Judgments

[1997] 1 F.C. 289

T-52-96

Wilbert Colin Thatcher (Applicant)

v.

The Attorney General of Canada, The Honourable Allan Rock, Minister of Justice, and the Attorney General of Saskatchewan (Respondents)

Indexed as: Thatcher v. Canada (Attorney General) (T.D.)

Trial Division, Rothstein J.—Saskatoon, August 14; Toronto, October 3, 1996.

Constitutional law — Charter of Rights — Life, liberty and security — Criminal Code, s. 690 application for mercy — Adverse decision by Justice Minister potentially resulting in continuation of incarceration — Deprivation of liberty engaging Charter, s. 7 — Minister required to act fairly in exercising discretion.

Administrative law — Judicial review — Convicted murderer’s Criminal Code, s. 690 application for mercy of Crown dismissed — Application made after legal rights exhausted — No continuing lis between Crown, applicant — No statutory provisions governing exercise of discretion — No appeal from Minister’s decision — Adverse decision resulting in continuing incarceration — As no lis, already having received benefit of Charter in trial leading to conviction, content of duty of fairness less than that applicable to judicial proceedings — Minister of Justice must act in good faith, conduct meaningful review — Convict should have reasonable opportunity to state case — Must have adequate disclosure of new relevant information.

Criminal justice — Convicted murderer’s Criminal Code, s. 690 application for mercy of Crown dismissed — Content of Minister’s duty of fairness — Nature of proceedings, consequences of decision for individual, applicable statutory provisions considered — Duty of fairness met herein — S. 690 process independent of trial, appeals — Final appeal disposed of prior to Stinchcombe decision holding Crown, in prosecuting indictable offence, required to disclose all relevant information to defence — Once no longer in judicial system, cannot seek to re-open case on basis of subsequently decided case changing law.

Crown — Prerogatives — Criminal Code, s. 690 codifying, delegating to Minister of Justice sovereign’s discretion in respect of one aspect of royal prerogative of mercy — Minister’s dismissal of convicted murderer’s application for mercy meeting duty of fairness — Minister conducting meaningful review, no evidence considering information not available to applicant, applicant having reasonable opportunity to state case.

ederal Court jurisdiction — Trial Division — Judicial review of dismissal by Minister of Justice of application for mercy of Crown under Criminal Code, s. 690 — Cabinet decisions made under authority of royal prerogative subject to judicial review for compatibility with Charter.

This was an application for judicial review of the dismissal of an application for mercy. The applicant had been convicted of the first degree murder of his wife. His appeals were dismissed and he applied to the Minister of Justice under the Criminal Code, section 690 for the “mercy of the Crown”. The Minister considered the investigative summary prepared by the Department of Justice, the applicant’s submissions and letters, and legal opinions and advice provided by his Department. The applicant alleged that he was denied fairness because he did not have full disclosure of the information in police and prosecution files, and the Minister based his decision on some documents not provided to him.

The issue was the extent to which the Minister is obliged to disclose documents in a proceeding under the Criminal Code, section 690.

Held, the application should be dismissed.

Cabinet decisions made under the authority of the royal prerogative are subject to judicial review for compatibility with the Charter. The Court had jurisdiction to review the decision of the Minister of Justice.

The content of the duty of fairness varies depending on the nature of the proceedings, the consequences of the decision for the individual, and the applicable statutory provisions. Section 690 codifies and delegates to the Minister of Justice the sovereign’s discretion in respect of one aspect of the royal prerogative of mercy. Except in so far as the Charter requires, proceedings under section 690 are not the subject of legal rights. An application for mercy is made after a convicted person has exhausted his legal rights. Therefore, although the Minister is under a duty of fairness under the Charter, the duty must be considered with regard to the fact that there is no continuing lis between the Crown and the applicant. There are no statutory provisions directing the Minister either as to the manner in which the discretion should be exercised or as to the type of investigation to be carried out. No rules of procedure have been laid down. There is neither limitation on the number of applications that can be made under section 690 nor when such applications must be made. Moreover, there is no appeal from the Minister’s decision. An adverse decision by the Minister in exercising his discretion under section 690 can result in the continuation of a lengthy, if not lifetime, incarceration of a convicted person. This deprivation of liberty engages the applicant’s rights under Charter, section 7 and requires that the Minister act fairly in exercising his discretion. In an application for mercy, there is no lis and the applicant has already had the full benefit of the Charter in the proceedings leading to the conviction. The content of the Minister’s duty of fairness under section 690 is less than that applicable to judicial proceedings. The Minister must act in good faith and conduct a meaningful review. The convicted person should have a reasonable opportunity to state his case and adequate disclosure of new relevant information revealed by the Minister’s investigation. Where the Minister deems it necessary to consider material in police or prosecution files, the material or at least the gist of it, if not already known, must be disclosed. But there is no general obligation on the Minister to review police and prosecution files or to disclose those files merely because of a request by a convicted person.

The record of a telephone conversation on the evening of the murder, evidence in support of an alibi defence, was available to the applicant and was known to his counsel at trial. The applicant had a reasonable opportunity to present his case on this point. There was no breach of fairness by the Minister with respect to this information.

The applicant’s final appeal was disposed of prior to the introduction of the standard of disclosure, established by the Supreme Court of Canada in Stinchcombe, which requires the Crown to disclose all relevant information to the defence in a prosecution for an indictable offence. Once a convicted person is no longer in the judicial system, he cannot seek to re-open his case on the basis of a subsequently decided case that changes the law from what it had been at the time of his conviction. The process under section 690 is entirely independent of the applicant’s trial and appeals. The applicant was therefore no longer in the judicial system when the new standard of disclosure took effect. As to “new information” before the Minister allegedly contradicting the testimony of a key trial witness, the Minister concluded that it did not constitute a new matter that would provide a reasonable basis for a finding of miscarriage of justice. Any decision by the Minister not to probe further and consider information in police prosecution files, is within the broad discretion under section 690 with respect to the “inquiry”.

Since the Minister’s actions under section 690 are discretionary and the proceedings are not a continuation of the criminal trial, the applicant had no right to ask the Court to inspect the advice or opinions received by the Minister in a manner analogous to the Court inspecting documents claimed to be privileged in judicial proceeding or to order disclosure of such advice or opinions.

The Minister met the duty of fairness. He conducted a meaningful review. There was no indication that the Minister’s decision was based on information that was not available to the applicant. The disclosure given to the applicant and the number and extent of the submissions made by the applicant demonstrated that he had a reasonable opportunity to present his case.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.

Criminal Code, R.S.C. 1970, c. C-34, s. 617.

Criminal Code, R.S.C., 1985, c. C-46, s. 690.

CASES JUDICIALLY CONSIDERED

APPLIED:

Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; Henry v. Canada (Minister of Justice) (1992), 54 F.T.R. 153 (F.C.T.D.); R. v. Wigman, [1987] 1 S.C.R. 246; (1987), 38 D.L.R. (4th) 530; [1987] 4 W.W.R. 1; 33 C.C.C. (3d) 97; 56 C.R. (3d) 289; 75 N.R. 51; de Freitas v. Benny, [1976] A.C. 239 (P.C.).

DISTINGUISHED:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; (1991), 120 A.R. 161; [1992] 1 W.W.R. 97; 83 Alta. L.R. (2d) 93; 68 C.C.C. (3d) 1; 8 C.R. (4th) 277; 130 N.R. 277; 8 W.A.C. 161.

REFERRED TO:

R. v. Thatcher (1986), 46 Sask. R. 241; [1986] 2 W.W.R. 97; 24 C.C.C. (3d) 449 (C.A.); affd [1987] 1 S.C.R. 652; (1987), 39 D.L.R. (4th) 275; [1987] 4 W.W.R. 193; 57 Sask. R. 113; 32 C.C.C. (3d) 481; 57 C.R. (3d) 97; 75 N.R. 198; Whitley v. United States of America (1994), 20 O.R. (3d) 794; 119 D.L.R. (4th) 693; 94 C.C.C. (3d) 99; 75 O.A.C. 100 (C.A.); United States of America v. Whitley, [1996] 1 S.C.R. 467; (1996), 120 D.L.R. (4th) vii; 27 O.R. (3d) 96; Wilson and The Queen, Re (1987), 35 C.C.C. (3d) 316; 46 Man. R. (2d) 169; 30 C.R.R. 156 (C.A.); Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; (1992), 97 D.L.R. (4th) 577; 9 Admin. L.R. (2d) 1; 77 C.C.C. (3d) 65; 17 C.R. (4th) 161; 12 C.R.R. (2d) 77; 144 N.R. 327; 59 O.A.C. 241.

APPLICATION for judicial review of the Minister of Justice’s dismissal of a convicted murderer’s application for mercy under the Criminal Code, section 690 on the ground of denial of fairness. Application dismissed.

COUNSEL:

Hugh Harradence for applicant.

Mark Kindrachuk for respondents the Attorney General of Canada and The Honourable Allan Rock.

Graeme G. Mitchell for respondent the Attorney General of Saskatchewan.

SOLICITORS:

Harradence, Longworth, Logue & Harradence, Prince Albert, Saskatchewan, for applicant.

Deputy Attorney General of Canada for respondents the Attorney General of Canada and The Honourable Allan Rock.

Department of Justice (Saskatchewan), Constitutional Law Branch, Regina, for the Attorney General of Saskatchewan.

The following are the reasons for order rendered in English by

Rothstein J.:

ISSUE

The issue in this judicial review is the content of the Minister’s duty of fairness to the applicant in a proceeding under section 690 of the Criminal Code [R.S.C., 1985, c. C-46]. Specifically, it is the extent to which the Minister is obliged to grant the applicant disclosure of documents. Section 690 provides:

690. The Minister of Justice may, on an application for the mercy of the Crown by or on behalf of a person who has been convicted in proceedings by indictment or who has been sentenced to preventive detention under Part XXIV,

(a) direct, by order in writing, a new trial or, in the case of a person under sentence of preventive detention, a new hearing, before any court that he thinks proper, if after inquiry he is satisfied that in the circumstances a new trial or hearing, as the case may be, should be directed;

(b) 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 under sentence of preventive detention, as the case may be; or

(c) refer to the court of appeal at any time, for its opinion, any question on which he desires the assistance of that court, and the court shall furnish its opinion accordingly.

FACTS

The applicant made a number of submissions to the Minister. Counsel for the Department of Justice conducted an investigation, including reviewing transcripts and other documents, and interviewing witnesses. A draft “investigative summary” was prepared which summarized the trial evidence, the appellate proceedings, the material provided by the applicant, and other information gathered during the investigation. The draft investigative summary was provided to applicant’s counsel for comment. Applicant’s counsel then wrote two letters to the Department of Justice, and two further submissions were filed on behalf of the applicant. The investigative summary was corrected for typographical errors, and a final version was prepared.

The material provided to the Minister of Justice for his consideration in relation to the section 690 application consisted of the investigative summary, the submissions and letters from the applicant, and legal opinions and advice provided by counsel from the Department of Justice. On April 14, 1994, the Minister rendered his decision dismissing the applicant’s application.

The applicant now seeks judicial review of the Minister’s decision on the ground that he was denied fairness. The applicant submits that he did not have full disclosure of the information in police and prosecution files, and that the Minister based his decision on some documents not provided to the applicant. He asks for disclosure of everything seen by both the Minister and his officials. The evidence filed by the respondents is that, with the exception of legal opinions and advice, there are no documents which were considered by the Minister which were not provided to the applicant.

JURISDICTION OF THE COURT TO REVIEW DECISIONS OF THE MINISTER UNDER SECTION 690

Since the decision of the Supreme Court of Canada in Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441, cabinet decisions made under the authority of the royal prerogative are subject to judicial review for compatibility with the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. At page 455, Dickson J. (as he then was) stated:

I agree with Madame Justice Wilson that cabinet decisions fall under s. 32(1)(a) of the Charter and are therefore reviewable in the courts and subject to judicial scrutiny for compatibility with the Constitution. I have no doubt that the executive branch of the Canadian government is duty bound to act in accordance with the dictates of the Charter. Specifically, the cabinet has a duty to act in a manner consistent with the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.[1]

In Henry v. Canada (Minister of Justice) (1992), 54 F.T.R. 153 (F.C.T.D.), Reed J. explicitly found that decisions made by the Minister under section 690 (then section 617 [R.S.C. 1970, c. C-34]) of the Criminal Code are subject to judicial review. There is, therefore, no dispute that this Court has jurisdiction to review the decision of the Minister of Justice.

THE EXTENT OF THE MINISTER’S DUTY OF FAIRNESS UNDER SECTION 690

As already mentioned, the question in controversy is the extent of the Minister’s duty of fairness under section 690. The content of that duty varies depending on the nature of the proceedings, the consequences of the decision for the individual affected, and the applicable statutory provisions. (See Whitley v. United States of America (1994), 20 O.R. (3d) 794 (C.A.), at pages 806-807, per Laskin J.A., upheld on appeal in United States of America v. Whitley, [1996] 1 S.C.R. 467.)

Nature of Proceedings and Applicable Statutory Provisions

Section 690 of the Criminal Code codifies and delegates to the Minister of Justice the discretion of the sovereign in respect of one aspect of the royal prerogative of mercy (see Wilson and The Queen, Re (1987), 35 C.C.C. (3d) 316 (Man. C.A.), at page 323, per Monnin C.J.M.). The nature of this type of proceeding is outlined by Lord Diplock in de Freitas v. Benny, [1976] A.C. 239 (P.C.), at page 247:

Except in so far as it may have been altered by the Constitution the legal nature of the exercise of the royal prerogative of mercy in Trinidad and Tobago remains the same as it was in England at common law. At common law this has always been a matter which lies solely in the discretion of the sovereign, who by constitutional convention exercises it in respect of England on the advice of the Home Secretary to whom Her Majesty delegates her discretion. Mercy is not the subject of legal rights. It begins where legal rights end. A convicted person has no legal right even to have his case considered by the Home Secretary in connection with the exercise of the prerogative of mercy. In tendering his advice to the sovereign the Home Secretary is doing something that is often cited as the exemplar of a purely discretionary act as contrasted with the exercise of a quasi-judicial function. [Emphasis added.]

While the observations of Lord Diplock must now be read in Canada in light of the Charter, they do provide some guidance as to the nature of the proceedings. Except in so far as the Charter requires, proceedings under section 690 are not the subject of legal rights. An application for mercy is made after a convicted person has exhausted his legal rights. Therefore, although the Minister is under a duty of fairness under the Charter, the duty must be considered with regard to the fact that there is no continuing lis between the Crown and the applicant.

That the function of the Minister of Justice under section 690 is an “exemplar of a purely discretionary act” is reflected in the wide allowance given to the Minister to exercise his discretion. There are no statutory provisions directing the Minister as to the manner in which he should exercise his discretion. There are no requirements as to the type of investigation the Minister must carry out under section 690.

Further, no rules of procedure have been laid down. There does not appear to be a limitation on the number of applications that can be made under section 690 by a convicted person or when such applications must be made. Moreover, there is no appeal from the decision of the Minister under this section.

Consequences of the Decision upon the Applicant

An adverse decision by the Minister in exercising his discretion under section 690 can result in the continuation of a lengthy, if not lifetime, incarceration of a convicted person. This deprivation of liberty is what engages the applicant’s rights under section 7 of the Charter, and requires that the Minister act fairly in exercising his discretion. However, it is important to remember, even in the context of the Charter, that the applicant is asking for mercy. In this respect, there is no lis between the applicant and the Minister, and the applicant has already had the full benefit of the Charter in the antecedent judicial proceedings leading to the conviction.

Content of the Minister’s Duty

Having regard to the nature of proceedings under section 690 and the consequences to the individual, I am of view that the content of the Minister’s duty of fairness under section 690 is less than that applicable to judicial proceedings. In exercising his discretion under section 690, the Minister must act in good faith and conduct a meaningful review, provided that the application is not frivolous or vexatious. The convicted person should have a reasonable opportunity to state his case. However, proceedings under section 690 do not constitute an appeal on the merits. There is no general right of disclosure to everything considered by the Minister or his officials.

Serious applications will usually arise from some new matter indicating it is likely that there has been a miscarriage of justice. To the extent that the Minister’s investigation discovers new relevant information, the convicted person should have adequate disclosure of that new information. The manner in which the Minister discloses the new relevant information—be it actual documents or only the gist of the information obtained by the Minister—will depend on the circumstances of each case, having regard to the right of a convicted person to have a reasonable opportunity to state his case.

Exceptionally, as a result of new information that is substantial and would provide a reasonable basis for a finding of miscarriage of justice, the Minister may find it necessary to consider material in police or prosecution files. In such a case, the material, or at least the gist of the material the Minister or his officials review, if not already known by the applicant, would have to be disclosed to him. But there is no general obligation on the Minister to review police and prosecution files or to disclose those files merely because of a request by a convicted person.

APPLICATION TO THE FACTS OF THIS CASE

In this case, the applicant raises three areas with respect to which he seeks disclosure. I will consider them in turn.

1. The first relates to a record of a telephone conversation between the Thatcher residence in Moose Jaw and the Sheraton Oasis Hotel in Palm Springs, California at 6:24 p.m. on January 21, 1983, the night of the murder. The applicant alleges that he spoke to one Lynne Dally (Mendell) in that call. The murder took place that night at about 6:00 p.m. in Regina. The applicant says the call proves that he could not have been in Regina at 6:00 p.m. when the murder was committed.

The applicant does not explain how the telephone record of the call would place him in any better position than the information already in his possession to advance this point. The transcript of the cross-examination of Lynne Dally (Mendell) at trial records that counsel for the applicant put questions to Ms. Dally which indicated that counsel knew of the call between the applicant’s residence and the Sheraton Oasis Hotel. Further, there is no indication that it was not open to the applicant to subpoena the relevant telephone company record if he thought it would be useful to him.

The information sought here is not new information obtained by the Minister in the course of his investigation. Indeed, it is information which was available to the applicant and was known to his counsel at trial. I am satisfied that the applicant has had a reasonable opportunity to present his case on this point. There is no breach of fairness by the Minister with respect to this information.

2. The applicant refers to a statement to the police that may have been made by one Gary Anderson on January 24 or January 26, 1983, a few days after the murder. The Anderson statement raises more squarely than the telephone record the matter of disclosure of the police and prosecution files to which the applicant has not had access. This is the real substance of his claim.

In essence, it is the applicant’s position that he should be entitled to disclosure according to the standard set forth by the Supreme Court of Canada in R. v. Stinchcombe, [1991] 3 S.C.R. 326, wherein it was determined that in a prosecution for an indictable offence, the duty on the Crown is to disclose all relevant information to the defence. However, here, the principles of Stinchcombe must be considered in light of the fact that the applicant has already exhausted his legal rights in the judicial system. The applicant was properly tried and convicted under the laws in force at the relevant time—a time at which the Stinchcombe standard of disclosure did not yet apply. (The applicant’s appeal to the Supreme Court of Canada was dismissed on May 14, 1987, whereas, Stinchcombe was decided in 1991.)

Once a convicted person is no longer in the judicial system he cannot seek to re-open his case on the basis of a subsequently decided case that changes the law from what it had been at the time of his conviction. In regard to re-opening a case, the Supreme Court held in R. v. Wigman, [1987] 1 S.C.R. 246, at page 257, that:

The appropriate test is whether or not the accused is still in the judicial system … this test affords a means of striking a balance between the “wholly impractical dream of providing perfect justice to all those convicted under the overruled authority and the practical necessity of having some finality in the criminal process”. Finality in criminal proceedings is of the utmost importance but the need for finality is adequately served by the normal operation of res judicata: a matter once finally judicially decided cannot be relitigated. Thus a person convicted … will not be able to reopen his or her case, unless, of course, the conviction is not final.

As already mentioned, the process before the Minister under section 690 is not a continuation of the lis between the Crown and the applicant, and is entirely independent of the applicant’s trial and appeals. The applicant was, therefore, no longer in the judicial system at the time when the Stinchcombe standard of disclosure took effect. Section 690 cannot be used by a convicted person as a means of getting around Wigman.[2]

As to whether this case is an exceptional one requiring the Minister to specifically consider material in police or prosecution files, there was “new information” that the Minister considered. The Minister had before him “new information” allegedly contradicting the testimony of Anderson, who was argued to have been a key witness at the applicant’s trial.

With respect to this “new information”, the Minister’s reasons indicate that he thoroughly considered submissions concerning information gathered from Calvin Smoker, Karen Naugler, Terry Chubb and Dan Doyle. The Minister found that the statements of Calvin Smoker, although recent, were unreliable and inconsistent with facts established by reliable evidence. He found the statements of Karen Naugler to be unreliable hearsay, contradicted by the originator of the information. The statements of Terry Chubb, he found to be mistaken and not capable of belief. He found that the statements of Dan Doyle did not constitute “new information”. Counsel for the applicant knew about the Doyle statements before trial and had obtained disclosure according to the standard of disclosure at that time.

The Minister concluded that none of the information constituted a new matter that would provide a reasonable basis for a finding of miscarriage of justice. Given this conclusion, any decision by the Minister not to probe further and consider information in police and prosecution files, i.e. the Anderson statements, comes within the broad discretion that he possesses under section 690 with respect to his “inquiry”. In these circumstances, it is not bad faith or a dereliction of duty by the Minister not to grant disclosure of the Anderson statement, if indeed it exists in police or prosecution files.

3. Advice and opinions from counsel for the Department of Justice to the Minister were not provided to the applicant. While the applicant does not seek legal opinions provided to the Minister (and it appears he could not by virtue of Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at page 663, per Cory J.), he does express the concern that the opinions and advice provided to the Minister may have contained other factual information to which he says he is entitled.

In legal proceedings, where a dispute arises as to whether documents claimed to be privileged are indeed subject to privilege, there is a recognized process by which the Court may inspect the documents and rule on the privilege claim. However, given that the Minister’s actions under section 690 of the Criminal Code are discretionary and the proceedings in this case are not a continuation of the applicant’s criminal trial, I do not think the procedure that applies in legal proceedings applies here. Accordingly, there is no right in the applicant to ask the Court to inspect the advice or opinions received by the Minister in a manner analogous to the Court inspecting documents claimed to be privileged in judicial proceedings or to order disclosure of such advice or opinions.

CONCLUSION

In this case, the evidence before me indicates that the Minister has amply met his duty of fairness to the applicant. From his detailed 73-page decision, it is obvious that the Minister conducted a meaningful review. There is no indication that the Minister’s decision was based on information that was not available to the applicant. The disclosure given to the applicant and the number and extent of the submissions made by the applicant demonstrate that the applicant has had a reasonable opportunity to present his case. The application for judicial review is dismissed.

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