justice has and may exercise the powers of a commissioner under Part I of the Inquiries Act and the powers that may be conferred on a commissioner under section 11 of that Act.

Delegation

(3) Despite subsection 11(3) of the Inquiries Act, the Minister of Justice may delegate in writing to any member in good standing of the bar of a province, retired judge or any other individual who, in the opinion of the Minister, has similar background or experience the powers of the Minister to take evidence, issue subpoenas, enforce the attendance of witnesses, compel them to give evidence and otherwise conduct an investigation under subsection (2).

Definition of court of appeal

696.3 (1) In this section, court of appeal means the court of appeal, as defined by the definition court of appeal in section 2, for the province in which the person to whom an application under this Part relates was tried.

Power to refer

(2) The Minister of Justice may, at any time, refer to the court of appeal, for its opinion, any question in relation to an application under this Part on which the Minister desires the assistance of that court, and the court shall furnish its opinion accordingly.

Powers of Minister of Justice

(3) On an application under this Part, the Minister of Justice may

(a) if the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred,

(i) direct, by order in writing, a new trial before any court that the Minister thinks proper or, in the case of a person found to be a dangerous offender or a long-term offender under Part XXIV, a new hearing under that Part, or

(ii) refer the matter at any time to the court of appeal for hearing and determination by that court as if it were an appeal by the convicted person or the person found to be a dangerous offender or a long-term offender under Part XXIV, as the case may be; or

(b) dismiss the application.

No appeal

(4) A decision of the Minister of Justice made under subsection (3) is final and is not subject to appeal.

Considerations

696.4 In making a decision under subsection 696.3(3), the Minister of Justice shall take into account all matters that the Minister considers relevant, including

(a) whether the application is supported by new matters of significance that were not considered by the courts or previously considered by the Minister in an application in relation to the same conviction or finding under Part XXIV;

(b) the relevance and reliability of information that is presented in connection with the application; and

(c)the fact that an application under this Part is not intended to serve as a further appeal and any remedy available on such an application is an extraordinary remedy.

Regulations

696.6 The Governor in Council may make regulations

(a) prescribing the form of, the information required to be contained in and any documents that must accompany an application under this Part;

(b) prescribing the process of review in relation to applications under this Part, which may include the following stages, namely, preliminary assessment, investigation, reporting on investigation and decision; and

(c) respecting the form and content of the annual report under section 696.5.

[181] SOR/2002-416 is the regulation respecting applications for Ministerial Review and it provides the application form that prescribes the information and the documents that should accompany the application to the Minister. SOR/2002-416 states:

Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice

SOR/2002-416

Interpretation

1 The following definitions apply in these Regulations.

Code

Code means the Criminal Code.

Minister

Minister means the Minister of Justice.

Application

2 (1) For the purposes of subsection 696.1(2) of the Code, an application for ministerial review under Part XXI.1 of the Code shall be in the form set out in the schedule and contain the following information:

(a) with respect to the applicant,

(i) the applicant’s name, including any alias or former name,

(ii) the applicant’s address, date of birth and, if any, the number assigned to the applicant under the Royal Canadian Mounted Police Automated Fingerprint Identification System,

(iii) the name, address and telephone number of the person making the application on the applicant’s behalf, if any,

(iv) whether the alleged miscarriage of justice relates to a conviction on an offence punishable on summary conviction or on an indictable offence, or, in the case of a finding of dangerous offender or long-term offender under Part XXIV of the Code, particulars of the finding, and

(v) whether the applicant is in custody;

(b) with respect to any pre-trial hearings,

(i) the date of the preliminary inquiry, if any,

(ii) the court and its address, and

(iii) the number, type and date of any pre-trial motions, as well as the court decision on those motions;

(c) with respect to the trial,

(i) the date on which it started,

(ii) the court and its address, the plea entered at trial, the mode of trial and the date of the conviction and that of sentencing,

(iii) the names and addresses of all counsel involved in the trial, and

(iv) the number, type and date of any motions made, as well as the date of the court decision on those motions;

(d) particulars regarding any subsequent appeals to the court of appeal or the Supreme Court of Canada;

(e) the grounds for the application; and

(f) a description of the new matters of significance that support the application, if any.

(2) The application must be accompanied by the following documents:

(a) the applicant’s signed consent authorizing the Minister

(i) to have access to the applicant’s personal information that is required for reviewing the application, and

(ii) to disclose to any person or body the applicant’s personal information obtained in the course of reviewing the application in order for the Minister to obtain from that person or body any information that is required for reviewing the application;

(b) a true copy of the information or indictment;

(c) a true copy of the trial transcript, including any preliminary hearings;

(d) a true copy of all material filed by the defence counsel and Crown counsel in support of any pre-trial and trial motions;

(e) a true copy of all factums filed on appeal;

(f) a true copy of all court decisions; and

(g) any other document that the applicant considers necessary for the review of the application.

Review of the Application

3 On receipt of an application completed in accordance with section 2, the Minister shall

(a) send an acknowledgment letter to the applicant and the person acting on the applicant’s behalf, if any; and

(b) conduct a preliminary assessment of the application.

4 (1) After the preliminary assessment has been completed, the Minister

(a) shall conduct an investigation in respect of the application if the Minister determines that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred; or

(b) shall not conduct an investigation if the Minister

(i) is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred and that there is an urgent need for a decision to be made under paragraph 696.3(3)(a) of the Code for humanitarian reasons or to avoid a blatant continued prejudice to the applicant, or

(ii) is satisfied that there is no reasonable basis to conclude that a miscarriage of justice likely occurred.

(2) The Minister shall send a notice to the applicant and to the person acting on the applicant’s behalf, if any, indicating whether or not an investigation will be conducted under subsection (1).

(3) If the Minister does not conduct an investigation for the reason described in subparagraph (1)(b)(ii), the notice under subsection (2) shall indicate that the applicant may provide further information in support of the application within one year after the date on which the notice was sent.

(4) If the applicant fails, within the period prescribed in subsection (3), to provide further information, the Minister shall inform the applicant in writing that no investigation will be conducted.

(5) If further information in support of the application is provided after the period prescribed in subsection (3) has expired, the Minister shall conduct a new preliminary assessment of the application under section 3.

5 (1) After completing an investigation under paragraph 4(1)(a), the Minister shall prepare an investigation report and provide a copy of it to the applicant and to the person acting on the applicant’s behalf, if any. The Minister shall indicate in writing that the applicant may provide further information in support of the application within one year after the date on which the investigation report is sent.

(2) If the applicant fails, within the period prescribed in subsection (1), to provide any further information, or if the applicant indicates in writing that no further information will be provided in support of the application, the Minister may proceed to make a decision under subsection 696.3(3) of the Code.

6 The Minister shall provide a copy of the Minister’s decision made under subsection 696.3(3) of the Code to the applicant and to the person acting on the applicant’s behalf, if any.

SCHEDULE(Subsection 2(1))

APPLICATION FOR MINISTERIAL REVIEW

Section A

PERSONAL INFORMATION

Name

Alias or Former Name

Address

Date of Birth

RCMP Automated Fingerprint Identification System No. (if any)

Type of Conviction (Summary or Indictable or Finding of Dangerous Offender or Long-term Offender)

In Custody/Not in Custody

Person Making Application on Applicant’s Behalf (if any)

Representative’s Address

Telephone Number

Section B

SUPPORTING INFORMATION

PRE-TRIAL HEARING

Date of Preliminary Inquiry

Court and Its Address

Date of Other Pre-Trial Motions (eg. Bail Hearing, Charter Application, etc.)

Particulars Relating to Motions

TRIAL

Date of Trial

Court and Its Address

Plea (Guilty or Not Guilty)

Names and Addresses of Counsel

Mode of Trial

Date of Conviction

Date of Sentence

Particulars Relating to Motions

COURT OF APPEAL

Date Appeal Filed

Date of Hearing

Date of Decision

Address of Court

SUPREME COURT OF CANADA

Date Appeal Filed

Date of Hearing

Date of Decision

GROUNDS FOR APPLICATION

DESCRIPTION OF THE NEW MATTERS OF SIGNIFICANCE THAT SUPPORT THIS APPLICATION

Section C

REQUIRED DOCUMENTS (Mandatory)

Applicant’s Consent to the Release of Personal Information

(If unable to provide any of the following, please explain why.)

PRE-TRIAL

True Copy of Information or Indictment

True Copy of Motion Material Filed by Defence

True Copy of Motion Material Filed by Crown

True Copy of Transcript of Proceedings

TRIAL

True Copy of Indictment

True Copy of Material Filed by Defence

True Copy of Material Filed by Crown

True Copy of Transcript of Proceedings

True Copy of Decision

APPEALS

True Copy of Appellant’s Factum

True Copy of Respondent’s Factum

True Copy of Appeal Court Decision

True Copy of Supreme Court of Canada Decision

Section D

OTHER SUPPORTING EVIDENCE (Optional)

(Affidavits, letters, photographs, plans, drawings, technical and scientific reports, etc.)

COURT FILE NO.: CV-15-540441

DATE: 2018/06/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Bradley John Albon

Applicant

– and –

The Attorney General of Ontario

Respondent

REASONS FOR DECISION

PERELL J.

Released: June 5, 2019

[^1]: R.S.C. 1985, c. C-46.

[^2]: Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (UK), 1982, c. 11.

[^3]: R. v. Bradley Albon, Proceedings at Plea and Reasons for Sentence in the Provincial Court (Criminal Division), heard before His Honour Judge H.W. Edmondstone, dated August 20, 1986.

[^4]: R. v. A. (B.J.), [1989] O.J. No. 2038 (C.A.).

[^5]: McArthur v. Ontario (Attorney General), 2012 ONSC 5773, aff’d 2013 ONCA 668, leave to appeal to the S.C.C. ref’d [2014] S.C.C.A. No. 20.

[^6]: Albon v. Ontario (Attorney General), 2016 ONSC 4842.

[^7]: Albon v. Ontario (Attorney General), 2017 ONSC 1250.

[^8]: Albon v. Ontario (Attorney General), 2017 ONSC 7015 (Div. Ct.).

[^9]: Schaeffer v. Ontario (Provincial Police), 2011 ONCA 716 at para. 44, var’d (sub nom. Wood v. Schaeffer) 2013 SCC 71; Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819 (2008), 2008 ONCA 265, 90 O.R. (3d) 451 (C.A.); Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 3 at para. 17

[^10]: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342; Doherty v. Horowitz, 2016 ONSC 4457; Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, (2008), 2008 ONCA 265, 90 O.R. (3d) 451 (C.A.); Neto v. Klukach, [2004] O.J. No. 394 (S.C.J.).

[^11]: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342; New Brunswick (Minister of Health and Community Services v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 (S.C.C.); Tamil Co-operative Homes Inc. v. Arulappah (2000), 2000 CanLII 5726 (ON CA), 49 O.R. (3d) 566 (C.A.).

[^12]: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342; Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7; Fraser v. Canada (Treasury Board, Department of National Revenue), 1985 CanLII 14 (SCC), [1985] 2 S.C.R. 455; J.H. v. Alberta Health Services, 2017 ABQB 477; R. v. Jackson, 2015 ONCA 832; Ontario Provincial Police Commissioner v. Mosher, 2015 ONCA 722; Mental Health Centre Penetanguishene v. Ontario, 2010 ONCA 197; Tamil Co-operative Homes Inc. v. Arulappah (2000), 2000 CanLII 5726 (ON CA), 49 O.R. (3d) 566 (C.A.).

[^13]: Winmill v. Canada (Minister of Justice), 2015 FC 710 at para. 64; Ross v. Canada (Minister of Justice), 2014 FC 338 at para. 32; McArthur v. Ontario (Attorney General), 2012 ONSC 5773 at para 54; Bilodeau c. Canada (Ministre de la Justice), 2009 QCCA 746 at para 25; Thatcher v. Canada (Attorney General), [1997] 1 F.C.R. 289 at para. 8.

[^14]: Winmill v. Canada (Minister of Justice), 2015 FC 710 at para. 85-86; Bilodeau c. Canada (Ministre de la Justice), 2009 QCCA 746.

[^15]: [1997] 1 F.C.R. 289.

[^16]: Commission of Inquiry into the Wrongful Conviction of David Milgaard (Hon. Edward P. MacCallum) online: http://www.justice.gov.sk.ca/milgaard/.

[^17]: Report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell (Hon. Patrick J. Le Sage), online: http://www.driskellinquiry.ca/pdf/final_report_jan2007.pdf

[^18]: Blencoe v. B.C. (Human Rights Commission)., 2000 SCC 44.

[^19]: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1993] 3 S.C.R. 46 at para. 60; Chaoulli v. Quebec (Attorney-General), 2005 SCC 35, [2005] 1 S.C.R. 791 at para. 204.

[^20]: The Inquiry Regarding Thomas Sophonow (The Honourable Peter Cory, Commissioner), online: https://digitalcollection.gov.mb.ca/awweb/pdfopener?smd=1&did=12713&md=1

[^21]: Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486.

[^22]: R. v. Malmo-Levine, 2003 SCC 74 R v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417.

[^23]: Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486.

[^24]: R. v. Malmo-Levine, 2003 SCC 74; R v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417.

[^25]: R. v. Phillion, [2003] O.J. No. 3422 at para 66 (S.C.J.); R v. Mills, [1999] 3 S.C.R. 688 at paras. 76, 89; R. v. Pan, 1999 CanLII 3720 (ON CA), [1999] O.J. No. 1214 (C.A.); R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281 at para 24; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 at paras 29-34; R. v. Rothman, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640 at para 97.

[^26]: 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486 at para 67.

[^27]: 2007 SCC 41 at para 107.

[^28]: R. v. Biddle, 2018 ONCA 520 at paras. 67 to 69; R. v. Taillefer, 2003 SCC 70 at para. 64.

[^29]: R. v. Wood, [1989] O.J. 1162 (C.A.); R. v. Belanger, [1987] O.J. 419 (H.C.J.), aff'd [1987] O.J. 850 (C.A.); R. v. Arviv, 1985 CanLII 161 (ON CA), [1985] O.J. 2602 at paras. 29-30 (C.A.); Lemay v. The King, 1951 CanLII 27 (SCC), [1952]1 S.C.R. 232, per Cartwright J. at p. 257.

[^30]: 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.

[^31]: R. v. Trotta, 2004 CanLII 60014 (ON CA), [2004] O.J. No. 2439 at para. 20 (C.A.); R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244; R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727; R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.

[^32]: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 at para. 20; R. v. Flis (2006), 2006 CanLII 3263 (ON CA), 205 C.C.C. (3d) 384 (Ont. C.A.).

[^33]: R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727 at para. 32, 35; R. v. Girimonte, 1997 CanLII 1866 (ON CA), [1997] O.J. 4961 (C.A.); R. v. McNeil, 2009 SCC 3 at para. 22; World Bank Group v. Wallace, 2016 SCC 15.

[^34]: R. v. Darwish, 2010 ONCA 124 at para. 29.

[^35]: R. v. Darwish, 2010 ONCA 124.

[^36]: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 at para. 20.

[^37]: R. v. Trotta, 2004 CanLII 60014 (ON CA), [2004] O.J. No. 2439 (C.A.); Chaudhary v. Ontario, 2012 ONSC 5023 at para. 59, aff’d 2013 ONCA 615.

[^38]: R. v. Trotta, 2004 CanLII 60014 (ON CA), [2004] O.J. No. 2439 (C.A.).

[^39]: R. v. Trotta, 2004 CanLII 60014 (ON CA), [2004] O.J. No. 2439 (C.A.); R. v. Sihota, [2009] O.J. No. 4590 (C.A.); R. v. Singh, [2010] O.J. 54 (C.A.).

[^40]: R. v. Trotta, 2004 CanLII 60014 (ON CA), [2004] O.J. No. 2439 at para. 25 (C.A.).

[^41]: 2012 ONSC 5023, aff’d 2013 ONCA 615.

[^42]: [2014] MBQB 213, aff’d 2017 MBCA 1.

[^43]: 2003 SCC 62 at para 51.

[^44]: P(D) v Wagg (2004), 2004 CanLII 39048 (ON CA), 71 OR (3d) 229 (C.A.).

[^45]: P(D) v Wagg (2004), 2004 CanLII 39048 (ON CA), 71 OR (3d) 229 at para. 28 (C.A.).

[^46]: 2018 BCSC 1027.

[^47]: 2018 BCSC 1027 at paras. 108, 114-15.