Roberts v. British Columbia (Attorney General)

2021 BCCA 346 Roberts v. British Columbia (Attorney General)

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Roberts v. British Columbia (Attorney General), 2021 BCCA 346 Date: 20210924 Docket: CA45449 Between: Dean Christopher Roberts Appellant (Petitioner) And The Attorney General of British Columbia Respondent (Respondent) And Innocence Canada Intervenor

FILE SEALED IN PART Before: The Honourable Mr. Justice Willcock The Honourable Mr. Justice Grauer The Honourable Mr. Justice Voith 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 videoconference): T.C. Paisana M. Iyengar Counsel for the Respondent (via videoconference): M.K. Levitz., Q.C. S.E. Elliott Counsel for the Intervenor, Innocence Canada: (via videoconference) I.R. Smith A. Guaglio Place and Date of Hearing: Vancouver, British Columbia June 23, 2021 Place and Date of Judgment: Vancouver, British Columbia September 24, 2021 Written Reasons by: The Honourable Mr. Justice Willcock Concurred in by: The Honourable Mr. Justice Grauer The Honourable Mr. Justice Voith Summary: Mr. Roberts appeals the dismissal of his application for an order compelling the British Columbia Prosecution Service to produce physical evidence in the possession of the RCMP for DNA testing as a s. 24(1) Charter remedy for an alleged breach of his s. 7 Charter rights. He intends to use this evidence to support his application for ministerial review of his murder convictions. The Crown contends that this Court lacks jurisdiction to hear this appeal. The Crown also argues that the process provided for in Part XXI.1 of the Criminal Code is a

complete answer to the Charter issues. Held: Appeal allowed. This Court has jurisdiction to hear the appeal since the application in question is administrative in character, not criminal. Meaningful access to the ministerial review process is important to give effect to the fundamental precept that the innocent must not be convicted. The Crown has a duty to produce such evidence as may reasonably be required by an applicant in support of an application for ministerial review. The right to such disclosure hinges upon the applicant establishing: the preconditions for a ministerial review have been satisfied; the evidence or information sought may establish that there exists a new matter of significance not considered by the courts or previously considered by the Minister; and the new matter of significance will be material to the Minister's assessment of whether there may be a reasonable basis to conclude that miscarriage of justice likely occurred. The criteria are satisfied in this case. Reasons for Judgment of the Honourable Mr. Justice Willcock: Introduction [1] Dean Christopher Roberts appeals the dismissal of his application for an order compelling the British Columbia Prosecution Service to produce physical evidence in the possession of the RCMP for DNA testing in support of his application for ministerial review of his murder convictions. [2] The evidence sought is not

new. Mr. Roberts hopes testing the physical evidence (hair and fingernail samples, a rope used to strangle his wife, a rope used to strangle one of his sons, a bag in which that son's body was found, a cigarette butt and plastic bags found near the body's resting place on a trail, and a burnt scarf found near the Roberts home) with state‑of‑the‑art methods will reveal the DNA of another person, perhaps the same person on each article, perhaps one whose DNA is in the National DNA Data Bank. Crown counsel refused to obtain or release the evidence for such testing, and the RCMP would not release the exhibits absent direction from the Crown or a court. The appellant brought a petition seeking an order for production of the evidence as a s. 24(1) Charter remedy (for an alleged breach of his s. 7 Charter rights). The petition was dismissed for reasons indexed at 2018 BCSC 1027 (the "Reasons"). [3] The learned chambers judge was faced with the following issues: a) What jurisdiction does the Minister have to order DNA testing when considering an application for review under s. 696.1 of the Code? b) What, if any, are the post‑appeal disclosure obligations of the Crown? c) Does the court have jurisdiction to order post‑appeal disclosure? d) 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? [4] The first question was posed because the appellant argued the review process established by Parliament when Part XXI.1 of the Criminal Code was enacted in 2002 does not contemplate such testing. The second question was posed because the appellant argued the refusal to produce the evidence for examination was a breach of his Charter rights, giving rise to the right to a Charter remedy, a potential answer to the third question. [5] The chambers judge answered those questions as follows: a) the Criminal Code gives the Minister the powers of a commissioner under the Inquiries Act, and the Minister can exercise those powers to pursue avenues of inquiry which may form a reasonable basis to conclude a miscarriage of justice likely occurred, including ordering DNA tests (without addressing the submission that such powers are exercised in the course of an investigation, and not in the course of the preliminary assessment of an application); b) given the availability of the Criminal Code process, it was inappropriate to address the scope of the Crown's post‑conviction disclosure obligations; c) the court should decline to exercise its inherent jurisdiction, or its jurisdiction under s. 24(1) of the Charter, to afford the discretionary relief sought by the petitioner in circumstances where Parliament has enacted a process of review in the Code; and d) the question whether

the Crown had breached any Charter duty in this case was therefore no longer before the court for consideration. [6] The judge held the petitioner's argument DNA testing of the exhibits in question might lead to his exoneration should not be considered by the courts but rather by the Minister or designate pursuant to the post‑appeal review system set out in ss. 696.1 to 696.6 of the Criminal Code. [7] That process permits the Minister to conduct an investigation into a conviction on application, after considering whether the application is supported by new matters of significance that were not considered by the courts. The chambers judge held (at para. 106) "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". [8] He noted the Minister's policy guidelines contemplated DNA testing being conducted at the investigation stage. That indicated "an awareness and a recognition on the part of the Ministry that persons with the same difficulty the petitioner has in this case will, from time to time, be making applications seeking a similar solution" (at para. 106). He concluded: [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. [9] The process set out in the Code was held to be "a complete answer to the Charter application" before the court (at para. 114). [10] The appellant submits we should find the Crown has a duty to make disclosure of the material sought, arising from the Constitutional guarantee of the right not to be deprived of liberty and security of the person except in accordance with the principles of fundamental justice. He says the scheme established in Part XXI.1 of the Code has evident gaps and the chambers judge erred in

finding there were no gaps. [11] The respondent Attorney General says the chambers judge did not err in the exercise of his discretion when he declined to afford a remedy to the appellant because there were other avenues available to him to obtain relief. The respondent says there is no duty owed by the Crown after a conviction and the exhaustion of appeals to grant general requests for production of evidence or documents (other than the duty to disclose new exculpatory information). The respondent contends the appeal is now moot, as the appellant's application is before the Minister and the Minister may obtain and test the physical evidence. Last, the respondent says the appellant did not make out a case for production of exhibits for testing; the tests proposed will not advance his case, regardless of the outcome. [12] The principal questions raised on this appeal are: a) Does this Court have jurisdiction to hear an appeal from the order (a question that hinges primarily on the characterization of the appeal as a criminal or civil matter); b) Did the learned chambers judge err in concluding the process provided for in Part XXI.1 of the Criminal Code is a complete answer to the appellant's Charter claim; c) If not, does the Crown have a duty to make disclosure of material requested by a person convicted of an offence who seeks the material in support of an application for

ministerial review of the conviction; d) Assuming the court can exercise its discretion to order disclosure notwithstanding the fact an application for ministerial review is pending, what criteria should determine whether a disclosure order should be made; and e) If this Court should determine whether those criteria are met in this case, are they met? The Statutory Framework [13] The petition for disclosure and production was filed in the hope of obtaining evidence that would constitute a new matter of significance that would support an application for the ministerial review provided for in Part XXI.1 of the Criminal Code, and the Regulations Respecting Applications for Ministerial Review -- Miscarriages of Justice, SOR/2002‑416. The relevant provisions of the Code read as follows: 696.1 (1) 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 and whose rights of judicial review or appeal with respect to the conviction or finding have been exhausted. (2) The application must be in the form, contain the information and be accompanied by any documents prescribed by the regulations. 696.2 (1) On receipt of an application under this Part, the Minister of Justice shall review it in accordance with the regulations. (2) For the

purpose of any investigation in relation to an application under this Part, the Minister of Justice has and may exercise the powers of a commissioner under Part I of the Inquiries Act and the powers that may be conferred on a commissioner under section 11 of that Act. (3) Despite subsection 11(3) of the Inquiries Act, the Minister of Justice may delegate in writing to any member in good standing of the bar of a province, retired judge or any other individual who, in the opinion of the Minister, has similar background or experience the powers of the Minister to take evidence, issue subpoenas, enforce the attendance of witnesses, compel them to give evidence and otherwise conduct an investigation under subsection (2). 696.3 (1) (2) The Minister of Justice may, at any time, refer to the court of appeal, for its opinion, any question in relation to an application under this Part on which the Minister desires the assistance of that court, and the court shall furnish its opinion accordingly. (3) On an application under this Part, the Minister of Justice may (a) if the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred, (i) direct, by order in writing, a new trial before any court that the Minister thinks proper or, in the case of a person found to be a dangerous offender or a long-term offender under Part XXIV, a new

hearing under that Part, or (ii) 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 found to be a dangerous offender or a long-term offender under Part XXIV, as the case may be; or (b) dismiss the application. (4) A decision of the Minister of Justice made under subsection (3) is final and is not subject to appeal. 696.4 In making a decision under subsection 696.3(3), the Minister of Justice shall take into account all matters that the Minister considers relevant, including (a) whether the application is supported by new matters of significance that were not considered by the courts or previously considered by the Minister in an application in relation to the same conviction or finding under Part XXIV; (b) the relevance and reliability of information that is presented in connection with the application; and (c) the fact that an application under this Part is not intended to serve as a further appeal and any remedy available on such an application is an extraordinary remedy. [Emphasis added.] [14] The Regulations provide: 2 (1) For the purposes of subsection 696.1(2) of the Code, an application for ministerial review under Part XXI.1 of the Code shall be in the form set out in the schedule and contain the following information: (e) the grounds for the application; and (f) a

description of the new matters of significance that support the application, if any. ... 3 On receipt of an application completed in accordance with section 2, the Minister shall (a) send an acknowledgment letter to the applicant and the person acting on the applicant's behalf, if any; and (b) conduct a preliminary assessment of the application. 4 (1) After the preliminary assessment has been completed, the Minister (a) shall conduct an investigation in respect of the application if the Minister determines that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred; or (b) shall not conduct an investigation if the Minister (i) 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 Code for humanitarian reasons or to avoid a blatant continued prejudice to the applicant, or (ii) is satisfied that there is no reasonable basis to conclude that a miscarriage of justice likely occurred. [Emphasis added.] [15] There is no provision in Part XXI.1 of the Code or the Regulations affording the applicant a right to apply for disclosure of material evidence from the prosecution or the police. Jurisdiction to Hear the Appeal [16] The respondent says this appeal is from a ruling on an application in criminal

proceedings and that this Court's statutory jurisdiction in criminal matters does not permit us to hear the appeal. Section 674 of the Criminal Code provides: 674 No proceedings other than those authorized by this Part and Part XXVI shall be taken by way of appeal in proceedings in respect of indictable offences. [17] A similar issue to that before us arose in a different context in R. v. Fox, [1983] B.C.J. No 1590 (C.A.). In that case, a judge of the Supreme Court of British Columbia had refused to order the production of an exhibit from Mr. Fox's 1976 trial for analysis by a handwriting expert in order to obtain an opinion in support of an application for the Royal Prerogative of Mercy. The judge who heard the application ruled he had no jurisdiction to make the order under the provisions of the Criminal Rules. This Court held it had no jurisdiction to hear the appeal but noted, as the exhibit was still in the Registry of the Supreme Court, it was within the power of the Chief Justice of the Supreme Court to make it available. [18] The respondent says an application for ministerial review, like an application for mercy, is a proceeding in respect of an indictable offence. The fact the underlying petition is a civil application for production of evidence is not conclusive that it is civil in nature. [19] It matters not that the impugned order is made in distinct proceedings

commenced by petition. In Patrick v. Canada (Attorney General) (1987), 35 C.C.C. (3d) 551 (B.C.C.A.), the appellants filed a petition seeking Charter relief against a direct indictment. The appeal from the dismissal of the petition was quashed because the matter was criminal in nature. Hinkson J.A., after citing the description of the limited jurisdiction of appellate courts in Mills v. The Queen, [1986] 1 S.C.R. 863, held the court had no jurisdiction at that stage of proceedings to hear the appeal. He noted (at 557): "In the event that any of the accused is convicted at trial, the alleged infringement of Charter rights can be raised at that stage of the proceedings by way of an appeal from conviction." [20] Orders made to ensure fair criminal trials are clearly "proceedings in respect of indictable offences". In Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, an injunction against the broadcast of a television programme was characterized as criminal because the order sought related to the accused's fair trial rights. The issue was addressed by Lamer C.J. as follows (at 864): ... [We] are dealing here with media challenges to publication bans ordered by judges under their common law or legislated discretionary authority in response to a request for a ban made by the Crown and/or by individuals charged (or at risk of being charged) with criminal offences. Such

challenges are criminal matters, not civil ones. [21] In R. v. Ciancio, 2006 BCCA 311, the accused, who was facing murder charges, sought accommodation in jail that would permit trial preparation and review of document disclosure. A chambers judge granted relief on an interlocutory application. The warden appealed. Ryan J.A. for the majority wrote: [4] The question whether the order in issue is a final order and whether this court has the jurisdiction to entertain the appeal depends on whether the order may be characterized as criminal or civil in nature. If the appeal is from an order made in a criminal proceeding there is no appeal to this court since s. 674 of the Criminal Code limits criminal appeals on indictable matters to those provided under Part XXI of the Code which in turn does not provide an appeal to anyone but the accused or the Attorney General. The only appeal open to the Warden would be on an application for leave to the Supreme Court of Canada under s. 40 of the Supreme Court Act, R.S. 1985, c. S-26. If the order is characterized as civil in nature, then it was accepted by all parties that an appeal lies to this court as of right under s. 6 of the Court of Appeal Act, R.S.B.C. 1996, c. 77. [22] Ryan J.A. adopted passages from Mr. Justice Ewaschuk's Criminal Pleadings and Practice in Canada to the effect that the nature and character of the appeal is not

determined by the result of the proceedings being appealed from but, rather, whether the order appealed is criminal in nature and founded on the federal criminal law power, or civil in nature and founded on provincial legislative powers. She concluded: [31] The order under appeal in the case at bar was made during the course of a criminal trial. It was made because the trial judge (impliedly) reached the conclusion that it was necessary to ensure that Mr. Ciancio had a fair trial. Given these factors it is not material whether the order had merit, or whether it was one that the trial judge had the authority to make. I am of the view that the order must be characterized as criminal in nature. [23] A matter that has a direct impact on ongoing or pending criminal proceedings is itself criminal in nature, even if the remedy sought is declaratory only. In R. v. Brassington, 2018 SCC 37, the Court was called upon to address the question whether, when police officers are charged with crimes relating to their conduct during an investigation, they can disclose to their defence lawyers information they learned during the investigation that might reveal the identity of a confidential informer. A jurisdictional issue arose, whether the declaratory order made on a pretrial motion by the trial judge was "civil" or "criminal" in nature. Abella J. for the Court referred with approval (at para.

20) to the judgment of Doherty J.A. in Canadian Broadcasting Corp. v. Ontario, 2011 ONCA 624, where he wrote: [17] Usually, it will not be difficult to distinguish a criminal proceeding from a civil proceeding. An application for an order made in the course of a criminal proceeding, an application for an order directly impacting on an ongoing or pending criminal proceeding, or an application for an order rescinding or varying an order made in a criminal proceeding will all be criminal proceedings. ... [24] She concluded, in short: [22] In this case, the order sought related to the accused's claim that declaratory relief was necessary to help them make full answer and defence in ongoing criminal proceedings. It was issued by a criminal case management judge, in connection with the rights of the parties in a pending criminal proceeding, regarding what might be done by the accused in conducting their defence. The fact that the order was declaratory does not change its essential character as "criminal", not "civil". [25] The respondent in his submissions referred us to s. 605(1) of the Code as the governing provision in relation to DNA testing but it is doubtful, in my view, this provision is applicable to petitions for the production of evidence for testing in support of an application for ministerial review. It clearly relates to the process for release of exhibits pending a

trial and was not relied upon by the appellant: 605 (1) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction may, on summary application on behalf of the accused or the prosecutor, after three days notice to the accused or prosecutor, as the case may be, order the release of any exhibit for the purpose of a scientific or other test or examination, subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the exhibit and its preservation for use at the trial. [26] The appellant contends the Attorney General must show the ouster provision of s. 674 applies. He says Fox and the cases upon which the respondent relies are all distinguishable as "proceedings in respect of indictable offences". A number of the cases concern orders made to ensure a fair criminal trial. This is not such a case. While an application for an order directly affecting a pending or ongoing criminal proceeding is criminal in substance or purpose, in this case there is no pending or ongoing criminal proceeding. The application is not an extension of a trial. The issue is not about fair trial rights. [27] The relationship between the appellant and the Crown is not now adversarial. The application for ministerial review is still at the preliminary stage and a ministerial investigation has not yet been initiated. Although the process for review

of convictions has been formalized in Part XXI.1 of the Code, the power to grant relief is still one of "exception and prerogative": Timm v. Canada (Attorney General), 2014 FC 587 at para. 9, aff'd 2015 FCA 199; Bilodeau v. Canada (Minister of Justice), 2011 FC 886 at para. 69; Ross v. Canada (Minister of Justice), 2014 FC 338 at para. 32; Thatcher v. Canada (Attorney General) (1996), [1997] 1 F.C. 289 at para. 8. [28] In the words of LeBlanc J. in Winmill v. Canada (Minister of Justice), 2015 FC 710, aff'd 2016 FCA 250: [64] ... A conviction review application is not an appeal as of right on the merits of the alleged wrongful conviction but rather a request for an extraordinary and highly discretionary remedy that derives from the Royal Prerogative of Mercy . [29] The process was further characterized as follows by LeBlanc J.: [65] In Bilodeau v Canada (Ministre de la Justice), 2009 QCCA 746, [2009] JQ no 3472 (QL)(Leave to appeal to the Supreme Court of Canada dismissed on October 8, 2009 - no 33216 [Bilodeau (QCCA)] ), the Quebec Court of Appeal made a thorough analysis of the Minister's power under section 696.1 of the Code. In that case, Mr. Bilodeau had challenged before the Quebec Superior Court the Minister's decision dismissing his conviction review application. The issue before the Court of Appeal was whether the Quebec Superior Court had jurisdiction to entertain Mr.

Bilodeau's proceedings, given the Federal Court's exclusive authority to review decisions of "federal boards", as defined in the Federal Courts Act. Mr. Bilodeau's main argument was that the provincial superior courts were empowered to judicially review the Minister's decisions under section 696.1 because those decisions raised criminal law issues over which those courts had jurisdiction. [66] The Quebec Court of Appeal dismissed that argument. It held that the scope of the Minister's authority to review convictions on grounds of miscarriage of justice fell "outside the traditional sphere of criminal law" as "it begins after legal remedies are exhausted". It further held that the 2002 amendments which brought into force the provisions of Part XXI.1 of the Code had not altered, in its essence, the nature of that authority which remains today, as it has been since it was codified in 1892, a discretionary power historically considered as one of the forms of exercise of the Royal Prerogative of Mercy (Bilodeau (QCCA), at para. 25). [Emphasis added.] [30] The appellant says while s. 696.1 is a Criminal Code provision, the procedure it establishes is administrative, resulting in an order akin to that appealed in R. v. Consolidated Fastfrate Transport Inc. (1995), 24 O.R. (3d) 564 (C.A.). In that case, a justice in chambers had issued an injunction restraining Fastfrate from disposing

of the proceeds of the sale of its assets or winding up pending its trial on charges of conspiring to lessen competition. The purpose of the injunction was to preserve assets owned by Fastfrate out of which a fine could be paid in the event of conviction. Galligan J.A. wrote (at 568): It is my view that the order must be categorized as an order in a civil proceeding. Counsel agree that there is no statutory enactment which specifically grants the criminal courts the power to make the kind of order made in this case. There are cases, however, where the courts have granted injunctions in relation to matters which have criminal or quasi-criminal connotations. In those cases, the courts, either expressly or by necessary implication, made it clear that it is the civil process which is being used in support of the criminal law or in aid of the criminal law. [31] He held the process employed against Fastfrate, like that considered by the House of Lords in Stoke-on-Trent City Council v. B. & Q. (Retail) Ltd., [1984] A.C. 754, [1984] 2 All E.R. 332, was a civil process invoked in support of the criminal law. [32] The appellant says appeals have been heard and determined on their merits in proceedings like these, which stem from applications or petitions filed by prospective Part XXI.1 applicants in superior courts. In McArthur v. Ontario (Attorney General), 2013 ONCA 668, the Attorney

General of Ontario appealed the decision of a superior court justice that an applicant need not exhaust his rights of judicial review by seeking leave to appeal to the Supreme Court of Canada before applying for ministerial review. The Court's jurisdiction to hear the appeal was apparently unquestioned. [33] In Chaudhary v. Ontario (Attorney General), 2013 ONCA 615, an issue very similar to that before us, whether the applicant could obtain a Charter remedy for the Crown's failure to preserve photographs upon which he intended to rely in support of an application for ministerial review was dismissed by a superior court justice. The appeal was heard and dismissed without any question with respect to the appellate court's jurisdiction. [34] The appellant says the judgment in Fox is not binding upon us and may be distinguished. First, he notes, perhaps most importantly, Fox did not involve a Charter application but, rather, an application brought pursuant to the Criminal Rules. Mr. Fox himself did not invoke a civil process. Second, the application was not heard in the context of the administrative scheme for post‑conviction review now established to address concerns arising from the numerous and thoughtful commissions that have addressed wrongful convictions. The appellant says Fox should be narrowly construed and applied, as Mr. Fox ultimately overcame the hurdles placed in his

way by establishing he had in fact been wrongfully convicted, and we should be slow to impose impediments to others in similar but distinct circumstances. [35] In my view, the appellant correctly characterizes the nature of the proceedings in this case as proceedings outside the traditional sphere of the criminal law. He seeks relief in support of an application that has an administrative character. It is neither an application for an order directly impacting an ongoing or pending criminal proceeding, nor an application for an order rescinding or varying an order made in a criminal proceeding. There is no avenue of appeal open to the appellant other than this appeal; the alleged infringement of the appellant's Charter rights cannot be raised at a later stage of the proceedings by way, for example, of an appeal from conviction. Even the judicial review process considered by the chambers judge would entail review of the investigation conducted by the Minister, not consideration of the appellant's application for access to evidence. [36] The appellant is not relying upon the Criminal Code or Criminal Rules in support of his application for disclosure. The learned chambers judge concluded he had jurisdiction to make the order sought, presumably the court's inherent jurisdiction, but should defer to the Minister's assessment of the nature of investigation warranted by the

appellant's case. He noted the Minister's decision would be open to judicial review. His judgment speaks to the administrative aspect of the application. [37] I agree with the appellant's view that the petition for disclosure in this case invokes the court's civil jurisdiction in aid of a process that is administrative, and s. 674 of the Criminal Code is not a bar to the hearing of the appeal. In coming to this conclusion, I take some comfort from the decisions in McArthur and, to a lesser extent Chaudhary (because the appeal was dismissed in that case). I expect if the appeal in McArthur had an apparently criminal aspect, that would not have escaped the attention of the court. Other Objections to Hearing the Appeal on the Merits [38] This appeal was argued on a different footing than the application in chambers. As the respondent noted in his submissions in chambers, the appellant's constitutional argument in chambers was premised on the assertion the Minister could not adjudicate the claim for the relief sought. The Attorney General contended, successfully, that the post‑appeal review system set out in ss. 696.1 to 696.6 of the Code permits the Minister to order DNA testing at the investigation stage, in appropriate cases. [39] The appellant now acknowledges the Minister can order DNA testing (and for that reason has applied for ministerial review) but says there is no

certainty an investigation will be ordered, and he should not have to rely upon the Minister's exercise of the discretion to make a case for review. He says the trial judge wrongly concluded an investigatory power could substitute for disclosure. He contends it was an error to put off a decision with respect to his right to disclosure simply because the Minister might order DNA testing, obviating the need for a remedy. [40] When he sought relief in chambers, the appellant had not yet made an application pursuant to s. 696.1 of the Criminal Code. He has now applied for review, arguing an inquiry is warranted because new DNA tests may establish his innocence. The Minister had not responded to the application in the 25 months that elapsed between the application and the hearing of this appeal. The appellant and the intervenors say the lengthy delay is not unusual, and such delays are one reason the examination of evidence should not remain in the hands of the Minister exclusively. [41] The respondent takes the position that the appeal is being argued on a basis that was not subject to adjudication and, for that reason, we should not entertain the appeal. The respondent says the appellant did not argue in chambers that a direct route (a court order for production of evidence for DNA testing) must be preferred to the indirect route (awaiting the Minister's adjudication and possibly

a ruling by the Minister on the necessity of DNA testing). What was argued, according to counsel for the respondent, was whether the Minister could order DNA testing and whether the appellant was caught in an evidentiary trap. [42] The respondent contends not only is there no Charter breach, because there is no duty to disclose the material the appellant seeks, but, in any event, the appellant is not entitled to a s. 24(1) remedy unless he is prejudiced by a breach. The appellant has applied for ministerial review and is awaiting a decision. Even where the courts have recognized in principle a right to apply for a court order for post‑conviction disclosure, an unsuccessful application for ministerial review has been held to be a prerequisite to obtaining such an order: Albon v. Ontario (Attorney General), 2019 ONSC 3372 at paras. 168-172. [43] In my view, no prejudice will be occasioned, and there is considerable value to the parties and the public, in this Court adjudicating upon the issues argued before us. The issues have been thoroughly canvassed, and no advantage will be gained by remitting the issues as they are now framed for consideration in Supreme Court chambers. In part, in my view, the appeal was argued on a different footing than the application because the chambers judge reframed the question (at paras. 100-106 of the Reasons). [44] I would not accede to the

argument the appeal is moot. For reasons that follow, I consider the status of the appellant's application for ministerial review to be immaterial to the issues we are addressing. It is true a Charter breach does not require a s. 24(1) remedy if there is another sufficient means of addressing the breach, but, in my opinion, we cannot conclude the process set out in the Criminal Code is a complete answer to the appellant's claim without defining the scope of his right to disclosure. [45] In my opinion, therefore, it is open to us to address the appeal on the merits. Is Part XXI.1 of the Criminal Code a Complete Answer? [46] The chambers judge held: [57] The Code provides for two different statutory mechanisms that potentially offer the petitioner the relief he seeks. He has so far declined to pursue either. [58] Those two mechanisms are: 1. The petitioner has the option of seeking an extension of time and leave to appeal to the Supreme Court of Canada, pursuant to s. 691 of the Code. That Court has jurisdiction to order release of exhibits for forensic testing on a motion ancillary to an application for leave to appeal.

2. The petitioner could also pursue an application under s. 696.1 of the Code for a review by the Minister of Justice on the grounds of miscarriage of justice. He has not yet exercised this option. He argues that it is impossible for him to make an application to the Minister without first obtaining the forensic testing, thereby necessitating this proceeding. However, his argument is simply wrong. The Minister can order what this Court is being asked to do. [47] Applying for leave to appeal to the Supreme Court of Canada is not a prerequisite to applying for ministerial review under s. 696.1 of the Criminal Code. The appellant's claim requires us to consider what material must be produced to him in order to enable him to make the application for ministerial review contemplated by the Code. The fact an application for leave to appeal to the Supreme Court of Canada may be brought is not an answer to the argument an effective right to seek a ministerial review requires access to evidence for testing. [48] The judge concluded the appellant's right to pursue an application under s. 696.1 of the Code for a review by the Minister on the grounds of miscarriage of justice is a complete answer to his Charter claim. That amounts to saying there is no right to require disclosure of evidence other than evidence the Crown is obliged to disclose as exculpatory. [49] The chambers judge noted

(at para. 110) the Crown had acknowledged its obligation to disclose evidence or information that might bear on the issue of actual innocence or an unsafe conviction. Further, the assertion, founded on R. v. Girimonte (1997), 121 C.C.C. (3d) 33 (Ont. C.A.), and R. v. S.S.S. (1999), 136 C.C.C. (3d) 477 (Ont. S.C.J.), a superior court is always a "court of competent jurisdiction" with authority to grant the remedy for a Charter breach it considers appropriate and just in the circumstances, appears to have been unchallenged. That is so even where there are no outstanding criminal proceedings: Purdy v. Attorney General of Canada, 2003 BCSC 725, aff'd 2003 BCCA 447. There was, therefore, no bar to the exercise of the court's jurisdiction in the event there was found to be a breach of a duty of disclosure. [50] If there is a right in some circumstances to search for potentially exculpatory evidence, the right to ask the Minister to look for that evidence is not adequate protection of that right. The ability to urge the Minister to order DNA testing is not equivalent to a right to have access to that evidence. [51] In my opinion, the right to compel the Crown to produce evidence need not wait until the Minister decides whether to exercise the discretion to conduct an investigation and then to order DNA testing. Awaiting the outcome of a preliminary assessment of the case for review

before obtaining evidence in support of a review is not consistent with the scheme established by Parliament. Parliament has seen fit to formalize the process of ministerial review. As the court noted in Winmill (at para. 64), it is initiated by a request for an "extraordinary and highly discretionary remedy", and is not an appeal. The application leads to a preliminary assessment. That assessment leads to an investigation if (and only if) the Minister determines there may be "a reasonable basis to conclude that a miscarriage of justice likely occurred" (Regulations, s. 4(1); emphasis added). The appellant says untested materials have no persuasive power, but test results may have great persuasive power. [52] The appellant says the chambers judge should have defined the scope of the Crown's disclosure obligation before deciding that no case for a s. 24(1) remedy was made out. If there was a duty to produce the evidence sought, then the failure to produce it was a Charter breach, and the appellant was entitled to a remedy unless it was clear the breach would occasion no prejudice. He says there is no legal basis, and none was cited by the judge, for the refusal to order production of evidence the Crown is obliged to disclose. He contends it was an error in principle for the chambers judge to fail to order the Crown to make disclosure under s. 24(1) of the Charter simply because

the Minister might obtain and examine the evidence. [53] The chambers judge rejected the argument the appellant should be able to conduct DNA testing in support of his application by reframing the question. In his view: [104] ... [T]he 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. ... [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. [54] With respect, I agree with the appellant that an applicant for ministerial review should not have to base his application for review on the argument new, more effective, tests may be conducted rather than founding his application on the fact that test results speak to his innocence. The absence of a coercive power to gain access to exhibits and evidence is amply described as a legislative gap in the jurisprudence and literature to which we have been referred. [55] There is

clearly a world of difference between an application supported by new DNA evidence and an application supported only by the allegation certain evidence has not been tested or more precise tests may now be conducted. Cogent DNA test results may meet the test for advancing from application to investigation, whereas suspicion other or better evidence may be available may not satisfy the Minister that a miscarriage of justice likely occurred. [56] I agree with and adopt Justice Perell's description of the shortcomings of the procedures of Part XXI.1 in Albon. [57] First: the Minister is under no obligation to exercise the discretion under s. 696.2(2) or (3) to order an investigation. The Minister is not required to conduct an investigation and is only required to conduct a "meaningful review" of the application: Hinse v. Canada (Attorney General), 2015 SCC 35 at para. 68. [58] Second: the Minister is unlikely to order an investigation and make a post‑conviction disclosure order unless the application identifies new matters of significance, but the applicant may need to conduct an investigation to determine whether there are such new matters of significance. [59] This shortcoming of the Part XXI.1 process was identified by Justice MacCallum in the Report of the Commission of Inquiry into the Wrongful Conviction of David Milgaard (September 2008) [Milgaard Inquiry Report] (which

contains a very comprehensive and useful description of the evolution of the Canadian process for the post‑appeal review of convictions) as follows, at 364: The process remains reactive. The federal Minister does not conduct a proactive investigation on receipt of an application, but rather relies on the applicant, lacking in investigative expertise, to identify the grounds for an alleged miscarriage of justice. The test for the exercise by the Minister of his or her discretion to refer a matter to the Court system has not changed. Finally, the decision as to whether a convicted person can have access to the Court to challenge a conviction still lies with the federal Minister, an elected politician. [60] Third: if the Minister does decide to investigate, 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: Thatcher at para. 15. [61] Perell J. noted in Albon (at para. 114) the absence of means to obtain post‑conviction disclosure has been identified as a problem in two Royal Commissions of Inquiry about wrongful convictions, the Milgaard Inquiry Report and the Report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell (January 2007) [Driskell Inquiry Report]. [62] As the chambers judge observes, it would be open to the

appellant to argue on judicial review that the Minister failed to respect Charter values as part of a challenge of the merits of the decision not to order an investigation. However, the availability of that remedy does not put the appellant in the position he would occupy if entitled to access the exhibits himself. If the applicant's right to production of evidence for testing need not be enforced because the applicant can seek judicial review of the Minister's assessment of the s. 696.1 application, the applicant will have no right to examine the evidence himself. Further, his right to disclosure is, in effect, limited to a review, by the Minister, of the material the Minister can be compelled by judicial review to obtain and examine. Given the broad discretion enjoyed by the Minister, that may be very limited disclosure. The right to ask the Minister to consider testing the evidence, even if coupled with a right to challenge the exercise of the discretion, is not the equivalent of or a substitute for a right to access and test the evidence. [63] With respect, I agree with the appellant that the chambers judge's narrow approach to the exercise of his discretion to afford the appellant a s. 24(1) remedy precluded the appellant from taking full advantage of the ability afforded to him by Parliament to access the scheme embodied in the Code. In my view, to paraphrase an

expression used in District Attorney's Office (Third Judicial District) v. Osborne, 557 U.S. 52 (2009), cited below, the Code provisions are "fundamentally inadequate to vindicate the substantive rights provided". Crown Duty of Disclosure Following Conviction [64] The chambers judge rejected (at para. 90) the appellant's contention an applicant for ministerial review is entitled to receive, and the Crown has a duty to disclose, information in its possession simply because "there is a reasonable possibility it may assist" in making the application. [65] While the chambers judge ultimately concluded it was unnecessary for him to define the scope of the Crown's post‑conviction disclosure obligations, he described the disclosure obligations of the Crown generally as follows: a) The Crown has constitutional disclosure obligations that continue after conviction and throughout the appellate process, the purpose of which is to maximize protection against wrongful convictions: R. v. Trotta (2004), 23 C.R. (6th) 261 (Ont. C.A.) at paras. 23-24; R. v. McNeil, 2009 SCC 3 at para. 17; and R. v. Tallio, 2017 BCCA 259. b) The R. v. Stinchcombe, [1991] 3 S.C.R. 326, standard is inappropriate, in the post‑conviction period, as a convicted person is no longer presumed innocent and has exhausted the right to make full answer and defence: Trotta at para. 23. c) In the post‑appeal period, the Crown

has a duty to disclose new exculpatory information that comes to its attention. There are cases where the exercise of that less broad duty to disclose has led to the identification of a potential miscarriage of justice: R. v. Henry, 2010 BCCA 462 at para. 27 and R. v. Dhillon, 2014 BCCA 480 at para. 10 d) However, there is no common law duty imposed on the police and prosecution to respond to every request for further inquiry which may be made of them on behalf of those who dispute the correctness of their convictions. At the pretrial and trial stage, "it is prejudice to an accused's right to make full answer and defence that justifies a s. 24(1) remedy" (at para. 87). At the post‑appeal stage, no corresponding principle of fundamental justice exists which would justify the expansive post‑appeal disclosure obligation claimed by the petitioner. [66] The appellant says the principle of fundamental justice that the innocent must not be subject to conviction (described by, among others, McLachlin J. (as she then was) in R. v. Seaboyer, [1991] 2 S.C.R. 577 at 606), requires not only the disclosure of exculpatory evidence discovered after conviction (as described in Chaudhary v. Ontario (Attorney General), 2012 ONSC 5023 at para. 60, aff'd 2013 ONCA 615; Nunn v. Chief Constable of Suffolk Constabulary, [2014] UKSC 37 at paras. 30, 35, and 42; and R. v. Hyra, 2014 MBQB 213 at para.

12, aff'd 2017 MBCA 1), but also there be a means of effectively challenging convictions after the exhaustion of appeals by finding potentially exculpatory evidence. [67] In Nunn, the UK Supreme Court considered the extent of any continuing duty of the police and the Crown Prosecution Service to assist a person in gathering and examining evidence with a view to a further challenge to his conviction, after exhausting his appeals. The appellant argued the police, as the custodians of the exhibits and the other products of the investigation, were required to afford him access to evidence in support of the challenge. His counsel argued that in order to demonstrate to the Criminal Cases Review Commission this was a proper case in which it should launch a review, he needed to re‑investigate several matters. He asserted the Crown duty of disclosure continued, and remained as comprehensive, after conviction as before trial. [68] Lord Hughes for the Court described the origins of the Crown's duty of disclosure in the concept of "fairness" in the judicial process: 22. ... There is no doubt that this principle of fairness informs the duty of disclosure at all stages of the criminal process. It does not, however, follow, that fairness requires the same level of disclosure at every stage. [69] That conclusion was said to be consistent with the approach taken in other common‑law

jurisdictions, including New Zealand (The Queen v. Nepia (unreported) 3 October 2000 (NZCA)); the United States (Osborne); and Canada (Trotta): 32. After conviction, there is of course an important public interest in exposing any flaw in the conviction which renders it unsafe and in quashing any unsafe conviction, but there is also a powerful public interest in finality of proceedings. All concerned, including witnesses, complainants, the relatives of the deceased and others, have a legitimate interest in knowing that the legal process is at an end, unless there be demonstrated to be good reason for re-opening it. [70] These competing interests were considered by the chambers judge in the case at bar, but the public interest in exposing flaws in the conviction was considered to be fully addressed by the Crown's duty to disclose exculpatory evidence and the appellant's right to apply for review and to seek to have the Minister conduct an inquiry. [71] In England, the public interest was considered to be adequately protected by disclosure of exculpatory evidence and in the provisions of the legislation establishing the Criminal Cases Review Commission, s. 8 of the Criminal Appeal Act 1995 (UK), c. 35. [72] However, the provisions of that statute do not establish a threshold that must be overcome before the Commission may make an inquiry. A reference to the Court of Appeal may be

made by the Commission where appeals have been exhausted and there is a real possibility (as opposed to a likelihood) the conviction would not be upheld on a reference, because of an argument, or evidence, not raised in the proceedings which led to the conviction. The Commission may refer a case to the Court of Appeal on an application or on its own motion without application. Where the Commission believes inquiries should be made for assisting in the exercise of any of its functions, it may require the appointment of an investigating officer to carry out the inquiries. The Commission's authority to obtain opinions and reports is unrestricted. As Justice LeSage has noted, this independent inquisitorial body, on its own initiative, may commence a process like our s. 696.2 process after having been satisfied a relatively low threshold has been met (Driskell Inquiry Report at 121). For that reason, the adoption of the UK model of independent investigation was urged by Justice Cory in the Report of the Inquiry Regarding Thomas Sophonow (2001) and in the Milgaard Inquiry Report. [73] The Court in Nunn held: 39. The safety net in the case of disputed requests for review lies in the CCRC. That body does not, and should not, make enquiries only when reasonable prospect of a conviction being quashed is already demonstrated. It can and does in appropriate cases make enquiry to see

whether such prospect can be shown. It has ample power, for example, to direct that a newly available scientific test be undertaken. R v Shirley [2003] EWCA Crim 1976, a DNA case not unlike Hodgson, appears to be a case in which it did exactly that. What it ought not to do is to indulge the merely speculative. It is an independent body specifically skilled in examining the details of evidence and in determining when and if there is a real prospect of material emerging which affects the safety of a conviction. This exercise involves a detailed scrutiny of the other evidence in the case and a judgment on the likely impact of whatever it is suggested the fresh enquiries may generate. Whilst in principle the court retains control, via the remedy of judicial review, of the duty laid upon the police and prosecutors after the appeal process is exhausted, it is likely to determine, unless good reason for not doing so is provided, that relief by that route is inappropriate until the CCRC has had the opportunity to make a reasoned decision. [Emphasis added] [74] The Court expressed the hope that cooperation would lead to the production of evidence necessary to address challenges to convictions without the assistance of the Commission: 41. ... If there appears to be a real prospect that further enquiry will uncover something which may affect the safety of the conviction, then there should

be co-operation in making it. It is in nobody's interests to resist all enquiry unless and until the CCRC directs it. [75] However, the Court also described the scope of the Crown's post‑conviction duty of disclosure by adopting and approving, but also adding to, the Crown's formal disclosure policy as follows: 42. It is enough to determine the instant appeal that after conviction there is no indefinitely continuing duty on the police or prosecutor either in the same form as existed pre-trial or to respond to whatever enquiries the defendant may make for access to the case materials to allow re-investigation. The duty is properly stated at para 72 of the Attorney General's guidelines, ["Post conviction.

72. Where, after the conclusion of proceedings, material comes to light that might cast doubt upon the safety of the conviction, the prosecutor must consider disclosure of such material."] with the addition that if there exists a real prospect that further enquiry may reveal something affecting the safety of the conviction, that enquiry ought to be made. [Emphasis added.] [76] As noted by the UK Supreme Court in Nunn, the United States Supreme Court concluded in Osborne that the due process protection in the Fourteenth Amendment of the US Constitution does not require post‑conviction disclosure of the same order as that required before trial. [77] Chief Justice Roberts, writing for the majority in Osborne, canvassed the provisions in state laws describing the right of a convicted person to obtain evidence for DNA testing for the purpose of challenging a conviction after the exhaustion of direct appeals. In doing so, he noted the need for "certain conditions on access to the State's evidence" is well recognized (at 63). The statutes reviewed commonly required the applicant to establish the materiality of the evidence sought. Some required a sworn statement that the applicant is innocent. The statutes considered imposed a range of diligence requirements. [78] In Alaska, the state that generated the appeal, the applicable statute provided that if the applicant claims clear and

convincing evidence will establish his innocence, general discovery is available. The Court noted, (at 64): "Alaska courts have explained that these procedures are available to request DNA evidence for newly available testing to establish actual innocence." Further, (at 65): In addition to this statutory procedure, the Alaska Court of Appeals has invoked a widely accepted three-part test to govern additional rights to DNA access under the State Constitution. Drawing on the experience with DNA evidence of State Supreme Courts around the country, the Court of Appeals explained that it was "reluctant to hold that Alaska law offers no remedy to defendants who could prove their factual innocence." (citing decisions from other state courts). It was "prepared to hold, however, that a defendant who seeks post-conviction DNA testing . . . must show (1) that the conviction rested primarily on eyewitness identification evidence, (2) that there was a demonstrable doubt concerning the defendant's identification as the perpetrator, and (3) that scientific testing would likely be conclusive on this issue." Thus, the Alaska courts have suggested that even those who do not get discovery under the State's criminal rules have available to them a safety valve under the State Constitution. [Emphasis added; citations omitted.] [79] While the Court was unwilling to find due process generally imposes

post‑conviction disclosure obligations upon the prosecution, the Court found the statutory right to use newly discovered evidence as clear and convincing evidence of innocence was a state‑created right that could, "in some circumstances, beget yet other rights to procedures essential to the realization of the parent right" (at 68). [80] Chief Justice Roberts wrote, (at 69): The State accordingly has more flexibility in deciding what procedures are needed in the context of postconviction relief. "[W]hen a State chooses to offer help to those seeking relief from convictions," due process does not "dictat[e] the exact form such assistance must assume." Pennsylvania v. Finley, 481 U. S. 551, 559 (1987). Osborne's right to due process is not parallel to a trial right, but rather must be analyzed in light of the fact that he has already been found guilty at a fair trial, and has only a limited interest in postconviction relief. Brady [the pre-trial disclosure standard] is the wrong framework. Instead, the question is whether consideration of Osborne's claim within the framework of the State's procedures for postconviction relief "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental," or "transgresses any recognized principle of fundamental fairness in operation." Medina v. California, 505 U. S. 437, 446, 448 (1992)

(internal quotation marks omitted); see Herrera, supra, at 407-408 (applying Medina to postconviction relief for actual innocence); Finley, supra, at 556 (postconviction relief procedures are constitutional if they "compor[t] with fundamental fairness"). Federal courts may upset a State's postconviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided. [Emphasis added.] [81] In conclusion, the state relief procedures in question were found to be adequate (at 70): Alaska provides a substantive right to be released on a sufficiently compelling showing of new evidence that establishes innocence. It exempts such claims from otherwise applicable time limits. The State provides for discovery in postconviction proceedings, and has--through judicial decision--specified that this discovery procedure is available to those seeking access to DNA evidence. Patterson, 2006 WL 573797, *4. These procedures are not without limits. The evidence must indeed be newly available to qualify under Alaska's statute, must have been diligently pursued, and must also be sufficiently material. These procedures are similar to those provided for DNA evidence by federal law and the law of other States, see, e. g., 18 U. S. C. § 3600(a), and they are not inconsistent with the "traditions and conscience of our people" or with "any recognized principle of

fundamental fairness," Medina, supra, at 446, 448 (internal quotation marks omitted). [82] The appellant urges upon us a similar definition of the Crown's post‑conviction duty of disclosure. He places considerable weight upon the judgment in Albon. That case, like this one, was initiated by a petition for the production of material in the possession of the Crown, brought by an applicant for ministerial review of a murder conviction. As in this case, the Crown case against the accused was founded upon the accused's confession; however, the accused, unlike the appellant, had pleaded guilty and did not profess his innocence until 26 years after the murder. Ultimately, the petition was dismissed as premature because the applicant had not exhausted his right to appeal, and, therefore, he could not seek ministerial review, and he was able to enlist the aid of the Court of Appeal in support of his disclosure application. Further, the chambers judge was satisfied the Crown had disclosed all of the material in its possession. However, Perell J. addressed the claim for declaratory relief because he considered it to be "strongly in the public interest for the court to express an opinion on the uncertain legal issue of post‑conviction disclosure" (at para. 94). [83] After canvassing the Crown's pretrial disclosure obligations as described in Stinchcombe, the post‑trial disclosure

obligations as described in Trotta, and the post‑appeal obligations as described in Chaudhary, Perell J. considered whether there were any post‑appeal obligations other than those addressed in Chaudhary. He described the criteria that should be considered by a court on an application for a production order (at paras. 171-73). They reflect a duty to make post‑conviction disclosure broader than the simple obligation to disclose exculpatory evidence. [84] In my opinion, the Crown has an obligation to produce evidence or information to an applicant for ministerial review in some circumstances. The duty is not limited to disclosure of new, exculpatory evidence. It is a duty that must be defined in relation to the right embodied in the Code to apply for an inquiry into the conviction, to give effect to the intention of Parliament to codify a process for reviewing convictions on grounds of miscarriage of justice. [85] I turn to the scope of that duty. Criteria for Exercise of Discretion [86] What criteria should determine whether a disclosure order should be made before an application for ministerial review is made or, as here, while a decision is pending? [87] The appellant acknowledges the use that can be made of the evidence sought determines what disclosure should be made. In R. v. Johnston, 2019 BCCA 107, Griffin J.A. made this point as follows: [61] In my view, relevance must be

viewed in the context of the possible use of information contained in the records in a particular proceeding. The context for the possible use of the records at trial relates to the accused's right to make full answer and defence. That context informs broad disclosure on the part of the Crown. On appeal, the context is different and focuses on the accused's appeal rights. [62] I take support in this view that relevance should be defined by the possible use to which the information could be put, not only from [R. v. McNeil, 2009 SCC 3], but also from World Bank Group v. Wallace, 2016 SCC 15 [World Bank Group]. [88] On appeal, the purpose is to exercise effectively the right of appeal (including the right to seek leave to adduce new or fresh evidence). [89] In the post‑appeal period, the purpose of disclosure is to permit the applicant to exercise effectively the right to apply for ministerial review by submitting an application containing the information prescribed by the Regulations, showing an investigation is warranted by new matters of significance. [90] The appellant further acknowledges the duty of disclosure is not so broad as to require production of any evidence or information sought by an applicant for ministerial review. This reflects an appreciation of the concern identified in the following passages from the judgment in Johnston: [64] The leading authorities attempt

to put some reasonable parameters around the obligations of disclosure. They do so to ensure that the justice system does not become disproportionately overburdened in dealing with disclosure and grind to a halt or suffer delay in addressing more important issues. This is an important policy reason for subjecting applications for production of records to a relevance test, as noted repeatedly in the authorities, including Gubbins at para. 26, citing O'Connor; McNeil at paras. 28-29; and World Bank Group at paras. 130, 133. [65] For these reasons, the determination of what documents are relevant for production purposes in an appeal proceeding should take into account the context that appeals are generally brought based on the trial record and there is limited scope for the introduction of fresh or new evidence. [66] As stated in the last sentence of para. 17 of McNeil, the information to be disclosed by the Crown on appeal, consistent with its continuing duty to disclose, will be "any information in respect of which there is a reasonable possibility that it may assist the appellant in prosecuting an appeal" (emphasis added). This is similar to the test expressed in Trotta. [91] The appellant would impose only two limitations on a broad duty of post‑conviction disclosure. First, the appellant acknowledges there must be an air of reality to the applicant's request for ministerial

review. In this case the appellant says that test is met by establishing: (1) the appellant has maintained his innocence for many years; (2) the conviction is based in part on a confession made in circumstances that undermine its reliability (a Mr. Big scenario); and (3) the evidence of guilt is otherwise circumstantial. [92] Second, the appellant acknowledges disclosure is only required where there is a reasonable possibility the evidence sought may assist the s. 696 application. Here, the appellant says experience tells us DNA testing may produce valuable exculpatory evidence. [93] The appellant says it is not necessary to be concerned about opening the floodgates; there are few s. 696 applications, and the application of the criteria he proposes will eliminate vexatious applications. In any event, he argues concerns with respect to numerous applications should not animate the definition of the Crown's duty to those who seek to establish their innocence after exhaustion of appeals. [94] The criteria were addressed in Albon as follows: [171] I would adopt the analytical, contextual, and functional approach used by Justice Doherty in designing the criteria for post-conviction disclosure orders for the purposes of an appeal and apply that approach to establishing the criteria for a post-conviction disclosure order. [172] That approach leads to the tentative opinion that the

criteria for a post-conviction disclosure order in aid of a Ministerial Review is that the convicted person must demonstrate that: (a) the preconditions for a Ministerial Review have been satisfied; (b) the Minister has refused to make an investigatory order (under subsections 696.2 (2) or (3) of the Criminal Code); (c) there is a strong prima facie case that there has been a miscarriage of justice; (d) there is a reasonable possibility that a post-conviction disclosure order would provide evidence of new matters of significance that were not considered by the courts or previously considered by the Minister; and (e) the new matter(s) of significance would assist the applicant on the Ministerial Review application in demonstrating that there has been a miscarriage of justice. [emphasis added] [95] By implication, Perell J. would say the Crown has a duty to make disclosure where the criteria are met, the failure to make such disclosure is a breach of a Charter right, and the breach permits the court to make a s. 24(1) order. [96] The threshold defined by Perell J. poses two obstacles to applicants in the appellant's circumstances. First, he describes a duty to make disclosure after the Minister has refused to make an investigatory order. In that respect, the judgment in Albon is consistent with the order of Silverman J. in the case at bar. [97] Further, Perell J. would require

the applicant to establish not only that there is an air of reality to the application for ministerial review, but there is a strong prima facie case that there has been a miscarriage of justice. [98] In my view, these criteria are difficult to reconcile with the view that there is a duty to produce such evidence to an applicant as may be necessary for the purposes of effectively applying for ministerial review, the breach of which gives rise to a s. 24(1) remedy. [99] There is a rationale for deferring the exercise of the court's discretion to make a s. 24(1) order until after the other means of obtaining the evidence (a ministerial investigation) is complete. However, it is difficult to see how a strong prima facie case that there has been a miscarriage of justice may be made out before material evidence is produced to an applicant. It seems to me the criteria described in Albon will be met in very few circumstances. Where there is a strong prima facie case that a miscarriage of justice has occurred, the Minister's refusal to conduct the testing sought by an applicant may ground a successful application for judicial review, as suggested by the chambers judge in this case. In those cases where the case for review is strong, before the DNA testing or examination of evidence is sought, judicial review may afford a sufficient remedy and resort to s. 24(1) will be unnecessary.

However, in cases where the evidence sought is necessary to make out the strong prima facie case, judicial review may be ineffectual. [100] In short, the criteria do not assist an applicant who contends untested evidence may reveal new evidence of significance undermining a conviction. I find it difficult to see how use of the criteria identified in Albon will address the shortcomings in the ministerial review process identified by Perell J., and by others. The Milgaard Inquiry Report noted a system that places the onus upon an applicant to overcome a threshold before an inquiry is commenced and has no coercive power to gain access to documents such as police and Crown files is flawed (at 373). [101] As we have seen in Nunn, the UK Supreme Court held the Crown has a post‑conviction duty not only to disclose exculpatory evidence, but to make enquiries where there exists a real prospect further enquiry may reveal something affecting the safety of the conviction. Osborne canvasses US statutes that commonly require the applicant for disclosure to show some fundamental frailty in the conviction, and a likelihood the evidence sought will produce a conclusive result. [102] These cases seek to define how the principle of fairness should inform the duty of post‑conviction disclosure. Here Parliament has established a process to apply for ministerial review that calls for the applicant

to overcome a hurdle before the Minister is required to investigate. Fairness requires the applicant have some means of making an application founded upon evidence, not mere speculation. This fundamental problem has been frequently addressed in reports of commissions of inquiry into wrongful convictions. [103] Justice LeSage observed, for example, in the Driskell Inquiry Report (at 121): Driskell could not launch an application until he had sufficient disclosure to satisfy the Department of Justice standard for launching a section 696.2 review. However, the [Winnipeg Police Service] would not make disclosure for purposes of a section 696.2 review until Driskell's application was made. This is a classic 'catch 22' situation. [104] The Crown, in my opinion, has a duty to produce such evidence as may reasonably be required by an applicant in support of an application for ministerial review. The right to such disclosure hinges upon the applicant establishing: a) the preconditions for a ministerial review have been satisfied; b) the evidence or information sought may establish that there exists a new matter of significance not considered by the courts or previously considered by the Minister; and c) the new matter of significance will be material to the Minister's assessment of whether there may be a reasonable basis to conclude that a miscarriage of justice likely occurred. [105]

The last criterion does not require the Crown (or the court on application) to address the ultimate question: whether a miscarriage of justice likely occurred. Nor is it necessary to address the preliminary question before the Minister; whether there may be a reasonable basis to conclude a miscarriage of justice likely occurred. Rather the question, at this stage, is whether the evidence sought is material to the preliminary assessment. [106] The respondent contends the test for production will be overly broad if the Crown is obliged to assume testing the items sought will produce an exculpatory result. In my opinion, the criteria I would use do not mandate any such assumption. The applicant must establish there is a reasonable possibility the tests will produce significant new evidence. Further, a production order sought should not be granted if the conviction is unlikely to be undermined by such new evidence. On the other hand, the applicant need not establish that a finding there was a miscarriage of justice is a likelihood, or that the evidence will establish his innocence, before his application can be considered. [107] I agree with the view expressed by the chambers judge that the court should not duplicate or trench upon the scope of the inquiry of the Minister, but I see no obstacle to the court exercising its jurisdiction to order the production of evidence to an

applicant in order to ensure an application for ministerial review may fairly be presented. For that reason, the test for disclosure I have described is directed entirely to the process of making an application for ministerial review. Application of Those Criteria [108] In my view, it is appropriate for us to consider the application for production of the evidence sought on the merits, rather than remitting the petition for rehearing in the trial court. The criteria I would consider have been adequately canvassed in the submissions, and the evidentiary record is sufficient to permit us to weigh them. [109] The preconditions for a ministerial review have been satisfied. The appellant has exhausted his appeals. He did not apply for leave to appeal the dismissal of his conviction appeal to the Supreme Court of Canada, but such an application is not a precondition to an application for ministerial review. [110] The DNA testing he seeks to conduct is intended to produce new evidence of significance that was not considered by the courts. Limited DNA tests were performed at the time of the appellant's trial, using analysis of restriction fragment length polymorphism (RFLP). The evidence before the chambers judge was that recently developed polymerase chain reaction (PCR) analysis has permitted the identification of DNA on very small samples and small items, such as the ligatures,

fingernail cuttings, cigarette butts, and hairs the appellant seeks to test. [111] The respondent argues the primary method of DNA testing the appellant intends to rely upon (Y‑STR analysis) produces results that cannot be searched against the National DNA Data Bank, and it is not as discriminating as traditional STR testing. [112] The respondent says, further, there is a significant chance testing will not produce a useful result: a) there is a limited chance of recovery of any useable DNA on some of the exhibits; and b) the exhibits may have been contaminated during the 27 years since they were first handled by anyone; all could contain the DNA of a police officer or anyone else who handled them. [113] There is no evidence before us with respect to whether all the items the appellant seeks to test are amenable to DNA testing. It is not suggested, however, there is no possibility new evidence of significance will be produced by DNA testing or, on that ground alone, the application should be dismissed. The appellant has described the nature of the tests he proposes to conduct and the potential of those tests to produce new evidence. In my view, he cannot be asked to demonstrate he can obtain significant new evidence before conducting the tests. It is enough to show there is a reasonable possibility of obtaining such evidence. In my view, that test is met. [114] The critical

issue in the case is whether the third criterion is satisfied: whether the DNA results the appellant seeks to obtain by testing the physical evidence will be material to the Minister's decision whether to conduct an investigation of the conviction. [115] This requires consideration of two questions: (a) whether the DNA evidence sought can be exculpatory (assuming the items sought are amenable to testing); and (b) whether the conviction is likely to be undermined by such exculpatory evidence. The Potential Weight of the DNA Evidence [116] In Nunn, the UK Supreme Court discussed the potentially exonerative weight of DNA evidence as follows: 40. The advances of science mean that from time to time it will become possible to undertake tests which were not available earlier. This possibility presents just one example of the approach set out above. Sometimes such tests will be potentially determinative of guilt . In other cases they will be simply speculative, either because there is great uncertainty about whether any result can be obtained or because any result will be consistent both with guilt and innocence. The difference between the two cases has given rise in the USA to debate about the extent of any right to re-testing especially if it is likely to be conclusive. Osborne, referred to above, records some of the debate and the fact that a large number of US states have made

legislative provision for such testing in defined circumstances. There is, however, no body such as the CCRC in the United States, which can decide in an appropriate case to require testing. Here, there is. [117] The appellant's theory is that the victims' assailant's DNA will be present upon some of the exhibits he wishes to have tested. If multiple exhibits bear the same DNA (and it is not that of Mr. Roberts or a family member), that will be powerful exculpatory evidence. He urges upon us the approach described by Bennett J.A. in R. v. Tallio, 2018 BCCA 83, in the context of a similar application for DNA testing: "the mere exploration of a possible source of expert evidence should be sufficient to release the sample" (at para. 34); see also R. v. Hay, 2010 SCC 54. [118] The respondent says the exhibits the appellant seeks to test will not have significant exculpatory or exonerative weight. He notes that in Tallio the court was considering an application for the production for testing of samples of the victim's uterine tissue, material unlikely to produce DNA of anyone other than the victim and her assailant. Because this is not such a case, the broad statement in Tallio, the respondent suggests, is not applicable. [119] The respondent contends identification of DNA of persons unrelated to the appellant or police on the items the appellant seeks to test will not be

exonerative for the following reasons: a) DNA on the exhibits could match the DNA of the people in close proximity to the victims, first responders, the witnesses who located the items and the court clerk who removed items from the exhibit bag; and b) there is no evidence two of the exhibits are connected to the murders at all: a cigarette butt found in an open area by a roadway near the appellant's son's body, and a partially burnt scarf found about 400-500 metres from the appellant's home. [120] It is the respondent's position that excluding the appellant as the source of DNA that might be found on the exhibits will not exonerate him, even putting those contamination issues aside. The Strength of the Crown Case [121] The appellant says there are frailties in the Crown case, such that the case would not withstand significant new DNA evidence. The appellant says his conviction was based primarily on a confession made in the context of a "Mr. Big" operation run by the police. He says the confession is problematic for many of the reasons identified in R. v. Hart, 2014 SCC 52. Both the circumstances in which the confession was made, in particular the presence of a threat, and the absence of markers of reliability should cast some doubt upon its reliability. [122] Insofar as the circumstances are concerned, the appellant says the scenario employed by the police suggested his

girlfriend was in danger unless he gave them a reason to trust him. This created an incentive to confess, even if the confession was false. [123] Insofar as the markers of reliability are concerned, as Moldaver J. observed in Hart: [105] After considering the circumstances in which the confession was made, the court should look to the confession itself for markers of reliability. Trial judges should consider the level of detail contained in the confession, whether it leads to the discovery of additional evidence, whether it identifies any elements of the crime that had not been made public (e.g., the murder weapon), or whether it accurately describes mundane details of the crime the accused would not likely have known had he not committed it (e.g., the presence or absence of particular objects at the crime scene). Confirmatory evidence is not a hard and fast requirement, but where it exists, it can provide a powerful guarantee of reliability. The greater the concerns raised by the circumstances in which the confession was made, the more important it will be to find markers of reliability in the confession itself or the surrounding evidence. [124] The appellant says his confession did not lead to the discovery of any new evidence, and several of the details in the confession were incorrect. These included the manner in which one of his sons died, how the fire that destroyed the

family home started, what his wife was wearing when she was killed, and what rope was used to commit the murders. To the extent details of his confession were corroborated by physical evidence, the appellant says they were based on publicly available information or information provided to him during the investigation. [125] Finally, the appellant says the fact a purple bag removed from the family home was found near the site at which his son's body was found, a month after the area had been thoroughly searched, and after the appellant had been placed under surveillance, strongly suggests it was placed there by another person. [126] The respondent comprehensively describes the case made out against the appellant at trial, and the extent to which the frailties in the Crown's case were addressed on his conviction appeal, R. v. Roberts (1997), 90 B.C.A.C. 213, albeit in the context of the pre‑Hart standards for consideration of confessions generated as a result of the "Mr. Big" investigative strategy. [127] The respondent denies the suggestion the conviction was based primarily on the Mr. Big confession. He notes there was a motive, a desire to start a new life, manifested in his conduct and a $200,000 insurance policy the appellant had taken out on his wife's life about four weeks before she was murdered, and the means and opportunity to commit the murders. [128] The respondent

notes the appellant's suggestion that the confession erroneously described the cause of death of one of his sons is founded upon contested expert evidence. There is, in the confession, significant detail unknown to the public that was corroborated by physical evidence. [129] He notes in the reasons dismissing the appellant's appeal, Hall J.A. summarized the confession (at para. 7): he told the police that he was the killer of his wife and the twins. He gave [one of the two undercover operatives] detailed information about his preparation for the killings and furnished considerable detail about the murders of the wife and the twins and how he set the fire. [130] Hall J.A. concluded (at para. 16), "there was a wealth of correct detail furnished by the appellant to the undercover operatives ". [131] In particular, the respondent says the investigators treated the cause of death (and the manner in which the appellant's wife was strangled) as holdback, and there is no indication the holdback information was not safeguarded by the police. A review of the file did not locate any indication the appellant was given any information regarding the cause and manner of death of the appellant's wife and one of his sons prior to his confession to the undercover operators. However, the respondent acknowledges there was speculation amongst the appellant's family members that the appellant's wife

was strangled. [132] The respondent points out the jury was carefully instructed by the trial judge with respect to the obligation to treat the appellant's confession with caution, but was nevertheless satisfied the appellant's confession was highly reliable. [133] With respect to the discovery of the purple bag a month after the murders, the respondent says this evidence was thoroughly canvassed at trial. There is evidence to suggest the purple bag could have been overlooked during the initial search, and the appellant was not under constant surveillance throughout the relevant time. The respondent says there is no real evidence of another killer. Discussion [134] The respondent does not contend there is no reasonable possibility the testing proposed by the appellant can produce any significant new evidence but says, rather, it is unlikely to do so. [135] I agree that the identification of the DNA of an unknown third party on any individual item tested will not be of significant probative value and is, therefore, unlikely to be material to the Minister's preliminary assessment of the application. Indeed, the appellant does not found his application upon the possibility of finding DNA of unknown third parties on individual items. Rather, he hopes to find the DNA of an offender registered in the National DNA Data Bank or, in the alternative, the DNA of an unknown person on

multiple items from different locations. [136] If there is a reasonable possibility that result will be obtained, in my view, the appellant should be able to look for it if he can establish such a result will be material to the Minister's preliminary assessment of the merits of his application. [137] That question of materiality is the most difficult question in this appeal. As the respondent points out, the supposed frailties in the conviction identified by the appellant were considered by this Court and dismissed on the conviction appeal. In the circumstances, it is difficult to see a reasonable basis to conclude a miscarriage of justice likely occurred in this case in the absence of new significant DNA evidence. [138] On one hand, that is a reason to permit the appellant to have access to evidence for the purpose of making a case at the preliminary assessment stage. On the other hand, it suggests that even the new evidence he hopes to obtain may not affect the Minister's consideration of whether there is a reasonable basis to conclude a miscarriage of justice likely occurred. [139] The appellant addresses the importance of the new evidence he seeks by asking whether the evidence of identity in this case is so overwhelming that the presence of a third party's DNA (even the DNA of an offender registered in the National DNA Data Bank) would make no difference to the Minister's

inquiry. If such evidence would be material to the Minister's preliminary assessment of the application, the appellant says there is no compelling reason not to order the release of the evidence for testing. [140] The appellant says where identity is in issue, the only evidence of guilt is dangerous evidence, an offender has over many years consistently maintained his innocence, and the evidence sought may inculpate or exculpate the applicant, access to the potentially exculpatory evidence should be afforded to him. Disposition [141] While I am of the view this is a borderline case because of the strength of the Crown's case against the appellant, and this Court's previous assessment of the reliability of his confession, I conclude, on balance, the appellant has met the criteria set out in para. 104 above, and I would allow the appeal. I would grant the appellant access to such of the exhibits he seeks as can be located by the Crown and the police and produced to him. They should be produced on terms agreeable to the appellant and the Crown so as to permit testing but preserve and protect the evidence. If terms for production and testing or submission of results, if any, to the RCMP for comparison with samples in the National DNA Data Bank cannot be agreed upon, the appellant should have leave to apply to this Court for directions. [142] I would allow the appeal to ensure

effective access to the ministerial review process established by Parliament. While that process may occasionally result in costly and ineffectual review of well‑grounded convictions, it is established with the intention of giving effect to the fundamental precept that the innocent must not be convicted. "The Honourable Mr. Justice Willcock" I agree: "The Honourable Mr. Justice Grauer" I agree: "The Honourable Mr. Justice Voith"