Roberts v. British Columbia (Attorney General)

2020 BCCA 176 Roberts v. British Columbia (Attorney General)

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Roberts v. British Columbia (Attorney General), 2020 BCCA 176 Date: 20200623 Docket: CA45449 Between: Dean Christopher Roberts Appellant (Petitioner) And The Attorney General of British Columbia Respondent (Respondent) Before: The Honourable Mr. Justice Grauer (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated June 21, 2018 (Roberts v. British Columbia (Attorney General), 2018 BCSC 1027, Vancouver Docket S172577). Counsel for the Appellant (via teleconference): T. C. Paisana Counsel for the Respondent (via teleconference): M. K. Levitz, Q.C. S. E. Elliot Place and Date of Hearing: Vancouver, British Columbia June 8, 2020 Place and Date of Judgment: Vancouver, British Columbia June 23, 2020 Summary: The applicant seeks to reactivate his appeal pursuant to s 25(2) of the Court of Appeal Act, RSBC 1996, c 77. In 1995, the applicant was convicted of three counts of murder and one of attempted murder. In order to maintain an application to the Minister for a review of his convictions under s. 696.1 of the Code, he requested disclosure from the RCMP of its DNA exhibits for testing. When refused, he brought a petition in the Supreme Court. The petition judge refused to make a post-conviction disclosure order, concluding that the process for ministerial review was available to the applicant, and it was

up to the Minister to consider whether it was appropriate to order DNA testing. He appealed, but his appeal has since been put on the inactive list while he pursued an application to the Minister. There has been no response to that application. In opposing the application to reactivate, the Attorney General submits that no dispute remains in light of the procedure the appellant has chosen to follow. Held: Application granted. The extent of the delay here is not inordinate. No prejudice arising from the delay has been alleged. In contrast, the applicant could face considerable prejudice if his appeal is not reinstated. Notwithstanding the force of the Attorney General's position, the appeal raises novel issues of potential importance. In the circumstances, it is in the interests of justice to reactive the applicant's appeal. Reasons for Judgment of the Honourable Mr. Justice Grauer: 1.0 Introduction [1] The applicant seeks to reactivate his appeal pursuant to section 25(2) of the Court of Appeal Act, RSBC 1996, c 77. It has been on the inactive list since July 18, 2019, and there has been an extension of time for the making of this application. The applicant submits that his appeal involves important unresolved questions regarding the applicability of section 7 of the Charter, and the right to disclosure, in the post-appeal phase of a criminal case. [2] In opposing the

application, the Attorney General maintains that the dispute that existed at trial has disappeared, and that the applicant seeks to pursue two interrelated and incompatible tracks in attempting to achieve his objective. [3] I will briefly set out the background that informs the issue. 2.0 Background [4] On November 2, 1995, a jury convicted the applicant of three counts of first-degree murder, and one count of attempted murder. The victims were his wife and children. The case for the Crown rested primarily, though not exclusively, on a "Mr. Big" confession. As I understand it, however, the forensic testing conducted during the investigation revealed no physical or forensic evidence implicating the applicant in the offences. [5] The applicant testified at his trial, and has always maintained his innocence. His appeal from conviction was dismissed, however, and he did not apply for leave to appeal to the Supreme Court of Canada. [6] In 2009, the applicant began working with the UBC Innocence Project, and in a subsequent series of exchanges of correspondence with the Crown, sought release from the RCMP of its DNA exhibits for testing. His intention was to use the DNA evidence to support an application to the Minister of Justice (the "Minister") pursuant to s 696.1 of the Criminal Code [Code] for a review of his convictions for murder. When the disclosure was refused, the applicant

brought the petition to the Supreme Court from which this appeal is taken. [7] The petition judge, whose reasons were released on June 21, 2018, and are indexed at 2018 BCSC 1027, described the issues before him as follows: [4] Counsel have advised that, because of its nature as a post-appeal application, this is a case of first instance. Therefore, this petition raises a number of novel questions, including: 1. What jurisdiction does the Minister have to order DNA testing when considering an application for review under s. 696.1 of the Code?

2. What, if any, are the post-appeal disclosure obligations of the Crown?

3. Does this Court have jurisdiction to order post-appeal disclosure?

4. In the circumstances of this case, has the respondent breached its obligation to disclose, and therefore breached the s. 7 Charter rights of the petitioner? [8] The petition judge then described the applicant's articulation of the problem he faced this way: The Legislative and Common Law Gap and the "Catch 22" [59] The post-appeal review system set out in ss. 696.1 to 696.6 is deficient. [60] Its purpose is to identify and correct wrongful convictions. It is intended to act as a final safety net for innocent individuals who have suffered miscarriages of justice. However, the statutory framework does not provide any statutory basis for obtaining post-appeal disclosure that is relevant to a s. 696.1 application. The legislation does not establish a statutory duty on the Crown to disclose, on request, the information necessary to make a meaningful s. 696.1 application, nor does it establish a mechanism for seeking court-ordered disclosure for the purpose of a s. 696.1 application. [61] This is a clear gap in the legislation and this gap is what makes this application necessary. [62] The entire s. 696.1 process is premised on the applicant providing "new and significant information". Without access to new and significant information in the hands of the Crown/police or information already in the possession of the Crown/police that would allow the applicant to uncover new and

significant information, it is impossible for applicants to make a successful application under s. 696.1 of the Code. Without new and significant information, the application is doomed to fail and miscarriages of justice may well go uncorrected. [63] To date, the case law has not recognized a common law or constitutional duty on the Crown to disclose relevant material after all appeals have been exhausted. Currently, post-appeal disclosure is solely at the discretion of the Crown, and Crown post-appeal disclosure policies vary across Canada. In British Columbia, the Crown does not have a formal policy regarding post-appeal disclosure, but has indicated that it will only disclose material if there is a reasonable basis to conclude that a wrongful conviction has likely occurred - essentially the same threshold for an investigation and Ministerial intervention under s. 696.1. The Importance of Disclosure [64] As a s. 696.1 application will not even pass the preliminary assessment without presenting "new and significant information", it is essential that the applicant have access to new evidence or information that has come to the attention of the respondent or police. It is equally essential that the applicant have access to relevant information and material already in the possession of the respondent or police. Materials and information in the possession of the respondent,

whether new or otherwise, can be critical to the identification of evidence that a wrongfully convicted individual requires in order to meet the CCRG's threshold for review. [9] The Attorney General, on the other hand, submitted that: [70] The petitioner's entire constitutional argument is premised on his assertion that the Minister could not adjudicate his claim for the relief sought here. To the contrary, the Code, together with the Regulations, grants the Minister the authorization to order DNA testing in appropriate cases. [71] The petitioner does not adequately consider the s. 696.2(2) powers of investigation granted to the Minister or her delegate pursuant to the Inquiries Act, R.S.C. 1985, c. 1-11, which would arguably give the Minister sufficient authority to address the so-called legislative gap and Catch 22. [10] In the result, the petition judge accepted the Attorney General's position. He concluded that the "Catch 22" gap to which the applicant referred was not a gap because the Minister had the power and authority to fill it: [101] The question which the petitioner needs to address is not "Can or will the Minister order DNA testing?" Rather, the correct question is this: "Is DNA which was not available to be tested at the time of the trial, but which may be tested now, capable of being a new matter of significance, although it has not yet been tested?" [102]

Surely, the answer is yes - not that it will always be a new matter of significance in every case, but that it is capable of being such, depending on a consideration of all relevant factors. These factors will vary from case to case. Some factors will be relevant in some cases, but not in others. In all cases, the relevance will depend on whether they bear on the question of what is new and significant. [103] An applicant to the Minister will find guidance in the Regulations including s. 2(1) which states that the "following information" should be included in the application, including "the grounds of the application" (s. 2(1)(e)) and "a description of the new matters of significance that support the application, if any." (s. 2(1)(f)). [104] Put another way, the real question is this: can untested DNA be considered a new matter of significance, in appropriate circumstances, such that it can move on to the investigative stage, at which point it is clear from the Regulations that DNA testing can be ordered? [105] Although neither counsel framed their arguments in this way, it will not be a surprise to them. The way in which they argued this Charter application was heavily dependent on what significance DNA testing might (or might not) have. It is for this reasons that they disagreed about, and argued, the various topics set out in para. 12 of this Judgment. [106] I am satisfied

that, in appropriate circumstances, untested DNA may meet the definition of a new matter of significance at the preliminary assessment stage of a s. 696.1 application. [107] I do not suggest that the DNA sought to be tested here is a "new matter of significance", nor do I suggest the contrary. That is a decision for the Minister, as is the question of what she considers relevant in making that decision. It is inappropriate for this Court to offer advice as to what examinations or testing the Minister should or should not carry out during that process, or what the ultimate conclusion of her inquiry should or should not be. [108] The Minister's decision is subject to judicial review in Federal Court. She is required to provide a copy of her decision under s. 696.3(3) of the Code to an applicant (Regulations, s. 6). If unsuccessful on application to the Minister, the petitioner would be entitled to apply to the Federal Court for judicial review. The Minister's ultimate decision, as well as any preliminary decisions, are capable of being the subject of a judicial review. On such a review, it would be open to the petitioner to argue that the Minister failed to respect Charter values as part of his challenge of the merits of her decision. [11] Given this conclusion, the petition judge considered it both unnecessary and inappropriate to address the question of the extent of the

Crown's post-conviction disclosure obligations. However, he did opine on the jurisdiction of the court to order post-appeal disclosure: [112] There is an undertone in the argument presented by the petitioner that suggests that the reason for the Charter application to this Court is that the Minister is unlikely to order DNA testing "on request" pursuant to the Code process. [113] The petitioner may be correct in thinking that the Minister is unlikely to make the order on request. The s. 696.1 process states nothing which suggests that should occur. Even so, the petitioner does not challenge the legislation as non-Charter compliant, or as deficient in some other way. Instead, he has ignored it, and attempted an end run around it. [114] The process set out in the Code, in the absence of it not being Charter compliant, is a complete answer to the Charter application before this Court. [115] The Court should decline to exercise its inherent jurisdiction or its jurisdiction under s. 24(1) of the Charter, to offer the discretionary relief sought by the petitioner in circumstances where Parliament has enacted a process of review in the Code. [12] The applicant filed his notice of appeal on July 16, 2018, within time, alleging four intertwined errors by the petition judge: finding that there was no "Catch-22" in the section 696.1 regime; declining to exercise the court's inherent

jurisdiction to order disclosure on the basis of the Minister's independent jurisdiction; failing to find that the Crown had breached his section 7 Charter rights by refusing to make post-appeal disclosure; and failing to order disclosure under section 24(1) of the Charter. [13] Then, in the spring of 2019, "following the suggestion of the petition judge" and the approval of funding, the applicant filed an application for ministerial review pursuant to section 696.1 of the Code. As no further steps were taken in relation to this appeal, it was placed on the inactive list on July 18, 2019. [14] Since then, the applicant has received no substantive response on his application from the Criminal Conviction Review Group ("CCRG"), and the CCRG has given no specific timeline for a response. As the appeal will be deemed to be abandoned shortly if not reactivated (the time having been extended), the applicant submits that he finds himself yet again in a Catch-22 position: having pursued the route outlined in the ruling of the petition judge, he is at risk of losing his rights of appeal without any response to his section 696.1 application. 3.0 Discussion [15] On an application to reactivate an appeal under section 25(2) of the Court of Appeal Act, the relevant factors include the extent of the delay, the explanation for the delay, whether prejudice arises from the delay, and the

likelihood of success on appeal. The overriding issue is whether it is in the interests of justice to grant the application: Kar Recovery, Ltd. v KDA, 2004 BCCA 503 at para 23. [16] The extent of the delay here is not inordinate, particularly given the current circumstances of the COVID-19 epidemic. No prejudice has been alleged arising from the delay. [17] The delay is explainable, but the problem is this. By initiating and continuing the process under s. 696.1, the applicant has engaged a parallel process seeking the same relief. It was a strategy he chose. The Attorney General argues that once he chose to proceed that way, the appeal became pointless, and at the very least raises the potential for inconsistent decisions. In essence, the Attorney General asserts, the applicant seeks through his appeal to obtain an order for the same relief he is seeking through the ministerial process, on the basis that the ministerial process is not available to him without the disclosure. [18] Moreover, the Attorney General submits, there is no Catch-22 here. Notably, as the petition judge observed, the Minister's decision is subject to judicial review in the Federal Court. If the process the applicant has presently invoked should prove a dead-end, with a decision by the Minister, affirmed on judicial review, that the existence of untested DNA is not a new matter of significance, without

which the Minister cannot investigate, then (and only then) will the applicant will be in a position properly to bring a petition on a complete record for effectively the same relief he seeks on this appeal. This indeed is a distant horizon. [19] Since the release of the decision under appeal, the Ontario Superior Court of Justice has also wrestled with issues arising from alleged deficiencies in the ministerial review process in the Code: Albon v Ontario (Attorney General), 2019 ONSC 3372. In Albon, the court explicitly discussed the decision under appeal, agreeing with most of the judge's conclusions, but taking a divergent viewpoint on one aspect. [20] In the decision under appeal, the petition judge ruled that the ministerial review process set out in the Code, absent it being Charter non-compliant, is a complete answer to the Charter application for post-appeal disclosure before the court. Accordingly, he concluded, the superior court should decline to exercise its jurisdiction to provide a post-conviction disclosure order so long as there existed a process created by Parliament aimed at achieving that same goal, i.e. the ministerial review process. [21] The court in Albon disagreed, saying: [169] My quibble [with the Roberts decision] is that I would not subscribe to an absolute rule that the superior court should decline to exercise its inherent jurisdiction or its

jurisdiction under s. 24(1) of the Charter and require the applicant to seek its Charter relief from the Federal court in every case. In perhaps the majority of cases, it would be appropriate for the superior court to decline to exercise its jurisdiction, but ultimately it is the superior court's responsibility to administer criminal justice in its jurisdiction and to clean up its own messes about wrongful convictions. [22] The Attorney General submits that the judge in Albon essentially agreed with the petition judge's conclusion that the question of whether the existence of untested DNA evidence, in light of advances in testing, is capable of constituting a new matter of significance is for the Minister to decide. As the applicant has now asked the Minister to do so, the Attorney General contends, this court should not be asked to decide the same question. [23] As I see it, however, and as Albon suggests, the Attorney General's submissions take too narrow an approach at this stage, focusing on the possible results of an unpredictable process. Ultimately, a division hearing this appeal might well agree with the Attorney General's position. But in all of the circumstances, I conclude, the interests of justice favour reactivating this appeal. [24] As I have indicated, the delay is not inordinate, it is explainable, and there is no meaningful prejudice. Notwithstanding the force

of the Attorney General's position, the fact remains, in my view, that the applicant is potentially at risk of losing significant procedural protection if his appeal, which he was entitled to bring as of right, is not restored. The issues raised in the petition were novel, and the question of the extent and appropriate exercise by a Superior Court of its inherent jurisdiction to order post-trial disclosure is one of importance. 4.0 Disposition [25] Accordingly, I grant the applicant leave to proceed with his appeal, and direct that it be removed from the inactive list in accordance with section 25(2) of the Court of Appeal Act. "The Honourable Mr. Justice Grauer"