Dean Christopher Roberts Petitioner v. The Attorney General of British Columbia, 2018 BCSC 1027

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Roberts v. British Columbia (Attorney General), 2018 BCSC 1027 Date: 20180621 Docket: S172577 Registry: Vancouver Between: Dean Christopher Roberts Petitioner And The Attorney General of British Columbia Respondent Before: The Honourable Mr. Justice Silverman Reasons for Judgment Counsel for the Petitioner: J.T. Campbell, Q.C. M. Shah Counsel for the Respondent: M. Levitz, Q.C. S. Elliott Place and Date of Hearing: Vancouver, B.C. January 29 and 30, 2018 Place and Date of Judgment: Vancouver, B.C.

June 21, 2018 Table of Contents INTRODUCTION .. 3 BACKGROUND .. 6 POST-APPEAL DISCLOSURE .. 15 CONCLUSIONS .. 29 DECISION .. 35 INTRODUCTION [ 1 ] The petitioner applies for disclosure of materials and information in possession of the police.

Because he has been convicted, has lost his appeal to the Court of Appeal, and long ago passed the date within which the Supreme Court of Canada Rules would have permitted an appeal, the disclosure he is seeking is referred to by counsel as post-appeal disclosure. [ 2 ] The petitioner intends to apply to the Minister of Justice (the “Minister”) for a review of his convictions for murder, pursuant to s. 696.1 of the Criminal Code [ Code ]. [ 3 ] He argues that wrongfully convicted individuals have difficulty in meeting the threshold for Ministerial review without access to the material and information in the hands of the Crown and the police.

In the application before this Court, he seeks disclosure of that material and information in order to more fairly enable him to prepare for and present his intended application to the Minister.

[ 4 ] Counsel have advised that, because of its nature as a post-appeal application, this is a case of first instance. Therefore, this petition raises a number of novel questions, including: 1. What jurisdiction does the Minister have to order DNA testing when considering an application for review under s. 696.1 of the Code ? 2. What, if any, are the post-appeal disclosure obligations of the Crown? 3. Does this Court have jurisdiction to order post-appeal disclosure? 4.

In the circumstances of this case, has the respondent breached its obligation to disclose, and therefore breached the s. 7 Charter rights of the petitioner? [ 5 ] On November 2, 1995, the petitioner was convicted, by a jury, of one count of attempted murder and three counts of first degree murder. While there was other circumstantial evidence, the convictions could not have been sustained without a “Mr. Big confession”. The petitioner testified in his own defence and has always maintained his innocence. [ 6 ] The Court of Appeal dismissed his appeal primarily on the basis of the reliability of the Mr.

Big evidence. He did not appeal to the Supreme Court of Canada. [ 7 ] The Crown acknowledges that there is DNA on various exhibits for which adequate DNA testing was unavailable, or not conducted, prior to the trial.

The Crown does dispute whether that testing can now be adequately conducted, and even it can, whether it can provide a result that will have any bearing on the verdict. [ 8 ] DNA testing has improved significantly since the investigation in this case and the petitioner argues that modern forensic science might provide exculpatory evidence which would support his application to the Minister under 696.1. To that end, he has made submissions directly to the Crown seeking access to the evidence so that DNA technology could be applied.

His submission to the Crown was based upon the premise that any such testing would be at his own cost, and the Crown would bear no cost.

The Crown denied those requests. [ 9 ] The petitioner now argues that the Crown’s refusal to disclose is a breach of his s. 7 Charter rights and that the Crown has a qualified constitutional duty to provide convicted individuals claiming wrongful conviction with disclosure of, or access to, relevant evidence and information already in the possession of the Crown or police. [ 10 ] As a result of that breach, he now seeks a disclosure order under s. 24(1) of the Charter . [ 11 ] The respondent argues as follows: 1. The petitioner has not established a breach of his Charter rights.

While the respondent acknowledges that the Crown has a qualified duty to disclose, even in the post-appeal period, that duty does not arise in the circumstances of this case. Therefore, there has been no breach of any duty to disclose. Consequently, this Court has no jurisdiction to order production of the exhibits for DNA testing. 2. There is a Code process that exists for precisely this sort of application. The Court should not be considering that a Charter remedy is suitable in such circumstances. 3.

The Crown is not in possession of any information which might suggest the accused is innocent of the crimes, or which might potentially call into question the safety of his convictions. It is in the interests of justice in all the circumstances of this case that this petition should be dismissed on the basis of finality. [ 12 ] A significant portion of the argument before me did not deal directly with the issue of the Crown’s duty to disclose, or the Court’s jurisdiction to order disclosure.

Instead, counsel spent a good deal of time focusing on a variety of topics related to the potential significance of DNA testing to this case. For that reason, the parties argued topics which included: 1. The effect of advances in DNA technology; 2. The change in the law relating to Mr. Big confessions in view of R. v. Hart , 2014 SCC 52 ; 3. The actual strength or weakness of the evidence at trial with regard to, but not limited to:

a) The Mr. Big evidence;

b) There were no witnesses to the offence;

c) There was no forensic evidence connecting the petitioner to the crime scene, or any related scene.

d) Whether there was evidence pointing to a different offender; and

e) The strength/or otherwise of the holdback evidence. 4. Whether the results of DNA testing, whatever they may be, could have an effect on the verdict, considering:

a) The locations where the DNA sought to be tested were located – on exhibits, what parts of the exhibits, and/or at other locations with potential significance.

b) Will the absence of the petitioner’s DNA on relevant exhibits lead inexorably to his exoneration?; and

c) Will the presence of some other person’s DNA on exhibits lead inexorably to the petitioner’s exoneration?; 5. Are the exhibits likely degraded or contaminated considering the less strategic methods in the 1990s of handling, testing, and storing DNA?; 6. The cost of DNA testing to the Crown; 7. The importance of finality. [ 13 ] The Crown argued the foregoing issues with the intention of convincing the Court that, while DNA technology for testing has advanced, the results would simply not be of any significance in this case, and therefore, testing would accomplish nothing and is unnecessary.

The defence argued the contrary: The petitioner maintains his innocence and has always done so. There were no witnesses to the offences and therefore the proof of the petitioner’s innocence can only be made available to him through the physical evidence. That physical evidence is now available because of advances in forensic science. To say that the ability to test that evidence, which was not previously available, is significant, is an understatement.

Nothing could be more significant, if it is possible, to find evidence of the petitioner’s innocence that he continues to maintain, or conversely, to prove his guilt with the certainty that forensic science can now provide. [ 14 ] During the course of argument, the following information was revealed. BACKGROUND The Murders [ 15 ] The petitioner and his wife, Susan Roberts, had three children. Their eldest child, Jonathon, was three years old. He was Susan’s son from a previous relationship and the petitioner’s adopted son. Their youngest children, David and Josiah, were fourteen- month-old twins.

The family lived in Cranbrook, BC. [ 16 ] On the evening of July 18, 1994, a fire broke out at the Roberts’ residence. Neighbours entered the house and rescued Jonathon from the top of the stairs. David was rescued by fire fighters from his crib. The other twin, Josiah, could not be located. [ 17 ] Susan’s cause of death was ligature strangulation by a white, braided, nylon rope tied and wrapped twice around her neck. Her body was on the bed in the master bedroom and was damaged by the fire.

The autopsy established she was deceased prior to the fire and the burns on her body were suffered after death. [ 18 ] The petitioner was not home when the fire was discovered. He was at a friend’s residence and he received a phone call advising him of the fire at his house. [ 19 ] Several things about the deaths of David and Josiah were the subjects of conflicting evidence at trial. [ 20 ] David died several days after the fire.

There were differing opinions from doctors and hospital staff concerning what caused his death – was it a consequence of the house fire, or the result of some prior event, possibly some form of smothering? [ 21 ] Josiah’s body was found two days later, on July 20, 1994, in a nearby bush area known as the Alkalis. A white nylon braided rope was wrapped around his neck three times and secured with a single knot. The cause of death was determined to be asphyxiation associated with ligature strangulation.

There was no indication of inhaled soot in Josiah’s air passages and the toxicological analysis for carbon monoxide was negative, indicating that he was not exposed to the fire prior to death. [ 22 ] A purple bag was missing from the Roberts’ home on the night of the murders. The police theory was that the purple bag was used to transport Josiah’s body from the house to a site in the Alkalis. The area surrounding Josiah’s body was searched extensively on July 21, 1994, but the bag was not located.

The purple bag was then discovered in an area near Josiah’s body on August 18, 1994, suggesting that the bag must have been placed in the area after July 21, 1994. [ 23 ] During this time, the petitioner was a suspect in the investigation and he was under surveillance from July 20, 1994, to mid- August 1994, when he left for Ontario. [ 24 ] At least part of the significance of the foregoing is that it may bear on the question of what the petitioner knew about those things, and how and when he knew them. [ 25 ] On August 18, 1994, the police began an undercover operation known as a “Mr. Big” operation. The “Mr.

Big” technique has subsequently been described by the Supreme Court of Canada as follows in Hart : [1] When conventional investigations fail to solve serious crimes, police forces in Canada have sometimes used the “Mr. Big” technique. A Mr. Big operation begins with undercover officers luring their suspect into a fictitious criminal organization of their own making. Over the next several weeks or months, the suspect is befriended by the undercover officers. He is shown that working with the organization provides a pathway to financial rewards and close friendships. There is only one catch.

The crime boss — known colloquially as “Mr. Big” — must approve the suspect’s membership in the criminal organization. [2}` The operation culminates with an interview-like meeting between the suspect and Mr. Big. During the interview, Mr. Big brings up the crime the police are investigating and questions the suspect about it. Denials of guilt are dismissed, and Mr. Big presses the suspect for a confession. As Mr. Big’s questioning continues, it becomes clear to the suspect that by confessing to the crime, the big prize — acceptance into the organization — awaits.

If the suspect does confess, the fiction soon unravels and the suspect is arrested and

charged. [ 26 ] The undercover officers made contact with the petitioner through his girlfriend, Angela Ewert. The officers posed as members of a criminal organization and the petitioner conducted a number of tasks for the fictitious organization in return for the promise of significant compensation. [ 27 ] In the final undercover scenario, the petitioner was tasked with assisting the “crime boss”, Cst. Shinkaruk, with a collection. It involved the threatening with a gun of undercover officers posing as a debtor and his pregnant wife. Cst.

Shinkaruk produced a handgun and pointed it at the passengers, stating that he would shoot the pregnant woman in the stomach first. The petitioner was then directed to drive to a secluded area, where Cst. Shinkaruk forced the passengers out of the car at gunpoint. He ordered the passengers to lie face- down on the ground and told them that they had two days to come up with the money. Cst. Shinkaruk and the petitioner left the passengers and drove to a motel in Richmond, BC. [ 28 ] At the motel, Cst.

Shinkaruk suggested that membership in the organization and its benefits were available to those willing to “pull the trigger”. He also expressed concern that the petitioner knew so much about his criminal activities, while he knew comparatively little about the petitioner. He stated that if the petitioner were to go to the police, the only person he could send people after “to even the score on” was Angela Ewert. Immediately after, the petitioner confessed to the offences.

He stated that he strangled Susan and Josiah with rope, he started a fire in the master bedroom, and he left David and Jonathan in the home to succumb to smoke inhalation. He also described how he put Josiah’s body in the purple bag and disposed of it in a bush. [ 29 ] The final confession was recorded. The previous scenarios were not. [ 30 ] On September 24, 1994, the petitioner was arrested and charged with three counts of first degree murder and one count of attempted murder.

Strengths of the Crown’s Case [ 31 ] It is not accurate to say that the convictions of the petitioner were based “solely” on his confession to undercover operators. There was additional incriminating evidence which was before the jury: 1. The petitioner, as the husband and father of the victims, had the means and opportunity to commit the murders. 2. There was also evidence of motive. There was evidence that the petitioner was motivated by a desire for a new life.

He hated his “Little House on the Prairie life”, hated his wife, and wanted his former girlfriend Angela Ewert who he could not have while his wife was alive. 3. The petitioner quickly developed a new life following the death of his wife and children, having relationships with two women, including Angela Ewert, and a prostitute and persons whom he believed to be criminals (the undercover operators). 4. There was evidence of financial problems and of a $200,000 insurance policy that the petitioner had taken on Susan’s life about four weeks before she was murdered. 5. The petitioner’s confession to Cst.

Shinkaruk and another officer (both in their Mr. Big roles), was recorded. In his Reasons dismissing the petitioner’s appeal, Hall J.A. summarized the confession at para. 7: … he told the police that he was the killer of his wife and the twins. He gave to Shinkaruk one of the two undercover operators detailed information about his preparation for the killings and furnished considerable detail about the murders of the wife and the twins and how he set the fire. 6. With respect to forensic evidence:

a) There was no direct evidence linking the petitioner or anyone else, for that matter, to the crime. Nor was there any forensic evidence that would have exculpated the petitioner. However, there was evidence of details at the scene which (the respondent argues) corroborated the petitioner’s confession to the undercover operators.

b) The Crown did not rely on any forensic evidence based on a purported science which was later found to be invalid in light of subsequent scientific developments. (This is in contrast to some of the cases referred to by the petitioner where the forensic evidence relied upon by the Crown, particularly the comparison of human hair, was later called into question because of subsequent scientific developments, and thus contributed to wrongful convictions.) Weaknesses of the Crown’s Case [ 32 ] The forensic testing conducted during the investigation revealed no physical or forensic evidence implicating the petitioner in the offences: 1.

The petitioner’s conviction was based largely on his confession to undercover operators. Despite the Court of Appeal’s determinations to the contrary, the undercover operation and the “confession” which flowed from it, should raise serious concerns as to the veracity of the petitioner’s remarks to the undercover operators. This was argued at trial. It is argued even more forcefully now, as a result of the Supreme Court of Canada’s consideration of Mr. Big confessions in Hart . 2. The hair and fibre materials found near Josiah’s body could not be matched to hair and fibre materials from the petitioner’s truck. 3.

The rope used to strangle Susan and Josiah likely originated from the same piece of rope, and it did not match the rope found in the

petitioner’s truck. 4. No material consistent with soot or smoke was found on the t-shirt worn by the petitioner on the night of the offences. 5. The dirt samples found near the body of Josiah were compared to dirt samples from the petitioner’s truck, and no matches werefound. 6. The dirt found on the rope used to strangle Josiah could not be matched to dirt samples from the petitioner’s truck. 7. DNA found under the fingernails of Susan did not match the petitioner and no human DNA was found in the sample taken from thepurple bag. 8.

Fingerprints were located on white “grocery-type” bags found within the purple bag, and the one fingerprint suitable for testing didnot match the petitioner. Holdback Evidence [33] Holdback evidence is evidence which the investigating police do not release to the public with the intention that the only peoplewho will know the details of that evidence are the investigators and the murderer (and accomplices). In this case, the respondent arguesthat there was such evidence which was known to the petitioner and revealed to the undercover operators during the Mr. Big operation.

If that is accurate, it is one of the strengths of the Crown’s case. However, the petitioner takes a different view of it. He testified that hiscomments to the undercover operators were based on information that had been publically available or that he had gleaned from officersand others during the investigation. This included information about causes of death of his family members which were generallyknown by members of the community. If so, whatever strength this gives to the Crown’s case is significantly diminished.

Thesedifferent views of the so-called holdback evidence was one of the most significant issues at the trial, and, according to the parties,continues as one of the significant issues on this petition. The Trial [34] The petitioner was convicted by a jury.

He testified at the trial. [35] He testified that he had dinner with the family, and after the children were in bed, he left the residence on two occasions, first, togo to a grocery store, returning around 9:00 p.m., and shortly after that ostensibly to go for a drive. [36] It was the theory of the Crown that he went out on the second occasion to provide himself an alibi, after having committed thehomicides and setting the fire. He was at the home of a friend when he received a phone call around 11:00 p.m. indicating that his homewas on fire.

He immediately went to his home and shortly after attended at the hospital. [37] The Crown’s case was based primarily on the petitioner’s Mr. Big confession. As Justice Stewart told the jury, “[t]he Crown’scase against the accused rises or falls on whether you are convinced that when the accused told the undercover officers on September 23rd, 1994 that he was the killer, he was telling the truth”. [38] The petitioner testified that his confessions to the undercover officer were false. He explained that he was scared of Cst.Shinkaruk after the violent money collection scenario. When Cst.

Shinkaruk expressed concern about how much the petitioner knewabout him, the petitioner felt that he had to make him feel comfortable by offering information about his own criminal activity – eventhough it was not true. [39] He was convicted of all four counts. He was sentenced to life imprisonment without parole eligibility for 25 years. The Appeal [40] The parties disagree with respect to what effect Hart has had on the law with respect to Mr. Big confessions. [41] The petitioner argued at trial, and in the Court of Appeal, that the Mr.

Big confession should have been ruled inadmissible, or astay of proceedings entered for abuse of process. [42] The Court of Appeal referred to R v. Unger (1993), (MB CA), 83 C.C.C. (3d) 228 (Man. C.A.) [Unger],saying this: In Unger, as in this case at bar, the appellant had been persuaded by the convincing theatrics of the undercover officers to make aconfession of his wrongful conduct.

I can discern however no improper coercion or force applied by the police to this appellant to makehim confess. [43] The petitioner argues that this reasoning is no longer correct, given the subsequent shift in the law with respect to Mr. Bigconfessions. Two decades before Hart, developments in Unger’s case resulted in a review of his conviction and the ultimate withdrawalof his charges. [44] In Hart, the Supreme Court of Canada said this: 62 To date, there are no established wrongful convictions stemming from its use.

However, in 1992, Kyle Unger was convicted ofmurder based in part on a confession elicited through a Mr. Big operation, as well as forensic evidence found at the scene of the crime. In2004, the forensic evidence was called into question by a review committee. The Minister of Justice ordered a review of the conviction,

and the Crown ultimately withdrew the charges after determining it did not have sufficient evidence to proceed with a new trial (see also R. v. Bates , 2009 ABQB 379 , 468 A.R. 158, where an accused, though properly convicted of manslaughter, overstated his involvement by falsely confessing to Mr. Big that he was the person who shot a rival drug dealer). [ 45 ] The respondent argues that the most significant change that Hart has produced in Mr. Big situations is that the onus of establishing admissibility is now on the Crown.

Other than that, Hart essentially applies the same analytical framework that has been used for more than two decades to assess the admissibility of confessions to undercover operators. The caution with which the courts have traditionally viewed such confessions is the same today as it was when the Roberts decision was released. The courts have for many years spoken about the inherent unreliability of such statements and the significance in finding confirmation of the content of the confession through other independent evidence. [ 46 ] The respondent argues that even a post- Hart analysis of the “Mr.

Big confession” in this case would not result in a different conclusion than what was arrived at. In the Court of Appeal, Hall J.A., in finding that there was not an abuse of process, said this at para. 15: 15. In the case at bar, the police put on a good show, the appellant fell for it and "his own untrammeled tongue" did him in. The reasonable well-informed member of the community would be not at all shocked by this police conduct but would, I believe, unhesitatingly endorse it. Supreme Court of Canada [ 47 ] The petitioner did not apply for leave to appeal to the Supreme Court of Canada.

His time within which to appeal (absent an application for leave) to the Supreme Court of Canada expired long ago. Post-Appeal Disclosure Requests [ 48 ] The UBC Innocence Project (the “Project”) began working with the petitioner in late 2009. Subsequently, correspondence concerning the question of disclosure was exchanged between the petitioner and the Crown on a number of dates: 1. On September 22, 2011, the petitioner sent a letter to Crown counsel requesting the release of certain exhibits for independent DNA testing.

The letter expressed how improvements in DNA technology could assist with advancing the petitioner’s innocence claim and providing details of the foregoing. 2. On October 25, 2011, Crown Counsel denied the Project’s request on the basis that it did not provide an explanation of how further scientific or forensic testing “could realistically impact or otherwise cast doubt upon the validity of the verdicts that are sought to be overturned”. 3. On July 4, 2012, supervising counsel for the Project sent a revised request for the release of exhibits.

The letter detailed the advances in DNA technology since the investigation in the petitioner’s case and specifically set out how modern DNA testing could impact the petitioner’s verdict. 4. On September 12, 2012, Crown counsel again denied the Project’s request, stating that the information provided had not persuaded them that the testing sought “could affect the reliability of the verdict in this case”. 5. On March 22, 2013, supervising counsel for the Project sent another letter to Crown counsel, making further submissions with respect to the release of exhibits for DNA testing. 6.

On April 9, 2013, Crown counsel responded and stated that they had forwarded the request to the RCMP. However, they remained of the view that the possibility that DNA testing could “exonerate” the petitioner was “speculative in nature”. 7. On August 19, 2013, Crown Counsel wrote to supervising counsel for the Project and stated: We have now been advised that absent direction from the Crown, or an order of a court, the R.C.M.P. will not provide these exhibits to the Innocence Project for testing.

Please be advised that the Crown is not prepared to give the R.C.M.P. this direction as we are not at this time consenting to the release of these exhibits. We maintain our view that nothing will be achieved by the testing you propose, and this is not a case that lends itself to DNA exoneration. Your letters have not persuaded us otherwise, especially when considered in light of the other evidence in this case. … The Petition [ 49 ] On March 17, 2017, supervising counsel for the Project filed a petition with this Court, seeking an order that the Crown make certain exhibits and evidence available for DNA testing.

The amended petition seeks an order that various specified exhibits be produced for forensic testing. POST-APPEAL DISCLOSURE Current Potential Remedies The Petitioner

[ 50 ] After all appeals and judicial reviews have been exhausted, the only hope for a wrongfully convicted person is an application to the Minister. This process is governed by ss. 696.1 to 696.6 of the Code and the related regulations. [ 51 ]

Section 696.1 to 696.6 states: 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 regulation made under

an Act of Parliament or has been found to be 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.

(2) The application must be in the form, contain the information and be accompanied by any documents prescribed by the regulations. 696.2

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

(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.

(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). 696.3

(1) In this section, the 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.

(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.

(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.

(4) A decision of the Minister of Justice made under subsection (3) is final and is not subject to appeal. 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. 696.5 The Minister of Justice shall within six months after the end of each financial year submit an annual report to Parliament in relation to applications under this Part. 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. [My emphasis added] [ 52 ] The relevant regulations made in accordance with s. 696.6 are as follows: Regulations Respecting Applications for Ministerial Review – Miscarriages of Justice , SOR/2002-416 (the “ Regulations ”): ... 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. 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. ... [My emphasis added] [ 53 ] Counsel for the petitioner advises that there is a Department of Justice website: www.justice.gc.ca/eng/cj-jp/ccr-rc/proc.html (the “Website”) which provides commentary on various aspects of the application process.

While the Website does not have the force of law, counsel for the respondent did not object to the petitioner relying on it. I am satisfied that it is useful in attempting to understand the process. I intend to quote from several passages on the Website. When I do so, those passages will appear in italics. [ 54 ] On the basis of the relevant Code sections, the Regulations and the information on the Website, I am satisfied that there are several distinct steps in the process to be followed by the Minister in fulfilling her obligations under the Code . Those steps are as follows: 1.

The Application : An applicant must complete all the necessary forms, and provide all relevant materials and information (Regulation 2(1) and (2)), including: a) “the grounds for the application” – Regulations , s. 2(1)(e); and b) “a description of the new matters of significance that support the application, if any” – Regulations , s. 2(1)(f). The latter (the phrase “new matters of significance”) is the same phrase that appears in s. 696.4 (

a) of the Code referred to earlier in this Judgment. The Website uses the phrase “new and significant information”. I am satisfied that these two phrases are intended to mean, and do mean, the same thing. The Website says this under the heading “What is New and Significant Information”: Your application for a conviction review must be based on new and significant information . 2. The Preliminary Assessment : On receipt of the foregoing application, the Minister shall “conduct a preliminary assessment of the application” – Regulations , s. 3(b).

At the end of the preliminary assessment, the Minister must make a decision whether to “conduct an investigation”. In the circumstances of this case, there are only two options. Either she: a) “ shall conduct an investigation...” ( Regulations , 4(1)(a)); or b) “ shall not conduct an investigation...”. ( Regulations , 4(1)(b)) The foregoing decision is wholly dependent (on the facts of this case) on whether “after the preliminary assessment”, she: a) “...determines that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred; ” ( Regulations , 4(1)(a)); or

b) “ is satisfied that there is no reasonable basis to conclude that a miscarriage of justice likely occurred ...”. Regulations , 4(1)(b)(ii)). The Website says this under the heading “Preliminary Assessment”: ... If the application presents new and significant information that was not available at trial or on appeal and that could have affected the outcome of your case, you will be informed that the application will proceed to the next stage of the process. ...

If your application does not present new and significant information, you will be informed that your application will not proceed to the investigation stage. You will also be told that you may provide additional information in support of your application within one year. If you do so, the preliminary assessment will continue. If you provide additional information after the one-year period, a new preliminary assessment will be necessary. 3.

The Investigation Stage : The application will have reached this stage only if the Minister has determined that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred ( Regulations 4(1)(a)). The Regulations are silent on the specifics of how the investigation should proceed.

The Website says this, in part, under the heading “Investigation”: At the investigation stage, a CCRG [Criminal Conviction Review Group] or outside lawyer will closely examine the new information you provided in your application to see if it is reliable (i.e. it is reasonably capable of belief) and relevant (i.e. it relates to guilt or innocence). Depending on the type of information you provide, the investigation could involve any of the following: • ... • Carrying out scientific tests (e.g. DNA testing). • ... 4.

Decision : If the Minister is satisfied that “there is a reasonable basis to conclude that a miscarriage of justice likely occurred ”, she may direct a new trial: s. 696.3(3) (a)(i). [Bold face in original; my underlining] [ 55 ] The petitioner argues that there is no basis upon which one can conclude, from any of the foregoing, that the Minister will order DNA tests on any of the exhibits before making her decision.

If she does not do so, then regulation 4(1)(b)(ii) will lead inexorably to the result that she “shall not conduct an investigation if the Minister is satisfied that there is no reasonable basis to conclude that a miscarriage of justice likely occurred.” [ 56 ] It is imperative that the DNA tests be done or the petitioner will not get the consideration of new material that he argues he is entitled to at this stage. The relevant sections of the Code and the Regulations all suggest that new material must be forwarded at the application stage.

The petitioner is not in a position to do that unless the Court orders that the DNA materials be provided in advance so that they can be tested. The Respondent The Code Provides for Two Mechanisms for the Petitioner to Obtain the Relief he Seeks [ 57 ] The Code provides for two different statutory mechanisms that potentially offer the petitioner the relief he seeks. He has so far declined to pursue either. [ 58 ] Those two mechanisms are: 1. The petitioner has the option of seeking an extension of time and leave to appeal to the Supreme Court of Canada, pursuant to s. 691 of the Code .

That Court has jurisdiction to order release of exhibits for forensic testing on a motion ancillary to an application for leave to appeal. 2. The petitioner could also pursue an application under s. 696.1 of the Code for a review by the Minister of Justice on the grounds of miscarriage of justice. He has not yet exercised this option. He argues that it is impossible for him to make an application to the Minister without first obtaining the forensic testing, thereby necessitating this proceeding. However, his argument is simply wrong. The Minister can order what this Court is being asked to do. The Problem

The Petitioner The Legislative and Common Law Gap and the “Catch 22” [ 59 ] The post-appeal review system set out in ss. 696.1 to 696.6 is deficient. [ 60 ] Its purpose is to identify and correct wrongful convictions. It is intended to act as a final safety net for innocent individuals who have suffered miscarriages of justice. However, the statutory framework does not provide any statutory basis for obtaining post- appeal disclosure that is relevant to a s. 696.1 application.

The legislation does not establish a statutory duty on the Crown to disclose, on request, the information necessary to make a meaningful s. 696.1 application, nor does it establish a mechanism for seeking court- ordered disclosure for the purpose of a s. 696.1 application. [ 61 ] This is a clear gap in the legislation and this gap is what makes this application necessary. [ 62 ] The entire s. 696.1 process is premised on the applicant providing “new and significant information”.

Without access to new and significant information in the hands of the Crown/police or information already in the possession of the Crown/police that would allow the applicant to uncover new and significant information, it is impossible for applicants to make a successful application under s. 696.1 of the Code . Without new and significant information, the application is doomed to fail and miscarriages of justice may well go uncorrected. [ 63 ] To date, the case law has not recognized a common law or constitutional duty on the Crown to disclose relevant material after all appeals have been exhausted.

Currently, post-appeal disclosure is solely at the discretion of the Crown, and Crown post-appeal disclosure policies vary across Canada. In British Columbia, the Crown does not have a formal policy regarding post-appeal disclosure, but has indicated that it will only disclose material if there is a reasonable basis to conclude that a wrongful conviction has likely occurred – essentially the same threshold for an investigation and Ministerial intervention under s. 696.1 .

The Importance of Disclosure [ 64 ] As a s. 696.1 application will not even pass the preliminary assessment without presenting “new and significant information”, it is essential that the applicant have access to new evidence or information that has come to the attention of the respondent or police. It is equally essential that the applicant have access to relevant information and material already in the possession of the respondent or police.

Materials and information in the possession of the respondent, whether new or otherwise, can be critical to the identification of evidence that a wrongfully convicted individual requires in order to meet the CCRG’s threshold for review. [ 65 ] The use of modern DNA testing on physical evidence in the hands of the respondent or police may provide exactly the kind of “new and significant information” the CCRG requires to initiate an investigation.

It is clear that modern DNA testing is a powerful tool for correcting miscarriages of justice. [ 66 ] To date, there are no less than 350 DNA exonerations that have occurred in the United States: Brandon L. Garrett, “Actual Innocence and Wrongful Convictions” in Erik Luna, ed.

Reforming Criminal Justice, Volume 3: Pretrial and Trial Processes (Phoenix: Arizona State University, 2017) 193 at 194. [ 67 ] In Canada, post-conviction DNA testing has contributed to the exoneration of a number of individuals, including James Driskell, David Milgaard, Guy Paul Morin, Gregory Parsons, and Thomas Sophonow: Andrew Guaglio, “Proving Innocence After Appeals – A Call for Uniform Post-Appeal Disclosure Policies” (2015) 62 C.L.Q. 88 at p. 107. [ 68 ] It is clear that there have been instances, in both Canada and the United States where earlier miscarriages of justice have been corrected as the result of access to an investigative file. [ 69 ] In short, the disclosure of both new information that comes to the attention of the Crown/police and relevant materials already in the possession of the Crown/police is critical to ensuring that the s. 696.1 process does what it is intended to do – that is, identify and correct miscarriages of justice.

The Respondent [ 70 ] The petitioner’s entire constitutional argument is premised on his assertion that the Minister could not adjudicate his claim for the relief sought here. To the contrary, the Code , together with the Regulations , grants the Minister the authorization to order DNA testing in appropriate cases. [ 71 ] The petitioner does not adequately consider the s. 696.2(2) powers of investigation granted to the Minister or her delegate pursuant to the Inquiries Act , R.S.C. 1985, c. 1-11 , which would arguably give the Minister sufficient authority to address the so-called legislative gap and Catch 22.

It is for the Minister to Determine Whether the Forensic Testing Would Aid an Application for Extraordinary Relief [ 72 ] The petitioner seeks to have this Court pre-empt the Minister’s discretion to decide whether to initiate an investigation or not. It is for the Minister, using her powers of inquiry and in her discretion, to determine what type of investigation must be carried out. Only she can say whether further investigation could possibly convince her to exercise her discretion in favour of the petitioner. The Solution

The Petitioner Post-Appeal Disclosure and s. 7 of the Charter [73] The law is clear that a superior court has jurisdiction under s. 24(1) of the Charter to order disclosure where the respondent hasfailed to fulfill its constitutional disclosure obligations: R. v. Girimonte, 1997 CarswellOnt 4844 (Ont C.A.) and R. v. S.S.S. (1999), (ON SC), 136 C.C.C. (3d) 477 (Ont. Sup. Ct.). [74] It is commonly accepted in Canada that the Crown has constitutional disclosure obligations that continue after conviction andthroughout the appellate process: R. v. Trotta (2004), (ON CA), 23 C.R. (6th) 261 (Ont.

C.A.). [75] In Trotta, while considering the scope of the Crown’s disclosure obligations in the appeal period, Doherty J.A. held that the R.v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326 standard was inappropriate, as a convicted individual is no longer presumedinnocent and has exhausted his or her right to make full answer and defence. However, Doherty J.A. also noted that an accused hasbroad rights of appeal under the Code, including the right to adduce fresh evidence on appeal. The purpose of these broad appeal rightsis to “maximize protection against wrongful convictions”: Trotta at paras. 23-24.

Doherty J.A. concluded at para. 25: [25] The Crown's disclosure obligation on appeal must recognize and give full value to an accused's broad rights of appeal and therationale 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. … [76] The Ontario Court of Appeal’s decision in Trotta was reversed on other grounds, and the Supreme Court of Canada found itunnecessary to consider the issue of post-conviction disclosure (2007 SCC 49, at para. 17).

However, the Supreme Court of Canadasubsequently confirmed that the Crown’s disclosure obligations survive the trial and, in the appellate context, the scope of relevantinformation includes “any information in respect of which there is a reasonable possibility that it may assist the appellant in prosecutingan appeal”: R. v. McNeil, 2009 SCC 3 at para. 17. [77] Recently in British Columbia, in the case of R. v.

Tallio, 2017 BCCA 259, the Court of Appeal ordered the testing of DNAsamples in the post-conviction period. [78] Both Trotta and Tallio were dealing with disclosure issues after conviction, but during the appeal period. [79] The petitioner argues that the Ontario Court of Appeal’s reasoning in Trotta, endorsed by the Supreme Court of Canada inMcNeil, extends to the post-appeal period. The Crown’s disclosure obligations during the appeal period are based on the continuedconcern for wrongful convictions and an accused’s broad appeal rights.

These underlying rationales are equally applicable in the post-appeal context. Just as an accused has broad rights of appeal under the Code to protect against wrongful convictions, the Codeestablishes a post-appeal process of Ministerial review to correct any miscarriages of justice. Just as in the appeal process, the potentialfor a wrongfully convicted person to correct a miscarriage of justice remains alive.

Crown disclosure obligations are necessary to givemeaningful effect to an individual’s rights under s. 696.1 and the rationale underlying those rights. [80] The petitioner argues that the Crown’s post-appeal disclosure obligations clearly include a positive duty to disclose new,exculpatory information or evidence that comes to its attention. [81] Just as in the trial stage of the proceedings, this obligation must give rise to a corresponding disclosure obligation on the police:McNeil at paras. 23-25.

If new, exculpatory information comes to the attention of the police, they have an obligation to disclose it to theCrown. [82] In order to give effect to the s. 696.1 process, the Crown’s disclosure obligations must extend to information in the possessionof the Crown where there is a reasonable possibility it may assist in making an application under s. 696.1 of the Code.

The failure torecognize such disclosure obligations would leave a significant gap in the legislation and the Minister’s ability to fulfill the objectives ofthe section. [83] This duty on the Crown and police must also include an obligation, triggered upon request, to provide individuals withdisclosure of, and access to, materials and evidence already in the possession of the Crown or police where there is a reasonablepossibility that the disclosure sought may assist the individual in making an application under s. 696.1 of the Code.

The Respondent The Petitioner’s Proposal is Flawed [84] The respondent agrees that the common law recognizes, after the appellate process is exhausted, a more limited duty on theCrown: if it comes into possession, of something new which might afford arguable grounds for contending that the conviction wasunsafe, it has a duty to disclose it to a convicted defendant: Nunn v. Chief Constable of Suffolk Constabulary et al., [2014] UKSC 37 atpara. 35; Chaudhary at para. 60.

A Court’s jurisdiction over “properly founded” applications for post-appeal disclosure is premised onthis duty – the ongoing duty to disclose information that the Crown believes shows an accused is innocent or that his or her conviction isunsafe. [85] The Crown is fully aware of its duty to disclose in the post-appeal period. There are examples from cases in British Columbiawhere the exercise of the Crown’s less broad duty to disclose has led to the identification that a miscarriage of justice may have occurred:R. v. Henry, 2010 BCCA 462 at para. 27 and R. v. Dhillon, 2014 BCCA 480 at para. 10.

There are other examples of Crown post-conviction disclosure such as the Project’s request for testing in Tallio. In the case at bar, the respondent provided the biological reportsthat were sought in the pre-amended petition.

[ 86 ] However, it is equally clear that there is no common law duty imposed on the police and prosecution to respond to every request for further inquiry, which may be made of them on behalf of those who dispute the correctness of their convictions and which would continue indefinitely, at least as long as the convicted offender asserts that his/her conviction was wrong. [ 87 ] The petitioner wrongly extrapolates a post-appeal standard from recognized Crown duties of disclosure at the pre-trial stage, and the trial stage.

At those stages, the right to make full answer and defence, afforded to an accused who is presumed innocent, informs the process of disclosure. It is prejudice to an accused’s right to make full answer and defence that justifies a s. 24(1) remedy. [ 88 ] Here, the petitioner’s right to make full answer and defence has been exhausted.

No corresponding principle of fundamental justice exists after conviction and appeal, which would justify the expansive post-appeal disclosure obligation claimed by the petitioner. [ 89 ] As the petitioner bases his breach claim on a duty that does not exist, he, accordingly, fails to discharge his burden to establish a breach of his s. 7 rights. [ 90 ] The petitioner claims entitlement to “information in the possession of the respondent where there is a reasonable possibility it may assist in making an application under s. 696.1 of the Criminal Code ”.

This standard has no direct correlation to concerns over whether a conviction is unsafe. Such a threshold would give license to any convicted person to engage in “fishing expeditions”. It would result in spurious requests that would divert finite police and Crown resources, and lead to police being compelled to endlessly re- investigate cases. [ 91 ] That is not to say that the respondent does not engage in post-appeal disclosure to guard against miscarriages of justice, or that this Court lacks jurisdiction to ever consider Charter applications in relation to post-appeal disclosure.

It is agreed that this Court can exercise its jurisdiction under s. 24(1) of the Charter where a petitioner establishes, on a balance of probabilities, a breach of his Charter rights. But this petitioner has failed to do so. CONCLUSIONS Introduction [ 92 ] This

section will now address the four questions asked in para. 4 of this Judgment. 1. What Jurisdiction Does the Minister Have? Jurisdiction to Order DNA [ 93 ] The petitioner argues that the process (which s. 696.1 (and following) and the Regulations creates) does not enable him to have the fair hearing that the process allows for most others. The reason for this is revealed by reference to the various steps of the process as set out in the Code and the Regulations (and expanded upon on the Website): 1.

A review cannot be considered, nor even proceed beyond a preliminary assessment, in the absence of “new and significant information”. 2. The new and significant information “must be provided at the application stage”. 3. While the process allows for various investigative techniques (including DNA testing) in appropriate situations, they are only permitted after the process has moved beyond the preliminary assessment stage and onto the investigation stage. This is the logical

interpretation to be given to the wording on the Ministry’s website as noted earlier in this Judgment. 4. There is nothing in the Code or the Regulations that provides the Minister with jurisdiction to order DNA testing at the preliminary assessment stage, nor anything on the website that suggests that this is possible. 5. It follows that there is no DNA testing performed during the application/assessment process at the initial stage, that is, at the preliminary assessment stage. 6.

Therefore, it is impossible for the petitioner to provide new and significant information so that there can be a fair investigation with respect to his application, or indeed, so that there can be any kind of investigation (beyond the preliminary assessment). [ 94 ] The Crown disagrees and asserts firmly that the s. 696.1 process grants the Minister the authority to order DNA testing in appropriate cases. [ 95 ] The Code gives the Minister the powers of a commissioner under the Inquiries Act : In R. v.

Bilodeau , 2011 FC 886 , at para. 83 , the Federal Court, on judicial review of a Minister’s decision under (what is now) ss. 696.1 to 696.6, said this: 83 The Criminal Code gives the Minister the powers of a commissioner under the Inquiries Act , RSC 1985, c I-11 (Part 1 and the powers under

section 11). The Court understands that these powers were conferred upon the Minister in order to provide him or her with more tools to conduct a prompt investigation and not to oblige him or her to use them in every case. [ 96 ] The Bilodeau decision is just one of many Federal Court judgments reviewing the legality of the Minister’s decisions under s. 696.1 -696.6, which demonstrate that the Minister does, as a matter of practice, exercise his or her investigatory powers to pursue avenues of inquiry which may form a reasonable basis to conclude that a miscarriage of justice likely occurred.

[ 97 ] The relevant portions of the Inquiries Act are as follows:

Part 1 2 The Governor in Council may, whenever the Governor in Council deems it expedient, cause inquiry to be made into and concerning any matter connected with the good government of Canada or the conduct of any part of the public business thereof. 3 Where an inquiry as described in

section 2 is not regulated by any special law, the Governor in Council may, by a commission, appoint persons as commissioners by whom the inquiry shall be conducted. 4 The commissioners have the power of summoning before them any witnesses, and of requiring them to (

a) give evidence, orally or in writing, and on oath or, if they are persons entitled to affirm in civil matters on solemn affirmation; and (

b) produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to examine. ... 11

(1) The commissioners , whether appointed under

Part I or under

Part II, may, if authorized by the commission issued in the case, engage the services of (

a) such accountants, engineers, technical advisers or other experts , clerks, reporters and assistants as they deem necessary or advisable ; and (

b) counsel to aid and assist the commissioners in an inquiry. [My emphasis added] [ 98 ] I agree with the Crown. The “Catch 22” gap that the petitioner refers to is not a gap because the Minister has the power and authority to do what is necessary to fill that gap. [ 99 ] Having said that, I now suggest to counsel that by asking “Can or will the Minister order DNA testing?”, they have asked the wrong question. The Wrong Question is Being Asked [ 100 ] The first step of the application to the Minister requires that there be “new matters of significance” (s. 696.4(

a) of the Code and s. 2(1) (

f) of the Regulations ) at the preliminary assessment stage, without which the Minister will not order an investigation. This seems clear from the combination of the relevant sections of the Code , the Regulations , and the Ministry’s explanation of its process on its Website. [ 101 ] The question which the petitioner needs to address is not “Can or will the Minister order DNA testing?”.

Rather, the correct question is this: “Is DNA which was not available to be tested at the time of the trial, but which may be tested now, capable of being a new matter of significance, although it has not yet been tested?” [ 102 ] Surely, the answer is yes – not that it will always be a new matter of significance in every case, but that it is capable of being such, depending on a consideration of all relevant factors. These factors will vary from case to case. Some factors will be relevant in some cases, but not in others.

In all cases, the relevance will depend on whether they bear on the question of what is new and significant. [ 103 ] An applicant to the Minister will find guidance in the Regulations including s. 2(1) which states that the “following information” should be included in the application, including “the grounds of the application” (s. 2(1)(e)) and “a description of the new matters of significance that support the application, if any.” (s. 2(1)(f)). [ 104 ] Put another way, the real question is this: can untested DNA be considered a new matter of significance, in appropriate circumstances, such that it can move on to the investigative stage, at which point it is clear from the Regulations that DNA testing can be ordered? [ 105 ] Although neither counsel framed their arguments in this way, it will not be a surprise to them.

The way in which they argued this Charter application was heavily dependent on what significance DNA testing might (or might not) have. It is for this reasons that they disagreed about, and argued, the various topics set out in para. 12 of this Judgment. [ 106 ] I am satisfied that, in appropriate circumstances, untested DNA may meet the definition of a new matter of significance at the preliminary assessment stage of a s. 696.1 application. The reasons I am satisfied of this are as follows: 1.

We are all aware of cases where wrongful convictions have been remedied decades later as the result of newly available DNA testing. 2. The Code and the Regulations create a different test when one compares:

a) What the Minister must be satisfied of at the preliminary assessment stage before the matter can move on; and

b) What the Minister must be satisfied of in order to determine that a miscarriage of justice has occurred and to order a new trial. The test for the first of those is whether the Minister “...determines that there may be a reasonable basis to conclude that a miscarriage of

justice likely occurred ....”: Regulation 4(1)(a). The test for the second of those is that she “... is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred .”: Code , s. 696.3(3). It would be clear from the foregoing that the test to move from preliminary assessment (“there may be”) is considerably less onerous than the test for final determination (“there is”) of whether there has been a miscarriage of justice. This less onerous test, at that stage, would apply to the question of what is a new matter of significance. 3.

The Website expressly recognizes DNA testing at the investigation stage (after the preliminary assessment), “depending on the type of information you provide”. Surely, this indicates an awareness and a recognition on the part of the Ministry that persons with the same difficulty that the petitioner has in this case will, from time to time, be making applications seeking a similar solution. [ 107 ] I do not suggest that the DNA sought to be tested here is a “new matter of significance”, nor do I suggest the contrary.

That is a decision for the Minister, as is the question of what she considers relevant in making that decision. It is inappropriate for this Court to offer advice as to what examinations or testing the Minister should or should not carry out during that process, or what the ultimate conclusion of her inquiry should or should not be. [ 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. 2.

What, if Any, Are the Post-Appeal Disclosure Obligations of the Crown? [ 109 ] Given my decision with respect to the availability of the Code process, it is not appropriate that I address the question of the Crown’s post-conviction disclosure obligations. [ 110 ] It will take another case to decide if the Crown’s obligation is: 1. More than the Crown now concedes – an obligation to disclose what might bear on the issue of actual innocence or an unsafe conviction; or 2.

Less than the defence view that the Crown’s obligation, triggered upon request, must be to provide disclosure of not only new materials, but evidence already in the possession of the Crown or police. [ 111 ] I decline to offer an opinion with respect to the foregoing in this case. 3.

Does This Court Have Jurisdiction to Order Post-Appeal Disclosure? [ 112 ] There is an undertone in the argument presented by the petitioner that suggests that the reason for the Charter application to this Court is that the Minister is unlikely to order DNA testing “on request” pursuant to the Code process. [ 113 ] The petitioner may be correct in thinking that the Minister is unlikely to make the order on request. The s. 696.1 process states nothing which suggests that should occur. Even so, the petitioner does not challenge the legislation as non- Charter compliant, or as deficient in some other way.

Instead, he has ignored it, and attempted an end run around it. [ 114 ] 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. [ 115 ] 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 . 4.

Has the Crown Breached its Obligation to Disclose? [ 116 ] It will be clear from my previous comments that the question of whether the Crown has breached any Charter duty in this case is no longer before this Court for consideration. DECISION [ 117 ] The process set out in the Code for Ministerial review, is available to the petitioner.

Part of that process permits the Minister to order DNA testing in circumstances where she considers it appropriate to do so. [ 118 ] For the reasons noted, I decline to exercise jurisdiction providing the relief sought by the petitioner because there is an existing process created by Parliament aimed at achieving that same goal. [ 119 ] The application is dismissed. “Silverman J.”