Tuesday, July 11, 2006

Letourneau Eden LLP

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1 comment:

Ed Pearson said...

By Ed Pearson, Activist -- Justice for all.

Notwithstanding that I am neither a Solicitor, Barrister, Judge or academic versed in Constitutional Law and that I do not hold a degree in Criminal Law, I shall attempt to set forth my opinion of the Truscott judgment of the Ontario Court of Appeal.

While I applaud their acceptance of the new evidence and their analysis [suppressed evidence] and equally applaud the judgment rendered , I do find that in law and fact the judgment is essentially, for want of a better term, a cowardly judgment, which avoids, notwithstanding the facts found, to properly place the unfairness and suppression of evidence on the shoulders of the Crown members who prosecuted the case in full knowledge that evidence beneficial to the accused was available and abundant.

Long before the Charter and R v Stinchcombe the cases of, King v Lemay and R v Boucher, had been pronounced by the Supreme Court of Canada. These cases clarified and mandated the role of Crown counsel under the common law. Stinchcombe, was not new law, neither did it create a new right or obligation. It simply more clearly enunciated the role of a Crown Attorney and the effect of failure to comply.

The Court of Appeal, positioning itself not as a court of law, but as conciliating body, excused itself from declaring Truscott innocent of the charge by holding that it could not readily follow R v Stinchcombe [1991] or the cases which followed and dictated compliance. The Court opted to refrain from declaring the obvious on the pretext that the “law” had evolved and it would be unfair to situate the then crown as being in violation of “new law”. . The Court opted not to speak to King v Lemay or R v Boucher and in this way obviated the necessity of placing the blame for an evident and admitted miscarriage of justice where it rightly belonged, on the back of the Crown.

Perhaps mistakenly and in error, I assumed that even at the time of Mr. Truscott’s trial he was entitled to a fair trial and due process of law, by virtue of the common law

Thus while agreeing with the result, I firmly believe the Court missed an opportunity, on solid evidence, to declare Mr. Truscott, beyond any reasonable doubt, innocent of the accusation. The acquittal gives rise to the false assumption that a future jury might well have acquitted Mr. Truscott, only because there would be insufficient evidence, beyond a reasonable doubt, upon which to convict.

It appears obvious to me that accepting that the crime could not have been committed within the time frame relied upon by the Crown. It is crystal clear that Mr. Truscott was totally innocent. The evidence then known to the Crown was that no time of death existed and the Crown suppression of Dr. Penistan’s notes permitted them to misrepresent and perpetrate a fraud upon the Court and the jury by tailoring evidence accord with time frame that suited their theory. Penistan’s anxiety notes and the evidence of those who were on the bridge and whom saw Steve and Lyn cross the bridge going in a northerly direction cannot be assailed.

For what it is worth, the above constitutes my opinion.

However, that is not the purpose of this writing. There exists an even greater injustice, a matter that brings the administration of justice in Canada into disrepute.

WHY 49 years?

With the advent of the Charter, s. 24 (1) it is time to put to rest the draconian strictness of the Supreme Court of Canada judgment in the case of R v Palmer and subsequent judgments that have created criteria that is almost unreachable, and which is wholly dependent upon the discretionary whims and fanciful reasons, for non acceptance of any new evidence, as articulated by Courts of appeal in the majority of their judgments.

In most instances newly discovered evidence arises in cases where no appeal had been taken and the convicted person has two immediate nearly insurmountable burdens. First he must seek the discretion of a judge or judges of the Court of Appeal to grant an extension of the statutory delays within which to file a notice of appeal, or reopen an appeal from a conviction that was maintained on appeal to that Court and leave to appeal denied by the Supreme Court of Canada, or worse yet, leave was granted and the appeal denied by Supreme Court of Canada.
A court of appeal has jurisdiction under Criminal Code of Canada s. 683 to entertain an application to hear new evidence only if an appeal is pending, or where the case is one remitted to them by the Attorney General. All of the immediate above of course is dependent upon whether the party can assume the excessive costs of an appeal and competent counsel and if not, whether the Provincial Legal Aid will in its discretion agree to fund any or all of the above situations.


The question is why many, many years were required to resolve the Morin case, the Milgard case, the Marshall case, the Shipolov case, the recent case of Driscoll and the Truscott case and others that have been pending for years. These lengthy periods before vindication are demonstrative of the failures of the administration of justice in Canada,. failures that cannot but bring the administration of justice into disrepute.

Common Issues

The principal findings common to all of the above mentioned cases are, (a) the police and Crown tunnel vision, (b) the presentation at trial of evidence tailored to meet their theory, and (c) the suppression of any and all evidence that in any manner contradicts their theory or impeaches the credibility of their principal witnesses.

The lengthy and tailored injustices of the present Criminal Code of Canada in respect of possible appeal remedies, McMartin v. The Queen, 1964 CanLII 1 (S.C.C.), [1964] S.C.R. 484, and more recently in Palmer and Palmer v. The Queen, 1979 CanLII 8 (S.C.C.), [1980] 1 S.C.R. 759.and application for review presentable to a Minister of Justice (Attorney General) for the exercise of his or her discretion precludes in 99.99% of cases any type of review after appeal. Once out of the system ( rights of appeal exhausted) R v Stolar [s.c.c.] a convicted party must overcome a vast array of nearly insurmountable criteria set by rules and steps that serve to impede obtaining justice rather than being of assistance.


First, I would point out that denials of fairness and miscarriages of justice are not confined to murder cases, though from a media aspect and coverage, they receive exclusive attention.
Though the Courts refuse to acknowledge that a collateral attack remedy continues to be available in Canada, they err when they continue to declare that appeal as of right after conviction is the only available remedy as of right.
Appeal as of right and application for leave to appeal granted on grounds of mixed law and fact must be distinguished. The former is a statutory right granted by Parliament, the latter is wholly dependent upon the discretion of the Judge or Court hearing the application.

As of right and in the exercise of discretion are a world apart from being synonymous.
Likewise, the power to grant review that is exercisable by the Minister of Justice (Attorney General of Canada), is entirely within his discretion and then only after the delegation by him or her to another who will exercise that delegated power to enquire into the record and any new evidence that might have been discovered after trial and that even with due diligence was not discovered during trial or pending the appeal process. Thus it is upon the party delegated to recommend to the Minister that he should seek review should he ultimately find that the facts require same.
How well and how thorough the review is wholly dependent upon the party delegated and his recommendation. No checks and balances are available to the applicant other than an application to the Federal Court of Canada for judicial review of the Ministers final decision , which will be granted only, if, the Judge finds error of law or a denial of Charter rights. All of the above exercises of discretion require an excessive amount of time and the funds necessary to acquire access to the parties and courts in question.

All of the immediate above is easily and properly avoided by resort to a common law judicial remedy that exists as of right and which is speedy and cost efficient, or a 24 (1), s. 7 application in the nature of the common law remedy.

That remedy is the common law “Writ of Error Coram Nobis”
Before the granting in Canada of the statutory right to appeal appeals were brought up to higher courts by means of writs of error coram vobis. These applications to the higher courts sought review and correction of errors that appeared upon the face of the record. These were the only errors that were subject to review.
Over time it became apparent that matters outside, that is, that did not appear upon the face of the record were resulting in injustices, such as convictions and civil judgments that were incapable of review under the existing writs of error. Shortly thereafter the common law courts of England out of fairness and to resolve such injustices did by precedent evolve the writ of error coram nobis so as to permit the correction of such injustices.
The newly evolved writ of error coram nobis dealt exclusively with errors of fact that did not appear upon the face of the record, i.e., newly discovered evidence, suppression of evidence, perjury, fraud and misrepresentations availed of to obtain judgment.

While in Canada the ordinary writs of error dealt with appeals of errors that appeared upon the record were abolished in favour of our present statutory right to appeal in both civil and criminal matters, the writ of error coram nobis dealing as it did with new facts outside the record, was never abolished, intended to be abolished or repealed by Parliament.
It is a well recognized principle and rule of law that a common law remedy unless specifically abolished by Parliament continues and is of full force and effect, Criminal Code of Canada s. 8 (2) (3). The writ of error coram nobis existing as of right is not inconsistent with any provision of the Criminal Code of Canada and a fortiori is not inconsistent with any provision of the Charter of Rights and Freedoms. It would seem that if anything it is in complete accord with Charter s. 26 and s. 15 and is a more speedy and effective remedy than those relegated to the exercisable discretion of any person.

Henry v Q, (Quebec S.C.)
In the 1970’s I personally prepared at the request of Louis Henri and filed with Notice of Presentation thereof a writ of error coram nobis to be heard by the Superior Court of Quebec, his Court of Original jurisdiction,. The application was brought on to be heard though dismissed, not on the merits but upon the grounds that the Court was unable to determine the existence of the writ and that Mr. Henry, should apply and request of the Quebec Court of Appeal to exercise it’s discretion and reopen his original appeal.

On a personal level I applied for the issuance of a writ of error coram nobis before the Quebec Court the court having original jurisdiction in the matter and saw the application dismissed without a hearing on the merits. As no appeal was possible under the statutes from such a denial, I proceeded to file an appeal as of right before the Supreme Court of Canada. However, mistakenly bowing to the advice of the attorney by whom I was then employed, I sought leave to appeal to the Supreme Court of Canada.
At that particular time applications for leave to appeal were upon Notice and presented orally before three members of the Court.

At the hearing which lasted the better part of an entire day, a rare occurrence indeed, the Crown argued that the remedy of writ of error coram nobis did not exist and that it had been abolished at the time of the statutory granting of right to appeal.
Naturally, I argued that as the writ applied to fact situations outside the record and that as it was a writ of right and that never having been specifically abolished by statute the common law remedy was alive, well and available where the circumstances cried out for issuance.

At the conclusion of our respective arguments the three justices who had listened attentively to both myself and the Crown took the matter under reserve and advised us that they would render and inform us of their decision in the near future.
The decision when rendered made no determination negating the right to error coram nobis. The only words without explanation were, application for leave to appeal denied.

It seems then that as our entire argument was directed to the facts alleged and as to the existence of the remedy and the right to a full hearing on the merits and the right to seek leave to appeal or direct appeal from the denial thereof by the highest court in the Province that could deal with the matter, the decision of the Court without so stating, did by omission acknowledged the existence of the remedy sought and its availability in particular circumstances.

Had counsel for Marshall and the others availed of this remedy which was commented upon by many authors and professors of law, an effective and speedy judicial adjudication would have resulted. On the facts and circumstances of their case, as now known, would have resulted in in a lesser period of incarceration and a speedy judicial determination.. Also, they would not have been the victims of discretionary actions that caused these unwarranted and unfair delays in the obtaining of justice.

The Writ of Error Coram Nobis is alive and well and only requires that some attorney in a proper case who has the proverbial will to see that justice is done, effectively and speedily, will seek its issuance and a full hearing on the merits before the Court that had jurisdiction over the person and the offence and rendered the conviction in first instance.

If it should be determined or suggested that this writ or a remedy of equal nature is available under the provisions of Charter s. 24 (1), that also will be a victory for those whom, for lack of crown disclosure, suppression of evidence favourable to an accused or misrepresentation, fraud and/or the known use of perjured testimony seek relief.
They will have their day in Court as of right, unhampered by a dependence upon the exercise of discretion.

Ed Pearson

This will be followed by my opinion as regards a Charter right to Counsel and the right to a transcript of the trial record regardless of the Legal Aid provisions in that Parliament has granted a statutory right to appeal and cannot negate that Parliamentary statutory right of appeal based on impecuniosities.