



COURT OF APPEAL FOR ONTARIO

CITATION: McArthur v. Ontario (Attorney
    General), 2013 ONCA 668

DATE: 20131105

DOCKET: C56316

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

Lindley Charles McArthur

Applicant

(Respondent/Appellant
    by way of cross-appeal)

and

Attorney General of Ontario

Respondent

(Appellant/ Respondent
    by way of cross-appeal)

and

Attorney General of Canada

Respondent

(Respondent/Respondent
    by way of cross-appeal)

and

Association in Defence of the Wrongly Convicted

Intervener

David Finley and Jennifer Woollcombe, for the appellant

Alan Young, for the respondent Lindley McArthur

Richard Kramer, for the respondent Attorney General of
    Canada

James Lockyer and Russell Silverstein for the intervener
    Association in Defence of the Wrongly Convicted

Heard: October 30, 2013

On appeal from the judgment of Justice Michael R. Dambrot
    of the Superior Court of Justice, dated October 24, 2012.

ENDORSEMENT

[1]

Can an offender apply to the Minister of Justice for a ministerial
    review of his conviction without first applying for leave to appeal to the
    Supreme Court of Canada?  Lindley Charles McArthur posed this question by way
    of application.

[2]

Mr. McArthur was convicted of first degree murder in 1984.  His appeal
    to this court was dismissed in 1989.  He did not seek leave to appeal to the
    Supreme Court of Canada.  He remains in custody.

[3]

Mr. McArthur maintains that he did not commit the murder and seeks a ministerial
    review of his conviction based on the centrality of the jailhouse informant
    evidence to the Crowns case.  There is also the possibility that additional
    forensic testing could exonerate him.  In 1984, there was no screening
    committee for the use of jail house informants and the technology to test the
    DNA evidence did not exist at that time but does now.  Mr. McArthur has the
    assistance of the Innocence Project, a clinical programme at Osgoode Hall Law
    School that investigates claims of potential wrongful conviction.

[4]

The application judge answered yes to the question that Mr. McArthur
    posed.  He made the following declaration by way of judgment dated October 24,
    2012 (the Declaration):

THIS COURT DECLARES that upon an application for ministerial
    review on the grounds of miscarriage of justice being made to the Minister of
    Justice by or on behalf of a person who has been convicted under an Act of
    Parliament or a regulation made under an Act of Parliament pursuant to s. 696.1
    of the
Criminal Code of Canada
, it is the duty of the Minister of
    Justice to determine whether or not the applicant has exhausted his or her
    rights of judicial review or appeal with respect to the conviction as a
    pre-condition to conducting a ministerial review beyond a preliminary
    assessment of the application, subject to review by the Courts.  While the
    Minister must take into consideration the fact that an application under Part
    XXI.1 is not intended to serve as a further appeal and any remedy available on
    such an application is an extraordinary remedy, the Minister is not precluded
    from determining that the applicant has exhausted his or her rights of judicial
    review or appeal despite the fact that the applicant has not applied for leave
    to appeal to the Supreme Court of Canada with respect to the conviction.

[5]

The Attorney General of Ontario appealed.  He argued that the
    application judge misinterpreted s. 696.1 of the
Criminal Code
, R.S.C.
    1985, c. C-46 and that an applicant must exhaust his or her rights of judicial
    review or appeal, including seeking leave to appeal to the Supreme Court of
    Canada, before he or she can seek a ministerial review.

[6]

Section 696.1(1) reads as follows:

An application for ministerial review on the grounds
    of miscarriage of justice may be made to the Minister of Justice by or on
    behalf of a person who has been convicted of an offence under an Act of
    Parliament or a regulation made under an Act of Parliament or has been found to
    be a dangerous offender or a long-term offender under Part XXIV and whose
    rights of judicial review or appeal with respect to the conviction or finding
    have been exhausted.

[7]

We would dismiss the Attorney General of Ontarios appeal.  We agree
    with the analysis and disposition of the application judge, Dambrot J.  We would
    not say it differently, and we could not say it better.

[8]

Mr. McArthur cross-appealed, seeking a variation of the terms of the
    Declaration.

[9]

We would dismiss the cross-appeal for the same reason.

[10]

However,
    we make one observation.  On a plain reading of the Declaration, it governs the
    situation where, as here, the applicant has appealed his or her conviction to
    the appeal court but has not applied for leave to appeal to the Supreme Court
    of Canada with respect to the conviction.  The Declaration does not determine
    the question of whether the Minister could consider an application in a case
    where the applicant made no appeal of his or her conviction.  That question may
    arise in a future case.

DISPOSITION

[11]

For these reasons, the appeal and cross-appeal are dismissed.

J.C.
    MacPherson J.A.

E.E.
    Gillese J.A.

C.W.
    Hourigan J.A.


