ANNUAL REPORT 2009 MINISTER OF JUSTICE

Remedies Granted by the Minister

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

Kyle Wayne Unger

Kyle Wayne Unger was convicted of the first-degree murder of Brigitte Grenier at an outdoor rock concert which was held near Roseisle, Manitoba, in June 1990. His appeal to the Manitoba Court of Appeal was rejected and leave to appeal to the Supreme Court of Canada was denied.

In September 2004, the Forensic Evidence Review Committee, an advisory committee established by the Manitoba government, called into question the hair comparison evidence used at Mr. Unger’s trial.

Mr. Unger’s counsel subsequently filed an application to the Minister of Justice for a review of the murder conviction. In November 2005, a judge of the Manitoba Court of Queen’s Bench granted Mr. Unger bail pending the Minister’s decision.

In March 2009, the Minister ordered a new trial for Mr. Unger, stating: “I am satisfied there is a reasonable basis to conclude that a miscarriage of justice likely occurred in Mr. Unger’s 1992 conviction.”

Update on Previous Remedies Granted

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

Since 2003, as Table A illustrates, the Minister of Justice has referred 12 cases back to the courts from five provinces – five for new trials and seven for review by courts of appeal. Three cases are still before the courts.

In one case, the applicant was retried and convicted of the lesser offence of manslaughter. In the remaining eight, the Crown stayed the charges or the appeals court entered an acquittal.

Table A

Applicant and Charge	Date of Minister’s Decision	Disposition by Minister	Final Result
Kaminski, Steven Richard (Alberta) Sexual Assault	January 27, 2003	New trial ordered	Proceedings stayed by the Crown at retrial
Cain, Rodney (Ontario) Second-Degree Murder	May 19, 2004	New trial ordered	Convicted of manslaughter at retrial in 2007
Truscott, Steven (Ontario) Capital Murder	October 28, 2004	Reference to Ontario Court of Appeal	Court of Appeal entered an acquittal on August 28, 2007
Bjorge, Darcy (Alberta) Stolen Property	February 10, 2005	New trial ordered	Charge stayed in the Alberta Provincial Court
Wood, Daniel (Alberta) First-Degree Murder	February 10, 2005	Reference to Alberta Court of Appeal	Court of Appeal ordered a new trial on November 27, 2006; charges stayed by Crown
Driskell, James (Manitoba) First-Degree Murder	March 5, 2005	New trial ordered	Proceedings stayed in the Court of Queen’s Bench on the same day as the Minister’s order
Tremblay, André (Quebec) First-Degree Murder	July 12, 2005	Reference to Quebec Court of Appeal	Still before the Court
Phillion, Romeo (Ontario) Non-Capital Murder	August 23, 2006	Reference to Ontario Court of Appeal	Court of Appeal ordered a new trial
Mullins-Johnson, William (Ontario) First-Degree Murder	July 17, 2007	Reference to Ontario Court of Appeal	Acquittal entered by the Court of Appeal on October 15, 2007
L.G.P. (Alberta) Sexual Assault	September 21, 2007	Reference to Alberta Court of Appeal	Court of Appeal ordered a new trial; charge stayed by the Crown
Walsh, Erin (New Brunswick) Non-Capital Murder	February 28, 2008	Reference to New Brunswick Court of Appeal	Acquittal entered by the Court of Appeal on March 14, 2008
Unger, Kyle Wayne (Manitoba) First-Degree Murder	March 11, 2009	New trial ordered

Erin Michael Walsh

In October 2008, the New Brunswick Court of Appeal released its reasons for acquitting Erin Michael Walsh.

Mr. Walsh was convicted in 1975 in Saint John, N.B., of the non-capital murder of Melvin Eugene Peters and sentenced to life imprisonment. Appeals to the New Brunswick Court of Appeal were dismissed in July 1982 and November 1982.

In December 2006, Mr. Walsh’s counsel applied to the Minister of Justice for a review of the murder conviction after new evidence surfaced which he alleged had not been disclosed to him at the time of Mr. Walsh’s trial.

In February 2008, the Minister referred the murder conviction to the New Brunswick Court of Appeal to be heard as a new appeal.

The Attorney General of New Brunswick agreed with Mr. Walsh’s claim that he had suffered a miscarriage of justice, but asked the Court to impose a judicial stay of proceeding.

However, the Court of Appeal said an acquittal was the more appropriate remedy, since “the trial record augmented by the fresh evidence satisfies [the Court] that no reasonable jury properly instructed could convict Mr. Walsh.”

L.G.P.

In December 1994, the applicant was convicted of sexually assaulting his ex-wife and sentenced to 20 months’ imprisonment. His appeal to the Alberta Court of Appeal was dismissed in 1995. On July 26, 1999, the complainant signed a statutory declaration in which she recanted her testimony at trial that she had been sexually assaulted by the applicant. The applicant’s application to the Minister, based on this statutory declaration, was completed in January 2002.

In September 2007, the Minister asked the Alberta Court of Appeal to determine whether the complainant’s recantations would be admissible as fresh evidence, and if so, to hear the case as an appeal.

In December 2008, the Court of Appeal ruled that the recantations of the complainant were admissible as fresh evidence. The Court ordered a new trial and said it was up to the Crown to decide whether to proceed again.

The Crown subsequently stayed the charge.

Romeo Phillion

In March 2009, the Ontario Court of Appeal quashed the murder conviction of Romeo Phillion and ordered a new trial.

Mr. 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 was based on an alleged alibi he had at the time of the killing, which he claimed had not been disclosed by the Crown, and on new expert reports related to the reliability of the confession he made to the police.

In August 2006, the Minister referred two questions about Mr. Phillion’s case to the Ontario Court of Appeal.

In a 2-1 ruling, the Court of Appeal ruled that the fresh evidence was admissible on appeal and that it could reasonably have been expected to have changed the result at trial.

According to Mr. Justice Michael Moldaver, writing for the majority, had the jury had the benefit of the information, it might, “considered with the entirety of the evidence heard at trial … have left the jury in a state of reasonable doubt as to whether the appellant was the person who killed Mr. Roy.”

“However, the compelling nature of his confessions – particularly the level of detail and accuracy found in them – prevents me from concluding that the admission of the fresh evidence would make it ‘clearly more probable than not’ that the appellant would be acquitted at a new trial.”

In dissent, Mr. Justice James MacPherson said the new evidence was not sufficently probative to have affected the jury’s verdict and that Mr. Phillion’s confession “remains as compelling today as it was to the jury in 1972.”

Mr. Phillion has filed an application in Ontario Superior Court seeking to require the Crown to arraign Mr. Phillion and have the court enter an acquittal, rather than simply withdrawing the charge.

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