A-115-84
Robert George Wilson (Appellant)
v.
Minister of Justice (Respondent)
Court of Appeal, Heald, Mahoney and Stone
JJ.—Winnipeg, May 27 and 29, 1985.
Practice — Declaratory relief — Available only in action —
Application by originating notice of motion — Judge may
dismiss on procedural ground or deem proceedings properly
commenced on consent if agreed statement of facts placed on
record — Trial Judge disposing of application on merits
though crucial facts remaining in issue — Federal Court of
Appeal unable to determine truth where conflicting evidence —
Trial required where witnesses testify and are cross-examined
— Appeal dismissed with costs but without prejudice to
commencing action.
Crown — Royal prerogative of mercy — Minister of Justice
rejecting Code s. 617 new trial application — Conflicting
evidence in form of newspaper articles and press release con
cerning improper contacts with jurors — Federal Court of
Appeal unable to determine truth — Necessity for trial where
reporters and jurors cross-examined — If newspaper reports
true, appellate court would order new trial — Federal Court
then would have to consider whether Minister should have
acted under Code s. 617 — Relief unavailable on motion where
facts in dispute — Criminal Code, R.S.C. 1970, c. C-34, s.
617.
Judicial review — Equitable remedies Declarations
Trial Division bound by Rothmans of Pall Mall Canada Ltd.
v. Minister of National Revenue (No. 2): declaratory relief
cannot be sought by originating motion — Trial Judge decid
ing application on merits, counsel for respondent not really
objecting Trial Judge could decide on merits on consent if
agreed statement of facts Crucial facts here remaining in
issue — Court of Appeal unable to determine truth of con
flicting evidence Appeal dismissed without prejudice to
commencing action.
Constitutional law Charter of Rights — Trial Judge
holding ss. 7 and 11 inapplicable to exercise of royal preroga
tive of mercy in Code s. 617 Decision insupportable follow
ing Supreme Court decision in Operation Dismantle — Appeal
dismissed on other ground — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 11(d) —
Criminal Code, R.S.C. 1970, c. C-34, s. 617.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Rothmans of Pall Mall Canada Ltd. v. Minister of
National Revenue (No. 2), [1976] 2 F.C. 512 (C.A.).
REFERRED TO:
Operation Dismantle Inc. et al. v. The Queen et al.,
[1985] 1 S.C.R. 441.
COUNSEL:
Sidney Green, Q.C. for appellant.
Harry Glinter for respondent.
SOLICITORS:
Sidney Green, Q.C., Winnipeg, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This is an appeal from a decision
of the Trial Division [[1983] 2 F.C. 379] which
dismissed the appellant's application for declara-
tory relief. The relief sought relates to the refusal
of the Minister of Justice to act on the appellant's
application for the mercy of the Crown under
section 617 of the Criminal Code [R.S.C. 1970, c.
C-34] .
The learned Trial Judge dismissed the applica
tion on the basis that the Minister's decision could
not legally be reviewed. The respondent concedes
that, in view of the decision of the Supreme Court
of Canada in Operation Dismantle Inc. et al. v.
The Queen et al. [[1985] 1 S.C.R. 441], rendered
May 9, 1985, the decision cannot stand on that
basis. The learned Trial Judge also held [at page
407] that, on the evidence, the Minister had made
"a full, complete and judicial review" of the appel
lant's application, although he had been refused an
oral hearing. I would agree that a finding that the
review was conducted fairly is amply supported by
the evidence.
The issue remaining is whether the declaration
set forth in paragraph (c) of the originating notice
of motion ought, nevertheless, be made because of
an appearance that justice had not been done:
(c) A declaration that by virtue of the failure of the
Respondent herein to deal with the matter in such way as to
do natural justice to the Applicant, the Applicant is being
denied the rights and freedoms guaranteed by the Canadian
Charter of Rights and in particular his right to liberty and
not to be deprived of same except in accordance with the
principles of fundamental justice.
In refusing the application, the Minister plainly
did so on the basis of his satisfaction that, what
ever the appearances to the contrary, no injustice
had, in fact, been done.
In Rothmans of Pall Mall Canada Ltd. v. Min
ister of National Revenue (No. 2), [ 1976] 2 F.C.
512 (C.A.), at page 515, this Court, per Le Dain
J., held:
Under the Rules declaratory relief cannot be sought by origi
nating motion but only by an action.
That decision is binding on the Trial Division. The
learned Trial Judge was aware of that decision and
called it to the attention of the parties on the
hearing of the application. He held [at page 384]:
However, after hearing argument and counsel for the
respondent not really objecting, suggesting that no facts were in
issue, I agreed to permit the proceedings to continue and deal
with the matters complained of for decision on their merits.
No doubt the decision to permit the matter to
proceed notwithstanding the non-compliance with
the Rules [Federal Court Rules, C.R.C., c. 663]
was influenced by the appreciation that the central
issue was whether the Minister's decision was sub
ject to judicial review at all. As will appear, the
issue now being presented on the basis that the
appellant has been deprived of his liberty in viola
tion of the rights guaranteed him by the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)], very crucial facts
remain in issue.
It seems to me that, faced with an application
for declaratory relief, a trial judge has two options:
he may dismiss the application on the procedural
ground without prejudice to the right of the appli
cant to bring his action within a prescribed time or
he may, on consent and not merely in the absence
of objection, order that the proceeding be deemed
to have been properly commenced provided the
parties place on the record an agreed statement of
all the facts upon which the issues are to be
adjudicated. Failure to define the facts can lead to
a situation as we presently face. There is no cer
tainty that issues will be approached on appeal in
precisely the same fashion as at trial.
The appellant was convicted by a jury and sen
tenced to a term of imprisonment in respect of two
drug related offences. Sentence was pronounced on
November 12, 1980. On January 30, 1982, well
after the time for appeal had expired, the Win-
nipeg Free Press published a story, based on inter
views with jurors, to the effect that the jury had
been tampered with during the trial. A similar
story, apparently independently written, appeared
in the Globe and Mail on February 1, 1982.
The gist of the allegations appears most suc
cinctly in the Globe and Mail story:
Jury foreman Tony McWha said in an interview yesterday,
following a copyright story in The Winnipeg Free Press on
Saturday, that jury members were constantly exposed to people
who had negative feelings about Mr. Wilson during the six-
week trial in the fall of 1980.
In the courthouse halls and at lunch, jurors heard from others
who wanted him 'put behind bars, that type of thing,' he said.
`Everybody seemed to know his background more than the
jurors did.'
However, Mr. McWha added: `I don't think anybody paid
attention to what was said.'
Also Mr. McWha said another jury member approached an
RCMP friend in the hall outside the courtroom and asked how
Mr. Wilson's accuser, an admitted drug smuggler, could get
away with his deeds in return for his testimony. Mr. McWha
said the Mountie reassured the juror that the smuggler would
probably be caught for something else in the future.
At the request of the Attorney General of
Manitoba, the Winnipeg City Police investigated
the allegations. The result of that investigation was
the subject of a press release issued by the Attor
ney General on February 15. The following pas
sages deal with the allegations in a complete and
concise fashion.
The police investigation report included interviews with all 12
jurors. As to the allegation that the jurors had been approached
during the trial by people urging them to find Mr. Wilson
guilty because of his past, all 12 jurors specifically and
emphatically deny this allegation.
Respecting the alleged conversation betwen a member or mem
bers of the jury with a member or members of the R.C.M.P.,
any such conversation was specifically denied by each of the 12
jurors.
The jurors stated that the only discussion about Mr. Wilson's
past related to evidence disclosed during the trial, and to
nothing else.
The jury foreman, who was quoted in Mr. Ward's article,
claims he was misinterpreted by Mr. Ward. "Everything is
twisted," the foreman reported. "He added and changed things.
I never said anyone was urged to convict Wilson because of
facts of his past that did not come out of the trial. No juror was
approached by any other person and urged to convict Wilson
because of his past.
I said (to Ward) that the evidence showed Wright had lived a
life of crime and that persons like him would probably be
caught on something else but I said Wright wasn't on trial so
we never judged him. How Ward thinks that I said a Mountie
made any comment to us, I don't know. It never happened."
An extract of a transcript of a tape recording said
to have been made by the Free Press reporter
during his interview with the jury foreman tends to
support the accuracy of the newspaper reports.
On February 12, the appellant had applied to
the Minister of Justice for the mercy of the Crown.
Section 617 of the Criminal Code provides:
617. The Minister of Justice may, upon an application for
the mercy of the Crown by or on behalf of a person who has
been convicted in proceedings by indictment or who has been
sentenced to preventive detention under Part XXI,
(a) direct, by order in writing, a new trial or, in the case of a
person under sentence of preventive detention, a new hearing,
before any court that he thinks proper, if after inquiry he is
satisfied that in the circumstances a new trial or hearing, as
the case may be, should be directed;
(b) 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 under sentence
of preventive detention, as the case may be; or
(c) refer to the court of appeal at any time, for its opinion,
any question upon which he desires the assistance of that
court, and the court shall furnish its opinion accordingly.
On April 19, 1983, the Minister wrote the appel
lant informing him of his refusal to intervene
under section 617, and on June 1, the originating
notice of motion herein was filed.
The foregoing passages from the newspaper and
press release demonstrate the insoluble dilemma
the Court faces in this matter. Neither is evidence
of the truth of its contents. The Court cannot
determine which, if either, states the truth. That
determination demands a trial at which the report
ers and jurors can be required to testify and to be
cross-examined. This case epitomizes the rationale
of the requirement that declaratory relief be
sought in an action.
I accept that, if the truth lies in the newspaper
stories, the circumstances are such that a court of
appeal entertaining an appeal from the convictions
would have allowed that appeal and ordered a new
trial. If that were proved, then this Court would be
obliged to consider whether, in such circum
stances, the Minister of Justice was obliged to act
under section 617 or whether he was entitled to
withhold that action on his determination, after a
fairly conducted inquiry, that notwithstanding
appearances justice had in fact been done and that
the appellant had been deprived of his liberty in
accordance with the principles of fundamental jus
tice. On the other hand, if the truth lies in the
press release, there is no basis in fact upon which
the Court could properly consider those issues and
the matter would be at an end.
Since the Court is unable to resolve the disputed
issues of fact and since the appellant had the
burden of establishing the factual basis for his
case, the appellant must fail in this proceeding and
the appeal should be dismissed with costs but
without prejudice to the right of the appellant to
commence an action for declaratory relief if he so
elects.
HEALD J.: I concur.
STONE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.