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

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Mosley, J.
• Citation: (2014), 453 F.T.R. 56 (FC),2014 FC 338
• Date: 04 November 2013

Ross v. Can. (2014), 453 F.T.R. 56 (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: [2014] F.T.R. TBEd. AP.031

Deveryn Donald Alexander Ross (applicant) v. The Minister of Justice and the Attorney General of Canada (respondents)

(T-1790-10; 2014 FC 338; 2014 CF 338)

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

Federal Court

Mosley, J.

April 7, 2014.

Summary:

Ross was convicted of fraud in relation to an investment scheme. He applied for ministerial review of the convictions under s. 696.1 of the Criminal Code. The Minister of Justice appointed Pringle (a lawyer) to investigate the application. Pringle provided his final findings and recommendations to the Minister in a document entitled "Final Investigative Report". The Final Investigative Report was not disclosed to Ross. The Minister dismissed Ross's application, finding that there was no reasonable basis on which to conclude that a miscarriage of justice had occurred. Ross applied for judicial review and brought a motion seeking disclosure of the Final Investigative Report. The Minister elected to disclose the Final Investigative Report in a redacted form, asserting that the redacted portions were protected by solicitor-client privilege.

The Federal Court, in a decision reported at (2013) 436 F.T.R. 35, upheld the Minister's decision to disclose the Final Investigative Report in redacted form.

The Federal Court allowed the judicial review application and remitted the matter to the Minister for reconsideration in accordance with the court's reasons.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - Ross was convicted of fraud in relation to an investment scheme in 1995 - Jensen was the Crown prosecutor at his trial - In 2004, Ross applied for ministerial review of his convictions - By that time, Jensen was a senior counsel in the Federal Prosecution Service (FPS), which was part of the Department of Justice, as was the Criminal Conviction Review Group which supported the Minister of Justice in the exercise of his review jurisdiction - The FPS reported through departmental channels to the Attorney General of Canada, an office that was also held by the Minister of Justice - Because of concern over a possible conflict of interest, a senior member of the Alberta criminal defence bar (Pringle) was delegated to conduct the investigation and provide advice to the Minister - Jensen was interviewed under oath as a witness by Pringle - Jensen also drafted and signed "on behalf of Manitoba Justice" a response to Pringle's investigative report - The Minister dismissed Ross' application - Ross applied for judicial review, arguing that Jensen's involvement in the ministerial review process gave rise to a reasonable apprehension of bias - The Federal Court stated "In the absence of any clear demonstration that the Minister relied on Mr. Jensen's argument to the exclusion of the evidence and representations in the record as a whole, I am unable to find that the decision was tainted by bias or a reasonable apprehension of bias." - See paragraphs 66 to 78.

Administrative Law - Topic 2094.1

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Crown Ministers - [See Administrative Law - Topic 2088 ].

Criminal Law - Topic 5073

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

Criminal Law - Topic 5086

Appeals - Indictable offences - Review by Minister of Justice - Dismissal of application for - Ross was convicted of fraud in relation to an investment scheme - He applied for ministerial review of the convictions on the basis of non-disclosure of significant evidence at trial - The Minister of Justice appointed Pringle to investigate the application - Pringle found that there was a "reasonable possibility" that Ross would have conducted his defence differently if certain evidence had been disclosed at trial (Ross would have testified in his own defence and his counsel would have changed his approach to cross-examination) - The Minister disagreed with Pringle's conclusion and dismissed the application, finding that disclosure of the evidence would not have changed the outcome of the trial and there was no reasonable basis to conclude that a miscarriage of justice had occurred - The Federal Court allowed Ross' application for judicial review - The question to be decided by the Minister was whether Ross received a fair trial as a result of the non-disclosure, not whether it would have reasonably affected the verdict - See paragraphs 32 to 65.

Cases Noticed:

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 20].

R. v. Taillefer (B.) (2003), 313 N.R. 1; 2003 SCC 70, refd to. [para. 20].

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; 2008 SCC 9, refd to. [para. 27].

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. 28].

Jolivet v. Canada (Minister of Justice) et al., [2011] F.T.R. Uned. 788; 2011 FC 806, refd to. [para. 28].

Bilodeau v. Canada (Minister of Justice) et al. (2011), 394 F.T.R. 235; 2011 FC 886, refd to. [para. 28].

Timm v. Canada (Attorney General) (2012), 409 F.T.R. 8; 2012 FC 505, refd to. [para. 28].

Walchuk v. Canada (Minister of Justice) (2013), 439 F.T.R. 166; 2013 FC 958, folld. [para. 29].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 29].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 30].

Wheeldon v. Canada (Attorney General) (2013), 427 F.T.R. 157; 2013 FC 144, refd to. [para. 31].

Tremblay v. Canada (Attorney General) (2012), 424 F.T.R. 215; 2012 FC 1546, refd to. [para. 31].

Singh (Jaswinder) v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 91; 2013 FC 201, refd to. [para. 31].

Canadian Union of Postal Workers v. Canada Post Corp. et al. (2012), 416 F.T.R. 257; 2012 FC 975, refd to. [para. 31].

Ontario Provincial Police Commissioner v. MacDonald et al. (2009), 255 O.A.C. 376; 3 Admin. L.R.(5th) 278; 2009 ONCA 805, refd to. [para. 31].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 31].

Bilodeau v. Canada (Ministre de la Justice), 2009 QCCA 746, refd to. [para. 32].

McArthur v. Ontario (Attorney General) et al., [2012] O.T.C. Uned. 5773; 2012 ONSC 5773, refd to. [para. 32].

Thatcher v. Canada (Attorney General), [1997] 1 F.C. 289; 120 F.T.R. 116 (T.D.), refd to. [para. 32].

Yu v. Canada (Minister of Public Safety and Emergency Preparedness) (2011), 393 F.T.R. 149; 2011 FC 819, refd to. [para. 34].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 39].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 48].

R. v. Illes (M.) (2008), 380 N.R. 238; 260 B.C.A.C. 285; 439 W.A.C. 285; 2008 SCC 57, refd to. [para. 52].

R. v. Skinner (S.), [1998] 1 S.C.R. 298; 222 N.R. 228; 165 N.S.R.(2d) 145; 495 A.P.R. 145, refd to. [para. 53].

Singh (Davinder) v. Canada (Minister of Public Safety and Emergency Preparedness), [2011] F.T.R. Uned. 65; 2011 FC 115, refd to. [para. 56].

Grant v. Canada (Minister of Public Safety and Emergency Preparedness) (2010), 373 F.T.R. 281; 2010 FC 958, refd to. [para. 56].

Vatani v. Canada (Minister of Public Safety and Emergency Preparedness), [2011] F.T.R. Uned. 64; 2011 FC 114, refd to. [para. 56].

Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 66].

Lim et al. v. Association of Professional Engineers (Ont.) (2010), 274 O.A.C. 292; 2011 ONSC 106, refd to. [para. 75].

Van Rassel v. Royal Canadian Mounted Police, [1987] 1 F.C. 47; 7 F.T.R. 187 (T.D.), refd to. [para. 75].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201, refd to. [para. 77].

Zündel v. Citron et al., [2000] 4 F.C. 225; 256 N.R. 201 (F.C.A.), leave to appeal refused (2000), 266 N.R. 200 (S.C.C.), refd to. [para. 77].

Counsel:

James Lockyer and Phillip Campbell, for the applicant;

Sean Gaudet, for the respondents.

Solicitors of Record:

Lockyer, Campbell, Posner, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondents.

This application for judicial review was heard at Toronto, Ontario, on November 4, 2013, before Mosley, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on April 7, 2014.