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A decision that reaffirms the rule of law

Former Brandon lawyer waited years for justice

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Deveryn Ross is happy he'll have a chance to clear his name following a fraud conviction in 1995.

JAMES O'CONNOR / BRANDON SUN FILES Enlarge Image

Deveryn Ross is happy he'll have a chance to clear his name following a fraud conviction in 1995.

It was a historic victory for a Manitoba man who has fought for nearly 20 years to prove his innocence.

This week, Federal Court Justice Richard Mosley delivered a stern rebuke to former justice minister Rob Nicholson for ignoring facts and the rule of law in turning down a bid by former Brandon lawyer Deveryn Ross for a review of his 1995 fraud conviction.

Mosley also took the unprecedented step of tasking current Justice Minister Peter MacKay to re-examine Ross's claims of innocence.

The federal Justice Department declined comment. Ottawa has 30 days to decide whether to file notice with the Federal Court of Appeal. Mosley's decision, however, makes an appeal seem an unlikely course of action.

Mosley found Nicholson erroneously applied the law and dismissed the findings of his own investigator. He wrote the decision "lacks justification, transparency and intelligibility and does not fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law."

Mosley was not asked for an opinion on the facts of Ross's case. However, he noted some of the evidence withheld from Ross at his original trial would not only have discredited the Crown's two star witnesses, but also proved the witnesses were the ones who deceived Ross and not the other way around.

"This gives me another shot at justice," Ross said. "And that's all I've wanted."

It would be an understatement to say the wheels of justice have moved slowly in this case. Ross was convicted in 1995 of two counts of fraud in connection with a failed restaurant investment in Brandon and spent five months in Headingley Correctional Centre.

The crux of Ross's case involves undisclosed documents from the Manitoba Securities Commission that showed the Crown's two star witnesses -- mutual-fund salesmen Sheldon Gray and William Knight -- admitted responsibility for many of the misdeeds that formed the charges against Ross.

Ross applied to Ottawa in 2004 for a review of his case under Sec. 696 of the Criminal Code, which allows the attorney general to quash convictions if there is a "reasonable basis to conclude that a miscarriage of justice likely occurred."

A federal investigator was assigned to the case right away, but it took until 2009 for a report to be completed. The report confirmed Ross had been denied several key pieces of evidence. Despite these findings, in 2010 Nicholson denied Ross's application for a new trial arguing although there was non-disclosure, it would not have affected the verdict. That's when Ross took the unusual step of challenging Nicholson in Federal Court.

In his decision, Mosley found Nicholson stepped well outside the parameters of the law and legal precedent in rejecting Ross's application.

Specifically, Mosley noted Nicholson erred when he focused on whether or not the new evidence would have changed the verdict, rather than the fairness of the trial.

Sec. 696 requires the minister to focus on the issue of fairness rather than innocence. In other words, to quash a conviction, the minister must only be satisfied the applicant was denied a fair trial. It specifically bars the minister from making a determination of guilt or innocence; those are findings only a court of law can deliver.

If Mosley had upheld Nicholson's decision, it would have trashed 30 years of legal precedents and undermined the entire process for reviewing claims of wrongful conviction.

Phil Campbell, one of Ross's lawyers, said this decision upholds some of the most important principles in the criminal justice system. "This makes clear that the minister is bound by law," Campbell said. "It is a reaffirmation of the rule of law."

David Asper, a law professor at the University of Manitoba and a key member of David Milgaard's defence team, said the Mosley decision is an important reaffirmation of the role of the minister in wrongful-conviction cases.

"The minister is not to act as a judge on the merits of the case," Asper said. "The minister's role is to determine whether there is enough evidence to warrant sending the case back to a judge for that purpose."

Assuming that at some point MacKay will re-examine Ross's application, he will then have several options. He could find another reason to dismiss the application, although Mosley's decision makes it abundantly clear Ross achieved the standard required under the Criminal Code for ministerial remedy.

If MacKay finds merit in Ross's claims, he can send the new evidence to an appellate court for additional review or quash the conviction outright. If he takes the latter step, MacKay can either ask Manitoba to consider a new trial or direct that no trial be held.

If there is anything lacking in the Mosley decision, it is that he did not set a deadline for MacKay to reassess Ross's application. After 10 years, it is obvious Manitoba Justice and Ottawa have clearly and deliberately tried to run out the clock on Ross.

There may still be a disagreement about the merit of Ross's claims. But surely all sides can agree 10 years is too long to wait for justice.

dan.lett@freepress.mb.ca

Republished from the Winnipeg Free Press print edition April 9, 2014 A6

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