2012 QCCA 2039, 2012 QCCA 2039

Unofficial English Translation Dumont c. Québec (Procureur général) 2012 QCCA 2039 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC MONTRÉAL REGISTRY No. 500-09-019938-091 (500-05-067084-010) DATE: November 16, 2012 CORAM: THE HONOURABLE PIERRE J. DALPHOND J.A. NICHOLAS KASIRER J.A. GUY GAGNON J.A. MICHEL DUMONT and SOLANGE TREMBLAY APPELLANTS – Plaintiffs v.

ATTORNEY GENERAL OF QUÉBEC RESPONDENT – Defendant and ATTORNEY GENERAL OF CANADA RESPONDENT – Defendant – Impleaded party JUDGMENT I Introduction [ 1 ] The appellants, Michel Dumont and his spouse, Solange Tremblay, are appealing from a judgment of the Superior Court, District of Montréal (the Honourable Benoît Emery J.), rendered on July 17, 2009, dismissing their civil liability action against the Attorney General of Québec and the Attorney General of Canada following a ruling of the Court acquitting Mr. Dumont after referral of the case by the federal Minister of Justice pursuant to sections 690 (

b) and (

c) of the Criminal Code (now s. 696.3 Cr.C.). Mr. Dumont attributed liability for his criminal conviction and for the maintaining of the verdict to faults committed by the provincial Crown and Correctional Service Canada. He contended, along with Ms.

Tremblay, that the respondents are solidarily liable for the resulting injury. [ 2 ] As for the fault for which the Attorney General of Québec must answer, the appellants’ principal theory was that the Crown attorneys incorrectly failed to share new information with the defence and the Court of Appeal, information that raised a question about the identification of Mr. Dumont as the perpetrator of the crime for which he was convicted. That argument depended in large part on the assessment of the particular role of a prosecuting attorney in criminal proceedings as an officer of the court.

Non-compliance with that duty during the conduct of the appeal was the main foundation of the appellants’ argument with a view to establishing the civil liability of the Attorney General of Québec. [ 3 ] As for the Attorney General of Canada, the appellants’ cause of action was mainly based on the refusal of the federal prison authorities to acknowledge that they were holding in detention a person who was not guilty under the law. [ 4 ] The appellants contended that the principle of immunity of the Crown afforded neither respondent any protection for the various faults committed against Mr. Dumont and his spouse.

II Context [ 5 ] Found guilty in June 1991 of four charges related to sexual assault, Michel Dumont was sentenced in January 1992 to 52 months in prison. His sentence was upheld by the Court of Appeal on February 14, 1994. [ 6 ] The record showed that Mr. Dumont’s conviction rested substantially on his identification by the victim, the only witness to the events, and on the rejection of his defences, which consisted of an alibi and erectile dysfunction.

[ 7 ] In the spring of 1992, a few months after sentencing by the Court of Québec, but before the hearing of the appeal from the verdict, the victim of the assault, D. . . L . . ., contacted Mtre. Nathalie Du Perron Roy, the prosecuting attorney in charge of the case. Ms. L . . . told her that she saw a look-alike of her assailant in a Boisbriand video club, accompanied by a young child. Since she believed that Mr. Dumont was still in prison, she deduced that he might not be her assailant. [ 8 ] In fact, Mr. Dumont had been released on January 27, 1992 while awaiting the outcome of his appeal.

He had already been a member of the video club in question. He had a little boy about the same age as the boy seen at the video club. A membership card indicated that a film had been rented in his name in 1991, whereas he was forbidden to be in Boisbriand. [ 9 ] The Crown attorney did not remain indifferent to that information. On April 29, 1992, she asked the police department of Ville de Boisbriand to investigate the incident related by Ms. L . . . . The same day, a police officer contacted Ms.

L . . . and then went to the video club; he went back there on May 5, 1992. [ 10 ] The attorney also mentioned the matter to the Chief Attorney General’s Prosecutor for the region, who, in a letter dated May 5, 1992, thanked the investigating police officer for his efforts and asked him to conduct an additional investigation as soon as possible. The officer responded in writing the next day. [ 11 ] On June 4, 1992, the attorney again contacted the investigating police officer and asked him to meet with Ms.

L . . . to obtain further details about the person seen and ask her whether she took medication and whether she knew that Mr. Dumont had been released, and to meet with her psychologist and contact Mr. Dumont’s former spouse, Céline Boisvert. The investigation file then indicates that the former spouse called the investigator on June 16, 1992 to tell him that Mr. Dumont was not complying with his conditions of release, was not seeing to the care of the children, went out [TRANSLATION] “a lot with girls for an impotent guy” and did not pay her support. On June 23, 1992, the investigator had Ms.

L . . . sign a solemn affirmation in which he wrote the following, among other things: [TRANSLATION] . . . at Club vidéo . . . I saw a fellow who lifted his head and I froze on seeing him and he also froze. I noted that he looked like my assailant. The individual was accompanied by a very small boy who was 2, 3 or 4 years old. . . . I went to the back of the store because I didn’t know what to do, since the individual looked just like Michel Dumont and I was certain that Dumont was in prison following his sentence. I contacted Mtre.

Duperron Roy in Saint-Jérôme to tell her about it, as I knew that Dumont was in prison and I had seen an individual that strangely resembled Dumont. That was when I found out that Dumont was no longer in prison because he had appealed from his sentence and had been free since then. I recalled having seen Dumont before, lurking around Boisbriand, whereas he was prohibited from doing so and I now believe that the man I saw at the video club could have been Dumont and that he did not keep his promise not to come to Boisbriand. . . .

The next day, the investigator contacted the psychologist, who confirmed that the victim’s treatment had ended in August 1991. [ 12 ] On June 25, 1992, the investigator sent the report on his additional investigation (3 pages, single-spaced) to the Crown prosecutor. In it, he related three visits to the video club, the victim’s declaration, the call by Mr. Dumont’s former spouse, his discussion with the victim’s psychologist and the content of the records in the name of Mr. Dumont and his former spouse kept by the video club. He wrote the following on page 2: [TRANSLATION] “After speaking with Ms.

L . . ., who thought that Michel Dumont was still in prison, I personally believe that it is possible that the individual she saw was Michel Dumont”. On page 3, he explained the conclusion of his investigation as follows: [TRANSLATION] “I believe it is possible that the individual Ms. L . . . saw at the Club Vidéo was Dumont with his little boy”. [ 13 ] The parties did not agree about transmitting the report to the defence attorney, Mtre. Paul Gélinas, who was mandated at the time to prepare the appeal.

According to the Attorney General of Québec, the Crown attorney sent him, on July 3, 1992, a letter with a copy of the additional investigation report enclosed. The appellants contended that the letter and, above all, the additional investigation report were never received. Mtre. Gélinas died in 2005 and was not questioned as part of the liability action instituted by the appellants in 2001. The trial judge noted that he was sent the letter and the additional investigation report. [ 14 ] In July 1992, Mtre. Gélinas’ appeal factum was still not prepared, despite expiry of the deadline for submitting it.

In fact, it would be submitted only in January 1993, following a motion to dismiss the appeal, filed by the Crown and dismissed by the Court. In the factum, the appellant Dumont argued that the verdict was unreasonable. According to him, the trial judge wrongly set aside the testimony of the persons who affirmed that he was playing cards with them on the evening of the assault (alibi) and his testimony that he was having erectile problems. In the five pages constituting the arguments in his appeal factum, Mtre.

Gélinas also very briefly raised the possibility that the victim was mistaken in her identification of her assailant. Mtre. Gélinas concluded the factum by contending that the trial judge should have had a reasonable doubt about Mr. Dumont’s guilt. He did not invoke the video club incident. [ 15 ] In her 39-page factum, completed in March 1993, the prosecuting attorney explained why the trial judge was correct, in her

opinion, to reject all the defence testimony. She pointed out in particular the contradictions in the different depositions by Mr. Dumont’sbuddies regarding his alibi. It was also mentioned that the accused submitted no expert evidence in support of his affirmation that it wasimpossible for him to have sexual relations because of medical reasons. The Crown attorney also pointed out the reliability of thevictim’s identification evidence at the trial. The Crown’s factum did not mention the video club incident. [16] During the hearing of the appeal in February 1994, a new attorney, Mtre.

Michel Maurice, represented the prosecution, sincethe attorney who had acted in first instance and prepared the factum was on maternity leave. At the hearing, Mtre. Gélinas and Mtre.Maurice made no mention of the additional investigation. [17] In a unanimous ruling rendered from the bench, the Court of Appeal dismissed Mr. Dumont’s appeal, as it was of the opinionthat he raised only issues of evidence assessment and that none of the grounds invoked by the appellant justified its intervention. [18] While serving his sentence, Mr.

Dumont learned of a statement made by the victim on September 28, 1994 to a representative ofCorrectional Service Canada in which she affirmed that she no longer knew whether Mr. Dumont was indeed her assailant. In November1994, the victim reiterated her doubts. [19] Following the steps taken in March 1995 by Mr.

Dumont’s spouse, the appellant Solange Tremblay, who believed there hadbeen a miscarriage of justice, a file was opened at the federal Department of Justice. [20] In 1997, the victim publicly expressed her doubts about the identity of her assailant on two television programs, one broadcastin February 1997 and the other, in September 1997. On February 10, 1998, she reiterated her doubts to Mtre. Isabelle Schurman, theattorney who had been mandated a little earlier to investigate and report to the Minister. [21] Mtre. Gélinas was interviewed in the second television program.

He stated that he had never been informed of the video clubincident. However, he was less adamant in a telephone interview with Mtre. Schurman, since she wrote the following in her report:“[Mtre. Gélinas] concluded that he received the letter and forgot about it or the letter disappeared”. Mtre. Schurman also reported that itwas difficult for Mtre. Gélinas to believe that he would not have filed a motion with the Court of Appeal for new evidence if he had beenaware of the video club incident while the appeal was pending. [22] In her report to the Minister, Mtre.

Schurman said she questioned the Crown attorney and her superior, Mtre. François Brière,about the decision not to raise the video club incident on appeal. Mtre. Schurman wrote the following on that point: [TRANSLATION] When Mtre. Gélinas did not raise the new statement by Ms. L . . . on appeal, the prosecution chose not to raise it either. The twoattorneys believed that the statement was not revelatory enough and that it was rather an expression of uncertainty. Mtre. Du Perron-Roydeclared that it could have been Michel Dumont whom Ms.

L . . . saw in the video store and that the statement was not sufficientlyrevelatory of an error on Ms. L . . .’s part. [23] After Mtre. Schurman’s report was submitted on July 15, 1998, the Minister of Justice of Canada sought the opinion of theCourt of Appeal of Québec (s. 690 Cr.C. at the time) about the admissibility as new evidence of six statements, made after the trial, inwhich Ms.

L . . . expressed doubts about the identity of her assailant: [TRANSLATION] – the solemn affirmation made on June 23, 1992 to the investigator of the Boisbriand police department, concerning which the Courtof Appeal noted that a copy “was subsequently transmitted by the Crown attorney to the defence attorney” (at para. 9 of the ruling ofFebruary 22, 2001); – a statement made by phone to a representative of Correctional Service Canada in September 1994; – a statement made by phone to a representative of Correctional Service Canada in November 1994; – the two televised interviews; – the statement made to Mtre.

Schurman in 1998. [24] Should the new evidence be admissible, the Minister asked the Court to deal with the appeal again (s. 690(

b) Cr.C. at the time). [25] In a ruling rendered on February 22, 2001 (C.A.)), the Court of Appeal decided that the victim’s statementsregarding her doubts about the identification of the assailant were admissible new evidence. In the excerpts from the statements cited inthe ruling, the evolution of the victim’s attitude can be noted; she first entertained a doubt, which was transformed over time into aconviction, that Mr. Dumont was not the perpetrator of the crime. [26] As to whether the new evidence was likely to affect the verdict, the Court wrote the following: [TRANSLATION]

[17] Apart from the statement given to Paul Lafleur of Correctional Service Canada on November 25, 1994, all the subsequent statements of the victim , the only eyewitness to the petitioner’s alleged crimes, on which his identification is wholly based, indicate that she entertained a doubt about the identification at the trial . . . . [34] The statements were made by the person whose testimony at the trial had a decisive impact on the verdict. Although it is difficult to choose between the version given at the trial and the subsequent versions , the new evidence meets the credibility test.

Is the new evidence likely to affect the verdict ? [35] In this case, the prosecution’s only evidence at the trial consisted in the identification of the petitioner by the complainant. There can be no question that the repeated, serious doubts later expressed by the victim as to that identification are likely to directly affect the verdict. [Emphasis added.] [ 27 ] Believing that the new evidence could not enable a reasonable jury that was correctly instructed in law to conclude beyond a reasonable doubt that the petitioner was guilty, the Court concluded that the appropriate remedy was Mr.

Dumont’s acquittal (at para. [37]). [ 28 ] A few months later, the appellants instituted an extracontractual civil liability action against Ville de Boisbriand, criticizing the conduct of the police officers in the case (the allegations resulted from principal and additional investigations that were botched, cobbled together and not professional), and against the Attorney General of Québec for faults allegedly committed by the prosecuting attorneys, both in the trial and on appeal.

The Attorney General of Canada was then named as an impleaded party at the request of the Attorney General of Québec. [ 29 ] In February 2004, the appellants amended their proceedings in order to also assert a claim against Her Majesty in right of Canada, alleging various faults by Correctional Service Canada. They contended in particular that the refusal to compensate Mr.

Dumont was unjustified, given that Canada had signed the International Covenant on Civil and Political Rights (the International Covenant), Article 14(6) which proclaims the right to compensation, according to law, of a person incarcerated further to a miscarriage of justice. [ 30 ] In the amended proceeding, the appellants sought compensation of over $2.5 million.

The day before the trial in February 2009, an out-of-court settlement was concluded between the appellants and Ville de Boisbriand, whose insurers agreed to pay the appellants substantial compensation, and the trial continued solely in regard to the two Attorneys General. III Judgment appealed from [ 31 ] On July 17, 2009, after a five-day trial and five months of deliberations, the Superior Court judge dismissed the action.

As regards the Attorney General of Québec, the judge concluded in paragraph [112] of his reasons: [TRANSLATION] “. . . that the Crown committed no fault in this case and, even less, acted with malice, wrongful intent, bad faith or abuse of right, as the jurisprudence requires be proven when the Crown’s extracontractual liability is sought”. [ 32 ] As for the Attorney General of Canada, the judge rejected the claim founded on the circumstances of the incarceration, because of a lack of evidence of a fault and because of prescription.

In addition, he ruled out compensation for unjustified imprisonment pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms and the International Covenant. [ 33 ] The appellants appealed, contending that the trial judge erred in regard to the three aspects of their claim. IV Analysis (

A) Liability of the Attorney General of Québec [ 34 ] To succeed, the appellants had to show, firstly, that an extracontractual fault, within the meaning of

article 1457 of the Civil Code of Québec , was committed by the prosecuting attorneys, which means they had to prove that one of the prosecuting attorneys failed to “abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another”/”respecter les règles de conduite qui, suivant les circonstances, les usages ou la loi, s'imposent à elle, de manière à ne pas causer de prejudice”. [ 35 ] Next, they had to show not only that the fault resulted in the unjustified incarceration of Mr.

Dumont (causal link), but also that the Crown attorneys were not protected from civil prosecution by relative immunity in public law. [ 36 ] According to the appellants, the Crown committed three faults. [1] Firstly, it failed to deal promptly and adequately with the victim’s statement regarding the incident at the video club in the spring of 1992, just after the judgment in first instance. Secondly, it failed to disclose that statement to the defence, a statement it considered [TRANSLATION] “crucial” information since the identification

of Mr. Dumont by the victim was, in their opinion, at the heart of the appeal, or subsidiarily, ensure that Mtre. Gélinas received it. Lastly, they alleged that the Crown failed to mention that incident in its factum or arguments, while reaffirming the reliability of the identification of Mr.

Dumont by the victim at the trial. [ 37 ] Before analyzing the three faults, it is appropriate to clarify the role of the prosecution and the nature of the immunity it enjoys. [ 38 ] The particular role of the prosecution is mainly based on the idea expressed by Rand J. in Boucher , [2] and reiterated many times since then, which is the touchstone for an understanding of the duties of Crown prosecutors: It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.

Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. [ 39 ] There is no doubt that these principles apply both in a trial and in an appeal process.

The Crown’s quasi-judicial role implies that the prosecution continues to enjoy broad discretionary power, but also that certain obligations are imposed on it in conducting cases. [ 40 ] In addition, in order to protect the independent sphere of the prosecution, the Crown enjoys relative immunity as regards civil actions. So in order to incur the Crown’s liability in cases where immunity applies, a plaintiff must prove at trial that the Crown prosecutors were motivated by malice.

The Crown’s liability therefore requires a demonstration, not of a simple fault but, in principle, of malice in the exercise of the prosecutors’ duties. [3] [ 41 ] That is a heavy burden for the plaintiffs, which is deemed necessary to eliminate frivolous prosecutions and preserve the necessary discretionary power and independence of the Crown. As Charron J. wrote in Miazga v. Kvello Estate : [4] A person accused of a criminal offence enjoys a private right of action when a prosecutor acts maliciously in fraud of his or her prosecutorial duties with the result that the accused suffers damage.

However, the civil tort of malicious prosecution is not an after-the- fact judicial review of a Crown’s exercise of prosecutorial discretion. Under the strict standard established in Nelles , malicious prosecution will only be made out where there is proof that the prosecutor’s conduct was fuelled by “an improper purpose or motive, a motive that involves an abuse or perversion of the system of criminal justice for ends it was not designed to serve” ( Nelles , at p. 199).

In other words, it is only when a Crown prosecutor steps out of his or her role as “minister of justice” that immunity is no longer justified. [ 42 ] The notions of malice, improper motive and perversion of the system of justice refer to more than an error in judgment or simple negligence.

Rather they target an intentional fault and bad faith. [5] The Supreme Court recently reiterated that in Miazga : “ In the context of a case against a Crown prosecutor, malice does not include recklessness, gross negligence or poor judgment”. [6] [ 43 ] It is appropriate to first note that the appellants alleged no fact that would make it possible to attribute malice or an improper motive to the Crown prosecutors in their treatment of Mr. Dumont’s case.

In his judgment, the trial judge accepted no evidence of bad faith that would make it possible to set aside the Crown’s relative immunity, and the appellants did not seek to question that factual determination.

Although they levelled criticism at the Crown attorney in the case, they did not, however, doubt her good faith and honesty. [ 44 ] Rather, the appellants argued that the principle of relative immunity of Crown counsel is not relevant in this case. [ 45 ] According to them, relative immunity applies to the exercise of the Crown’s discretionary power, but not to its legal obligation —which is non-discretionary—to deal promptly with new information and disclose it to the defence, which allegedly was not done, despite what the trial judge stated.

Furthermore, even if that had been done, the appellants, citing particularly Stinchcombe , [7] Krieger [8] and McNeil , [9] claimed that the prosecutors had a duty to disclose to the Court of Appeal all the information that could affect the outcome of Mr. Dumont’s appeal, despite Mtre. Gélinas’ silence. [ 46 ] That having been explained, let us now analyze the three grievances expressed by the appellants. (

i) Failure to deal adequately and promptly with the victim’s doubts [ 47 ] The appellants reproach the Attorney General’s prosecutors for not reacting with all the necessary diligence to the new information, communicated by the victim after the trial in the spring of 1992, that the victim ran into a look-alike of her assailant at a Boisbriand video club and, since then, had entertained doubts about the identification that led to Mr. Dumont’s conviction. [ 48 ] The trial judge noted from the evidence that, on the contrary, the Crown took that incident [TRANSLATION] “very seriously” (at para. [97]).

He was not mistaken. Regarding the treatment of the information communicated by the victim in the spring of 1992, the evidence showed that the attorney in charge of the case asked the Boisbriand police to conduct an investigation in order to shed light on the video club incident and followed up with the police, going so far as to suggest certain verifications and a meeting with the victim. She also mentioned the matter to her superior, who confirmed for the police that an additional investigation report was required.

The police then reported to the prosecution, followed by a written report on an additional investigation on June 25, 1992. [ 49 ] That cannot be considered a fault or negligence by the Crown in dealing with the new information from the victim in the spring of 1992. On the contrary, as the trial judge confirmed, the Crown took all the steps it could take and had to take, within the limits of its powers. As for the additional investigation, it was up to the Boisbriand police department to conduct it appropriately.

The appellants insisted that there was a significant delay between the victim’s call and the request to the police for an investigation, a delay that the trial judge allegedly failed to consider. But the delay is difficult to gauge, since the precise date of the communication of the video club incident is unknown. Let it suffice to say that the attorney’s alleged delay in conducting the case was not established and that, in fact, it

would not have contributed to the prejudice sustained by Mr. Dumont. [ 50 ] The appellants did not succeed in demonstrating that the judge erred in his assessment of the conduct of the Attorney General’s prosecutor regarding the doubts expressed by the victim. In that regard, the prosecutor fulfilled her [TRANSLATION] “quasi-judicial” duty to consider all the facts available. (ii) Disclosure of the additional investigation to the defence [ 51 ] Concerning the disclosure to Mtre.

Gélinas by the Crown of the information related to the video club incident and the doubts subsequently expressed by the victim, the judgment noted from the evidence in the record that the letter, with the report on the additional police investigation, was sent to the defence attorney on July 3, 1992. In the judge’s opinion, the prosecution’s obligation of disclosure was thus met. The judge noted an absence of evidence showing that the defence attorney did not receive the letter.

The judge wrote the following regarding the issue as a whole: [TRANSLATION] [100] In addition, contrary to the plaintiffs’ allegations, the evidence clearly showed that, on July 3, 1992, the Crown prosecutor sent a letter to Mtre. Paul Gélinas disclosing all information concerning the video club incident and enclosing a copy of the investigation report . [101] The plaintiffs went further by inferring from Mtre. Paul Gélinas’ silence before the Court of Appeal that he may not have received the letter of July 3, 1992. Their sole evidence is the interview that Mtre.

Paul Gélinas gave on the Radio-Canada television program Enjeux in September 1997. The plaintiffs submitted the following excerpt of that program: [TRANSLATION] Alain Gravel: Michel Dumont’s attorney at the time had begun to take steps to appeal from his client’s guilty verdict. But he was never made aware of Ms. L . . .’s doubts about the identity of her assailant, either by the police or the prosecutor for the ministère de la Justice. Are you surprised that that evidence was not disclosed to you? Mtre. Paul Gélinas (Michel Dumont’s attorney): Yes, I’m surprised, I’m surprised.

I am a little troubled by the fact that four years went by after my factum was submitted. That means that she began to have doubts before January 93 . That’s . . . Alain Gravel: She began to have doubts in March 92. Paul Gélinas: Well, listen, I am doubly surprised. Because in March 92, we had just lodged an appeal and that would have changed everything. Alain Gravel: But that evidence should normally have been disclosed to you.

Paul Gélinas: Well I think so. I think that the Crown, if it had that evidence, it should have disclosed it to the defence, and even informed the court of it, in my opinion. [102] But it is very surprising that that element, which was so crucial to the plaintiffs, was never the subject of probative evidence. Apart from this interview, the plaintiffs never provided any evidence whatsoever from Mtre. Paul Gélinas before his death in 2005. There is no writing, no letter, no affidavit, no document and no excerpt of testimony from Mtre. Paul Gélinas confirming that he never received the letter of July 3, 1992 .

But eight years elapsed between the program Enjeux and Mtre. Paul Gélinas’ death, and four years from when the present action was instituted and his death. [103] On the other hand, the Attorney General of Québec proved that the letter of July 3, 1992 was indeed sent to Mtre. Paul Gélinas. [104] What is more, the evidence in the record showed that, after that interview, the Crown attorney bumped into Mtre. Paul Gélinas; she told him she was upset by his declaration in the program Enjeux and reminded him that she had sent him the letter of July 3, 1992. Mtre.

Paul Gélinas appeared confused and apologized . [105] The Crown therefore wholly fulfilled its obligation to disclose not only the evidence in its possession before the trial but all the factual elements that followed, i.e. the video club incident in which the victim saw a person who looked like her assailant . The Crown prosecutor thus disregarded the fact that Dumont may have violated his probation conditions by going to the video club, and disclosed that information as such to Mtre.

Paul Gélinas. [Emphasis added.] [ 52 ] The appellants contended that the judge committed a palpable and overriding error in paragraph [100], since the letter of July 3, 1992, even if it was sent, does not actually disclose any information that could exculpate Mr. Dumont without the enclosures.

But, they stressed, the prosecution was unable to produce at the trial the documents transmitted with the letter. [ 53 ] The appellants had the burden of proving that the letter or the enclosures were not sent if they were to demonstrate that the prosecution failed to fulfil its obligation to disclose the evidence, an obligation that is not discretionary.

At the trial, they did not convince the judge of that fact and, in appeal, they failed to demonstrate that that determination was vitiated by a palpable error that would enable the Court to intervene. [ 54 ] The Crown attorney’s copy of her letter of July 3, 1992 in the record and her out-of-court testimony confirm that a copy of the additional investigation report was sent to Mr. Dumont’s attorney. The text of the letter of July 3, 1992 is clear, even without considering the enclosures.

It reads, in part: [TRANSLATION] “You will find enclosed the result of an additional investigation that I requested of the Sûreté municipale of Ville de Boisbriand regarding the case of your client Michel Dumont”. The letter is signed by the attorney in charge of the case and she clearly indicated that the letter included enclosures, since [TRANSLATION] “Encl.” appears. Mtre. Gélinas did not react to the letter, not even to ask for the content of the enclosures. [ 55 ] It is true that Mtre. Gélinas affirmed, in the television program in 1997, that he did not receive the prosecution’s letter.

However, the judge was of the opinion that Mtre. Gélinas’ affirmation in the program did not have great probative value. That conclusion is supported by the evidence. When the Attorney General’s prosecutor spoke with Mtre. Gélinas after the program, Mtre. Gélinas did not affirm that he never received the letter. Furthermore, the explanation given by Mtre. Gélinas in the program is not the one he gave Mtre. Schurman in 1998; as indicated previously, he told her at that time that he had received the letter and forgotten it, or that the letter had disappeared.

Ultimately, in his factum, the respondent the Attorney General of Québec affirmed that one of the attorneys who took over for Mtre. Gélinas, Mtre. Alain Roy, had a document linked to the investigation concerning the video club, which would suggest that Mtre. Gélinas had in fact received the letter and its enclosures in July 1992. [ 56 ] The appellants provided no explanation for these elements, which are more indicative of the sending of the letter than of a lack of disclosure. Not only did they fail to establish that the letter was not sent, but the appellants also did not succeed in demonstrating that Mtre.

Gélinas did not receive the letter. The appellants were aware of the 1997 television program and of the content of Mtre. Schurman’s 1998 report. As the trial judge remarked, the appellants, after Mr. Dumont was acquitted in 2001, should have provided adequate evidence from Mtre. Gélinas, who died in 2005, with a view to confirming that he never received the letter or the enclosures. They did not do so. [ 57 ] As for the criticism of the prosecution that it did not ensure that Mtre. Gélinas had indeed received, and actually took

cognizance of, the letter and the additional investigation report, it is based on too broad a conception of the obligation to disclose evidence as it existed at the relevant time. It was sufficient for the prosecution to send the letter and the additional investigation report to Mtre.

Gélinas in order to fulfil its duty of disclosure during the appeal. [ 58 ] On the basis of these conclusions, as the judge wrote, the Crown fulfilled the obligation to communicate to the defence the evidence related to the video club incident, including the victim’s statement to the police. (iii) Conduct of the prosecution during the appeal [ 59 ] So there remains the Crown’s conduct during the appeal.

Was it vitiated by a breach of any obligation toward the adverse party or the Court of Appeal, thus constituting a civil fault? [ 60 ] As we know, during the year and a half that elapsed between the sending of the additional investigation report in July 1992 and the hearing of the appeal in February 1994, Mtre. Gélinas in no way tried to avail himself of the report.

His appeal factum makes no mention of it, although, according to the appellants, the information related to the video club incident tended to give credence to the theory of a look-alike and, therefore, created a doubt about the victim’s identification of Mr. Dumont. The Crown’s appeal factum does not mention it either, but merely affirms that the identification of Mr. Dumont at the trial was reliable. In the hearing of the appeal in February 1994, neither Mtre. Gélinas nor the Crown attorney referred to the video club incident. [ 61 ] Given Mtre.

Gélinas’ silence, the appellants contended that the Attorney General’s prosecutors had a duty, as officers of the court, to themselves inform the Court of the video club incident.

They thereby reiterated an argument they gave before the trial judge, which was expressed in these terms in their re-reamended motion introductive of suit: [TRANSLATION] Worse still, although the report of June 25, 1992 [i.e. the investigation report of June 23, 1992 transmitted by Officer Lemay to the Crown attorney] clearly implied that it was possible that an identification error had occurred in the case, that new fact, which was actually crucial, was never brought to the attention of the Court of Appeal before the appeal was dismissed in February 1994, either in the factum of the Attorney General of Québec or in his arguments before the Court, which also violates his duty to be impartial and transparent, and furthermore constitutes a serious fault. (appellants’ factum 287) [ 62 ] The trial judge rejected that contention, as he was of the opinion that that would constitute an unacceptable form of interference by the Crown in the appellant Dumont’s strategy. [TRANSLATION] [106] The Attorney General of Québec readily acknowledged that, at the time of the appeal hearing, the Crown did not mention the video club incident.

Did the Crown thus commit a fault? The Court does not think so. [107] According to the jurisprudence, the obligation of disclosure must be complete and permanent. However, according to the Court, that does not imply interfering in the defence’s case . Complete disclosure of the evidence is crucial in our legal system, but the Court is of the opinion that it could be prejudicial to an accused for the Crown to interfere, in good faith, in his or her case. [108] The current system ensures that the accused has absolute control over his or her case, which includes, in particular, the right not to testify.

The Court is of the opinion that, since the Crown wholly fulfilled its obligation to disclose the evidence, it was not permitted to interfere in the accused’s case. One thing is certain, there is no evidence that the Crown’s acts at the time of the hearing before the Court of Appeal were marked by bad faith or malice . [Emphasis added.] [ 63 ] The appellants believe that the judge misunderstood: the duty not to interfere in the defence’s case must come after any possibility of a miscarriage of justice, as in the case at bar.

Between the date on which the letter of July 3, 1992 was sent and February 14, 1994, the date of the Court ruling upholding the verdict, the Crown prosecutors had many opportunities to draw Mtre. Gélinas’ attention, and eventually that of the Court of Appeal, to the video club incident. Be it at the time of the filing of the motion for dismissal of the appeal, the time of the submission of the appellant Dumont’s factum, the time of submission of the Crown’s factum or the time of the appeal arguments, they would have been wrong to remain silent. Given the stakes—the appellants said Mr.

Dumont’s very innocence depended on it—that inexplicable and incomprehensible conduct was said to constitute what they considered a [TRANSLATION] “true abuse of power”. They saw in it a flagrant violation of the Crown’s [TRANSLATION] “obligation of disclosure”, regarding which the Crown was not entitled to immunity. [ 64 ] The Attorney General of Québec replied that the judge was correct in pointing out the Crown’s duty not to interfere in the defence’s case in the circumstances. According to him, Mtre.

Gélinas’ decision not to raise the video club incident was likely the result of a strategic choice by the defence, which the Crown had to respect. In support of his contention, the Attorney General stressed that the additional investigation report concerning the video club incident contains an element that was potentially harmful to Mr. Dumont, regardless of its value related to the question of identification. His membership file indicated that someone took out a film in his name at a time when he was conditionally released during his trial.

But one of the conditions to be complied with at the time was not to be in Boisbriand. According to the respondent the Attorney General of Québec, the defence did not raise the video club incident because the evidence could have exposed Mr. Dumont to a charge of breach of conditions and, more broadly, damaged his credibility. The silence of

the Crown attorneys regarding Mtre. Gélinas’ inaction was, from that standpoint, justified and not a fault. [ 65 ] The Attorney General’s position is based particularly on the Crown attorney’s examination on discovery after defence. The respondent the Attorney General of Québec cited an exchange between the Crown attorney and Mtre. Longtin, the appellants’ attorney, explaining her reasons for not contacting Mtre. Gélinas about the video club incident: [TRANSLATION] QUESTION (Mtre.

Longtin): [481] But you, regardless of all that, you never took the initiative, after noting that there was no question of that, you never took the initiative to ask him: [TRANSLATION] “Mtre. Gélinas, did you receive the additional investigation report, are you aware of the doubts expressed?” ANSWER (Mtre. Du Perron Roy): No, I also did not see him again. He was an attorney whom I didn’t run into often. Q. [482] But you received his appeal factum? A. Yes, but I didn’t discuss it with him. We receive those by mail; he received mine, too.

Q. [483] But when you received his appeal factum, you noted that there was no question of that? A. Well yes, but . . . Q. [484] I guess? A. . . . I cannot interfere in a, in the way an attorney conducts his or her defence. Because there are also elements in the additional investigation that apparently showed that Mr. Dumont did not comply with the conditions of his release. So if he had focused on that, perhaps Mr. Dumont would not have been able to be free again throughout the trial, the appeal hearings, perhaps Mtre. Gélinas also made choices, with full knowledge of the facts. Q. [485] Did you check with him?

A. Look here. No, I did not check and, even if I had, he could have given me the brush-off; he did not have any reason to communicate his strategies to me. Q. [486] So for you, ultimately, it was more or less important? A. Well, I can say, for me, it was a strategy, that was his strategy.

Because, in the video club incident, there is an element that I, in my vision of the analysis of the case, if I were working for the defence, I would not have appreciated; it was to see on the video club card that Michel Dumont had rented a videocassette on his personal card, whereas he had conditions not to set foot in Boisbriand. He had clear, clear and precise, proof that he had breached his conditions. Q. [487] And that was in what year?

A. Well, it’s in the video record, in his video record. Q. [488] Do you know that it was in nineteen ninety one (1991)? A. I don’t recall the year, but I do recall that it was while he did not have the right to set foot in Boisbriand, he went there. So perhaps it was deliberate that the attorney decided not to focus on the video club card. That is also what is found in Mtre. Schurman’s report regarding her discussions with the prosecuting attorney. [ 66 ] In addition, the Attorney General argued that Mtre.

Gélinas did not dare to submit a motion for new evidence concerning the additional investigation report, since it was far from establishing an error in identification. On the contrary, he concluded that Ms. L . . . could indeed have seen Mr. Dumont at the video club, not a look-alike, when we know that he was free at the time and that the person seen was accompanied by a young child. The report also mentions that Ms. L . . . said she had already seen him in Boisbriand, despite the Court orders. [ 67 ] In short, that was said to be a strategic decision by Mtre.

Gélinas. [ 68 ] The judge was manifestly open to that argument. He drew up a list of evidentiary elements confirming the impression of the investigating police officer that it was indeed possible that Ms. L . . . had seen Mr.

Dumont, not someone else, at the video club: [TRANSLATION] [109] What is more, as the Attorney General of Québec argued, there were clues indicating that the person that the victim saw at the video club in March 1992 could have been Dumont himself: · the presence of a male child of two or three years of age with the individual, consistent with Dumont’s status as a father; · the existence of a membership card in the name of Michel Dumont in that video club; · the mention at the video club that the last film rental with that membership card was on May 17, 1991, a date on which Dumont was, however, forbidden to be in Boisbriand; · the comments of Dumont’s former wife, Céline Boisvert, that Dumont did not comply with his conditions of release, i.e. not to be in Boisbriand, since she had recently seen him there; · the knowledge that he had been seen by the victim in Boisbriand at least twice, whereas the Court prohibited him from being there; · the fact that the victim was unaware at the time that Dumont had been released. [ 69 ] The judge also indicated that, at the time of the victim’s statements, she said she was afraid of reprisals by Mr.

Dumont and his witnesses (para. [110]), and that she even said, according to the evidence accepted, that [TRANSLATION] “. . . it was fear that motivated her to express doubt about his identity . . .” (para. [111]). [ 70 ] From all that, the judge seems to have drawn the conclusion that it was reasonable for the Crown to attribute Mtre. Gélinas’ silence to a defence strategy. [ 71 ] The appellants attacked that reading of the additional investigation report. They pointed out the uncertainty of the statement of the police officer, who merely wrote: [TRANSLATION] “I believe it is possible that the individual Ms.

L . . . saw at the Club Vidéo was Dumont with his little boy”. They criticized the investigator for not having verified Mr. Dumont’s comings and goings, which was said to further weaken the persuasive force of the report’s conclusion. They contended that the judge erroneously indicated, in paragraph [109] of his reasons, among clues compatible with the conclusion that Mr. Dumont was indeed at the video club, that Mr.

Dumont’s former spouse had already seen him in Boisbriand, in violation of his conditions of release. [ 72 ] Once all these elements are considered, was the judge correct to conclude that the Crown did not commit a fault in keeping silent about the video club incident after its disclosure to the defence on July 3, 1992? [ 73 ] Firstly, it should be noted that the judge was not mistaken when he affirmed that the defence is the master of its strategy and that, as a general rule, the Crown must not interfere in its case.

The accused’s right to control his or her own defence has been recognized by the Supreme Court as one of the principles of fundamental justice enshrined constitutionally in

section 7 of the Canadian Charter of

Rights and Freedoms . [10] It is beyond dispute that this principle applies to the appeal process, with the necessary modifications. [ 74 ] However, with great respect for the trial judge’s opinion, the Court does not share his affirmation, in paragraph [108] of his reasons, that [TRANSLATION] “the accused has absolute control over his case” and that [TRANSLATION] “since the Crown wholly fulfilled its obligation to disclose the evidence, it was not permitted to interfere in the accused’s case”.

Although it is true, as a general rule, that the Crown must not interfere in the defence’s case or strategy, that rule cannot be absolute. There are situations in which the Crown’s [TRANSLATION] “duty of non-interference” must give way to the heavier duty to act as a good officer of the court. For example, it is conceivable that new DNA evidence is discovered after an accused is convicted, evidence that, if admitted, would lead to the cancellation of the verdict on appeal. Imagine that the Crown transmits the information to the defence before the appeal hearing. The defence does not react.

The obligation of non-interference in the defence’s strategy cannot, in the circumstances, relieve the Crown of its duty to prevent a miscarriage of justice if the defence attorney’s inaction cannot be objectively explained except by his or her ignorance of the importance of the new information. There is in fact a very real risk of a miscarriage of justice, which would justify the Crown’s intervention in an area that otherwise supremely belongs to the defence of the accused on appeal.

In exceptional cases, aware of the public nature of their office, Crown attorneys cannot remain silent. [ 75 ] In the case at bar, should the Crown have intervened? [ 76 ] For the appellants, Mtre. Gélinas’ silence could be explained only by his ignorance of the additional investigation or by his incompetence in managing the case.

The Crown’s decision not to itself raise the new evidence concerning the identification and, what is more, its decision to insist on the reliability of the identification made by the victim at the trial in its appeal factum, are said to constitute a civil fault that incurs its liability. [ 77 ] Firstly, let us rule out the theory that the Crown attorney should have deduced, from Mtre. Gélinas’ silence, that he had not received the letter containing the additional investigation report.

The additional investigation report was sent—the trial judge formally acknowledged that fact—and nothing implies a reviewable error in that regard. Following the sending of the report, it was reasonable for the Crown attorney to believe that the letter sent to her colleague arrived at its destination. The judge in fact accepted that it was received. [ 78 ] The appellants contended that the failure to check that Mtre. Gélinas received the additional investigation report, especially after noting that the defence attorney did not mention it in his appeal factum, was faulty.

However, they did not demonstrate that the Crown failed to follow common practice at the time in managing cases. No evidence was adduced that, between 1992 and 1994, the Crown had a duty to verify that the letter sent was received by the defence. [ 79 ] More substantially, the Attorney General contended that it was reasonable to think that, at the time the Crown prepared its factum, Mtre. Gélinas’ silence could be explained by the weak value of the new evidence and its potential harmful effect for Mr. Dumont.

In other words, his silence was a strategic choice. [ 80 ] To refute that argument, the appellants noted comments by the attorney in charge of the case at the time that allegedly indicated her surprise that the issue was not raised by Mtre. Gélinas’ attorney. In her examination on discovery after defence the attorney explained that, at the time, she expected Mtre. Gélinas to [TRANSLATION] “adduce that element, which should have been debated . . .”. In an interview with Mtre.

Schurman as part of the investigation ordered by the Minister of Justice in 1998, she said: [TRANSLATION] “I came back once from Court saying to myself: ‘Well, dammit, I can’t get over it; he didn’t even mention it’”. Commenting on the surprise mentioned to Mtre. Schurman at the time of her out-of-court examination, the attorney explained: [TRANSLATION] “I knew about the video club incident; for me it was something I would have thought Mtre. Gélinas was going to argue”.

She added the following: [TRANSLATION] “. . . it bothered me that, in the Court of Appeal, it was certainly going to be discussed; it was something on my mind”. [ 81 ] Why, the appellants asked, would the Crown attorney be surprised that Mtre. Gélinas did not raise the video club incident if she believed that the additional investigation put an end to the doubts initially expressed by Ms. L . . . ? Her comments, they added, imply that she had faith in the additional investigation as a source of reasonable doubt about the victim’s identification of Mr. Dumont.

The trial judge did not deal with that expression of surprise when he set aside the allegations that the Crown committed a fault during the appeal period in 1993 and 1994. [ 82 ] But, in carefully studying her testimony, we see that the attorney never said that, after the additional investigation, she entertained a doubt about Ms. L . . .’s identification of Mr. Dumont at the trial. She said only that she was surprised that Mtre. Gélinas, in again broaching the dismissal of the alibi defence, did not raise that.

Her testimony as a whole, of which those comments are but a very small part, explains the attorney’s nuanced position: while expecting Mtre. Gélinas to raise the video club incident, the attorney was aware that the defence also had good reasons for not mentioning it and that, all in all, she felt that the defence was in a better position than the Crown to assess the pros and cons.

Read in context, the attorney’s comments in no way suggest that she sought to take advantage of a poor calculation by the defence, by failing to herself raise the new evidence. [ 83 ] If the failure to raise the additional investigation is not a fault, can the same be said of the affirmation—a positive action rather than an abstention—in the Crown’s appeal factum that the evidence of the identification adduced at the trial was reliable? [ 84 ] On March 26, 1993, the Crown attorney signed and submitted a 39-page appeal factum in which she did more than not mention the video club incident.

The following can be read, for example, in the conclusion of the factum: [TRANSLATION] “The evidence of the identification [at the trial] is reliable and the evidence as a whole is convincing beyond a reasonable doubt that Michel Dumont was the perpetrator of the sexual assault of D . . .

L . . . on November 17, 1990”. [ 85 ] For the appellants, the decision to reaffirm, in the Crown’s representations on appeal, the reliability of the identification by the victim, without mentioning the additional investigation and without taking steps to verify the theory of the defence’s strategic silence, constitutes a lack of candour toward the Court of Appeal. That is said to be a fault committed by a public officer with the quasi-judicial power of a Crown attorney. Of course, the affirmation that the identification evidence at the trial was reliable was technically correct since Mtre.

Gélinas did not submit a motion for new evidence in order to alter the factual background on the basis of which the Court of

Appeal had to rule in 1994. They contended, however, that the direct affirmation of reliability is nonetheless inexcusable. For the appellants, that act deviates from the standard of conduct of a reasonable attorney in the circumstances and, in the context, should be considered a fact evincing fault. [ 86 ] To carefully assess that argument, we must again place ourselves at the time when the attorney prepared her factum and be wary of reading the affirmation on the basis of the subsequent evidentiary elements used, in 2001, for the acquittal pronounced by the Court of Appeal.

It is quite possible that the additional investigation report has shortcomings, in hindsight and with the benefit of the victim’s subsequent statements, but the question does not lie there. The report nonetheless indicates that the premise on which the victim’s initial doubt was based, i.e. that, in the spring of 1992, Mr. Dumont was incarcerated, was erroneous. Once the victim was advised of that fact, she recognized that the man she saw at the video club could have been Mr. Dumont. [ 87 ] Next, the police officer in charge of the investigation reported that the video club record indicated a rental in Mr.

Dumont’s name on a date when he was forbidden to be in Boisbriand. The police officer also pointed out that the person seen by the victim was accompanied by a little boy, which corresponded to Mr. Dumont’s situation, before he concluded in his report: [TRANSLATION] “I believe it is possible that the individual Ms. L . . . saw at the Club Vidéo was Dumont with his little boy”. [ 88 ] In short, the additional investigation report does not suggest that Mr. Dumont was the object of a miscarriage of justice or that Ms.

L . . . formally withdrew from the position she had taken regarding the identification at the trial. [ 89 ] It was only after the ruling dismissing the appeal in 1994 that the victim affirmed publicly and with increasing conviction that she was mistaken about the identification of Mr. Dumont, with the result that the case was referred to the Court in 2001 and acquittal ensued. [ 90 ] In that context, the Crown’s affirmation in 1993 and 1994 that the identification at the trial was reliable is not culpable.

The appellants had to demonstrate that the affirmation regarding reliability, made in the appeal factum and reiterated at the hearing before the Court, was made in bad faith, despite the way that the victim repudiated her doubts in the additional investigation. Faulty conduct as regards the standards applicable at the time was not demonstrated by that evidence. On the contrary, the Crown attorneys could reasonably conclude, particularly on the basis of the victim’s comments in the additional investigation report, that the video club incident should not undermine the evidence tested at the trial.

Considering what the Crown learned subsequently, some could see the affirmation in the factum as inaccurate. However, taking into account the evidence available at the time, it cannot be said that the factum was not candid with the Court. The Crown attorney, like her other Crown colleagues, could reasonably believe that Ms. L . . .’s initial doubts disappeared at the time of the additional investigation to the point that the Crown attorney could affirm that the identification evidence was reliable. The silence she felt was strategic at the time could be a comfort to her in that approach.

Her immediate superior and the person who replaced her when the appeal was heard in fact had the same assessment. [ 91 ] For the attorney who argued the case for the Crown in February 1994, the reading of the record, including the additional investigation report, could reasonably lead him to the conclusion that the victim did not have a serious doubt, after the trial, as to the identification of Mr.

Dumont. [ 92 ] The appellants did not establish that the affirmation in the factum and the arguments that followed constitute faults likely to incur civil liability in the circumstances. [ 93 ] It would certainly have been otherwise had there been new evidence that raised the real possibility of an identification error, such as DNA evidence ruling out Mr. Dumont as the perpetrator of the crime or a statement by the victim that she recognized her assailant in a public place, whereas Mr. Dumont was incarcerated (in contrast to our case).

Such facts should, without the shadow of a doubt, have been brought to the attention of the Court by the Crown. However, these scenarios do not correspond to the situation in which the Crown attorneys found themselves in this case during the appeal period. [ 94 ] In short, in light of the information available at the time of the appeal, the conduct of the Crown, including its choice to defer to Mtre. Gélinas’ strategic silence and argue the reliability of the identification in the trial, was not motivated by malice. [ 95 ] Lastly, the appellants raised an additional argument: if Mtre.

Gélinas had received the report, his silence merely confirmed his inability to adequately defend his client, as demonstrated earlier by his improper conduct of the appeal, of which the Crown was aware and which should have obliged it at the time to inform the Court of Appeal of the existence of the additional investigation report, in order to prevent any possibility of a miscarriage of justice. [ 96 ] In support of that contention, they pointed out that, in her examination, the attorney for the prosecution declared that she considered that Mtre.

Gélinas [TRANSLATION] “was totally mixed up”. [ 97 ] That argument is not convincing, since the appellants did not establish that Mtre. Gélinas’ silence was due to his incompetence and, even less so, that the supposed incompetence was so widely known that the Crown was compelled to intervene in order to offset it. Note, first of all, that the criticism of the Crown attorney concerning Mtre. Gélinas’ work was very tepid, as it was limited especially to speculation about the way he organized his files. Secondly, the Crown attorney who took over at the hearing before the Court of Appeal in 1994 considered Mtre.

Gélinas a “colleague for whom I have great respect”, while being, as he said during his examination, a [TRANSLATION] “very colourful colleague”. Of course, Mtre. Gélinas, as a member of the Barreau, benefited from a presumption of professional competence that the Crown had to recognize until proof to the contrary. [ 98 ] Of course, ethical obligations may arise in the presence of signs of incompetence of the attorney of an accused, such as the obligation not to take advantage of the incompetence or the duty to correct factual or legal errors made before the courts by the attorney.

The judge may also have an obligation to intervene if the incompetence is manifest and jeopardizes the fairness of the trial or the accused’s right to a full answer and defence. [ 99 ] In the case at bar, we are far from having evidence that the prosecution took advantage of the situation. Moreover, the appellants did not provide evidence of any negligence by Mtre. Gélinas that could explain his choice not to file a motion for new

evidence concerning the video club incident. Furthermore, they did not demonstrate any manoeuvre whatsoever by the prosecution. [ 100 ] Although it is appropriate to acknowledge that the defence’s control over its strategy is not absolute, the appellants did not succeed in establishing that the Crown committed a fault in deciding not to trouble Mtre. Gélinas in preparing his appeal. [ 101 ] In short, the appellants did not establish that the conduct of the Crown attorneys during Mr. Dumont’s appeal was contrary to the rules of conduct required according to the circumstances, usage or law. (

B) Liability of the federal Crown [ 102 ] The appellants contended that the prison authorities committed a fault incurring civil liability by keeping Mr. Dumont in detention when they knew that there was proof that he was innocent. According to them, once they were informed by the victim of her doubt about Mr. Dumont’s guilt in the fall of 1994, the employees of Correctional Service Canada had the obligation to take all reasonable steps to put an end to Mr. Dumont’s imprisonment as quickly as possible.

Failure to act constitutes a fault that incurs the liability of the federal Crown. [ 103 ] In addition, the appellants pointed out that Correctional Service Canada had in its possession the expert medical and psychophysiological reports establishing that Mr. Dumont did not have the profile of a sexual offender, had never demonstrated any sexual deviance and had erectile problems. [ 104 ] The judge found no fault likely to incur the liability of the federal Crown.

Furthermore, he concluded in paragraph [126] of his reasons that the recourse against the Attorney General of Canada was prescribed, since more than three years had elapsed between Mr. Dumont’s release and the date on which the action was instituted. [ 105 ] The trial judge was not mistaken. The appellants did not establish any fault committed by Correctional Service Canada. Prison authorities have no power to assess the guilt or innocence of inmates or alter judicial decisions on the basis of their subjective assessment of the situation of an inmate.

The expert opinions that Correctional Service Canada had in its possession had been prepared in the framework of the management of the sentence imposed and were not aimed at questioning the validity of the judgments rendered by the Court. The judge was correct to write, in paragraph [114], that [TRANSLATION] “the CSC has no choice but to manage the sentence as imposed by the competent court”. [ 106 ] On that point, there is an absence of any civil fault by the federal Crown, not to mention prescription. (

C) Right to a remedy under the aegis of section 24(1) of the Canadian Charter of Rights and Freedoms [ 107 ] The appellants contended that the 1190 days Mr. Dumont was in prison for a crime of which he was subsequently acquitted constitute a violation of his right to life, liberty and security of the person guaranteed by

section 7 of the Canadian Charter of Rights and Freedoms , a violation incompatible with the principles of fundamental justice. [ 108 ] They contended that section 24(1) of the Charter entitles him to apply to a competent court for a remedy from the Crown. [ 109 ] The appellants claimed that, in examining that request, the Court must take into consideration Canada’s international human rights commitments. They referred more specifically to

Article 14.6 of the International Convenant on Civil and Political Rights , to which Canada adhered on May 19, 1976 and which stipulates: When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non- disclosure of the unknown fact in time is wholly or partly attributable to him.

Lorsqu'une condamnation pénale définitive est ultérieurement annulée ou lorsque la grâce est accordée parce qu'un fait nouveau ou nouvellement révélé prouve qu'il s'est produit une erreur judiciaire, la personne qui a subi une peine en raison de cette condamnation sera indemnisée, conformément à la loi, à moins qu'il ne soit prouvé que la non- révélation en temps utile du fait inconnu lui est imputable en tout ou en partie. [ 110 ] According to them, as a victim of a miscarriage of justice, Mr.

Dumont is entitled to be compensated for the violation of his right to life, liberty and security through section 24(1) of the Charter , regardless of any fault and the relative immunity invoked by the Attorney General of Québec. The appellants admitted that that excludes, however, the right to compensation for Ms.

Tremblay, concerning whom no violation of a Charter-protected right was alleged. [ 111 ] The judge rejected the appellants’ claims and stressed that the simple ratification by Canada of an international covenant does not give the covenant any enforceability in domestic law, unless it is explicitly incorporated into Canadian legislation. Canada does not have a no-fault liability regime allowing automatic compensation for victims of a miscarriage of justice. [ 112 ] In the circumstances, can Mr.

Dumont claim damages under section 24(1) of the Charter ? [ 113 ] Firstly, a violation of a Charter-guaranteed right must be established. In the Supreme Court ruling in Vancouver (City) v. Ward , [11] the Chief Justice wrote the following concerning the appropriateness of awarding damages as a remedy for such a violation: I conclude that damages may be awarded for Charter breach under s. 24(1) where appropriate and just. The first step in the inquiry is to establish that a Charter right has been breached. The second step is to show why damages are a just and appropriate remedy, having

regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust.

The final step is to assess the quantum of the damages. [12] [ 114 ] It will be noted that, among the factors likely to oppose the awarding of damages envisaged in the third stage of the analysis, the Crown immunities relevant to an action for civil liability in general law are considered as embodying “practical wisdom” , [13] which will also affect the outcome of an action based on section 24(1). [ 115 ] In this case, Mr. Dumont alleged a violation of his right to life, liberty and security, which are guaranteed in

section 7 of the Charter . He contended that his imprisonment for a crime of which he was subsequently acquitted constitutes such a violation. [ 116 ] As the respondents rightly pointed out however, Mr. Dumont did not specify what principle of fundamental justice the deprivation of liberty violated. However, if Mr. Dumont was incarcerated following a trial that complied with all the applicable requirements, it can be believed that his imprisonment, as unjustified as it was, was the result of a legal process consistent with the principles of fundamental justice, which meets the criterion of

section 7 of the Charter . [ 117 ] Furthermore, for the reasons explained earlier, the relative immunity that protects the exercise of the discretionary power of Crown attorneys is in opposition to Mr. Dupont’s action under both section 24(1) of the Charter and general law regarding liability. [ 118 ] Since the rights granted in sections 7 and 24(1) of the Charter do not correspond to those set forth in Article 14(6) of the International Covenant, it must be concluded that that international instrument, which was ratified but not implemented in Canadian domestic law, is, in any case, of no assistance to Mr.

Dumont on that point. THEREFORE, the Court: [ 119 ] DISMISSES the appeal; [ 120 ] Without costs in the circumstances. _______________________ PIERRE J. DALPHOND J.A. _______________________ NICHOLAS KASIRER J.A. _______________________ GUY GAGNON J.A. Mtre. Jean-François Longtin Mtre. Caroline Isabelle BÉLANGER, LONGTIN For the appellants Mtre. Michel Déom Mtre. Geneviève Lessard BERNARD, ROY (JUSTICE-QUÉBEC) DIRECTION GÉNÉRALE DES AFFAIRES JURIDIQUES ET LÉGISLATIVES For the respondent the Attorney General of Québec Mtre.

Michelle Lavergne JUSTICE CANADA JOYAL, LEBLANC For the respondent the Attorney General of Canada Date of hearing: November 7, 2011