R v Ross, 2017 MBCA 77

Citation: R v Ross, 2017 MBCA 77 Date: 20170822 Docket: AR14-30-08179 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton Madam Justice Jennifer A. Pfuetzner IN THE MATTER OF

SECTION 696.1 ) OF THE CRIMINAL CODE, S.C. 2002, ) c. 13; ) ) AND IN THE MATTER OF

A) REFERENCE BY THE MINISTER OF ) JUSTICE TO THE MANITOBA COURT ) OF APPEAL UPON AN APPLICATION ) FOR MINISTERIAL REVIEW ) J. W. I. Lockyer and ADVANCED BY DEVERYN DONALD ) R. P. Campbell ALEXANDER ROSS, CONVICTED AT ) for Deveryn Ross BRANDON, MANITOBA ON MAY 26, ) 1995 OF TWO COUNTS OF FRAUD ) OVER ONE THOUSAND DOLLARS; ) ) P. S. Lindsay AND IN THE MATTER OF

A) for the Respondent REQUEST BY THE MINISTER OF ) JUSTICE PURSUANT TO )

SECTION 696.3(2) OF THE CRIMINAL ) CODE FOR THE OPINION OF THE ) Motion heard: MANITOBA COURT OF APPEAL AS TO ) June 6, 2017 THE ADMISSIBILITY OF CERTAIN ) NEW INFORMATION AS FRESH ) EVIDENCE; ) ) Decision pronounced: AND IN THE MATTER OF

A) August 22, 2017 REFERENCE BY THE MINISTER OF ) JUSTICE TO THE MANITOBA COURT ) OF APPEAL PURSUANT TO )

SECTION 696.3(3)(a)(ii) OF THE ) CRIMINAL CODE THAT, SHOULD THE ) MANITOBA COURT OF APPEAL ) CONCLUDE THAT ANY OF THE NEW ) INFORMATION WOULD BE ) ADMISSIBLE AS FRESH EVIDENCE, ) THE COURT DETERMINE THE CASE ) AS IF IT WERE AN APPEAL BY ) DEVERYN DONALD ALEXANDER ROSS ) BASED ON A CONSIDERATION OF ) THE EXISTING RECORD, THE ) EVIDENCE ALREADY HEARD, AND ) SUCH FURTHER EVIDENCE AS THE ) COURT IN ITS DISCRETION MAY ) RECEIVE AND CONSIDER ) ) BETWEEN : ) ) HER MAJESTY THE QUEEN ) ) Respondent )

) - and - ) ) DEVERYN DONALD ALEXANDER ROSS ) ) (Accused) Appellant) PFUETZNER JA [1] This is a motion for directions to determine the scope of a reference by the Minister of Justice of Canada (theMinister) to this Court under

Part XXI.1 of the Criminal Code (the Code)—Applications for Ministerial Review—Miscarriages ofJustice. This motion raises issues regarding the approach to construction of the language of a ministerial reference and the authority ofministerial staff to delineate the scope of a reference. [2] To bring the motion into context, some detail of the background is required. [3] In 1995, Deveryn Ross (Ross) was tried on nine counts of fraud in the Court of Queen’s Bench by a judge sittingwithout a jury.

After a lengthy trial, Ross was convicted of two counts of fraud over $1,000 and acquitted of the other seven counts. [4] The fraud charges arose out of the failure of a Perkins Family Restaurant franchise in Brandon, Manitoba. Ross, whowas a practicing lawyer, together with two of his clients, William Knight (Knight) and Sheldon Gray (Gray), who were mutual-fund salespeople, formed a limited partnership called Perkins Limited Partnership (PLP). Theysold units in PLP in order for PLP to raise funds to acquire land and construct the restaurant building.

False statements were allegedlymade to elderly and unsophisticated investors to induce them to invest in PLP units. Ross, Knight, Gray and their spouses were issuedunits (the unfunded units) in PLP without investing any funds. [5] After the initial units were sold to the investors, Ross resold two of the unfunded units to Ronald Simpson (Simpson),one of the original investors. Simpson testified at trial that Ross led him to believe that he was buying the additional two units fromanother investor whom he recalled as “[the] lady . . . up north”.

Ross’ conviction on one count of fraud related to this transaction. [6] The actual cost of building and equipping the restaurant was more than originally estimated. Ross arranged for a loanof $400,000 from the Canadian Imperial Bank of Commerce (CIBC). Prior to obtaining the loan, Ross formed a new limited partnership(2613981 Manitoba Limited Partnership). Ross caused PLP to transfer its assets to the new limited partnership, which then pledged allof its assets to CIBC in exchange for the loan. Ultimately, the restaurant business faltered and CIBC called its loan.

The allegation attrial was that Ross failed to disclose to the investors the transfer of assets from PLP or the CIBC loan. This transaction was the basis forRoss’ conviction for the second count of fraud. [7] Ross was sentenced to eighteen months’ imprisonment, concurrent, on the two charges.

In 1996, this Court dismissedRoss’s appeal from his convictions (see R v Ross, 1996 CarswellMan 14 (CA)). [8] Following his convictions, but prior to the hearing of his appeal, Ross’s counsel came into possession of settlementagreements that Knight and Gray, both of whom were witnesses for the Crown at Ross’s trial, had entered into with the ManitobaSecurities Commission (MSC). The settlement agreements resolved disciplinary proceedings brought against Knight and Gray by theMSC and contained detailed admissions by Knight and Gray which contradicted the evidence they gave at Ross’s trial.

In the settlementagreements, Knight and Gray also agreed to assign to the investors their interest in civil actions that they had commenced against Ross. [9] After his appeal was dismissed, Ross hired a private investigator, Brian Savage (Savage), who surreptitiouslyrecorded telephone conversations with Simpson. Ross’s position is that Simpson made comments to Savage that were inconsistent withthe evidence he gave at trial. Both Simpson and Savage are now deceased. [10] In 2004, Ross applied to the Minister, pursuant to

section 696.1 of the Code (see Appendix A), for ministerial review ofhis two convictions. The Minister appointed Alexander Pringle, Q.C. (Pringle) to conduct an investigation pursuant to

section 696.2 ofthe Code. Pringle conducted a lengthy investigation and provided a Final Investigative Report to the Minister in 2009. [11] On May 14, 2014, the Minister directed a dual reference to this Court (the Reference). The Reference was signed byThe Honourable Peter MacKay, Minister of Justice, and was addressed to the Chief Justice of the Manitoba Court of Appeal. The complete text of theReference is set out in Appendix B.

For a discussion of dual references, see R v Kelly, 2001 SCC 25; and Reference re: Gruenke (1998), (MB CA), 131 CCC (3d) 72 (Man CA). [12] The first part of the Reference refers three separate questions (the three questions) to this Court for its opinion, pursuantto

section 696.3(2) of the Code (see Appendix A), and states, in part: I HEREBY REQUEST, that this Honourable Court, pursuant to

section 696.3(2) of the Criminal Code, provide its opinion on thefollowing questions:

Having regard to the existing record and such further material and evidence as this Honourable Court sees fit to receive : 1) Would the new information concerning the conversations between Mr. Ronald Simpson and Mr.

Brian Savage be admissible as fresh evidence on an appeal to this Honourable Court? 2) Would the new information concerning the non-disclosure of Settlement Agreements executed by William Knight and Sheldon Gray on April 18, 1995, which were presented to the Manitoba Securities Commission on that date, be admissible as fresh evidence on an appeal to this Honourable Court? 3) Would the new information concerning the non-disclosure of the Assignment Agreement whereby William Knight and Sheldon Gray had assigned their interest in civil actions that they had instituted against Deveryn Ross to the investors of Perkins Limited Partnership be admissible as fresh evidence on an appeal to this Honourable Court? [emphasis added] [ 13 ] The second part of the Reference, made pursuant to

section 696.3(3) (a)(ii) of the Code (see Appendix A), states: If this Honourable Court concludes that any of the information listed in paragraphs 1 through 3, inclusive, would be admissible as fresh evidence, I do hereby respectfully refer to this Honourable Court pursuant to subsection 696.3(3) (a)(ii) of the Criminal Code , based on a consideration of the existing record, the evidence already heard, and such further evidence as this Honourable Court in its discretion may receive and consider , to determine the case as if it were an appeal by Deveryn Ross. [emphasis added] [ 14 ] Approximately two weeks after the Reference was signed by the Minister, Ross’s counsel wrote a letter to Kerry Scullion (Scullion), Director/General Counsel at the Criminal Conviction Review Group in the Department of Justice, stating concerns about the narrow scope of the Reference.

The letter states, in part: Narrowly interpreted, this language could be taken to mean that the case can be resolved in favour of Mr. Ross only if the Court of Appeal first determines that one or more of the three enumerated items of evidence “would be admissible as fresh evidence” on appeal. That could have the effect of precluding relief for Mr.

Ross even if exculpatory evidence, fitting within the opening words of the Reference (“such further material and evidence as this Honourable Court sees fit to receive”), but not being evidence within paragraphs 1 through 3 of the Reference, justifies appellate relief for Mr. Ross. Our concern is not merely theoretical. We provided the Minister with two items of evidence ( infra ) which formed part of the Crown brief, and were available to Mr. Ross at trial, but were not presented as evidence on his behalf at trial.

Neither item is listed in paragraphs 1 through 3 of the Reference. [A]ny ambiguity in the terms of the Reference that could allow (or require) them to be excluded from consideration by the Court of Appeal is a matter for considerable concern. [ 15 ] The following day, Scullion sent a letter in response, addressed to Ross’s counsel (Scullion’s letter). Neither the Attorney General of Manitoba (the Attorney General) nor the Chief Justice of this Court was sent a copy of Scullion’s letter. [ 16 ] Scullion’s letter states (in part): As you correctly point out the

preamble to this Reference, as is the case in every Reference, authorizes consideration by the Court of “the existing record and such further material and evidence as this Honourable Court sees fit to receive…”. The purpose of this wording is to provide the Court with the widest possible latitude to consider any and all evidence that it deems relevant in providing the Minister with its opinion or in treating the matter as if it were an appeal from a convicted person.

It has never been anyone’s intention to limit the Court in any way to receive any evidence from an applicant or from the Attorney General/Minister of Justice from the Province concerned in determining the issues that have been placed before it by the Minister of Justice.

I note your reference to the specific questions asked by the Minister and the language that suggests that these and only these issues can beraised and subsequently considered by the Court. This wording is meant to suggest that the Minister is interested in the Court’s opinionon these particular issues but should not be interpreted to limit the Court in considering any important evidence when providing itsopinion or in deciding to treat the matter as an appeal if the Court considers it appropriate to do so. If the Court were to accept yoursuggestion that there exists evidence that establishes Mr.

Ross’ innocence, it would be highly counter-productive to interpret the wordingin the Reference so restrictively so as to prevent the Court from considering this evidence in the very process that is designed to correctmiscarriages of justice. It is therefore imperative that matters associated with a Reference by the Minister of Justice be given the widestand most open

interpretation. [emphasis added] [17] Scullion’s letter states that he is the Director/General Counsel, Criminal Conviction Review Group in the Department ofJustice Canada. There is nothing in the record on this motion indicating the scope of that position or its relative seniority within theDepartment of Justice. Nor does the record indicate that the Minister purported to delegate to Scullion the power to order or revise theterms of a reference.

The Motion [18] The Attorney General brought a motion for directions seeking an order directing that the scope of the Reference belimited to the three questions. [19] The grounds for the Attorney General’s motion are: that Scullion’s letter purports to expand the scope of the Referenceand only the Minister has that authority; and that the manner in which Scullion purported to expand the scope of the Reference, withoutnotice to or the involvement of the Attorney General, resulted in a denial of natural justice to the Attorney General. [20] Ross’s position is that the Court should treat Scullion’s letter as having expanded the scope of the Reference.

Indealing with a reference, Ross submits that this Court should focus on the possibility of factual innocence and should avoid a technicalapproach if it may prevent correction of a miscarriage of justice. Ross argues that Scullion, being a senior official in the Department ofJustice, has authority to speak on behalf of the Minister in respect of matters dealt with under

Part XXI.1 of the Code and relies onsection 24(2)(

d) of the

Interpretation Act, RSC 1985, c I-21. As for the issue of denial of natural justice, Ross’s position is that theAttorney General is not a party to Ross’s application to the Minister for ministerial review. He says that the settling of the terms of theReference is a matter only between him and the Minister; however, once the Reference is before the Court, the Attorney General is aparty. Discussion [21] In Canada, appellate courts have no inherent jurisdiction in criminal matters; their jurisdiction is purely statutory (seesection 674 of the Code).

Part XXI of the Code exhaustively defines the jurisdiction and powers of an appellate court on an ordinarycriminal appeal (see R v Thomas, (SCC), [1998] 3 SCR 535 at para 14). [22]

Part XXI.1 of the Code deals with the application process and the powers of the Minister in connection withapplications for ministerial review of convictions on the grounds of a miscarriage of justice. Under this Part, an application to theMinister can be made by a convicted person whose rights of appeal with respect to the conviction have been exhausted (see

section 696.1(1) of the Code). [23] One of the powers of the Minister is to “refer to the court of appeal, for its opinion, any question in relation to anapplication . . . on which the Minister desires the assistance of that court” (at

section 696.3(2) of the Code). Another power of theMinister is to refer the matter “to the court of appeal for hearing and determination by that court as if it were an appeal by the convictedperson” (at

section 696.3(3)(a)(ii)). [24] A reference is an extraordinary, and relatively rare, discretionary remedy. On a reference, the only source of the court’sjurisdiction is the terms of the reference itself.

Part XXI.1 of the Code does not define the jurisdiction and powers of a court of appeal indealing with a reference from the Minister. [25] Accordingly, the wording of the Reference is crucial in considering the issues raised on this motion. [26] I agree with Ross that, under the terms of the Reference, this Court has been given broad discretion to receive evidenceat both the opinion stage and the appeal stage. At the opinion stage, the Court can have regard to the existing record, as well as “suchfurther material and evidence” as we see fit to receive.

At the appeal stage, we can consider the existing record, the evidence alreadyheard at the opinion stage, and such further evidence as we may, in our discretion, receive and consider. Determinations on the evidencethat we will receive will be made as and when issues arise later on in these proceedings. [27] Despite the discretion given to us to receive evidence, the wording of the Reference is clear. Unless we are of the viewthat any of the three listed items of evidence would be admissible as fresh evidence on an appeal, we do not have jurisdiction to proceedto the appeal stage. See Kelly at paras 8-9.

[28] Moreover, even if I were to agree with Ross that Scullion, in his position as Director/General Counsel at the CriminalConviction Review Group, has the authority to change the scope of the Reference, there is nothing in Scullion’s letter that clearly statesthat the Court can move to the appeal stage of the Reference absent a finding that one of the three listed items of evidence would beadmissible as fresh evidence.

The entire tenor of Scullion’s letter is to opine that this Court should not be limited in “considering anyimportant evidence . . . if the Court considers it appropriate to do so.” This merely confirms my view, stated earlier, that the Referencedoes not limit the Court’s ability to receive evidence at either the opinion or appeal stage of the Reference. [29] However, I cannot interpret these words to be a direction to the Court to ignore the clear limits put on our ability tomove to the appeal stage of the Reference if we are not satisfied that one of the three listed items of evidence would be admissible asfresh evidence.

This was the

interpretation urged upon us by Ross. As stated by Major J in Kelly (at para 10): It was open to the Minister to refer as much or as little as was considered appropriate to the case. The Minister used clear language toemphasize the limited and sequential nature of the mandate. The argument of substance over form invites us to ignore these precise andexplicit limitations, and it should be rejected. [30] In the event that I am wrong in my

interpretation of Scullion’s letter, I will deal briefly with Ross’s argument thatScullion’s letter should be treated as being capable of amending the terms of the Reference. [31] Ross relies upon section 24(2)(

d) of the

Interpretation Act, which states: Power to act for ministers 24(2) Words directing or empowering a minister of the Crown to do

an act or thing, regardless of whether the act or thing isadministrative, legislative or judicial, or otherwise applying to that minister as the holder of the office, include (

a) a minister acting for that minister or, if the office is vacant, a minister designated to act in the office by or under the authority of anorder in council; (

b) the successors of that minister in the office; (

c) his or their deputy; and (

d) notwithstanding paragraph (c), a person appointed to serve, in the department or ministry of state over which the minister presides,in a capacity appropriate to the doing of the act or thing, or to the words so applying. [emphasis added] [32] Section 24(2) of the

Interpretation Act is a codification of the “Carltona” principle (see Carltona Ltd v Works Comrs,[1943] 2 All ER 560 (CA)).

The Carltona principle can be stated as follows: it is implicit in most cases that powers conferred by statuteon a minister of the Crown, even discretionary powers, can be exercised by senior officials in the minister’s department. [33] This principle was recognized by the Supreme Court of Canada in The Queen v Harrison, (SCC), [1977]1 SCR 238 (at p 245): Although there is a general rule of construction in law that a person endowed with a discretionary power should exercise it personally(delegatus non potest delegare) that rule can be displaced by the language, scope or object of a particular administrative scheme.

Apower to delegate is often implicit in a scheme empowering a Minister to act. Thus, where the exercise of a discretionary power is entrusted to a Minister of the Crown it may be presumed that the acts will beperformed, not by the Minister in person but by responsible officials in his department: Carltona, Ltd. v. Commissioners of Works,[1943] 2 All ER 560 (C.A.). The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable toexpect them to be performed personally.

See also Comeau’s Sea Foods Ltd v Canada (Minister of Fisheries and Oceans), (SCC), [1997] 1 SCR 12 at para 28. [34] However, the Carltona principle, as codified in the

Interpretation Act, does not establish an absolute rule, as explainedby MacPherson JA in Edgar v Canada (Attorney General), 1999 CarswellOnt 3922 (CA) (at paras 27-28): Neither s. 24(2) of the

Interpretation Act nor the case law establishes the Carltona principle as an absolute rule. Thus, s. 3(1) of the

Interpretation Act potentially qualifies s. 24(2): 3(1) Every provision of this Act applies, unless a contrary intention appears, to every enactment, whether enacted before or after thecommencement of this Act. With respect to the case law, the leading Canadian authorities establish that several factors must be considered before determiningwhether the general maxim delegatus non potest delegare, or the Carltona exception to this maxim, applies in a particular situation.

InHarrison, supra, Dickson J. identified those factors as “the language, scope or object of a particular administrative scheme”. [35] To similar effect is Peralta v Ontario, 1985 CarswellOnt 1077 (CA), aff’d (SCC), [1988] 2 SCR 1045(at paras 35-36): When courts have considered whether delegation of ministerial powers was intended considerable weight has been given to“administrative necessity”, that is, it could not have been expected that the Minister (in this case the Governor in Council) wouldexercise all the administrative powers given to him. “There is no rule or presumption for or against sub-delegation”: Driedger, “Subordinate Legislation” (1960), 38 Can.

B. Rev. 2 at p. 22. The language of the statute must be interpreted in light of what the statute is seeking to achieve. [36] I now turn to consider the language, scope and object of

Part XXI.1 of the Code, the complete text of which is set out atAppendix A. [37] I begin by noting that the language used in the other Parts of the Code, dealing with the powers, duties and functions ofthe Crown, refers to the Attorney General rather than to the Minister of Justice. I pause here to mention the distinction made under theDepartment of Justice Act, RSC 1985, c J-2, between the powers, duties and functions of the Minister and the powers, duties andfunctions of the Attorney General (see sections 4-5).

One of the main functions of the Attorney General is to “have the regulation andconduct of all litigation for or against the Crown” (section 5(d)). In her role as prosecutor, the Attorney General is to “act independentlyof partisan concerns” and “independently of political pressures from government” (R v Cawthorne, 2016 SCC 32 at paras 23-24). On the other hand, the Department of Justice Act states that, “The Minister is the officiallegal adviser of the Governor General and the legal member of the Queen’s Privy Council for Canada” (at

section 4). [38]

Section 2 of the Code defines the term Attorney General, in respect of various proceedings under the Code, as either theAttorney General of Canada or the Attorney General or Solicitor General of the province in which those proceedings are taken “andincludes his or her lawful deputy” (emphasis added). This indicates Parliament’s intention that the powers of the Attorney General underthe Code may be exercised by appropriate members of his or her staff. [39] On the other hand,

Part XXI.1 of the Code refers only to the “Minister of Justice”, a term that is not defined in theCode. There is no definition similar to that for “Attorney General” where references to the Minister would include his or her lawfuldeputy. Notably though, the Minister is given the specific authority to delegate his or her investigative powers in relation to anapplication under

Part XXI.1.

Section 696.2(3) states in part: Despite subsection 11(3) of the Inquiries Act, the Minister of Justice may delegate in writing to any member in good standing of the barof a province, retired judge or any other individual who, in the opinion of the Minister, has similar background or experience the powersof the Minister to take evidence, issue subpoenas, enforce the attendance of witnesses, compel them to give evidence and otherwiseconduct an investigation under subsection (2). [emphasis added] [40] The Minister is not explicitly given the authority to delegate any other powers under

Part XXI.1. On this motion, theAttorney General argues that, if Parliament had intended the Minister to be able to delegate her other powers under this Part, it wouldhave clearly done so, especially in light of the fact that delegation of the Minister’s investigative powers were specifically addressed. Inresponse, Ross submits that the authority to delegate investigative powers was specifically added to address a requirement under theInquiries Act, RSC 1985, c I-11, that only a commissioner appointed under that Act by an Order in Council could exercise suchinvestigative powers. Without this provision, each investigation under

Part XXI.1 would require a separate Order in Council unless

conducted personally by the Minister. [ 41 ] I agree with the position of the Attorney General. Unlike the definition of Attorney General used in the other Parts of the Code , there is no definition in

Part XXI.1 indicating that “Minister of Justice” includes “his or her lawful deputy”. Delegation of only the investigative powers of the Minister is specifically authorized. The inference is that Parliament intended the other powers of the Minister under

Part XXI.1 to be performed personally. I note that counsel were not aware of any reference signed by anyone other than the Minister then in office. [ 42 ] As for the scope and object of

Part XXI.1 of the Code , I indicated earlier that the power to order a reference is an extraordinary one. The power that is now codified in

Part XXI.1 of the Code is derived from the royal prerogative of mercy. When the prerogative of mercy was incorporated into Canadian law, it was conferred on the Governor General by letters patent (see Hinse v Canada (Attorney General) , 2015 SCC 35 at para 28 ). The power, as it now stands in the Code , is given to the Minister. The Supreme Court of Canada has characterized the discretionary decision to order a reference as a “policy” decision, as opposed to an “operational” decision. The decision involves policy choices; engaging economic, social and political factors ( see Hinse at paras 23, 33, 42 ).

Indeed, in Hinse , Wagner and Gascon JJ stated (at para 35): [B]ecause the decision maker’s role may also be a relevant factor in characterizing the power in question, it should be borne in mind that the Minister, in making such policy decisions, does not act as a mere public servant working in an administrative or operational capacity. [ 43 ] The extraordinary policy nature of a decision to order a reference supports my view that this power must be exercised personally by the Minister.

If Parliament had intended that the Minister could delegate such a power, it would have specifically authorized delegation. [ 44 ] I agree with Ross that this Court has broad discretion to receive evidence at both stages of the Reference. However, for the above reasons, this Court cannot proceed to the appeal stage of the Reference unless we are of the opinion that any of the three listed items of evidence would be admissible as fresh evidence. [ 45 ] As I have concluded that Scullion’s letter does not affect the scope of the Reference, it is not necessary to deal with the issue of natural justice.

JA I agree: JA I agree: JA APPENDIX A Criminal Code Provisions

PART XXI.1 Applications for Ministerial Review—Miscarriages of Justice Application 696.1(1) An application for ministerial review on the grounds of miscarriage of justice may be made to the Minister of Justice by or on behalf of a person who has been convicted of an offence under

an Act of Parliament or a regulation made under

an Act of Parliament or has been found to be a dangerous offender or a long-term offender under

Part XXIV and whose rights of judicial review or appeal with respect to the conviction or finding have been exhausted. Form of application 696.1(2) The application must be in the form, contain the information and be accompanied by any documents prescribed by the regulations.

Review of applications 696.2

(1) On receipt of an application under this Part, the Minister of Justice shall review it in accordance with the regulations. Powers of investigation 696.2(2) For the purpose of any investigation in relation to an application under this Part, the Minister of Justice has and may exercise the powers of a commissioner under

Part I of the Inquiries Act and the powers that may be conferred on a commissioner under

section 11 of that Act. Delegation 696.2(3) Despite subsection 11(3) of the Inquiries Act , the Minister of Justice may delegate in writing to any member in good standing of the bar of a province, retired judge or any other individual who, in the opinion of the Minister, has similar background or experience the powers of the Minister to take evidence, issue subpoenas, enforce the attendance of witnesses, compel them to give evidence and otherwise conduct an investigation under subsection (2). Definition of court of appeal 696.3

(1) In this section, 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. Power to refer 696.3(2) The Minister of Justice may, at any time, refer to the court of appeal, for its opinion, any question in relation to an application under this Part on which the Minister desires the assistance of that court, and the court shall furnish its opinion accordingly. Powers of Minister of Justice 696.3(3) On an application under this Part, the Minister of Justice may (

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

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

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

Part XXIV, as the case may be; or (

b) dismiss the application. No appeal 696.3(4) A decision of the Minister of Justice made under subsection (3) is final and is not subject to appeal. Considerations 696.4 In making a decision under subsection 696.3(3), the Minister of Justice shall take into account all matters that the Minister considers relevant, including

(

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

Part XXIV; (

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

c) the fact that an application under this

Part is not intended to serve as a further appeal and any remedy available on such an application is an extraordinary remedy. Annual report 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. Regulations 696.6 The Governor in Council may make regulations (

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

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

c) respecting the form and content of the annual report under

section 696.5. APPENDIX B Reference IN THE MANITOBA COURT OF APPEAL IN THE MATTER OF

SECTION 691.1 OF THE CRIMINAL CODE , S.C. 2002, c. 13; AND IN THE MATTER OF A REFERENCE BY THE MINISTER OF JUSTICE TO THE MANITOBA COURT OF APPEAL UPON AN APPLICATION FOR MINISTERIAL REVIEW ADVANCED BY DEVERYN ROSS, CONVICTED AT BRANDON, MANITOBA ON MAY 26, 1995 OF TWO COUNTS OF FRAUD OVER ONE THOUSAND DOLLARS REFERENCE WHEREAS Deveryn Donald Alexander Ross was convicted of two counts of fraud over one thousand dollars by the Honourable Mr. Justice Degraves sitting without a jury, in the Court of Queen’s Bench of the Province of Manitoba at Brandon on May 26, 1995, upon the following counts in an indictment which read:

1. THAT he, the said Deveryn Donald Alexander Ross, between the 1 st day of January, 1991, and the 1 st day of March, 1991, both dates inclusive, at or near the City of Brandon, in the Province of Manitoba, did unlawfully by deceit, falsehood or other fraudulent means, defraud Ronald Simpson of money of a value exceeding One Thousand Dollars. 2.

THAT he, the said Deveryn Donald Alexander Ross, between the 1 st day of June, 1990, and the 4 th day of January, 1992, both dates inclusive, at or near the City of Brandon, in the Province of Manitoba, did unlawfully by deceit, falsehood or other fraudulent means, defraud Perkins Limited Partnership of money or other valuable security of a value exceeding One Thousand Dollars, by causing the said Perkins Limited Partnership to transfer money in the amount of $700,000.00 from its assets to 2613981 Manitoba Limited Partnership.

AND WHEREAS, Deveryn Donald Alexander Ross was sentenced to eighteen months imprisonment, concurrent, with respect to both of the counts for which he was convicted; AND WHEREAS, an appeal to the Manitoba Court of Appeal was dismissed on January 9, 1996; AND WHEREAS, an application pursuant to

Section 696.1 of the Criminal Code was made to the Minister of Justice by counsel on behalf of Deveryn Donald Alexander Ross; AND WHEREAS, new information has arisen of which I am satisfied that my intervention is warranted; I HEREBY REQUEST, that this Honourable Court, pursuant to

section 696.3(2) of the Criminal Code , provide its opinion on the following questions: Having regard to the existing record and such further material and evidence as this Honourable Court sees fit to receive: 1) Would the new information concerning the conversations between Mr. Ronald Simpson and Mr.

Brian Savage be admissible as fresh evidence on an appeal to this Honourable Court? 2) Would the new information concerning the non-disclosure of Settlement Agreements executed by William Knight and Sheldon Gray on April 18, 1995, which were presented to the Manitoba Securities Commission on that date, be admissible as fresh evidence on an appeal to this Honourable Court? 3) Would the new information concerning the non-disclosure of the Assignment Agreement whereby William Knight and Sheldon Gray had assigned their interest in civil actions that they had instituted against Deveryn Ross to the investors of Perkins Limited Partnership be admissible as fresh evidence on an appeal to this Honourable Court?

The new information in the Assignment Agreement consisted of the following: (

a) The investors were to receive from Knight and Gray cash payments over time totalling $500,000.00. These cash payments consisted of an initial payment of $300,000.00 with $50,000.00 being paid per year for four years commencing June, 1996. (

b) William Knight, Sheldon Gray and W.G. Knight and Associates Inc. agreed to a consent judgment in favour of the investors in the amount of $1 million. This judgment was intended to ensure Knight’s and Gray’s continued compliance with the terms of the Assignment Deal. (

c) Sheldon Gray, William Knight and W.G. Knight and Associates agreed to assign to the investors their right of action against Deveryn Ross for negligent legal advice in the lawsuit that they instituted against him to a maximum of $500,000.00. (

d) The investors undertook not to enforce their $1 million judgment against Knight, Gray and W.G. Knight and Associates Inc. provided the cash payments described above were made and undertook to file a Notice of Satisfaction of this judgment when the assigned civil lawsuit against Deveryn Ross was concluded. (

e) Knight and Gray were to fully cooperate with Douglas Bedford, the investors’ counsel, in attempting to obtain recovery against Deveryn Ross through the professional misconduct suits filed against him on behalf of Knight and Gray.

If this Honourable Court concludes that any of the information listed in paragraphs 1 through 3, inclusive, would be admissible as fresh evidence, I do hereby respectfully refer to this Honourable Court pursuant to subsection 696.3(3) (a)(ii) of the Criminal Code , based on a consideration of the existing record, the evidence already heard, and such further evidence as this Honourable Court in its discretion may receive and consider, to determine the case as if it were an appeal by Deveryn Ross. DATED at Ottawa, this 14 day of May, 2014 “Peter MacKay” The Honourable Peter MacKay Minister of Justice

To: The Chief Justice of the Manitoba Court of Appeal