Applications for Ministerial Review -
Miscarriages of Justice: Annual Report 2007

Remedies Granted by the Minister

During the reporting period, the Minister granted one remedy pursuant to paragraph 696.3 (3) (a) of the Criminal Code.

Romeo Phillion

Romeo Phillion was convicted of non-capital murder in Ottawa on November 7, 1972, in the killing of Leopold Roy in August 1967. He was sentenced to life imprisonment without eligibility for parole for 10 years. Appeals to the Ontario Court of Appeal and the Supreme Court of Canada were unsuccessful.

In May 2003, Mr. Phillion's counsel completed an application for ministerial review. In July 2003, a judge of the Ontario Superior Court of Justice granted Mr. Phillion bail pending the Minister's decision.

Mr. Phillion's application for ministerial review related to an alleged alibi he had at the time of the killing, information which he claimed was not disclosed by the Crown, and new expert reports related to the reliability of the confession he made to police.

In August 2006, the Minister concluded: “There are certain issues that in my view merit a review by the Ontario Court of Appeal and I believe it is necessary to seek the Court's opinion before I make my decision.”

Accordingly, pursuant to subparagraph 696.3(3)(a)(ii) of the Criminal Code, the Minister referred two questions related to Mr. Phillion's case to the Ontario Court of Appeal:

• Would the new information concerning the non-disclosure of certain material be admissible on appeal to the Court of Appeal?
• Are the recent expert reports on the reliability of Mr. Phillion's confession admissible on appeal to the Court of Appeal?

If the Court of Appeal answers either of the questions in the affirmative, the Minister will ask the Court to hear the case as an appeal by Mr. Phillion against his conviction.

If the Court of Appeal answers both of the questions in the negative, the Minister will consider that opinion in making his final decision on Mr. Phillion's application.

No date has been set for the hearing.

Update on Remedies Granted

This section provides an update on previous cases which the Minister has referred back to the courts.

Steven Truscott

After a jury trial, Steven Truscott, at age 14, was convicted of murder at Goderich, Ontario, on September 30, 1959. He was sentenced to death, as was then required by the law. The Ontario Court of Appeal dismissed his appeal on January 20, 1960. The next day, his sentence was commuted to life imprisonment. The Supreme Court of Canada dismissed his application for leave to appeal on February 24, 1960.

Subsequently, concern arose that Mr. Truscott's conviction might have been a miscarriage of justice. On April 26, 1966, the Government of Canada referred his case to the Supreme Court of Canada. The Supreme Court was asked to determine how it would have decided an appeal by Mr. Truscott, on the basis of the existing judicial record and any other evidence it received. The Supreme Court answered that question on May 4, 1967, and ruled that it would have dismissed Mr. Truscott's appeal.

On November 29, 2001 - some 42 years after his conviction - Mr. Truscott submitted an application for ministerial review. On January 24, 2002, the Minister of Justice appointed the Honourable Fred Kaufman, a former judge of the Quebec Court of Appeal, as an agent to investigate Mr. Truscott's application.

Justice Kaufman conducted an exhaustive investigation of Mr. Truscott's application and provided a 700-page report to the Minister in the spring of 2004. The report presented new information about the case. On the basis of this new information, the Minister decided that there was a reasonable basis to conclude that a miscarriage of justice likely occurred. Accordingly, on October 28, 2004, the Minister referred Mr. Truscott's case to the Ontario Court of Appeal to be heard as a new appeal.

The Minister announced on August 12, 2005, that he would waive solicitor-client privilege with respect to Justice Kaufman's report and that a copy of the report would be released publicly once it had been edited to protect privacy interests.

In November 2005, the Department released an edited version of the investigative report. The executive summary of the report is available at http://canada.justice.gc.ca/eng/pi/ccr-rc/.

A five-member panel of the Ontario Court of Appeal heard three weeks of witness testimony in June 2006 and final arguments in February 2007. In August 2007, the Court unanimously overturned Mr. Truscott's conviction as a miscarriage of justice and entered a verdict of acquittal. “We are satisfied that were a new trial possible, the acquittal of Mr. Truscott, while not the only possible verdict, would clearly be the more likely result given the entirety of the material presently available.” Ontario's Attorney General immediately apologized to Mr. Truscott and announced he had appointed the Honourable Sydney Robins, retired justice of the Ontario Court of Appeal, to provide advice on the issue of compensation.

Danny Wood

After a second trial in Calgary, Alberta, Danny Wood was convicted on June 7, 1990, of the first-degree murder of Merla Laycock, and sentenced to life imprisonment with no eligibility for parole for 25 years. The Alberta Court of Appeal dismissed his appeal against conviction on January 30, 1992.

Approximately three and a half years after his conviction, Mr. Wood submitted an application for ministerial review. The Minister announced his decision on Mr. Wood's application on February 15, 2005. The investigation of the application found that the Crown had failed to disclose significant information to Mr. Wood, which could have had an impact on the fairness of the trial and the reliability of his conviction. The Minister therefore found that there was a reasonable basis to conclude that a miscarriage of justice had likely occurred. The case was referred to the Alberta Court of Appeal to be heard as a new appeal.

At the Court of Appeal, the Crown conceded that the failure to disclose to Mr. Wood relevant information in the possession of police may have affected the fairness of his trial and he was therefore entitled to a new trial. In November 2006, the appeal court rejected Mr. Wood's request for an acquittal or stay of the charge and ruled that a new trial was the appropriate remedy for the lack of disclosure.

No date has been set for the new trial.

André Tremblay

André Tremblay was convicted in February 1984 of first-degree murder in the killing of Serge Fournier, who died on July 3, 1982. Mr. Tremblay was sentenced to life imprisonment, with no parole eligibility for 25 years. Further appeals were unsuccessful, and Mr. Tremblay applied for a ministerial review.

The only ground for Mr. Tremblay's application related to the statements of a jailhouse informant, who had testified that the accused had confessed to him when they were both in custody. The informant later recanted under oath his trial testimony in 1988 and 1991. As well, Mr. Tremblay and his counsel were never told that the informant had received certain advantages in exchange for his trial testimony.

On July 17, 2005, the Minister determined there was a reasonable basis to conclude that a miscarriage of justice likely occurred in this case and referred it to the Quebec Court of Appeal.

No date has yet been set for the hearing.

The Year Ahead

The CCRG continues to work hard to process applications for ministerial review in a thorough and timely manner. A number of applications are expected to make their way to the Minister in 2007-08 for a decision. In July 2007, the Minister referred the case of William Mullins-Johnson to the Ontario Court of Appeal to be heard as a new appeal. Mr. Mullins-Johnson was convicted in 1994 of first-degree murder in the death of his four-year-old niece Valin Johnson. The Minister concluded that “there is now significant new evidence that was not available at the time of Mr. Mullins-Johnson's trial that casts serious doubt on the correctness of his conviction for murder.”

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