Remedies Granted by the Minister

During the reporting period, the Minister granted five remedies pursuant to section 696.3 (3) (a) of the Criminal Code. A number of factors help explain the significant increase in remedies granted in 2004-2005. These include improvements to the conviction review process brought about by the changes to the law in 2002, the allocation of additional resources to the CCRG to handle the anticipated increase in applications, and the creation of a priority system in which applications are immediately screened and assigned priority according to their apparent merits and whether the applicant is still in custody. Moreover, since 2001 it has not been necessary for the Minister to personally decide every application for ministerial review as had been the prior practice. The decision of the Federal Court in Bonamy v. The Queen¹⁴ established that the CCRG or agent acting on behalf of the Minister could decide at the preliminary assessment stage whether or not an application should proceed to an investigation. In other words, where an application is not supported by new matters of significance suggesting that a miscarriage of justice likely occurred, it will be screened out at the preliminary assessment stage and will not proceed any further in the conviction review process. All applications that proceed to the investigation stage are decided personally by the Minister.

Rodney Cain

Rodney Cain was convicted of second degree murder on February 14, 1985, after a trial at Toronto, Ontario. He was sentenced to life imprisonment without eligibility for parole for 12 years. His appeal against conviction was dismissed by the Ontario Court of Appeal on November 3, 1987, although the Court reduced the period of imprisonment that Cain would have to serve before being eligible for parole from 12 to 10 years. Cain's application for leave to appeal to the Supreme Court of Canada was dismissed on March 9, 1989.

In May 1996, Cain submitted an application for ministerial review. The Minister appointed an outside agent to investigate the application. Regrettably, the agent died in March 2002 before completing his work. The Minister appointed a second agent to complete the investigation. The investigation found new information that cast doubt on the reliability of the conviction and could support Cain's contention that he acted in self-defence. The new information included evidence from new witnesses, recantations or admissions of perjury by witnesses, and evidence regarding the victim's propensity for violence.

The Minister found that this new information provided a reasonable basis to conclude that a miscarriage of justice likely occurred in Cain's case. On May 19, 2004, the Minister granted the application, quashed Cain's murder conviction and ordered a new trial.

Steven Truscott

After a jury trial, Steven Truscott, at age 14, was convicted of murder at Goderich, Ontario, on September 30, 1959. He was sentenced to death, as was then required by the law. The Ontario Court of Appeal dismissed his appeal on January 20, 1960. The next day, his sentence was commuted to life imprisonment. The Supreme Court of Canada dismissed his application for leave to appeal on February 24, 1960.

Subsequently, concern arose that Truscott's conviction might be a miscarriage of justice. On April 26, 1966, the Government of Canada referred his case to the Supreme Court of Canada pursuant to section 55 of the Supreme Court Act. The Supreme Court was asked to determine how it would have decided an appeal by Truscott, on the basis of the existing judicial record and any other evidence it received. The Supreme Court answered that question on May 4, 1967, and ruled that it would have dismissed Truscott's appeal.

On November 29, 2001 – some 42 years after his conviction – Truscott submitted an application for ministerial review. On January 24, 2002, the then Minister of Justice appointed the Honourable Fred Kaufman, a former judge of the Quebec Court of Appeal, as an agent to investigate Truscott's application.

Kaufman conducted an exhaustive investigation of Truscott's application and provided a 700-page report to the Minister in the spring of 2004. The report presented new information about the case. On the basis of this new information, the Minister decided that there was a reasonable basis to conclude that a miscarriage of justice likely occurred in Truscott's case. Accordingly, on October 28, 2004, the Minister referred Truscott's case to the Ontario Court of Appeal to be heard as a new appeal.

The Minister announced on August 12, 2005, that he is waiving his privilege with respect to Justice Kaufman's report and that a copy of the report will be released publicly once it has been edited to protect privacy interests.

Darcy Borge

Darcy Borge was tried at Wetaskiwin, Alberta, on the following charges: (1) that he was unlawfully in possession of a car having a value of more than $1,000, knowing that it had been obtained by the commission of a theft; and (2) that he unlawfully defrauded a victim of a sport utility vehicle having a value of over $1,000. Borge was convicted of both charges on March 24, 1994. He was sentenced to three years in prison on the first charge and a concurrent three-year prison sentence on the second charge.

Borge submitted an application for ministerial review of both convictions on June 8, 2000. The application was supported by statements from three new witnesses with evidence relevant to the charges. The evidence supported the contention that the car Borge was in possession of was not stolen, but rather was the subject of an insurance fraud.

In his decision of February 10, 2005, the Minister determined that there was a reasonable basis to conclude that a miscarriage of justice likely occurred in relation to Borge's conviction for possession of stolen property. He ordered a new trial on this charge before the Alberta Court of Queen's Bench. The Minister dismissed that part of the application relating to Borge's conviction for fraud.

Danny Wood

After a trial in Calgary, Alberta, Danny Wood was convicted of murder on June 7, 1990, and sentenced to life imprisonment with no eligibility for parole for 25 years. The Alberta Court of Appeal dismissed his appeal against conviction on January 30, 1992. Eight months later, the Supreme Court of Canada dismissed Wood's application for leave to appeal.

Approximately three and a half years after his conviction, Wood submitted an application for ministerial review. The Minister announced his decision regarding Wood's application on February 15, 2005. The investigation of the application found that the Crown had failed to disclose significant information to Wood. This failure to disclose could have had an impact on the fairness of Wood's trial and the reliability of his conviction. Therefore, the Minister found that there was a reasonable basis to conclude that a miscarriage of justice likely occurred. His matter was referred to the Alberta Court of Appeal to be heard as a new appeal.

James Driskell

On June 14, 1991, James Driskell was convicted of first degree murder at Winnipeg, Manitoba. He was sentenced to life imprisonment without eligibility for parole for 25 years. His appeal to the Manitoba Court of Appeal was dismissed on December 7, 1992.

Driskell completed his application for ministerial review in October 2003. In November 2003, he applied for bail and became only the second person in Canadian legal history to be released pending a decision regarding an application for ministerial review.¹⁵ The Attorney General of Manitoba supported the granting of a remedy to Driskell and a return of his case to the court system.

On March 3, 2005, the Minister released his decision regarding Driskell's application for ministerial review. The Minister granted Driskell's application, quashed his murder conviction and ordered a new trial. The same day, the murder charge against Driskell was stayed, and the Government of Manitoba announced that there would be a public inquiry into his case.

The Minister said there were a number of significant factors which accounted for the exercise by him of this rarely-used remedy, including:

• DNA hair analysis in 2002 effectively refuted expert evidence presented by the Crown at Driskell's trial that three hairs found in a vehicle owned by him belonged to the victim. The DNA analysis clearly established that the hairs did not belong to the victim, so that a significant piece of evidence, upon which the jury relied, was unfounded.
• The Crown failed to disclose that its two key witnesses – Reath Zanidean and John Gumieny – who had testified that Driskell planned the murder, had received substantial financial consideration. This denied Driskell's right to full disclosure and right to challenge the credibility of key witnesses.
• For 11 years after Driskell's trial, the Crown failed to disclose information that Zanidean likely committed perjury at the trial.
• For ten years, Winnipeg Police failed to disclose an investigative report regarding the murder which included important and relevant information that would have been helpful to Driskell's defence.
• The Crown's two key witnesses (Zanidean and Gumieny) have, since Driskell's trial, either recanted or threatened to recant their trial testimony regarding Driskell's involvement in the murder. The failure to disclose this information to the defence was not only a serious breach of the constitutional duty to disclose, but the information also significantly undermined the credibility of these key witnesses.
  

The Year Ahead

The CCRG continues to work hard to process the applications for ministerial review in a thorough and timely manner. A number of applications are expected to make their way to the Minister in 2005-2006 for a decision. On July 12, 2005, for example, the Minister released his decision in the application for ministerial review of Andre Tremblay who contended that his 1984 conviction for first degree murder was a miscarriage of justice. The Minister determined that there was a reasonable basis to conclude that a miscarriage of justice had likely occurred and referred the matter to the Quebec Court of Appeal.

¹⁴ (2001), 156 C.C.C. (3d) 110.

¹⁵ R. v. Driskell, [2004] M.J. No. 7 (Q.B.).

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