Federal Court Decisions

 

 

Date: 20110119

Docket: T-424-10

Citation: 2011 FC 61

[ENGLISH TRANSLATION]

BETWEEN:

	DANIEL JOLIVET
		Applicant
	and
	THE MINISTER OF JUSTICE CANADA   and   THE CRIMINAL CONVICTION REVIEW GROUP
		Respondents

 

REASONS FOR ORDER:

PROTHONOTARY MORNEAU

 

• [1] At issue in this case is deciding, under subsections 318(3) and (4) of the Federal Courts Rules (the Rules), and in accordance with the direction of this Court on July 22, 2010, on the merits of the objection raised by the respondents under subsection 318(2) of the Rules.

• [2] This objection was made pursuant to a request for transmission of material by the applicant under subsections 317(1) and (2) of the Rules within the framework of his application for judicial review filed on March 22, 2010 (the application for review).

• [3] This request for transmission of material is, as shall be demonstrated, rather long and covers almost five (5) pages in the application for review.

Background

• [4] The backdrop to this request for transmission of material is somewhat complex and covers a period of several years. In fact, through these years, the applicant was able to accumulate over 9,000 pages of documentation, which have been attached in support of his application for judicial review.

• [5] However, the backdrop or context can broadly be outlined as follows:

• [6] On April 1, 1994, at the conclusion of a judge and jury trial, the applicant was found guilty of the first degree murder of Denis Lemieux and Francois Leblanc, as well as the second degree murder of Nathalie Beauregard and Catherine Morin. All these people were killed on the night of November 9 to 10, 1992, during the same event.

• [7] At the trial, the prosecution’s evidence relied essentially on the testimony of the informant, Claude Riendeau, who claimed to have obtained a confession to the murders by the applicant in a given restaurant.

• [8] On April 14, 1990, the Quebec Court of Appeal allowed the appeal by the applicant; Honourable Justices Fish and Vallerand ordered a new trial, while Honourable Justice Robert disagreed. The three judges unanimously agreed that there had been an error at trial, but had differing opinions regarding the application of the remedial provision.

• [9] The Crown brought the case to the Supreme Court of Canada. In its ruling on May 18, 2000, the Supreme Court struck down the decision of the Quebec Court of Appeal and reinstated the applicant’s guilty verdict.

• [10] On August 22, 2005, the applicant filed an application for judicial review of his criminal conviction (application for review) with the Minister of Justice Canada (Minister of Justice), under Part XXKI.1 of the Criminal Code , R.S.C. 1985, c. C‑46.

• [11] The following are the statutory and regulatory provisions relating to judicial reviews:

 

• [12] For the purposes hereof, the Court is satisfied with the following understanding upheld by the respondents in their written submissions regarding the spirit of the aforementioned criminal conviction review process:

14. 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;

Section 696.1 of the Criminal Code

[translation]

15. This application may only be made after the person’s rights of judicial review or appeal with respect to the conviction or finding has been exhausted;

Section 696.1 of the Criminal Code

16. On receipt of an application, the Minister of Justice of Canada conducts a preliminary assessment of the application based on the factual components submitted by the applicant;

Paragraph 3(b), Regulations Respecting Applications for Ministerial Review – Miscarriages of Justice SOR/2002-416

17. If this preliminary assessment determines that there is a reasonable basis to conclude that a miscarriage of justice likely occurred, the minister shall conduct an investigation based on the facts presented in support of the application for review;

Paragraph 4(1)(a), Regulations Respecting Applications for Ministerial Review – Miscarriages of Justice SOR/2002-416

18. However, the Minister shall not conduct an investigation if the Minister:

• a) Based on the preliminary assessment, 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 Criminal Code or;

Subparagraph 4(1)(b)(i), Regulations Respecting Applications for Ministerial Review – Miscarriages of Justice SOR/2002-416

• b) The preliminary assessment satisfied the minister that there is no reasonable basis to conclude that a miscarriage of justice likely occurred;

Subparagraph 4(1)(b)(ii), Regulations Respecting Applications for Ministerial Review – Miscarriages of Justice SOR/2002-416

19. If the Minister is satisfied that there is a reasonable basis to find that there was no miscarriage of justice, the Minister shall advise the applicant, who shall then have one year to provide further information;

Subsections 4(2) and (3), Regulations Respecting Applications for Ministerial Review – Miscarriages of Justice SOR/2002-416

20. In making a decision, the Minister of Justice shall take into account all matters it considers to be relevant, based on the following criteria:

• a) Whether the application is supported by new facts that were not previously considered by the courts or the Minister;

• b) The relevance and reliability of this new information;

• c) The application is not an appeal;

Section 696.4 of Criminal Code

21. Based on the legislative and regulatory provisions above, the remedy provided in Section 696.1 of the C.C.:

• a) is an extraordinary remedy intended to ensure that no miscarriage of justice occurs when all conventional avenues of appeal have been exhausted;

• b) does not exist simply to permit the Minister to substitute a ministerial opinion for a trial verdict or a result on appeal. Merely because the Minister might take a different view of the same evidence that was before the court does not empower the Minister to grant a remedy under section 696.1. of the C.C.

• c) does not create a fourth level of appeal through which the Minister reassesses gaps in the evidence and/or issues of law reviewed in court;

• d) is intended for the consideration of new matters of significance that either were not considered by the courts or that occurred or arose after the conventional avenues of appeal had been exhausted. Among other things, this review considers the reliability of new information provided with respect to the circumstances surrounding the applicant’s conviction.

• e) it aims to allow the applicant to demonstrate that there are grounds for believing that a miscarriage of justice likely occurred.

 

• [13] Apparently, like any other similar application, the applicant’s application for review was assessed by the Criminal Conviction Review Group (the CCRG).

• [14] Following the receipt of the application for review, and as is evident from the applicant’s record in response to the respondents’ objection under consideration, the CCRG, represented by Martin Lamontagne and Kerry Scullion, immediately started compiling the following items, inter alia: the applicant’s conviction file, the file of the Ministère de la Sécurité publique du Québec (the Crown’s file), the file of Sûreté du Québec and the prosecution files used by the Crown during the applicant’s trial.

• [15] Therefore, apart from the documents and information the applicant provided to the CCRG, through its research activities, it was able to assemble a large collection of documents, even though according to the applicant, the CCRG would by itself never have been able to get the complete file of Sûreté du Québec. As for the Crown’s file, it was apparently lost even before the application for review.

• [16] On September 24, 2007, the CCRG made its decision in the matter of the applicant’s application for review.

• [17] Through this decision, the CCRG informs the applicant that his application for review will not proceed beyond the preliminary assessment stage, and will therefore not reach the investigation stage.

• [18] In its letter of September 24, 2007, which was accompanied by the actual preliminary assessment, the CCRG clearly indicates to the applicant that it has considered all documents directed to it.

• [19] In fact, the letter reads as follows:

[translation]

To reach this conclusion, the CCRG has carefully reviewed the extensive relevant documentation, as well as the correspondence you submitted to it through Dominique Larochelle. Furthermore, the CCRG equally took into consideration all statements put forth in your favour by your attorney within the framework of your application for review.

In addition to this letter, you will therefore receive a preliminary assessment of your application for the review of your conviction for four homicides. This assessment presents the reasons for which your application for review has been rejected.  […] […]

• [20] The preliminary assessment also specifies the following:

[translation]

ANALYSIS AND DOCUMENTATION

To provide prescriptive guidance on the preliminary assessment in this case, the CCRG carefully analyzed all documents submitted to it by the applicant and by law enforcement authorities. This evidence was transmitted to the CCRG by CD‑ROM¹⁵.

¹⁵ Note that the undersigned forwarded a copy of the CD‑ROM to Dominique Larochelle, the applicant’s attorney.

• [21] Note, as emphasized in the last excerpt quoted, that all the evidence reviewed by the CCRG was communicated to the applicant.

• [22] Following that, the applicant then spent the rest of the year 2007 making several access to information requests, and obtaining some answers from the relevant authorities. In 2008 and 2009, the parties exchanged correspondence on the CCRG’s findings, and if the Court understands well, without however convincing the CCRG to conduct a new preliminary assessment and, of course, an investigation under the Regulations.

Analysis

• [23] Rules 317 and 318 stipulate as follows:

 

• [24] Although at the time of the application for review, the applicant had submitted extensive documentation generated since the crime occurred on November 10, 1992, and more precisely, the series of documents consulted by the CCRG in making its decision of September 24, 2007, considering the transmitted CD‑ROM among other things, his request for transmission of material, as mentioned in paragraph [3] above, extends over almost five (5) pages as follows:

[translation]

1.  complete and non-redacted copies of every single document constituting part of the correspondence (handwritten/typed letters, emails, etc.):

a.  between the CCRG and Ginette Collin, the officer in charge of access to information and documents at Correctional Service Canada, and intended as an official request with the aim of obtaining the detention file and/or any other document concerning the detainee:

i.  Daniel Jolivet

ii.  Claude Riendeau

iii.  Michel Simon, né Mike Blass

b.  between the CCRG and Ginette Collin, the officer in charge of access to information and documents at Correctional Service Canada, and intended as an official request with the aim of obtaining all recorded statements by staff members having interacted closely or from afar with the detainee, Daniel Jolivet, as well as the hand-scripted notes of corrections officers or others, who played a direct or indirect role, and/or continue to play a role, in the latter’s detention;

c.  between the CCRG and Nancy Lafond, former parole officer of the Applicant at Correctional Service Canada, and intended as an official request with the aim of obtaining all recorded statements by staff members having interacted closely or from afar with the detainee, Daniel Jolivet, as well as the hand-scripted notes of corrections officers or others, who played a direct or indirect role, and/or continue to play a role, in the latter’s detention;

d.  received by the CCRG from anyone at Correctional Service Canada and in relation to each of the official requests mentioned in the paragraphs cited above at points a), b), c);

e.  between the CCRG and André Marois, the officer in charge of access to information and documents at the Ministère de la Sécurité Publique du Québec, and intended as an official request for documents and/or information;

f.  received by the CCRG from André Marois, the official in charge of access to information and documents at the Ministère de la Sécurité Publique du Québec and in relation to the official requests for documents and/or information mentioned above in paragraph e);

g.  between the CCRG and Normand Proulx, Director General of the Sûreté du Québec, and intended as an official request for documents and/or any record of investigations by the Sûreté du Québec police officers within the framework of the Applicant’s case;

h.  received by the CCRG from Normand Proulx, Director General of the Sûreté du Québec, and related to the official requests for documents and/or information mentioned above in paragraph g);

i.  between the CCRG and Serge Chartrand, captain and officer in charge of auditing and evaluation in the Sûreté du Québec’s access to information and documents department, and intended as an official request for documents and/or any record of investigations by the Sûreté du Québec officers within the framework of the Applicant’s case;

j.  received by the CCRG from Serge Chartrand, captain and officer in charge of auditing and evaluation in the Sûreté du Québec’s access to information and documents department, and and related to the official requests for documents and/or information mentioned above in paragraph i);

k.  between the CCRG and Stéphane Lamarche, Quebec Attorney General’s prosecutor at the Longueuil Court, intended as an official request for the complete prosecution file used by the Crown in the Daniel Jolivet case;

l.  received by the CCRG from Stéphane Lamarche, Quebec Attorney General’s prosecutor at the Longueuil Court, and related to any official requests, for the complete prosecution file used by the Crown in the Daniel Jolivet case and mentioned above in paragraph k);

m.  between the CCRG and Sabin Ouellet, Quebec Attorney General’s prosecutor and director of the Direction des Poursuites Criminelles et Pénales (DPCP), and intended as an official request for the complete prosecution file used by the Crown in the Daniel Jolivet case;

n.  received by the CCRG from Sabin Ouellet, Quebec Attorney General’s prosecutor and director of the Direction des Poursuites Criminelles et Pénales (DPCP), and related to any official request, for the complete prosecution file used by the Crown in the Daniel Jolivet case and mentioned above in paragraph m);

o.  received by the CCRG from Juli [sic] Drolet, officer in charge of access to information and documents at the Direction des Poursuites Criminelles et Pénales (DPCP), and related to any prosecution files used by the Crown against Paul-André St-Pierre and/or Daniel Jolivet;

All the above-mentioned documents were prepared with the aim of reviewing and/or conducting a preliminary assessment of the Applicant’s application for review of the criminal conviction;

2.  complete and non-redacted copies of every single document constituting part of the correspondence (handwritten/typed letters, emails, etc.):

a.  between the CCRG and Bernard Grenier, independent Special Adviser on criminal conviction reviews, and directly related to the review or preliminary assessment file of the Applicant’s application for review of the criminal conviction;

b.  received by the CCRG and constituting written opinions and/or recommendations by Bernard Grenier, independent Special Adviser on criminal conviction reviews, as stipulated in the Regulations and with respect to its own decision to agree to set aside or uphold the report and initial decision of September 24, 2007, indicating a dismissal of the Applicant’s application for judicial review at the preliminary assessment stage;

c.  received by the CCRG and constituting written legal opinions and recommendations by Bernard Grenier, independent Special Adviser on criminal conviction reviews, as stipulated in the Regulations and with respect to its own decision to agree to set aside or uphold the initial decision revised by the GRCC;

d.  received by the CCRG and constituting written legal opinions and recommendations by Bernard Grenier, independent Special Adviser on criminal conviction reviews, as stipulated in the Regulations and with respect to its own decision to agree to set aside or uphold the initial decision revised anew by the CCRG, regarding the dismissal of the Applicant’s application for a review of his conviction;

e.  received by the CCRG from Bernard Grenier, independent Special Adviser on criminal conviction reviews, with respect to letters with several attached documents intended as a written objection, by the Applicant himself, to the decision to dismiss his application for judicial review of his conviction.

3.  Timetable and/or schedule established during the initial meeting to prepare the preliminary assessment, held between the lead counsel (Kerry Scullion) and the lawyer responsible for reviewing the file (Martin Lamontagne);

4.  All summaries of the file prepared by Martin Lamontagne;

5.  All summaries of the file prepared by Martin Lamontagne for Kerry Scullion;

6.  Notes and/or reports of the second interview between Martin Lamontagne and Kerry Scullion;

7.  Timetable prepared following the second meeting between  Kerry Scullion and Martin Lamontagne for the ensuing stages;

8.  Notes or report of the third meeting between Kerry Scullion and Martin Lamontagne to discuss the decision regarding the next possible stages;

9.  Copies of all documents sent to Bernard Grenier, independent Special Adviser on applications for review of criminal convictions, to approve the dismissal of the application and his answers;

10.  All written opinions by Bernard Grenier, independent Special Adviser on applications for review of criminal convictions, on the present file;

11.  The two sketches accompanying the application for review:

a.  a map measuring approximately 3 feet by 8 feet, time, name and hour;

b.  a topographical map measuring approximately 3 feet by 5 feet showing the Montréal, Laval and South Shore regions with zones covered by cell phone towers;

12.  Letter of June 30, 2008, from the CCRG to the Sûreté du Québec;

13.  The Sûreté du Québec’s response of September 8, 2008 to the CCRG;

14.  All documents received by the CCRG from the Sûreté du Québec in connection with numbers 32 and 33;

15.  The CD-ROM forwarded to the CCRG on February 20, 2006 pursuant to the request of October 27, 2005. This CD-ROM ought to have been accompanied by a report which has never been revealed to the Applicant.

16.  All correspondence between the CCRG and the Sûreté du Québec or the Sûreté du Québec and the CCRG;

17.  Correspondence between the CCRG and Bernard Grenier, special adviser, and vice versa;

18.  Pierre Chapelaine’s declaration;

19.  Nathalie Houde’s declaration;

20.  Linda Madore’s declaration;

21.  Dino Nitollo’s declaration;

22.  Mike Televi’s declaration;

23.  Lise Veillette’s declaration;

24.  Maryse Villeneuve’s declaration;

25.  Identification parade for Solange Demers;

26.  Identification parade for Martine Goulet;

27.  Storage form;

28.  Brossard police reports;

29.  Exhibit P‑31, as submitted to the Court and as found in the Sûreté du Québec’s file.

[Emphasis by applicant.]

• [25] I consider that there are several obstacles to this request for transmission of material.

• [26] First, as per the applicant himself, the CCRG made its decision or decisions without the prosecution’s file on hand, and with only part of the Sûreté du Québec’s file. Indeed, many of the rulings or remedies sought by the applicant through his application for review are intended to allow the respondents to obtain the complete Sûreté du Québec prosecution’s files by force. In fact, pages 3 and 4 of the applicant’s notice of application state the following:

[translation]

THE PURPOSE OF THE APPLICATION IS:

[…]

●  COMPEL the respondent to obtain the complete files of the Sûreté du Québec and of the prosecution, take these files into consideration in its assessment and provide a copy to the Applicant;

●  COMPEL the respondent to provide a copy of undisclosed documents consulted with regard to the supplementary decision of November 10 and 13, 2008, to the Applicant;

●  NOTE that the prosecution’s file is absent;

[…]

• [27] Therefore, since these documents were definitely not before the CCRG at the time it made its decision and since the same documents form the primary basis for the application for judicial review, it seems to me that they are not relevant to the objective and purpose of Rule 317.

• [28] As mentioned by the Federal Court of Appeal at paragraph 4 of Ominayak v Lubicon Lake Indian Nation, [2000] F.C.A No. 2056, 267 N.R. 96:

[4]  We are of the respectful view that the motions judge erred in ordering the Appellant to obtain and deliver the membership list to the Respondents. The Appellant in this case is the tribunal whose decision is to be judicially reviewed. Under Rule 317, a party may request material relevant to the judicial review that is in the possession of the tribunal.  The membership list was not in the possession of the Appellant, and this is acknowledged by the motions judge. The list not being in the possession of the Appellant we are of the opinion that the motions judge erred in ordering the Appellant to obtain it and deliver it to the Respondents.

[Emphasis added.]

• [29] The foregoing observations thus relate to points 1(e) to (o) of the request for transmission of material at the very least.

• [30] Conversely, regarding the other documents, and assuming that they exist, it seems to me that the approach taken by the applicant in this case is simply a “fishing expedition”. Based on their involvement for several years now in the applicant’s file, the applicant or his attorneys seem to be looking to dig into all corners of the respondents’ files in a way that could allow them discover one or more documents the respondents likely obtained from a previous caseworker, a document which could possibly allow them to propel their case forward. This type of venture matches the definition of a fishing expedition.

• [31] In this sense, apart from not truly complying with the requirements under subsection 317(1) of the Rules with respect to precision in the material requested, I think that this approach by the applicant has to be qualified by the following comments made by Blais J. of this Court, as he then was, in his decision in Bradley-Sharpe v Royal Bank of Canada, 2001 FCT 1130:

The applicant’s purpose, [...] is to scour for any information within the file or files of the Commission because she is dissatisfied or displeased with the decision of the Commission.

(See also Beno v Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia), [1997] F.C.J. 535 (F.C.T.D.) (QL), paragraphs 23 and 24.)

• [32] At best, this request for transmission of material is the type of document and information search found at the interlocutory stage of a case and not during an application for judicial review.

• [33] In Access Information Agency Inc. v. Canada (Attorney General), 2007 FCA 224, the Federal Court of Appeal declared its disagreement with the request for transmission of material under Rules 317 and 318, which clearly emerges from the processes in the cases. At paragraphs [20] and [21], the Court of Appeal indicates that:

[20]  In closing, the Court would like to express its disapproval for document disclosure requests drafted in terms as vague as the one at issue. A judicial review does not proceed on the same basis as a court action; it is a procedure that is meant to be summary. There are therefore a series of limits imposed on the parties as a result of this distinction. Evidence is brought by affidavit and not by oral testimony. There is less leeway for preliminary procedures such as discovery of evidence in the hands of the parties  and examination on discovery. If such proceedings do prove to be necessary, the Rules provide that a judicial review may be transformed into an action.

[21]  It is in this context that we find section 317 of the Rules, which deals with requests for material disclosures. The purpose of the rule is to limit discovery to documents which were in the hands of the decision maker when the decision was made and which were not in possession of the person making the request and to require that requested documents be described in a precise manner. When dealing with a judicial review, it is not a matter of requesting the disclosure of any document which could be relevant in the hopes of later establishing relevance. Such a procedure is entire inconsistent with the summary nature of a judicial review. If the circumstances are such that it is necessary to broaden the scope of discovery, the party requesting more complete disclosure has the burden of advancing the evidence justifying the request. It is this final element that is completely lacking in this case. [Emphasis added.]

• [34] Lastly, in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, the Supreme Court of Canada also recalled the quick and summary nature.

• [35] The applicant also refers to the decision by this Court in Gagliano v Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities-Gomery Commission), 2006 FC 720, to assert that a request for transmission of material under Rule 317 could target other documents from those that served as the basis for the impugned decision. In this regard, at paragraph 80 of his written submissions filed on September 20, 2010, the applicant asserts the following:

[translation]

80.  Second, it is not only the documents that the Minister or the CCRG chose to use in their decision that have to be transmitted to this honourable Court, but effectively all that were in their possession. In Gagliano v Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities), 2006 FC 720, tab 4, Teitelbaum J. declared as follows at paragraph 78:

  “The issue when considering relevance under Rule 317 is not whether the materials were given any weight or considered by the Commissioner, but rather whether they were before him.”

  [Partial citation of paragraph 78]

• [36] Although that decision concerned issues of procedural fairness, it must not be construed as providing an open door to a search for all documents not taken into account in the decision. In Gagliano, based on contradictory evidence, the Court found that the decision-maker possibly had a certain number of emails before them, which they likely used. Here, there is no such evidence.

• [37] Lastly, as previously mentioned, and as paragraph 84 of the applicant’s written submissions of September 20, 2010, apparently indicates, the procedural fairness breaches raised by the applicant are based on the fact that the application for review was decided in the absence of Sûreté du Québec and prosecution documents.

[translation]

84.  The Applicant alleges serious breaches of procedural fairness, especially in the processing of the application while the CCRG was not in possession of the complete Sûreté du Québec file, despite the Applicant’s numerous indications to that effect.  Furthermore, the Applicant alleges that the CCRG did not obtain the prosecution’s file, which was necessary for the review of the application, notwithstanding that the CCRG itself had admitted that obtaining the file was consequential.  Through its attitude, the CCRG recognized the importance of obtaining this file. The CCRG’s attitude towards the Applicant, especially through its responses regarding the request for the prosecution file, as well as its change of position regarding the relevance of this file, raises serious doubts about procedural fairness;

(See also paragraph 34 of the same submissions.)

• [38] However, as demonstrated by the series of written and detailed submissions by the appellant on September 20, 2010, the alleged breaches of procedural fairness are self-sustaining, even without the presence of any documents presumed lacking. In other words, it seems to me that the applicant’sargument does not depend on the production of any additional document. Generally speaking, the reasons advanced by the applicant at paragraphs 73 and 75 of the written submissions of September 20, 2010, are supported by the reasoning developed throughout, in the 72 preceding paragraphs of said submissions.

• [39] Therefore, for these reasons, the Court upholds the respondents’ objection to the transmission of material to the applicant, without costs, since the respondents do not claim any.

 

“Richard Morneau”

 

Montréal, Quebec

January 19, 2011

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:  T-424-10

 

STYLE OF CAUSE:  DANIEL JOLIVET

  and

  THE MINISTER OF JUSTICE CANADA

  and

  THE CRIMINAL CONVICTION REVIEW GROUP

 

PLACE OF HEARING:  Montréal, Quebec

 

DATE OF HEARING:  January 12, 2011

 

REASONS FOR ORDER :  PROTHONOTARY MORNEAU

 

DATED:  January 19, 2011

 

 

APPEARANCES:

 

Lida Sara Nouraie	FOR FOR THE APPLICANT
Jacques Savary	FOR THE RESPONDENTS

 

SOLICITORS OF RECORD:

 

Desrosiers, Joncas, Massicotte Montréal, Quebec	FOR FOR THE APPLICANT
Myles J. Kirvan Deputy Attorney General of Canada	FOR THE RESPONDENTS