DECISION ON APPLICATION FOR CONVICTION REVIEW -- PATRICK KELLY CASE

On May 31, 1984, Mr. Patrick Kelly was convicted of the first degree murder of his wife, Jeanette Kelly. Mrs. Kelly fell to her death from the balcony of their 17^th  floor Toronto apartment on the afternoon of March 29, 1981. At trial, Ms. Dawn Taber testified that she was present and witnessed Mr. Kelly drop his unconscious wife over the balcony. Mr. Kelly testified at trial that his wife was standing on a stool fixing a rattle on the balcony when she fell, and that Ms. Taber was not at his apartment that day. Mr. Kelly's appeal of his conviction to the Ontario Court of Appeal was dismissed on November 22, 1985. The Supreme Court of Canada denied his application for leave to appeal on February 28, 1986.

In December, 1993, Mr. Kelly applied for a section 690 Criminal Code review of his murder conviction. The main ground advanced in support of the application was the partial recantation by Ms. Taber of her trial evidence. Also, new information was submitted from scientific experts that questioned the validity of the re-enactment evidence presented by the Crown at trial. In the following months, counsel for Mr. Kelly and for the Department of Justice exchanged correspondence concerning access to documentation relevant to the case and information required to complete the application. Departmental counsel conducted interviews of civilian and police witnesses, and requested expert assistance on forensic evidence.

In October, 1994, then Minister of Justice Allan Rock appointed an independent lawyer (non-departmental counsel) to assist in the investigation of the application and to provide advice to the Minister. Investigating counsel examined the police files, and proceeded with further interviews of civilian and police witnesses, the trial prosecutor, and defence counsel. In March, 1996, materials gathered during the investigation were provided to Mr. Kelly and his counsel. In July, 1996, counsel for Mr. Kelly provided the Minister of Justice with submissions and comments regarding the investigative materials.

On November 25, 1996, Minister Rock granted Mr. Kelly a remedy by referring his case to the Ontario Court of Appeal, under section 690(c) of the Criminal Code. The Minister asked the Ontario Court of Appeal to consider the new information presented by Mr. Kelly, to determine whether such information would be admissible on appeal to the Court of Appeal, and if so, to treat the matter as if it were an appeal by Mr. Kelly.

In addition to the substantial new information that accompanied the questions on Reference, further information and evidence were gathered during the course of the Reference proceedings, including testimony from Ms. Taber and other witnesses. Ms. Taber provided a version of events that varied from her previous versions, including the ones she had provided at trial and to the Minister of Justice in support of Mr. Kelly's application.

On May 21, 1999, the Ontario Court of Appeal released its response to the Reference. In a majority decision, the Court of Appeal found that Ms. Taber's new information would not be admissible on appeal. The majority concluded that her conduct confirmed that her trial testimony was the most accurate and truthful account of the death of Mrs. Kelly. In a dissenting opinion, Goudge J.A. was of the opinion that the new information from Ms. Taber should be admitted on appeal and he would have ordered a new trial. The court was unanimous in determining that the new information from scientific experts would not be admissible on appeal.

After receiving the response from the Ontario Court of Appeal, Mr. Kelly asked the Minister to consider granting him a further remedy, by either ordering a new trial under section 690(a) of the Criminal Code, or recommending to the Governor in Council that a question be referred to the Supreme Court of Canada, under section 53 of the Supreme Court Act.

The Minister was satisfied, after reviewing the complete file, that a further referral to the Supreme Court of Canada or a retrial was not required.

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Department of Justice
March, 2000