Bilodeau v. Canada (Minister of Justice) et al.

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Gauthier, J.
• Citation: 2011 FC 886,(2011), 394 F.T.R. 235 (FC)
• Date: 14 July 2011
• Subject Matter: CROWN,CIVIL RIGHTS,CRIMINAL LAW

Bilodeau v. Can. (2011), 394 F.T.R. 235 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2011] F.T.R. TBEd. JL.080

Michel Bilodeau (demandeur) v. Le Ministre de la Justice du Canada et Le Groupe Responsable de la Révision des Condamnations (défendeurs)

(T-417-10; 2011 CF 886; 2011 FC 886)

Indexed As: Bilodeau v. Canada (Minister of Justice) et al.

Federal Court

Gauthier, J.

July 14, 2011.

Summary:

The Minister of Justice denied Bilodeau's application under s. 690 of the Criminal Code (now ss. 696.1 to 696.6) for a review of his 1971 conviction for murder, because the Minister was not convinced that there was a reasonable basis to conclude that a miscarriage of justice had likely occurred. Bilodeau asked the court to review the Minister's decision, submitting that the Minister breached his duty to comply with the applicable principles of fundamental justice under s. 7 of the Charter and his common law duty of fairness in applying the rules of natural justice. He also submitted that the decision was unreasonable.

The Federal Court dismissed the application.

Civil Rights - Topic 3105

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Minimal procedural protection - What constitutes (i.e., requirements of s. 7 of the Charter) - [See Criminal Law - Topic 5071 ].

Civil Rights - Topic 3106

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Procedural fairness - Scope of - [See Criminal Law - Topic 5071 ].

Criminal Law - Topic 5071

Appeals - Indictable offences - Review by Minister of Justice - General - The Minister of Justice denied Bilodeau's application under s. 690 of the Criminal Code (now ss. 696.1 to 696.6) for a review of his conviction for murder, because the Minister was not convinced that there was a reasonable basis to conclude that a miscarriage of justice had likely occurred - Bilodeau asked the court to review the Minister's decision, submitting that the Minister breached his duty to comply with the applicable principles of fundamental justice under s. 7 of the Charter and his common law duty of fairness in applying the rules of natural justice - The Federal Court stated that whether it was founded on common law or on s. 7 of the Charter, the scope of the Minister's duty of fairness varied according to the context - The court analysed the issue by considering the criteria set out in Baker (S.C.C.) - The court concluded that "the Minister's duty includes, when an investigation is conducted, ensuring that it is neutral and thorough, and providing an applicant with a genuine opportunity to submit any relevant information and evidence and to comment on additional information (evidence) that the Minister intends to consider. Finally, the Minister must render a decision that is adequately reasoned in order to enable the applicant to exercise his or her right to judicial review and to enable the Court to exercise that jurisdiction" - See paragraphs 66 to 87.

Criminal Law - Topic 5073

Appeals - Indictable offences - Duties and powers of Minister of Justice - Disclosure - The Minister of Justice denied Bilodeau's application under s. 690 of the Criminal Code (now ss. 696.1 to 696.6) for a review of his 1971 conviction for murder, because the Minister was not convinced that there was a reasonable basis to conclude that a miscarriage of justice had likely occurred - Bilodeau asked the court to review the Minister's decision - Bilodeau referred to, inter alia, the Minister's review, on his own initiative, of the correctional files of three individuals involved (including Cloutier and Beaulieu), the failure to disclose Cloutier's correctional file to Bilodeau, and the disclosure, beyond the time limit set out in the Regulations, of the information contained in Beaulieu's file - The Federal Court dismissed the application - The Minister could not legally disclose the content of Cloutier's file without his consent - The Minister had no obligation other than to advise Bilodeau that this file contained information placing him in the billiard hall (where the murder took place) and to provide Bilodeau with a real opportunity to obtain the consent of this witness who was clearly accessible to him - As to the allegation that the Minister could not on his own initiative consult the files of Beaulieu and Cloutier and, alternatively, that the information was disclosed too late, the court did not agree - The Minister was entitled to take into account all matters he considered relevant to the application (s. 696.4) - Even though the burden of proof was on the applicant, it was essential that the Minister be satisfied as to the validity of the information that was presented - As for the time limit, the explanation given fully justified the extension and at no time did Bilodeau complain of any prejudice caused by the delay - See paragraphs 102 to 111.

Criminal Law - Topic 5080

Appeals - Indictable offences - Review by Minister of Justice - Reference to court of appeal - General - The Minister of Justice denied Bilodeau's application under s. 690 of the Criminal Code (now ss. 696.1 to 696.6) for a review of his 1971 conviction for murder, because the Minister was not convinced that there was a reasonable basis to conclude that a miscarriage of justice had likely occurred - Bilodeau asked the court to review the Minister's decision - The Federal Court considered the impact of the destruction of the criminal file in 1986 - The court stated that "it seems that the applicant is arguing that no matter what rules applied to the destruction of records, the simple fact that this occurred means that the Minister could not exercise his authority under section 696.1, since he did not have the necessary elements before him to do so because without the court record, the Minister's decision would be based on proof that a charge was laid and not proof of conviction. In his view, only one court of law, such as the Quebec Court of Appeal, had the jurisdiction to measure the real consequences of the destruction. Thus, the Minister had a de facto duty to refer the decision to a court of law. This argument is difficult to understand given that it was the applicant himself who asked the Minister to investigate (see application for review of criminal conviction dated February 21, 2001). At that time, he was aware of the destruction of the record. In his comments dated November 29, 2004 (D-44), Mr. Bilodeau raised for the first time what he considered to be the impact of the destruction of his record" - Any breach of the rules of natural justice or fundamental justice had to be cited at the earliest opportunity - Bilodeau did not meet that requirement - The proceeding was an "extraordinary" remedy - It was up to Bilodeau to meet the necessary conditions for the exercise of that relief - The Minister was under no duty to provide him with the means to meet the requirements set out in the case law and the Act - See paragraphs 112 to 119.

Criminal Law - Topic 5086

Appeals - Indictable offences - Review by Minister of Justice - Dismissal of application for - The Minister of Justice denied Bilodeau's application under s. 690 of the Criminal Code (now ss. 696.1 to 696.6) for a review of his 1971 conviction for murder, because the Minister was not convinced that there was a reasonable basis to conclude that a miscarriage of justice had likely occurred - Bilodeau asked the court to review the Minister's decision - The Federal Court held that there was no reason to invalidate the decision on grounds that the investigation was not thorough - Bilodeau did not raise any omission relating to a crucial element or one that could not be compensated for - In his comments on the first report of the investigator, Bilodeau never mentioned that he wanted a transcript of the interviews which he later demanded - The Regulations clearly indicated that he was only entitled to the investigation report - Bilodeau also failed to establish that the lack of a transcript had caused him prejudice - As for the argument that the investigator ought to have compelled the witnesses involved to testify under oath and to answer his questions, it was up to the Minister and his investigator to decide whether they needed to use all of the powers conferred upon them in the Code - The obligation to conduct a neutral and thorough investigation did not mean it must be perfect - See paragraphs 88 to 98.

Criminal Law - Topic 5086

Appeals - Indictable offences - Review by Minister of Justice - Dismissal of application for - The Minister of Justice denied Bilodeau's application under s. 690 of the Criminal Code (now ss. 696.1 to 696.6) for a review of his 1971 conviction for murder, because the Minister was not convinced that there was a reasonable basis to conclude that a miscarriage of justice had likely occurred - Bilodeau asked the court to review the Minister's decision - Bilodeau argued that the Minister exceeded his mandate when he examined the credibility of the evidence submitted rather than simply assessing its reliability and relevance as set out in s. 696.4(b) of the Code - The Federal Court rejected the statutory interpretation proposed by Bilodeau - Section 696.4 of the Code confirmed that the Minister of Justice "shall take into account all matters that the Minister considers relevant" - In this context the word "including" ("notamment" in French) followed by a brief list indicated that this list was not exhaustive - The latitude given to the Minister in this regard was consistent with the other provisions under ss. 696.1 et seq., especially when one considered that it involved the exercise of the royal prerogative - The court pointed out that its decision must not be interpreted as acquiescence to the limited interpretation of the word "reliability" ("fiabilité" in French) at s. 696.4(b) of the Code - Reliability was a broad concept whose scope changed depending on the context - The court stated that "a much more detailed analysis would be required in order to appropriately define the expression 'reliability' in this case. The statutory interpretation of this paragraph is simply not necessary to determine the issue before me" - See paragraphs 120 to 129.

Criminal Law - Topic 5086

Appeals - Indictable offences - Review by Minister of Justice - Dismissal of application for - The Minister of Justice denied Bilodeau's application under s. 690 of the Criminal Code (now ss. 696.1 to 696.6) for a review of his 1971 conviction for murder, because the Minister was not convinced that there was a reasonable basis to conclude that a miscarriage of justice had likely occurred - Bilodeau asked the court to review the Minister's decision - Bilodeau argued that the Minister disregarded evidence of polygraph tests - The Federal Court stated that "the decision-maker benefits from a presumption that he or she examined all of the evidence in the record. A decision-maker is not obliged to list each and every piece of evidence before him or her. The Court must only consider the presumption to be rebutted where it can infer that the decision-maker would necessarily have had to mention the evidence if he or she had taken it into account given its probative value and the fact that it related to a crucial element" - Further "the Court cannot conclude that it could reasonably infer that these tests were overlooked simply because they were not specifically dealt with in the decision. These documents have no probative value and the Minister had absolute discretion to use or not use them" - See paragraphs 130 to 134.

Criminal Law - Topic 5086

Appeals - Indictable offences - Review by Minister of Justice - Dismissal of application for - The Minister of Justice denied Bilodeau's application under s. 690 of the Criminal Code (now ss. 696.1 to 696.6) for a review of his 1971 conviction for murder, because the Minister was not convinced that there was a reasonable basis to conclude that a miscarriage of justice had likely occurred - Bilodeau asked the court to review the Minister's decision - He argued that the Minister's decision was unreasonable because he clearly disregarded evidence of polygraph tests, or lacked transparency by failing to deal with this important and relevant evidence, and by not explaining the reasons regarding the credibility of Ms. M. - The Federal Court dismissed the application - The Minister's decision met the standards of reasonableness and the duty of fairness - The decision was rational and logical - See paragraphs 135 to 140.

Criminal Law - Topic 5089

Appeals - Indictable offences - Review by Minister of Justice - Judicial review - [See fourth Criminal Law - Topic 5086 ].

Crown - Topic 3206

Prerogative remedies - Mercy - [See Criminal Law - Topic 5071 , Criminal Law - Topic 5073 , Criminal Law - Topic 5080 and all Criminal Law - Topic 5086 ].

Cases Noticed:

Reference Re Milgaard, [1992] 1 S.C.R. 866; 135 N.R. 81; 100 Sask.R. 183; 18 W.A.C. 183, refd to. [para. 47, footnote 29].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 63].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2010), 294 Nfld. & P.E.I.R. 161; 908 A.P.R. 161; 190 L.A.C.(4th) 385; 2010 NLCA 13, refd to. [para. 63].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 291 D.L.R.(4th) 577; 64 C.C.E.L.(3d) 1; 2008 SCC 9, refd to. [para. 64].

Daoulov v. Canada (Attorney General) et al. (2008), 329 F.T.R. 72; 2008 FC 544, affd. (2009), 388 N.R. 54; 2009 FCA 12, refd to. [para. 64].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 66].

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241, refd to. [para. 66].

Bilodeau v. Canada (Ministre de la Justice), 2009 QCCA 746, refd to. [para. 69].

Thatcher v. Canada (Attorney General) et al., [1997] 1 F.C. 289; 120 F.T.R. 116 (T.D.), refd to. [para. 70].

W.R. v. Canada (Minister of Justice) et al., [2001] N.R. Uned. 38; 2001 FCA 35, refd to. [para. 70].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 75].

Bryntwick v. National Parole Board, [1987] 2 F.C. 184; 8 F.T.R. 134 (T.D.), refd to. [para. 76].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161, refd to. [para. 26].

Németh v. Canada (Minister of Justice), [2010] 3 S.C.R. 281; 408 N.R. 198; 2010 SCC 56, refd to. [para. 78].

Tahmourpour v. Canada (Solicitor General) (2005), 332 N.R. 60; 2005 FCA 113, refd to. [para. 89].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 89].

Morrison v. HSBC Bank of Canada (2008), 382 N.R. 359; 2008 FCA 340, refd to. [para. 90].

Slattery v. Canadian Human Rights Commission, [1994] 2 F.C. 574; 81 F.T.R. 1 (T.D.), refd to. [para. 90].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 120].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 120].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 131].

Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394; 2001 FCA 331, refd to. [para. 131].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293, refd to. [para. 133].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201, refd to. [para. 133].

Vancouver International Airport Authority et al. v. Public Service Alliance of Canada (2010), 403 N.R. 363; 2010 FCA 158, refd to. [para. 135].

Holmes v. Canada (Minister of Public Safety and Emergency Preparedness) (2011), 383 F.T.R. 185; 2011 FC 112, refd to. [para. 135].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 61].

Criminal Code, R.S.C. 1985, c. C-46, sect. 696.1 to 696.6 [para. 1]; sect. 696.4(b) [para. 120].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 123].

Counsel:

Gaétan Bourassa, for the applicant;

Jacques Savary and Toni Abi Nasr, for the respondents.

Solicitors of Record:

Des Longchamps Bourassa Trudeau & LaFrance, Montreal, Quebec, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Montreal, Quebec, for the respondents.

This application was heard on December 6 and 7, 2010, at Montreal, Quebec, before Gauthier, J., of the Federal Court, who delivered the following decision on July 14, 2011.