T-1403-83
Robert George Wilson (Applicant)
v.
Minister of Justice (Respondent)
Trial Division, Nitikman D.J.-Winnipeg, June 21
and November 7, 1983.
Crown - Royal prerogative of mercy - Minister of Justice
rejecting Code s. 617 application for a new trial - Whether
distinguishable from royal prerogative as based on statute and
accordingly reviewable - Royal prerogative always in sole
discretion of sovereign - Mercy not subject of legal rights
Minister's decision exercise of royal prerogative and not open
to court challenge - Criminal Code, R.S.C. 1970, c. C-34, ss.
617, 686 - Criminal Code, S.C. 1953-54, c. 51. s. 596
Letters Patent Constituting the Office of Governor General of
Canada, R.S.C. 1970, Appendix II, No. 35, clauses VII, XII
Department of Justice Act, R.S.C. 1970, c. J-2, ss. 2, 4(a),
5(a),(c) - Interpretation Act, R.S.C. 1970, c. 1-23, s. 28 -
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 Appeal Act, 1907 (U.K.), 7
Edw. 7, c. 23.
Judicial review - Equitable remedies - Declarations
Applicant convicted at criminal trial - Evidence jurors
approached outside court - Minister of Justice denying Code
s. 617 application for new trial - Minister's decision exercise
of royal prerogative of mercy - Royal prerogative not matter
of legal right - Decision not subject to review - In any event,
decision fairly reached in accordance with principles in Mar-
tineau v. Matsqui Institution Disciplinary Board, [1980] 1
S.C.R. 602 - Criminal Code, R.S.C. 1970, c. C-34, ss. 576.2,
617, 686 - Criminal Code, S.C. 1953-54, c. 51, s. 596
Letters Patent Constituting the Office of Governor General of
Canada, R.S.C. 1970, Appendix II, No. 35, clauses VII, XII
Department of Justice Act, R.S.C. 1970, c. J-2, ss. 2, 4(a),
5(a),(c) - Interpretation Act, R.S.C. 1970, c. I-23, s. 28 -
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 Appeal Act, 1907 (U.K.), 7
Edw. 7, c. 23.
Constitutional law - Charter of Rights - Whether appli
cable to royal prerogative - Applicant convicted of criminal
offence - Evidence that jurors approached outside court
Possibility of prejudice - Application to Minister of Justice
under Code s. 617 for new trial - Minister refusing to hear
oral submissions from applicant's lawyer - New trial denied
- Minister's decision exercise of royal prerogative of mercy
— Applicant seeking declaration ss. 7 and 11 Charter rights
denied — Non-applicability of Charter to royal prerogative as
not involving legal right — Criminal Code, R.S.C. 1970, c.
C-34, ss. 617, 686 — Criminal Code, S.C. 1953-54, c. 51, s.
596 — Letters Patent Constituting the Office of Governor
General of Canada, R.S.C. 1970, Appendix II, No. 35, clauses
VII, XII — Department of Justice Act, R.S.C. 1970, c. J-2, ss.
2, 4(a), 5(a),(c) — Interpretation Act, R.S.C. 1970, c. I-23, s.
28 — 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, I1(d) — Criminal Appeal Act, 1907
(U.K.), 7 Edw. 7, c. 23.
Practice — Declaration that applicant denied Charter rights
in refusal of Minister of Justice to accede to Code s. 617
request for new trial sought — Applicant proceeding by origi
nating notice of motion — Unavailability of relief sought upon
originating notice — Statement of claim under R. 400 correct
procedure for seeking such relief — Court disposing of
application on merits, respondent not objecting — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18 — Federal
Court Rules, C.R.C., c. 663, RR. 400, 603 — Criminal Code,
R.S.C. 1970, c. C-34, s. 617.
Newspaper articles were published stating that members of a
jury which had convicted the applicant had been approached
during the trial. It was said that during a recess an R.C.M.P.
officer had spoken with a juror advising that a Crown witness,
granted immunity from prosecution to obtain his testimony,
would be brought to justice so that the jury should not be
concerned with that aspect of the case. The provincial Attor-
ney-General ordered an investigation into this matter following
which he issued a press release to the effect that the Winnipeg
Police had completed their investigation and submitted a report
that all twelve jurors had been interviewed and denied being
approached during the trial either by anyone urging them to
convict Wilson in view of his record or by any member of the
R.C.M.P. Wilson's lawyer then wrote to the Minister of Justice
enclosing a Code section 617 application for a new trial. The
Department replied that the Minister's prerogative was to be
exercised only in rare circumstances where it was clear that a
miscarriage of justice had occurred. In further correspondence,
Wilson's lawyer suggested that Justice interview the journalists
and requested an opportunity of making verbal presentations to
the Minister. The Department of Justice replied that no pur
pose was to be served by interviewing the reporters. The
Minister eventually wrote to Wilson's lawyer advising that this
was not a case warranting any intervention on his part. The
Minister acknowledged that there was evidence that one or two
jurors were exposed to comments made outside the courtroom
which were unfavourable to the accused, but concluded that
these were insufficient to invalidate the trial. The Minister
made reference to the opinion of Martin J.A. in R. v. Hertrich,
Stewart and Skinner (1982), 67 C.C.C. (2d) 510 (Ont. C.A.)
pointing out that since juries were seldom sequestered at the
present day they were exposed to being improperly com
municated with. The public and the courts had faith that jury
members would not allow themselves to be prejudiced by such
communications. Wilson then applied, by way of originating
notice of motion, to the Trial Division for a declaration that the
Minister had failed to give judicial consideration to the Code
section 617 application thereby denying the Charter right not
to be deprived of liberty except in accordance with fundamental
justice principles.
Held, the motion should be dismissed. Proceedings for the
relief sought should have been commenced by statement of
claim, all of the case law being to the effect that declaratory
relief is unavailable upon originating motion. The matter
would, however, be decided on its merits as the Minister did not
object. The issue for determination upon this motion is as to
whether the Minister's decision to deny an application for the
mercy of the Crown and to not direct a new trial is open to
review by the Court. The Court could not accept the submission
that the application for mercy of the Crown provided for in
Code section 617 was to be distinguished from the royal
prerogative of mercy and that, as a statutory provision, the
refusal to grant such application was reviewable. Reference
might be made to the decision of the Judicial Committee of the
Privy Council in de Freitas v. Benny and Others, [1976] A.C.
239 (P.C.) in which Lord Diplock pointed out that at common
law the royal prerogative had always been a matter solely in the
discretion of the sovereign and added that mercy "is not the
subject of legal rights. It begins where legal rights end." The
Court had no hesitation in holding that the prerogative of
mercy of the Crown as set out in Code section 617 meant a
royal prerogative of mercy. Being an act of mercy rather than a
legal right, its non-exercise was not open to legal challenge.
Nor did sections 7 and 11 of the Charter have any application
herein. The Charter was not applicable to the issue of the royal
prerogative. While the matter is thus concluded, the argument
that the Minister did not fairly review the application would
also be dealt with. While the Minister did mention that he had
referred to the investigation conducted by the provincial
authorities in Manitoba, it was clear that he had made a full
judicial review independent of the provincial investigation.
While it was true that the request of the applicant's lawyer for
a chance to make representations in person had been turned
down, there was affidavit evidence that the Minister never
resorted to an oral hearing in disposing of section 617 applica
tions. The procedure adopted was within the Minister's discre
tion and it was not unfair. The Minister's decision was fairly
arrived at and was in accordance with the principles of funda
mental justice set out by Dickson J. in Martineau v. Matsqui
Institution Disciplinary Board, [1980] 1 S.C.R. 602.
CASES JUDICIALLY CONSIDERED
APPLIED:
de Freitas v. Benny and Others, [ 1976] A.C. 239 (P.C.);
Re Royal Prerogative of Mercy upon Deportation Pro
ceedings, [1933] S.C.R. 269; 59 C.C.C. 301; R. v. Belton
(1982), 19 Man.R.(2d) 132 (C.A.); Re Balderston et al.
and The Queen (1982), 2 C.C.C. (3d) 37 (Man. Q.B.),
affirmed (1983), 23 Man.R.(2d) 125 (C.A.); Martineau
v. Matsqui Institution Disciplinary Board, [1980] 1
S.C.R. 602.
REFERRED TO:
In re Nicholson, [1975] F.C. 478 (T.D.); In re Mac-
Donald, [1975] F.C. 543 (T.D.); Rothmans of Pall Mall
Canada Limited et al. v. Minister of National Revenue,
et al. (No. 2), [1976] 2 F.C. 512; [1976] CTC 347
(C.A.); McNamara v. Caros et al., [1978] 1 F.C. 451
(T.D.); Rex v. Justices of Bodmin, [1947] 1 K.B. 321;
Mercier c. Sa Majesté La Reine, [1975] C.A. 51; Frisco
v. The Queen (1971), 14 C.R. 194 (Que. Q.B. App. Side);
Regina v. Howell, [1955] O.W.N. 883 (C.A.); Rex v.
Imperial Tobacco Company of Canada Limited et al
(No. 4.), [1942] 1 W.W.R. 363 (Alta. S.C. App. Div.);
Regina v. Masuda (1953), 9 W.W.R. 375 (B.C.C.A.);
Regina v. Caldough et al (1961), 36 W.W.R. 426
(B.C.S.C.); R. v. Hertrtch, Stewart and Skinner (1982),
67 C.C.C. (2d) 510 (Ont. C.A.).
COUNSEL:
Sidney Green, Q.C. for applicant.
Harry Glinter for respondent.
SOLICITORS:
Sidney Green, Q.C., Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
NITIKMAN D.J.: Applicant, proceeding by way
of originating notice of motion, seeks the following
relief:
(a) A declaration that the Respondent failed to give judicial
consideration to the application submitted by the Applicant
herein on the 12th day of February, 1982 in that the
Respondent failed to consider and ignored the fact that his
inquiry confirmed that a member of the Royal Canadian
Mounted Police, during the course of the trial, spoke to one
of the jurors and that as a result of said meeting the jury got
the impression that the chief prosecution witness against Mr.
Wilson would be brought to justice.
(b) A declaration that the Respondent failed to give judicial
consideration to the application submitted by the Applicant
herein on the 12th day of February, 1982 in that the
Respondent relied on an investigation conducted in February,
1982 under the direction of the Honourable Roland Penner,
Attorney General for Manitoba, which said purported inves
tigation was demonstrably counter-productive insofar as
determining whether or not the Applicant had been given a
fair trial and which investigation purported to terminate the
matter by a press conference held by the said Attorney
General at a time when he knew that an Application had
been made to and was pending before the Minister of Justice.
(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.
Pursuant to section 18 of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10],
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission or
other tribunal; and
(b) to hear and determine any application or other proceed
ing for relief in the nature of relief contemplated by para
graph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
Rule 603 of the Federal Court Rules [C.R.C., c.
663] reads:
Rule 603. Proceedings under section 18 of the Act for any of
the relief described therein, other than a proceeding against the
Attorney General of Canada or a proceeding for declaratory
relief, may be brought either
(a) by way of an action under Rule 400; or
(b) by way of an application to the Court under Rules 319 et
seq.
and Rule 319(1) provides that
Rule 319. (1) Where any application is authorized to be made
to the Court, a judge or a prothonotary, it shall be made by
motion.
At the commencement of the hearing, I brought
to counsel's attention that it was my opinion the
proceedings for the relief sought by applicant
should be commenced by way of statement of
claim under Rule 400 and not by way of originat
ing notice of motion, citing In re Nicholson,
[1975] F.C. 478 (T.D.); In re MacDonald, [1975]
F.C. 543 (T.D.); Rothmans of Pall Mall Canada
Limited et al. v. Minister of National Revenue, et
al. (No. 2), [1976] 2 F.C. 512; [1976] CTC 347
(C.A.); and McNamara v. Caros et al., [1978] 1
F.C. 451 (T.D.), all of which held that declaratory
relief may be sought only by an action and not an
originating motion. In addition, in the within
action the respondent is the Minister of Justice.
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.
Before dealing with the facts, I refer to section
576.2 of the Criminal Code [R.S.C. 1970, c. C-34,
as am. by S.C. 1972, c. 13, s. 49] (the Code)
which, headed "Disclosure of jury proceedings"
reads:
576.2 Every member of a jury who, except for the purposes
of
(a) an investigation of an alleged offence under subsection
127(2) in relation to a juror, or
(b) giving evidence in criminal proceedings in relation to
such an offence,
discloses any information relating to the proceedings of the jury
when it was absent from the courtroom that was not subse
quently disclosed in open court is guilty of an offence punish
able on summary conviction.
The facts as appear from the several affidavits
filed are as follows.
On January 30, 1982, a story appeared in the
Winnipeg Free Press under the byline of one of its
reporters, Michael Ward, stating that certain
members of the jury which had convicted the
applicant had advised him of approaches and
suggestions made to them about the accused
Wilson during the course of the trial and were
urged to convict him, and as well that a member of
the R.C.M.P. who was a witness at the trial had,
during the course of the trial, spoken to one of the
jurors, and that there were discussions by the
jurors during their deliberations relating to these
facts. A story also appeared in the Toronto Globe
and Mail, under the byline of one of its reporters,
reporting facts similar to those published in the
Winnipeg Free Press. I refrain from going into
details about the reported conversations. These are
set out at length in the material that was forward
ed to the Minister of Justice in support of the
application for a new trial made under section 617
of the Code. Following the publications, the
present counsel in the within application was
retained to represent the applicant. He had not
acted for the applicant in the course of the trial,
nor on the appeal to the Court of Appeal, nor on
the application to the Supreme Court of Canada
for leave to appeal, which application was refused.
Following the appearance of the newspaper
reports, the Attorney-General for Manitoba, the
Honourable Roland Penner, caused to be made an
investigation relating to said reports, and on Feb-
ruary 15, 1982, there appeared a press release
headed "Re: Jurors in the Bob Wilson Trial". Said
release read in part:
Attorney-General Roland Penner advised today that he had
received and considered the City of Winnipeg Police investiga
tion report which he requested following an article in the
Winnipeg Free Press of January 30th, 1982 which indicated
that there were improprieties involving members of the jury on
the trial of Bob Wilson.
The release set out certain of the improprieties
referred to in the Free Press report, and that the
police investigation report included interviews with
all twelve jurors, and that all jurors denied having
been approached during the trial by people urging
them to find Mr. Wilson guilty because of his past
record, all twelve jurors specifically and emphati
cally denying this allegation.
The report also dealt with alleged conversations
between a member or members of the jury and a
member or members of the R.C.M.P. and any
such conversations were specifically denied by
each of the twelve jurors. Further material is set
out in the press release and states that all twelve
jurors were emphatic that Mr. Wilson was proper
ly convicted on the evidence, and that they
adjudicated the case fairly, without bias or preju
dice. The final two paragraphs in the release read:
Mr. Penner again stressed that it is a criminal offence for
any member of a jury to disclose information relating to the
proceedings of the jury when it is absent from the courtroom
and which information is not subsequently disclosed in open
court. However, as he had determined when the investigation
was requested, Mr. Penner had advised that no criminal
charges would be preferred against any of the jurors or Mr.
Ward for their actions in this case.
Mr. Penner stated that while he is pleased that the investiga
tion has cleared the jurors and members of the police from any
improprieties, he is very concerned that Mr. Ward should write
such an article which has cast appall [sic] over the integrity of
the administration of justice in this province. "I intend to write
to the Press Council in this regard."
On February 12, 1982, Sidney Green, Q.C.,
wrote to the Department of Justice, attention of
the Minister of Justice, as follows:
Sir:
Re: In the matter of Her Majesty the Queen against Robert
George Wilson—In the Court of Appeal of Manitoba (No.
358/80)
Enclosed is an application sent to you pursuant to Section 617
of the Criminal Code of Canada.
The writer represents Robert George Wilson, who is the person
on behalf of whom the application is being made.
In support of the application, the writer would like to be given
the opportunity of providing documentation which would
include either evidence or sources of evidence which would be
available to the Minister of Justice.
The writer would also wish to be given the opportunity of
making representations to the Minister with respect to the
matter.
I would appreciate your advice as to your preference or require
ments with respect to each of the above matters.
Yours truly,
[Exhibit "A"]
On February 15, 1982, Mr. Green wrote to the
Attorney-General of Manitoba enclosing for the
latter's information a copy of the application
which was that day being forwarded to the Minis
ter of Justice, and added:
I would appreciate being able to confer with you with respect to
the investigation which was made under the auspices of your
Department relative to the allegations concerning communica
tions to jurors.
I would appreciate being advised as to when such a discussion
can be facilitated.
Yours truly,
[Exhibit "B"]
The application enclosed in the letter 'to the
Minister of Justice sets out particulars of the
conviction of the applicant and the sentence
imposed, and makes application, pursuant to sec
tion 617 of the Code, to the Minister of Justice for
the mercy of the Crown, and respectfully requests
the said Minister to direct in writing a new trial.
The grounds for the application are based on the
publicly revealed and reported statements that
appeared in the newspapers and continues:
TAKE NOTICE that in support of this application the said
Robert George Wilson wishes to adduce documentation, evi
dence, and sources of evidence available to the Minister of
Justice, and wishes to make representations to the Minister.
Further material followed and on February 26,
1982, he again wrote to the Department of Justice,
attention of the Minister, which letter read:
Sir:
Re: In the matter of Her Majesty the Queen against Robert
George Wilson—In the Court of Appeal of Manitoba (No.
358/80)
I wrote to you by registered mail dated February 12, 1982
relative to the above. May I please hear from you in connection
with this matter.
On February 25, 1982, an item appeared in the Winnipeg Free
Press indicating that your Department was awaiting receipt of
certain documentation. I have not been so advised, and I would
appreciate a response to my previous letter, so that this matter
can be proceeded with expeditiously.
Yours truly,
[Exhibit "D"]
A letter from the office of the Minister of
Justice signed by Jacques A. Demers, Special
Adviser, and dated March 3, 1982, was sent to Mr.
Green, the letter reading:
Dear Mr. Green:
The Honourable Jean Chrétien, Minister of Justice has asked
me to acknowledge and reply to your letter dated February
12th, 1982 in which you make application for the exercise of
the prerogative of the Minister of Justice pursuant to section
617 of the Criminal Code in the case of Robert George Wilson.
You will appreciate that such a discretion must be exercised by
the Minister only in those rare and compelling circumstances
where it is clear that a miscarriage of justice has occurred.
As you know, the Manitoba Court of Appeal refused to inter
fere with Mr. Wilson's conviction and leave to appeal to the
Supreme Court was refused.
Since that time, Mr. Wilson has directed a large volume of
correspondence in a variety of forms to this Department, in
which he has raised a large number of complaints concerning
his prosecution and specific elements of the evidence that went
to the jury. In many of the pieces of this correspondence Mr.
Wilson has asked for a new trial.
All such correspondence has been examined in detail, but to
date, nothing has been raised which could not have been raised
at trial and in fact for the most part, the issues were addressed
in the court. As you know, Mr. Wilson elected not to call any
evidence on his own behalf.
The application you have made on behalf of Mr. Wilson is
based on grounds that the jury, or some members of it were
subjected to improper influences which affected or may have
affected their deliberations.
You may provide whatever material you feel will best support
the grounds for the application. The material may take what
ever form you think most appropriate, although I would ask
you to make any submissions and representations in writing so
as to permit their being given the most thorough and careful
consideration.
Thank you for your assistance in this matter.
Yours sincerely,
[Exhibit "E"]
Further correspondence followed and on March
12, 1982, Mr. Green wrote to the office of the
Minister of Justice and Attorney General of
Canada as follows:
Sirs:
Re: In the matter of Her Majesty the Queen against Robert
George Wilson—In the Court of Appeal of Manitoba (No.
358/80)
Further to my previous communications with you, I now
enclose a submission in support of the Application for a New
Trial, pursuant to Section 617 of the Criminal Code of Canada,
sent to you on February 12, 1982.
You will note that the submission indicates that Messrs. Mike
Ward and Brian Gory, under whose respective bylines news
stories appeared disclosing particulars of jury deliberations,
have not been interviewed by myself in detail with respect to
the news stories. I have, however, spoken to both newsmen, who
have confirmed independently from one another, that the sto
ries are accurate and are based on independent interviews with
the persons named in the stories.
I also advised both newsmen that I was informing the Minister
of Justice that the information would be available to his
representatives, and that they would be prepared to cooperate
with such representatives in communicating this information.
Both newsmen confirmed my position in this connection.
I would accordingly respectfully submit that the Minister of
Justice, pursuant to his right to inquire into the matter, as
specified in Section 617 of the Criminal Code, avail himself of
the evidence and support material which is available through
these newsmen.
I would very much appreciate the opportunity to be present
when the reporters are interviewed by your Department, but
certainly do not insist on this right, and would be quite satisfied
to know that the reporters are being interviewed by representa
tives of your department.
Following the suggested inquiry herein, I would appreciate
being given the opportunity to make verbal presentations to the
Minister concerning this matter.
I am sending copies of this letter to the two reporters concerned
so that they might be aware that I am advising the Minister
that they would be prepared to make information available to
him.
I trust that I will hear from you in this connection in due
course.
Yours truly,
[Exhibit "G"]
The submission enclosed contains a statement of
facts including, inter alia, the front-page verbatim
news story in the Winnipeg Free Press of January
30, 1982, carrying the byline of Mike Ward, in
part of which news story appears the following:
The Court of Queens Bench judge who presided over the
trial, Mr. Justice Benjamin Hewak, advised the jury about their
conduct out of court several times throughout the trial.
At the end of the first day, he said: "At the conclusion of
each day of the trial you will be permitted to go home and to go
wherever you wish during the lunch hour.
I wish to warn you, however, that you should not discuss with
anybody the facts of this case, the evidence that you have heard
or anything connected with the trial.
If anyone should approach you to discuss the case with you,
refuse to do so, and if that person persists, report the matter to
me.
I would caution you, however, not to discuss the evidence
amongst yourselves until you have heard it all, so that you do
not prejudge or form any conclusion without considering the
whole of the evidence."
The jury spent a good deal of trial time in the jury room
while defence and prosecuting counsel argued case law.
The news story under the byline of Brian Gory
appeared in the Toronto Globe and Mail on Feb-
ruary 1, 1982.
In his argument in support of the application to
the Minister to exercise his discretion and grant
applicant a new trial, Mr. Green wrote in part:
Robert George Wilson is informed that the evidence avail
able to the Minister of Justice from Messrs. Mike Ward and
Brian Gory discloses that the integrity of the jury process in the
trial of Robert George Wilson was impaired by the two sets of
events:
(1) Members of the jury during the course of the trial were
urged by outsiders to cast Mr. Wilson in a very unfavourable
light, and such unfavourable light, although never forming
part of the evidence at the trial, was considered by the jury
when they were engaged in their deliberations as to Mr.
Wilson's guilt.
(2) Members of the jury were told by a juror that a prosecu
tion witness and law enforcement officer had a discussion
with him during an intermission period, and told the juror
that the chief prosecution witness, whose testimony was
relied on heavily by the Crown to convict Robert George
Wilson, and who had been granted immunity from prosecu
tion in order to obtain this testimony, would be brought to
justice, and that the jury therefore need not concern itself
with this aspect of the case.
It is respectfully suggested to the Minister of Justice that the
foregoing facts indicate a fundamental breach of jury integrity,
and it therefore follows as an elemental principle of criminal
law that Robert George Wilson has never received a fair trial,
nor the protection that a fair trial would have afforded him.
The breach of integrity is so fundamental as to militate the
ordering of a new trial no matter what the circumstances of the
case. It is further respectfully submitted that, especially in this
case, the breakdown in the integrity of the jury seriously
prejudiced the accused from having received a fair trial ....
The argument continues with further submis
sions, including the following:
Had the information available to the Minister of Justice been
available to either the Trial Judge, the Court of Appeal, or the
Supreme Court of Canada, the existing jurisprudence should
strongly have influenced the Court to set aside the conviction
and to grant a new trial.
As well, the argument cites numerous decided
cases and decisions, among them: Rex v. Justices
of Bodmin, [1947] 1 K.B. 321; Mercier c. Sa
Majesté La Reine, [1975] C.A. 51; Frisco v. The
Queen (1971), 14 C.R. 194 [Que. Q.B. App. Side];
Regina v. Howell, [1955] O.W.N. 883 [C.A.];
Rex v. Imperial Tobacco Company of Canada
Limited et al (No. 4), [1942] 1 W.W.R. 363 [Alta.
S.C. App. Div.]; Regina v. Masuda (1953), 9
W.W.R. 375 [B.C.C.A.]; and Regina v. Caldough
et al (1961), 36 W.W.R. 426 [B.C.S.C.].
Commenting on the review by the Attorney-
General of Manitoba, the argument reads in part:
The exercise undertaken by the Attorney-General of the
Province of Manitoba is deserving of some comment. There is
some confusion caused by the Attorney-General himself as to
just what processes he was engaged in.
The prosecution of Mr. Wilson itself was not done under the
auspices of the Attorney-General of the Province of Manitoba,
but rather under the auspices of the Minister of Justice. If the
processes of the trial were being attacked or questioned, it
would surely be the Minister of Justice who would have to look
into the matter.
There is no indication that the Minister of Justice requested
any assistance from the Attorney-General of Manitoba. Never
theless the Attorney-General of Manitoba, through the medium
of a press conference, announced to each of the jurors that they
had committed a criminal offence. He also indicated that the
reporter concerned had committed a criminal offence, and
warned other journalists against doing likewise.
The Attorney-General, after making this announcement, pro
ceeded to conduct an investigation. Once again it is not clear as
to what this investigation was directed towards.
If it was an investigation into the integrity of the trial, then
of course the Attorney-General was proceeding gratuitously,
since the trial had not been conducted under the jurisdiction of
the Province of Manitoba. Furthermore the Attorney-General
would be asking jurors to commit the very offence which he
announced that they had committed on his first Monday press
conference.
If, on the other hand, the jurors were being investigated as to
their commission of a criminal offence, then surely no meaning
ful efforts have been made to determine whether the newspaper
accounts were or were not accurate with respect to the jury's
deliberations.
Mr. Ward has never been asked by the Attorney-General of
Manitoba to confer with his officials and to give him the
information upon which the allegations made in the newspaper
accounts were based.
Mike Ward was visited by two policemen who charged and
cautioned him. Mr. Gory has never been communicated with by
anybody acting on behalf of the Attorney-General. The Win-
nipeg Free Press has indicated publicly its willingness to make
their material available to the Attorney-General, but the Attor-
ney-General has not chosen to avail himself of this offer.
The Minister of Justice is assured that both Mr. Ward and
Mr. Gory are ready, willing and able to provide the Minister
with evidence and in some cases back-up material relative to
the two newspaper articles referred to.
Under date of April 27, 1982, Mr. Demers
wrote to Mr. Green acknowledging the latter's
letters of March 9 and 12, 1982, and stated the
submission had been examined in detail. After
referring to the press conference held by the Hon
ourable the Attorney-General for Manitoba and
enclosing a photocopy of the text of the press
release issued by him at that time, the letter
continued:
You have also referred both to evidence and backup material
which could be given by Messrs. Mike Ward and Brian Gory in
connection with this matter. You may be assured that the
written material published in the Winnipeg Free Press and in
The Globe and Mail authored by these journalists have been
given close scrutiny as well. If either of these journalists have
information or material beyond their verbatim accounts repro
duced by you in your submission, and you believe it supports
the application you have made on behalf of Robert Wilson, I
invite you to forward it to this office as soon as possible.
If there are additional submissions or representations you wish
to make, it would be appreciated if you could submit them in
written form. This will ensure that all aspects of this applica
tion may be given the close study and detailed examination
warranted in the exercise of this very special prerogative.
Thank you for your assistance in this matter.
Yours sincerely,
[Exhibit "I"]
Further communications followed and on June
4, 1982, Mr. Demers wrote to Mr. Green acknowl
edging receipt of his letter of May 3, 1982, and
stated in part there seemed to be no purpose in
interviewing or meeting with the journalists Ward
and Gory, and continued:
If you have specific knowledge of facts, information or material
that they have that you think will support the application you
have made on behalf of Mr. Wilson beyond the allegations they
made in their published accounts, please do not hesitate to state
specifically what it is and in what way it will shed further light
on the circumstances as revealed by these published accounts
and as investigated at the instance of the Honourable Roland
Penner.
Otherwise, their allegations are well known and available to
this office and will be considered in all the circumstances.
Your remarks concerning the efficacy of the investigation
conducted by the Attorney General of Manitoba have been
noted, but in the absence of an indication that you know of
additional specific and relevant evidence which would support
this application, the material will be prepared for the Minister's
review and consideration.
[Exhibit "L"I
Under date of June 9, 1982, Mr. Green wrote to
the office of the Minister of Justice, attention The
Honourable Minister of Justice, and Jacques A.
Demers, Special Adviser, advising in part:
I. I am able to confirm that Mr. Michael Ward has taped
conversations with jurors which substantiate the allegations
contained in Mr. Wilson's application, and referred to in
paragraphs 1 and 2 on page 3 of the Application submitted to
the Minister.
2. Mr. Gory had a personal interview with the foreman of the
jury which substantiates in part the same allegations.
3. Mr. Penner did not invite either Mr. Ward or Mr. Gory to
present their information to him, and publicly acknowledged
the weakness in his investigation being the absence of this
information.
4. Both reporters are willing to provide the appropriate author
ity, namely, your Minister, with the information which is
lacking in Mr. Penner's investigation.
[Exhibit "M"]
Under date of July 5, 1982, Mr. Demers wrote
to Mr. Green as follows:
Thank you for your letter of June 9, 1982.
In so far as Mr. Gory is concerned has he anything which
would add to the allegations he made in his published
accounts? If so, may I invite you to furnish us with copies so
that material may be considered. In the case of Mr. Ward, may
I invite you to provide transcripts of the taped conversations to
which you refer.
This correspondence between us is beginning to take on a
protracted nature, and I would therefore urge you to make
available everything you feel will support the application you
have filed on behalf of Mr. Wilson. There is little point in
arranging to have a representative of the Winnipeg Regional
Office receive Mr. Ward's or Mr. Gory's information when in
fact it must be reviewed here and prepared for consideration by
the Minister himself.
[Exhibit "N"]
All above exhibits were so marked in the affida
vit of Clara Ruth Green of the Province of
Manitoba, private secretary, sworn to on the 16th
day of July, 1982.
Under date of January 28, 1983, Mr. Green
forwarded a supplementary argument in support of
the application earlier made under section 617 of
the Code.
On behalf of the respondent there was filed an
affidavit by Spencer Ronald Fainstein of the City
of Winnipeg in the Province of Manitoba, barrister
and solicitor, sworn to on the 8th day of June,
1983, who deposed in part as follows:
I. I am a member of the Law Society of Manitoba and am
employed as a legal officer in the Department of Justice of
Canada, at Ottawa. For the past six years I have worked in the
Criminal Law Branch of the Department and have been
engaged, inter alia, in the analysis and preparation of applica
tions under section 617 of the Criminal Code, for the consider
ation and decision of the Minister of Justice.
2. In the fiscal years 1980-81 and 1981-82 seventy-one such
applications have been received by this Department.
3. During the period of time I have been engaged in such
matters as aforesaid, it has always been the policy of the
Ministers of Justice to require and permit all representations by
or on behalf of the subject of such an application to be made in
writing. I am aware of no case in which a Minister of Justice
has adopted a procedure involving an oral hearing in the course
of disposing of such an application.
Attached to the affidavit and marked as exhibits
thereto are a number of letters, a number of them
originals of letters already referred to as exhibits
to the affidavit of Clara Ruth Green. The letters
referred to in the Fainstein affidavit are Exhibits
"A" to "T". I shall refer to some of them and, as
in the case of the Green affidavit, will simply refer
to them by their exhibit letter instead of "exhibit
to the affidavit of Fainstein".
Copy of letter dated September 10, 1982, from
Douglas J. A. Rutherford, Assistant Deputy Attor
ney General to Mr. Green, reading:
Dear Mr. Green:
Thank you for your letter of September 3rd, 1982. Frankly, I
cannot recall Mr. Dangerfield having said that $65,000 was
found in Wilson's house, and if he did, it did not register with
me. I have tried to stick to the record in dealing with facts in
this.
I left Winnipeg on August 18th, 1982 with no firm understand
ing that any tapes would be made available. As I indicated to
you, Mr. Brian Gory has confirmed that he has no notes, tapes
or other material relating to his article and Mr. Ward ultimate
ly denied that he had any such things in his possession, adding
that even if he did, he would not cooperate by making them
available.
However, on the basis of a discussion I had with Knox Foster,
Q.C. who appeared as counsel in the Federal Court for the two
journalists, I harboured some optimism that the Winnipeg Free
Press might assist the Minister by making the tapes available. I
say that notwithstanding that nowhere have I received any
direct or indirect admission as to the whereabouts of any such
tapes. In any case, upon my return to Ottawa a formal written
request was made to the Publisher of the Winnipeg Free Press
for tapes or any other materials forming the basis of the Ward
article. To date there has been no reply although I would expect
some answer at any time.
Yours truly,
[Exhibit "N"]
Letter from Mr. Green to the office of the
Minister of Justice and Attorney General of
Canada dated November 1, 1982, which reads:
Dear Mr. Rutherford:
Re: ROBERT GEORGE WILSON—Application under Section 617
of the Criminal Code
I understand that you have now received from the Winnipeg
Free Press taped conversations between Mike Ward and mem
bers of the jury who deliberated on the Wilson trial.
I am further informed that the conversations confirm the
material contained in Mike Ward's news story, which is also
corroborated by the interview which was given to you by Mr.
Gory.
I submit that there is no question, that had knowledge of this
information been available to the Trial Judge or to the Court of
Appeal or to the Supreme Court of Canada, a mistrial would
have been declared.
Within the past two weeks in Manitoba, an Assize jury was
dismissed and a mistrial declared because of some social inter
action between a jury member and some Crown witnesses. The
Crown Prosecutor and the counsel for the accused asked Mr.
Justice Peter Morse to order a mistrial, which he did.
An elected Member of the Legislature was found guilty of an
offence bearing a minimum term of imprisonment of seven
years. It now appears that he was not afforded the kind of trial
that society demands as a protection to all of its citizens. There
would be absolutely no prejudice to the Crown if Mr. Wilson
was now granted the opportunity for such a trial. It is also my
distinct impression, that if such a trial were held, Mr. Wilson
would give evidence thereat. While there is no prejudice to
society if Mr. Wilson is granted a new trial, we are all
prejudiced if such a trial does not take place.
It is my respectful submission, that to permit Mr. Wilson to
serve out his sentence, on the basis of information now avail
able, would leave an indelible scar on the administration of
justice in Canada.
I would respectfully suggest that this is a case where at very
least I be permitted to make oral representations to the Minis
ter, so that no decision is made on the basis of some matter
which is left unclear by virtue of a lack of communication.
[Exhibit "O"]
Copy of letter dated November 17, 1982, from
Mr. Rutherford to Mr. Green, reading:
Re: Robert George Wilson—Application under Section 617 of
the Criminal Code
Dear Mr. Green:
I acknowledge and thank you for your letter of November 1,
1982.
I am continuing to give high priority to the completion of
inquiries on behalf of the Minister in connection with this
application, and hope to be able to refer it to the Minister for
his consideration in the very near future.
Your request to make oral representations to the Minister will
be brought to his attention as well. Thank you for your
continuing assistance in this matter.
[Exhibit "P"]
Copy of further letter dated January 12, 1983,
from Mr. Rutherford to Mr. Green, marked "Con-
fidential" and reading:
Re: Robert George Wilson—Application under Section 617 of
the Criminal Code
Dear Mr. Green:
Following my letter to you dated September 10, 1982 I con
tinued to press for material from the Winnipeg Free Press and
ultimately on October 20, 1982 I received what purport to be
excerpts of conversations between reporter Mike Ward and
jurors C.L. Forscutt and Tony McWha. I continued to seek
further materials from the Winnipeg Free Press and on Novem-
ber 15, 1982 I received what purport to be excerpts of conversa
tions between reporter Ward and jurors Wightman, Pommer
and Morash.
I have been subsequently assured by counsel for the newspaper
that he has provided all the pertinent information in the
possession of the client.
As I told you previously, Mr. Gory who authored the Globe and
Mail account advised that he had no notes or other material
relating to the article.
Having received the foregoing, I then arranged to have each
juror interviewed with respect to all the statements attributed
to him and with respect to the general allegations relating to
external influences which may have been brought to bear on
the Wilson jury during the course of the trial.
I think in view of the unique circumstances and the nature of
these inquiries, the interests of justice would best be served by
your having access to the material obtained on behalf of the
Minister so that you can make any submissions you think
appropriate in the light of the current information. You should
know that the Winnipeg Free Press provided the material
relating to conversations between Ward and the five jurors on
the condition that this Department would to the greatest extent
possible ensure its confidentiality. In addition, notwithstanding
the care taken, the information discloses to a limited extent the
confidential proceedings of the jury which as a matter of law
and for the protection of the proper functioning of Courts in
Canada deserve the most scrupulous handling and careful
protection to avoid its being made public improperly. Accord
ingly, while I think it is necessary in the circumstances of this
case that you see the information now available, I would ask
that you make use of it only for the purpose of making
submissions in connection with this application.
I enclose herewith the following:
I) copies of excerpts of conversations between reporter Mike
Ward and jurors Forscutt, McWha, Wightman, Pommer and
Morash;
2) copies of records of interviews with all twelve jurors
conducted by Inspector A. Lagasse of the R.C.M.P. on
behalf of the Minister of Justice;
3) a copy of Inspector Lagasse's subsequent report dated
January 7, 1983 dealing with specific comments of some of
the jurors.
I recall that you have a copy of the investigation report
prepared by the Winnipeg City Police including the written
statements obtained from all twelve jurors last spring.
I would appreciate any submissions you wish to make in the
light of all the material concerning the action you believe is
now warranted under section 617 of the Criminal Code.
[Exhibit "Q"]
Letter dated January 28, 1983, from Mr. Green
to the office of the Minister of Justice and Attor
ney General of Canada, reading:
Dear Mr. Rutherford:
Re: ROBERT GEORGE W I LSON—Appl icati on under Section 617
of the Criminal Code
In reply to your letter of January 12, 1983 I enclose herewith a
Supplementary Argument in support of the Application made
by Robert George Wilson.
I trust you will find same to be in order.
[Exhibit "R"]
Further letter dated January 28, 1983, from Mr.
Green to the office of the Minister of Justice and
Attorney General of Canada, marked "Attention
of The Honourable Minister of Justice and Mr.
Douglas J. A. Rutherford, Q.C.", reading:
Dear Mr. Rutherford:
Re: ROBERT GEORGE WILSON Application under Section 617
of the Criminal Code
Further to my letter to you of even date, please be advised that
I have spoken to Mr. Bob Wilson, and indicated that Mr. Vern
Pommer denied knowing him.
Mr. Wilson claims that both he and Mr. Pommer worked in the
same general area for the Canadian National Railways. Mr.
Wilson indicates that although he did not recognize Mr.
Pommer immediately as having been his co-employee, he is now
satisfied that this is the same person that he worked with at the
CNR some years ago.
He also says that Mr. Pommer and he were acquainted with
each other, and that it would be incorrect for Mr. Pommer to
say that he had never met him.
I would assume that the facts of their co-employment would be
readily verifiable from the CNR.
I trust that you will consider this additional information.
[Exhibit "S"]
On April 19, 1983, under the letterhead of the
Minister of Justice and Attorney General of
Canada, the Honourable Mark MacGuigan, Min
ister of Justice, wrote to Mr. Green as follows:
Dear Mr. Green:
I have now had an opportunity to consider the application
su.bmitted by you on February 12, 1982, on behalf of Robert
George Wilson pursuant to section 617 of the Criminal Code.
In addition to the substantial submissions you made in writing,
I have had the benefit of examining the information obtained in
the investigation conducted in February 1982 under the direc
tion of the Honourable Roland Penner, Attorney General for
Manitoba, and that gathered in the course of the inquiries
made on my behalf over the last few months.
While there is evidence suggesting that one or two members of
the jury were exposed to comments outside the courtroom that
were unfavourable to the accused, the occurrences are not in
my opinion sufficient to invalidate the trial and verdicts. As
Martin J.A. said in R. v. Hertrich, Stewart and Skinner (1982)
67 C.C.C. (2d) 510:
"In modern times, juries are seldom sequestered, even in the
most serious cases, unless there are special circumstances
which make sequestration advisable. Sequestration, of
course, imposes a hardship on the jurors, particularly in long
trials. The greater freedom now permitted to juries exposes
them, however, to the kind of communication which occurred
here. The public and the courts have, none the less, sufficient
confidence in the integrity of jurors and their ability not to
allow themselves to be influenced by communication of a
potentially prejudicial nature, that such an improper com
munication does not necessarily invalidate the trial."
A careful review of all the circumstances has satisfied me that
the jurors in this case maintained the integrity expected of
them and reached the verdicts on the basis of the evidence
presented to them. This is not a case that warrants any
intervention on my part under the provisions of section 617.
I would like to express my appreciation for your extensive
submissions and the assistance you brought to the inquiries
made in the course of this application, all of which permitted a
thorough examination of the circumstances of this case.
[Exhibit "T"]
I propose to deal firstly with what I consider to
be the most salient issue in the within motion,
namely: Is the decision of the Minister of Justice
(the Minister) to deny applicant's application for
the mercy of the Crown and respectful request
that the said Minister direct by order in writing a
new trial for the applicant open to review by the
Court?
Section 617 of the 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.
Section 617 is, save for the references to
"sentence of preventive detention" under Part
XXI, comparable to former section 596 [of S.C.
1953-54, c. 51]. See Martin's Criminal Code
1955, page 911, where the author, referring to
section 596, writes:
This is the former s.1022(2) re-written without change in
substance. It corresponds to s.19(a) and (b) of the English Act
of 1907....
Section 686 of the Code headed "Royal preroga
tive" reads:
686. Nothing in this Act in any manner limits or affects Her
Majesty's royal prerogative of mercy.
The Letters Patent Constituting the Office of
Governor General of Canada, effective October 1,
1947, R.S.C. 1970 [Appendix II, No. 35], read in
part:
"GEORGE R."
CANADA
George the Sixth, by the Grace of God, of Great Britain,
Ireland and the British Dominions beyond the Seas King,
Defender of the Faith.
[SEAL]
To All To Whom these Presents shall come,
GREETING:
Whereas by certain Letters Patent under the Great Seal
bearing date at Westminster the Twenty-third day of March,
1931, His late Majesty King George the Fifth did constitute,
order, and declare that there should be a Governor General and
Commander-in-Chief in and over Canada, and that the person
filling the office of Governor General and Commander-in-Chief
should be from time to time appointed by Commission under
the Royal Sign Manual and Signet:
And whereas at St. James's on the Twenty-third day of
March, 1931, His late Majesty King George the Fifth did cause
certain Instructions under the Royal Sign Manual and Signet
to be given to the Governor General and Commander-in-Chief:
And whereas it is Our Will and pleasure to revoke the
Letters Patent and Instructions and to substitute other provi
sions in place thereof:
Now therefore We do by these presents revoke and deter
mine the said Letters Patent, and everything therein contained,
and all amendments thereto, and the said Instructions, but
without prejudice to anything lawfully done thereunder:
And We do declare ....
Clauses VII and XII are as follows:
V II. And Whereas by The British North America Acts, 1867
to 1946, it is amongst other things enacted that it shall be
lawful for Us, if We think fit, to authorize Our Governor
General to appoint any person or persons, jointly or severally,
to be his Deputy or Deputies within any part or parts of
Canada, and in that capacity to exercise, during the pleasure of,
Our Governor General, such of the powers, authorities, and
functions of Our Governor General as he may deem it neces
sary or expedient to assign to such Deputy or Deputies, subject
to any limitations or directions from time to time expressed or
given by Us: Now We do hereby authorize and empower Our
Governor General, subject to such limitations and directions, to
appoint any person or persons, jointly or severally, to be his
Deputy or Deputies within any part or parts of Canada, and in
that capacity to exercise, during his pleasure, such of his
powers, functions, and authorities as he may deem it necessary
or expedient to assign to him or them: Provided always, that the
appointment of such a Deputy or Deputies shall not affect the
exercise of any such power, authority or function by Our
Governor General in person.
XII. And We do further authorize and empower Our Gover
nor General, as he shall see occasion, in Our name and on Our
behalf, when any crime or offence against the laws of Canada
has been committed for which the offender may be tried
thereunder, to grant a pardon to any accomplice, in such crime
or offence, who shall give such information as shall lead to the
conviction of the principal offender, or of any one of such
offenders if more than one; and further to grant to any offender
convicted of any such crime or offence in any Court, or before
any Judge, Justice, or Magistrate, administering the laws of
Canada, a pardon, either free or subject to lawful conditions, or
any respite of the execution of the sentence of any such
offender, for such period as to Our Governor General may seem
fit, and to remit any fines, penalties, or forfeitures which may
become due and payable to Us. And We do hereby direct and
enjoin that Our Governor General shall not pardon or reprieve
any such offender without first receiving in capital cases the
advice of Our Privy Council for Canada and, in other cases, the
advice of one, at least, of his Ministers.
In the Department of Justice Act, R.S.C. 1970,
c. J-2, sections 2, 4(a), 5(a) and 5(c) provide:
2. (1) There shall be a department of the Government of
Canada called the Department of Justice over which the Minis
ter of Justice of Canada appointed by commission under the
Great Seal shall preside.
(2) The Minister of Justice is ex officio Her Majesty's
Attorney General of Canada, holds office during pleasure, and
has the management and direction of the Department of
Justice.
4. The Minister of Justice shall
(a) be the official legal adviser of the Governor General and
the legal member of Her Majesty's Privy Council for
Canada;
5. The Attorney General of Canada shall
(a) be entrusted with the powers and charged with the duties
that belong to the office of the Attorney General of England
by law or usage, so far as those powers and duties are
applicable to Canada, and also with the powers and duties
that, by the laws of the several provinces, belonged to the
office of attorney general of each province up to the time
when the British North America Act, 1867, came into effect,
so far as those laws under the provisions of the said Act are
to be administered and carried into effect by the Government
of Canada;
(c) be charged with the settlement and approval of all
instruments issued under the Great Seal;
In the Interpretation Act, R.S.C. 1970, c. I-23,
section 28 headed "Definitions" defines in part:
28....
"Governor", "Governor of Canada", or "Governor General"
means the Governor General for the time being of Canada,
or other chief executive officer or administrator for the time
being carrying on the Government of Canada on behalf and
in the name of the Sovereign, by whatever title he is
designated;
"Governor in Council", or "Governor General in Council"
means the Governor General of Canada, or person adminis
tering the Government of Canada for the time being, acting
by and with the advice of, or by and with the advice and
consent of, or in conjunction with the Queen's Privy Council
for Canada;
"Her Majesty", "His Majesty", "the Queen", "the King" or
"the Crown" means the Sovereign of the United Kingdom,
Canada and Her other Realms and Territories, and Head of
the Commonwealth;
Counsel for applicant argued that the applica
tion for mercy of the Crown in section 617 was
distinguishable from royal prerogative of mercy
since it was based on a statutory enactment and
was accordingly reviewable. I am not prepared to
accept there exists a distinction advanced by
counsel.
In "An Act to establish a Court of Criminal
Appeal and to amend the Law relating to Appeals
in Criminal Cases" [Criminal Appeal Act, 1907
(U.K.), 7 Edw. 7, c. 23] passed 28th August 1907,
reported in The Law Reports, The Public General
Statutes passed in the seventh year of the reign of
His Majesty King Edward the Seventh, page 99,
the reference to the prerogative of mercy is found
in section 19 under the heading of "Supplemental"
and reads:
19. Nothing in this Act shall affect the prerogative of mercy,
but the Secretary of State on the consideration of any petition
for the exercise of His Majesty's mercy, having reference to the
conviction of a person on indictment or to the sentence (other
than sentence of death) passed on a person so convicted, may, if
he thinks fit, at any time either —
(a) refer the whole case to the Court of Criminal Appeal,
and the case shall then be heard and determined by the
Court of Criminal Appeal as in the case of an appeal by a
person convicted; or,
(b) if he desires the assistance of the Court of Criminal
Appeal on any point arising in the case with a view to the
determination of the petition, refer that point to the Court
of Criminal Appeal for their opinion thereon, and the
Court shall consider the point so referred and furnish the
Secretary of State with their opinion thereon accordingly.
In The Constitutional History of England by F.
W. Maitland (1913), under the heading of "Gov-
ernment and Justice", at page 480, paragraph 3
the author states:
... legally the crown has a considerable control over criminal
proceedings. (i) It can pardon any crime before or after convic
tion. This power is exercised for the king by a Secretary
(Home) of State.
And on the same page [also in subparagraph 3(i)]:
The legal power of pardon then is very extensive indeed. The
check upon it is not legal but consists in this, that the king's
secretary may have to answer in the House of Commons for the
exercise that he makes of this power.
In Halsbury's Laws of England, 4th edition
[Vol. 8: Constitutional Law], dealing with "Par-
dons and Reprieves" paragraph 949 sets out in
part with reference to "Pardons":
The Crown enjoys the exclusive right of granting pardons, a
privilege which cannot be claimed by any other person either by
grant or prescription. It is usually delegated to colonial Gover
nors and to Governors General, although in so doing the
Sovereign does not entirely divest herself of the preroga
tive .... [References omitted.]
And in Volume 6 [Commonwealth and Dependen
cies] of the same edition, referring to the "Consti-
tutional authority of Governors General", para
graph 824 sets out in part:
The authority of the representative of the Crown extends, even
without express delegation but subject to the terms of his
commission and to any other statutory or constitutional provi
sions, to the exercise of the royal prerogative insofar as it is
applicable to the internal affairs of the Member, state or
province consistently with the constitutional scheme of division
of legislative and executive powers within the Member con
cerned. In Canada all the Crown's prerogatives, internal and
external, are exercisable by the Governor General .... [Refer-
ences omitted.]
In the result it becomes clear that Her Majesty's
royal prerogative of mercy is, by reason of the
Letters Patent Constituting the Office of Governor
General of Canada, exercisable by the Governor
General and would have the same effect as if
exercised by Her Majesty. In de Freitas v. Benny
and Others, [1976] A.C. 239 (P.C.), the headnote
reads [at page 240]:
The appellant was convicted of murder in the Supreme Court
of Trinidad and Tobago on August 21, 1972, and sentenced to
death. His appeal against conviction was dismissed by the
Court of Appeal on April 17, 1973, and a petition for special
leave to appeal to the Judicial Committee of the Privy Council
was dismissed on December 12, 1973. On December 20, 1973,
the appellant applied to the High Court for, inter alia, a
declaration that the carrying out of the death sentence would
contravene his human rights recognised under section 1 (a),
and protected under section 2 (b), of the Trinidad and Tobago
(Constitution) Order in Council 1962. The High Court dis
missed the application on February 15, 1974, and its decision
was affirmed by the Court of Appeal on April 30, 1974.
On appeal by the appellant to the Judicial Committee:—
Held, dismissing the appeal, (1) that the executive act of
carrying out a death sentence pronounced by a court of law was
authorised by laws that were in force at the commencement of
the Constitution and the appellant was, therefore, debarred by
section 3 of the Constitution from asserting that it abrogated,
abridged or infringed any of his rights or freedoms recognised
and declared in section 1 or particularised in section 2 (post,
pp. 224F-H, 246c).
(2) That the appellant had no legal right to have disclosed to
him the material furnished to the advisory committee and to
the Minister on which the Minister tendered advice to the
Governor-General as to the exercise of the prerogative of mercy
as the exercise of the royal prerogative was solely discretionary
(post, p. 2480-F) and not quasi-judicial.
Judgment of the Court of Appeal of Trinidad and Tobago
affirmed. [Footnote omitted.]
Lord Diplock, speaking for the Judicial Commit
tee, said this at page 247:
Except in so far as it may have been altered by the Constitu
tion the legal nature of the exercise of the royal prerogative of
mercy in Trinidad and Tobago remains the same as it was in
England at common law. At common law this has always been
a matter which lies solely in the discretion of the sovereign, who
by constitutional convention exercises it in respect of England
on the advice of the Home Secretary to whom Her Majesty
delegates her discretion. Mercy is not the subject of legal
rights. It begins where legal rights end. A convicted person has
no legal right even to have his case considered by the Home
Secretary in connection with the exercise of the prerogative of
mercy. In tendering his advice to the sovereign the Home
Secretary is doing something that is often cited as the exemplar
of a purely discretionary act as contrasted with the exercise of a
quasi-judicial function. [Emphasis added.]
In Re Royal Prerogative of Mercy upon Depor
tation Proceedings (S.C.C., March 29, 1933),
[[1933] S.C.R. 269]; 59 C.C.C. 301, the [C.C.C.]
headnote reads in part [at page 301 C.C.C.]:
The Governor-General in the exercise of the royal preroga
tive of mercy may release a convict from prison prior to the
completion of his sentence without the convict's consent.
The judgment of the Court was delivered by
Duff C.J.C., and commences [at page 302
C.C.C.]:
We have to give our opinions in answer to certain Interrogato
ries addressed to us by His Excellency the Governor-General in
Council.
Four Interrogatories were addressed to the Court.
Referring to the Interrogatories generally, Chief
Justice Duff stated at page 302 [C.C.C.]:
These Interrogatories, speaking broadly, concern the effect of
the release of a convict from prison who is undergoing a
sentence for a criminal offence by an act of clemency in
exercise of the royal prerogative.
I propose to relate myself only to Interrogatory
No. 1, in respect to which the Chief Justice stated
at page 303 [C.C.C.]:
Interrogatory No. 1, we shall treat as addressed to the
question whether or not the act of clemency in releasing a
convict from prison prior to the completion of the term of his
sentence may be valid and effective in law without the consent
of the convict. The answer to the Interrogatory so put is in the
affirmative.
and at pages 304-305 [C.C.C.]:
The nature of prerogative is, in our opinion, rightly set forth
by Dicey on Law of the Constitution, 8th ed., p. 420:
"The `prerogative' appears to be both historically and as a
matter of actual fact nothing else than the residue of discretion
ary or arbitrary authority, which at any given time is legally
left in the hands of the Crown. The King was originally in truth
what he still is in name, 'the sovereign,' or, if not strictly the
`sovereign' in the sense in which jurists use that word, at any
rate by far the most powerful part of the sovereign power."
By the terms of the Instructions to His Excellency he is
directed, before pardoning or reprieving an offender, to receive
first, in capital cases, the advice of the Privy Council, and in
other cases, of one at least of his ministers; and in modern times
all such advice is, of course, given subject to the accountability
of the Council or the ministers to the House of Commons. A
sentence in the judgment of Holmes, J., speaking for the
Supreme Court of the United States in Biddle, Warden v.
Perovich (1927), 274 U.S. 480, at p. 486, applies equally to the
exercise of the prerogative of mercy in Canada. A pardon, said
that most learned and eminent Judge, "is a part of the Consti
tutional scheme. When granted it is the determination of the
ultimate authority that the public welfare will be better suited
by inflicting less than what the judgment fixed."
We think it is not consistent with this view of the nature of
the prerogative in question to regard an unconditional pardon
as in the same category, in point of law, as an act of benevo
lence proceeding from a private person.
It is to be noted that variously throughout the
judgment of Chief Justice Duff the prerogative is
referred to as a royal prerogative. The reference by
the Governor General in Council to the Supreme
Court was made pursuant to statutory provision,
and I have no hesitation in holding that the pre
rogative of mercy of the Crown as set out in
section 617 of the Code means a royal prerogative
of mercy, and is in fact an application for the
exercise of the royal prerogative of mercy; and as
put by Lord Diplock in de Freitas, supra, "Mercy
is not the subject of legal rights. It begins where
legal rights end"; and as Chief Justice Duff
referred to it in Re Royal Prerogative, "an act of
benevolence".
Not being a legal right but an act of mercy, it
cannot be legally questioned by the applicant. The
Minister, under section 617, acts as the adviser to
the Governor General. If the Minister concludes
that the application merits an order for a new trial,
he so advises the Governor General and the order
for a new trial will then be effected by the Gover
nor General who, in his position as Governor Gen
eral in Council, will have passed a Privy Council
order providing for a new trial. But the decision in
the first instance rests with the Minister, and his
decision to deny the request for the mercy of the
Crown is not subject to legal review.
Applicant argued further that he was entitled to
relief pursuant to sections 7 and 11(d) of 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.)] (the Chart
er) which read:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
1 t. Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to
law in a fair and public hearing by an independent and
impartial tribunal;
I am satisfied that the Charter and the particu
lar sections quoted have no application to the
within matter. As already pointed out, no legal
right is involved here. The Charter has no applica
bility to the issue of the royal prerogative. Numer
ous cases have already dealt with the impact of the
Charter in respect of sections 7 and 11(d) and no
good purposes would be served by repeating what
has already been said in them, and I accordingly
propose to refer to only two: R. v. Belton (1982),
19 Man.R.(2d) 132 (C.A.), and Re Balderstone et
al. and The Queen (1982), 2 C.C.C. (3d) 37
(Man. Q.B.).
In Belton, Monnin J.A. (now C.J.M.) stated at
page 137:
The applicability of the Canadian Constitution, 1982, has
been considered by many tribunals since its coming into force.
It must be interpreted liberally but it must be remembered that
it was not passed in a vacuum and that Parliament was
obviously aware of the basic and fundamental principles of law
which had been applied in this country long before the passing
of the Charter.
In Balderstone, Scollin J. put it thusly at pages
46-47:
The Charter did not repeal yesterday and did not abolish
reality. In Re Polma and The Queen (1982), 67 C.C.C. (2d) 19
at pp. 27-8, 136 D.L.R. (3d) 69 at p. 77, 37 O.R. (2d) 189 at
pp. 200-1, Eberle J. said:
I have said earlier that the Charter was not passed in a
vacuum. This country has a well-developed and long-estab
lished system of laws, including many presumptions in favour
of an accused person. We have a whole body of legal
principles and concepts, substantive and adjectival, together
with a system of tribunals to apply that whole complex of
laws to the cases that arise from day to day. It cannot be
thought that the intent of the provisions of the Charter that
are in issue in this case, is to undermine and bring to the
ground the whole framework of laws and the legal system of
the country at the stroke of a pen, even if it be a Royal pen.
It is this wealth of legal tradition that sustains the real worth of
the guarantees themselves and ensures that the Charter will not
be translated into a warrant for rule by a judicial oligarchy ....
but the restraints prescribed by elected Legislatures or by the
settled substantive and procedural doctrines of our common law
cannot readily be held to be inconsistent with s. I or not to be in
accordance with the principles of fundamental justice. [Empha-
sis added.]
An appeal against the decision of Scollin J. in
Balderstone was dismissed by the Manitoba Court
of Appeal under date of September 12, 1983
[Balderstone v. R. et al. (1983), 23 Man.R.(2d)
125 (C.A.)]. It follows that applicant's argument
based on the Charter does not, accordingly, alter
my earlier decision. The Minister's decision cannot
legally be reviewed.
While this concludes the matter, I propose to
deal as well with the argument of applicant that
the application was not fairly reviewed by the
Minister. The first point made was that the Minis
ter was unduly influenced by examining the infor
mation obtained in the investigation conducted
under the direction of the Honourable the Attor-
ney-General for Manitoba, urging that when the
Attorney-General caused the investigation to be
made he had no jurisdiction to make any review as
to the integrity of the trial and its result. "If, on
the other hand, the jurors were being investigated
as to their commission of a criminal offence, then
surely no meaningful efforts have been made to
determine whether the newspaper accounts were or
were not accurate with respect to the jury's
deliberations."
While the Minister did refer to having had the
benefit of examining the information obtained by
the investigation conducted by the Attorney-Gen
eral for Manitoba, it is to be noted that in his
letter denying the application for a new trial the
Minister wrote that the information from the
Attorney-General was in addition to the very sub
stantial submissions made in writing by applicant's
counsel, as well as the information which the
Minister gathered in the course of the inquiries
made on his behalf "over the last few months".
That information is in part set out in the various
documents included earlier in these reasons and
shows a full, complete and judicial review made by
the Minister independent of the investigation by
the Manitoba Attorney-General, and I find myself
unable to give effect to that argument by the
applicant.
It would appear as well from the correspondence
that one of the requests made by applicant's coun
sel was that he have an opportunity to make
representations in person to the Minister. This was
denied him. It will be noted from the affidavit of
Spencer Ronald Fainstein earlier referred to he
deposed that in the fiscal years 1980-81 and 1981-
82 seventy-one applications under section 617 of
the Code had been received by the Department of
Justice of Canada, and that he was aware of no
case in which a Minister of Justice had adopted a
procedure involving an oral hearing in the course
of disposing of such an application. The decision
whether or not to allow an oral hearing was a
matter of discretion on the part of the Minister,
and his decision against such an oral hearing is
certainly not in my opinion an unfair act.
Further reviewing all the material before me, I
find no reason to conclude otherwise than that the
Minister acted fairly in arriving at his decision to
refuse the application. The last two paragraphs in
the Minister's letter which read
A careful review of all the circumstances has satisfied me that
the jurors in this case maintained the integrity expected of
them and reached the verdicts on the basis of the evidence
presented to them. This is not a case that warrants any
intervention on my part under the provisions of section 617.
I would like to express my appreciation for your extensive
submissions and the assistance you brought to the inquiries
made in the course of this application, all of which permitted a
thorough examination of the circumstances of this case.
support the conclusion I have reached that the
Minister's decision was fairly arrived at and was in
all respects in accordance with the principles of
fundamental justice and fairness as set out by
Dickson J. in Martineau v. Matsqui Institution
Disciplinary Board [1980] 1 S.C.R. 602, where he
stated at pages 630-631:
7. It is wrong, in my view, to regard natural justice and
fairness as distinct and separate standards and to seek to define
the procedural content of each. In Nicholson, the Chief Justice
spoke of a "... notion of fairness involving something less than
the procedural protection of the traditional natural justice".
Fairness involves compliance with only some of the principles of
natural justice. Professor de Smith (3rd ed. 1973, p. 208)
expressed lucidly the concept of a duty to act fairly:
In general it means a duty to observe the rudiments of
natural justice for a limited purpose in the exercise of
functions that are not analytically judicial but administra
tive.
The content of the principles of natural justice and fairness
in application to the individual cases will vary according to the
circumstances of each case, as recognized by Tucker L. J. in
Russell v. Duke of Norfolk ([1949] 1 All E.R. 109), at p. 118.
8. In the final analysis, the simple question to be answered is
this: Did the tribunal on the facts of the particular case act
fairly toward the person claiming to be aggrieved? It seems to
me that this is the underlying question which the courts have
sought to answer in all the cases dealing with natural justice
and with fairness.
Applicant's motion is dismissed with costs.
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