ANNUAL REPORT 2010 MINISTER OF JUSTICE

3. Remedies Granted by the Minister

During this reporting period, the Minister granted one remedy, pursuant to paragraph 696.3 (3) (a) of the Criminal Code.

D.S.

In 1995, D.S. was convicted of three sexual abuse offences and was sentenced to eight years in prison. The victim testified at trial that the sexual abuse by D.S. had occurred over a number of years. Although the expert medical evidence from the prosecution was consistent with sexual abuse, the defence put forward other expert medical evidence that questioned whether any sexual abuse had actually taken place. However, the main evidence against D.S. was the unsworn testimony of the 10-year-old victim, which the trial judge accepted as truthful.

In 2000, the victim recanted the evidence given at trial in a Statutory Declaration.

On January 10, 2010, the Minister asked the Alberta Court of Appeal to decide whether the complainant’s recantation was admissible as fresh evidence on appeal and if so, to hear the case as a new appeal.

Update on Previous Remedies Granted

This section provides an update on previous cases which the Minister has referred back to the courts.

Since 2003, as Table A shows, the Minister of Justice has referred 13 cases (from five provinces) back to the courts – five for new trials and eight for review by courts of appeal.

In one case where the Minister had ordered a new trial, the applicant was retried and convicted of the lesser offence of manslaughter. In 11 cases, the Crown stayed or withdrew the charges or the courts entered an acquittal. One case is still before the courts.

The following are key developments that have taken place in these cases during the past year 1:

Kyle Wayne Unger

In October 2009, Manitoba announced that the Crown would not be calling any evidence against Kyle Wayne Unger and he was subsequently acquitted by a judge.

Mr. Unger was originally convicted of the first degree murder of 16-year-old Brigitte Grenier at an outdoor rock concert near Roseisle, Manitoba, in June 1990. His appeal to the Manitoba Court of Appeal was rejected and he was denied leave to appeal to the Supreme Court of Canada.

In September 2004, the Forensic Evidence Review Committee, an advisory committee established by the Manitoba government, called into question the hair comparison evidence used at Mr. Unger’s trial.

Mr. Unger’s counsel subsequently filed an application to the Minister of Justice for a review of the murder conviction. In November 2005, a judge of the Manitoba Court of Queen’s Bench granted Mr. Unger bail pending the Minister’s decision.

In March 2009, the Minister quashed the conviction and ordered a new trial for Mr. Unger, stating: “I am satisfied there is a reasonable basis to conclude that a miscarriage of justice likely occurred in Mr. Unger’s 1992 conviction.”

A Manitoba Crown official told the Court of Queen’s Bench that a group of experienced Crown attorneys reviewed the file and concluded it would not be appropriate to retry Mr. Unger on the available evidence.

Romeo Phillion

In April 2010, the Ontario Crown withdrew a murder charge against Romeo Phillion.

Mr. Phillion was convicted of non-capital murder in Ottawa on November 7, 1972, in the killing of off-duty firefighter Leopold Roy in August 1967. He was sentenced to life imprisonment without eligibility for parole for 10 years. His appeals to the Ontario Court of Appeal and the Supreme Court of Canada were unsuccessful.

In May 2003, Mr. Phillion’s counsel completed an application for ministerial review. In July 2003, a judge of the Ontario Superior Court of Justice granted Mr. Phillion bail pending the Minister’s decision.

Mr. Phillion’s application for ministerial review was based on an alleged alibi at the time of the killing, which he claimed had not been disclosed by the Crown, and on new expert reports on the reliability of his confession to the police.

In August 2006, the Minister referred two questions about Mr. Phillion’s case to the Ontario Court of Appeal.

In a 2-1 ruling, the Court of Appeal quashed the conviction and ordered a new trial. It ruled that the fresh evidence was admissible on appeal and that it could reasonably have been expected to have changed the result at trial.

Mr. Justice Michael Moldaver, writing for the majority, said that had the jury had the benefit of the information, it might, “considered with the entirety of the evidence heard at trial … have left the jury in a state of reasonable doubt as to whether the appellant was the person who killed Mr. Roy.”

However, the compelling nature of his confessions – particularly the level of detail and accuracy found in them – prevents me from concluding that the admission of the fresh evidence would make it ‘clearly more probable than not’ that the appellant would be acquitted at a new trial.

When the Crown decided to withdraw the charge rather than proceed with a trial, Mr. Phillion filed an application in Ontario Superior Court seeking to require the Crown to arraign him and have the court enter an acquittal, rather than simply withdrawing the charge.

In her March 2010 ruling dismissing the application, Justice Lynn Ratushny referred to the case as a “miscarriage of justice” but said she could not force the Crown to arraign Mr. Phillion because that would “amount to judicial supervision of a decision that is solidly within a core area of prosecutorial discretion.”

André Tremblay

In May 2010, the Quebec Court of Appeal quashed the murder conviction of André Tremblay and ordered a new trial on a charge of manslaughter.

Mr. Tremblay was convicted of first degree murder in February 1984 in the death of Serge Fournier in a Montreal apartment. Subsequent appeals to the Quebec Court of Appeal and Supreme Court of Canada were rejected.

After Mr. Tremblay applied to the Minister for a review of his conviction, the Minister referred the case to the Quebec Court of Appeal in July 2005. The main issue on the application was the alleged recantations by a jailhouse informant who had testified against Mr. Tremblay.

Mr. Tremblay was released on conditional release in March 2004.

Before the Court of Appeal, Quebec argued that because of the passage of time and the fact that Mr. Tremblay had spent 16 years in prison before his release in 2004, it would be unjust to subject him to another trial.

In light of new evidence, the appeal court overturned Mr. Tremblay’s murder conviction, but said a manslaughter finding was still a possible verdict and ordered a new trial on that charge. The Court also refused Mr. Tremblay’s request to enter a stay of proceedings on the basis of the passage of time, stating:

It is true that the prosecution has already announced that in the event of an order for a new trial it would have no evidence to call, resulting in an acquittal. None the less, it is wiser, in light of all of the circumstances of this case, to leave that decision to the prosecution.

In July 2010, the Crown called no evidence and Mr. Tremblay was acquitted of the manslaughter charge.

TABLE A
Applicant and Charge Date of Minister’s Decision Disposition by Minister Final Result
Kaminski, Steven Richard
(Alberta)
Sexual Assault
January 27, 2003 New trial ordered Proceedings stayed by the Crown at retrial
Cain, Rodney
(Ontario)
Second Degree Murder
May 19, 2004 New trial ordered Convicted of manslaughter at retrial in 2007
Truscott, Steven
(Ontario)
Capital Murder
October 28, 2004 Reference to Ontario Court of Appeal Court of Appeal entered an acquittal on August 28, 2007
Bjorge, Darcy
(Alberta)
Stolen Property
February 10, 2005 New trial ordered Charge stayed in the Alberta Provincial Court
Wood, Daniel
(Alberta)
First Degree Murder
February 10, 2005 Reference to Alberta Court of Appeal Court of Appeal ordered a new trial on November 27, 2006; charges stayed by Crown
Driskell, James
(Manitoba)
First Degree Murder
March 5, 2005 New trial ordered Proceedings stayed in the Court of Queen’s Bench on the same day as the Minister’s order
Tremblay, André
(Quebec)
First Degree Murder
July 12, 2005 Reference to Quebec Court of Appeal Court of Appeal overturned conviction on May 31, 2010 and ordered a new trial on manslaughter. The Crown called no evidence and he was acquitted July 8, 2010
Phillion, Romeo
(Ontario)
Non-Capital Murder
August 23, 2006 Reference to Ontario Court of Appeal Court of Appeal ordered a new trial; charge withdrawn by Crown on April 29, 2010
Mullins-Johnson, William
(Ontario)
First Degree Murder
July 17, 2007 Reference to Ontario Court of Appeal Acquittal entered by the Court of Appeal on October 15, 2007
L.G.P.
(Alberta)
Sexual Assault
September 21, 2007 Reference to Alberta Court of Appeal Court of Appeal ordered a new trial; charge stayed by the Crown
Walsh, Erin
(New Brunswick)
Non-Capital Murder
February 28, 2008 Reference to New Brunswick Court of Appeal Acquittal entered by the Court of Appeal on March 14, 2008
Unger, Kyle Wayne
(Manitoba)
First Degree Murder
March 11, 2009 New trial ordered Crown called no evidence; Court entered an acquittal on October 23, 2009
D.S.
(Alberta)
Sexual Assault
January 12, 2010 Reference to the Alberta Court of Appeal  

1 For greater transparency, some of the developments reported in this section may have taken place after the end of the reporting period.

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