Deveryn Ross has always wanted another chance to go to court and prove his innocence. Now he'll get that chance in the highest court in the province.
Sources confirmed federal Justice Minister Peter MacKay will refer Ross's case back to the Manitoba Court of Appeal to review new evidence. It is the first time a Manitoban claiming innocence has had his case referred back to the appellate court.
"What this does is give me the opportunity to show that this isn't a guy trying to get off on a technicality," Ross said. "This is my opportunity to really get rid of the cloud."
Ross was convicted in 1995 of two counts of fraud in connection with a failed restaurant investment in Brandon. He spent five months in the Brandon Correctional Centre.
Ross's claim of wrongful conviction is supported by hundreds of pages of undisclosed evidence. These include documents from the Manitoba Securities Commission that show 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.
There is also evidence the prosecutor was aware of the securities commission proceedings during Ross's trial, but failed to disclose that evidence to the defence.
Ross applied to Ottawa in 2004 for a review of his case under Sec. 696 of the Criminal Code, which allows the justice minister to quash a conviction if new evidence shows there is a "reasonable basis to conclude that a miscarriage of justice likely occurred."
A federal investigator completed a review of the case in 2009. His report confirmed Ross had been denied numerous key pieces of evidence.
Despite these findings, in 2010 then-justice minister Rob Nicholson denied Ross's application for a new trial, arguing the non-disclosure would not have affected the verdict. Believing Nicholson had ignored legal precedents and overstepped his authority under the Criminal Code, Ross and his lawyers decided to challenge the justice minister in Federal Court.
In a decision last month, Justice Richard Mosley soundly rebuked Nicholson for ignoring the standards for review under Sec. 696 and ordered Ottawa to reconsider the new evidence in Ross's application.
Although this was a victory for Ross, it was unclear how long MacKay would take to review the case a second time. To everyone's surprise, the Justice Department's criminal convictions review group notified Ross and his lawyers last week that MacKay had decided to send the case to the Manitoba Court of Appeal, just over a month after Mosley's decision.
It was unlikely, given the tone of the Federal Court decision, for MacKay to dismiss Ross's application outright.
Ross's lawyers had asked, on the strength of the new evidence, that the original conviction be quashed and that Manitoba be ordered to hold a new trial. That would have forced Manitoba Attorney General Andrew Swan to either stay charges, proceed with a second prosecution, or hold a hearing at which no evidence would be called, which would result in an acquittal.
It is, at this point, not clear what questions MacKay will put before the court. In every case where a federal justice minister has referred a 696 application to an appellate court, there have been specific questions attached. Those have not been provided to Ross's lawyers.
However, in almost all instances where Ottawa has asked an appellate court to weigh in, at the very least the original conviction was quashed.
In 1991, Ottawa referred David Milgaard's case to the Supreme Court of Canada to review new evidence. Following hearings, the high court recommended the federal justice minister quash Milgaard's conviction and directed Saskatchewan to hold a new trial. Saskatchewan declined to do so, entering a stay of proceedings.
Ross's lawyers believe this option, at minimum, is available to the Manitoba court. However, given the amount of time that has transpired and the fact several key witnesses have died, it is unlikely Manitoba would elect to proceed with a new trial, if asked.
In that scenario, the appellate court becomes even more important. A hearing before the Appeal Court is not a trial, but extraordinary hearings such as this will see many of the features of a trial: Evidence will be called, witnesses will testify and arguments will be made both for and against Ross's claims of innocence.
If nothing else, at that hearing, the public will learn for the first time the full extent of the new evidence. Even for laypersons, this should provide a full and clear picture of whether or not Ross received a fair trial and whether he should have been on trial at all.
After all is said and done, enlightenment is also an act of justice.