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Minister's conclusion wrongful

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Deveryn Ross, who occasionally writes for this newspaper, recently had a big day in the Federal Court of Canada. Ross was convicted in 1995 in Brandon on two counts of fraud. He's been protesting his innocence and fighting the case ever since, including all the way to the office of federal Justice Minister Rob Nicholson.

In 2010, the minister refused to accept that a miscarriage of justice had likely occurred to Ross and dismissed the application. Ross is challenging the decision in Federal Court.

After hearing about the lengthy history of the case, I got hold of many hundreds of pages of documents and read them to see what it was all about. As one who was at the centre of the David Milgaard case, which led to significant reforms in the way the Criminal Code addresses wrongful convictions, I was interested in, and then quite startled by, the approach taken by the minister.

There are many things asserted by Ross in his application, but there are two concerns that seem especially noteworthy. I say this not as a partisan on behalf of Ross but as one who is interested in criminal justice in Canada.

In my view, the minister's decision appears to be a serious step backward from the intent of Sec. 696.1 of the Criminal Code, and an even more worrisome departure from a fundamental rule of criminal trial fairness that was established by the Supreme Court of Canada many years ago in a case known as R v Stinchcombe.

In that case, the Supreme Court placed a premium on the importance of disclosure by the Crown to the defence of all relevant evidence that is both helpful and even potentially unhelpful to the Crown's case. This has become a core principle to the definition of a fair trial, and it's been emphasized in commissions of inquiry that have looked into wrongful convictions in Canada and elsewhere in the world.

Justice John Sopinka, on behalf of the court, wrote, "The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted."

Referring to the Donald Marshall wrongful conviction inquiry, he went on to note, "Recent events have demonstrated that the erosion of this right due to non-disclosure was an important factor in the conviction and incarceration of an innocent person."

In the Ross case it turns out that there was a great deal of undisclosed material, relevant and reliable information regarding the most damning witnesses who testified against Ross. Some of the information was known to the Crown at the time of the trial and some was uncovered after the trial and appeal process was completed.

The trial judge did not have the benefit of hearing and assessing this evidence when he determined whether Ross should be found guilty or not guilty.

By definition, I suggest that this makes the proceedings against Ross legally unfair.

When Ross's defence lawyer learned of all this information after the trial, he provided evidence to the minister of justice that he would have approached the trial much differently. The position of Ross's defence lawyer reminds me very much of what David Milgaard's original trial lawyer said at the inquiry into that wrongful conviction.

This perspective of the defence lawyer is not merely anecdotal because how that lawyer approaches an overall theory of the case and each witness in it is completely driven by the disclosure of the nature of the case itself, i.e. the evidence.

However, rather than accepting at face value that a trial is unfair where there has been a failure to disclose relevant, reliable and material evidence, in dismissing Ross's application the minister seems to have taken on a judicial role by weighing the potential impact of that evidence.

The minister is to make a threshold determination whether there is a reasonable basis that a miscarriage of justice has likely occurred. I believe that where there is a failure to provide discloseable and relevant evidence, the Supreme Court has been clear that a trial is unfair, and therefore in my view, any conviction flowing from it must be a miscarriage of justice.

The minister's role under Sec. 696.1 is not to act in judgment of the relevant, reliable and material evidence that is presented to him.

The law provides that the minister can refer the case back to a court, for a neutral and impartial assessment of the evidence, and that is what Ross was seeking.

In other words, once the threshold question has been answered in the affirmative, the role of the minister is to get the case back to a court where the evidence can be heard and adjudicated. That's exactly what the courts are established to do.

What worries me about this case are the potentially broader implications to the operation of the criminal justice system. Is this a signal from the minister that non-disclosure by the Crown in violation of the rule in Stinchcombe isn't serious enough to warrant the intervention of the minister of justice?

If we want to fairly and resolutely enforce the criminal law, we have to mean it in every respect. Rules requiring disclosure are an essential element of preventing wrongful convictions, and for the sake of all of us who could be swept up in that nightmare, we can only hope that the federal court will correct the erroneous approach taken by Minister Nicholson.


David Asper is a professor of law at Robson Hall, University of Manitoba.

Republished from the Winnipeg Free Press print edition April 18, 2013 A15

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