Bilodeau v. Canada (Justice)

Bilodeau v. Canada (Justice)
Court (s) Database
Federal Court Decisions
Date
2011-07-12
Neutral citation
2011 FC 886
File numbers
T-417-10
Notes
Digest
Decision Content
Date: 20110714
Docket: T-417-10
Citation: 2011 FC 886
[UNREVISED CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, July 14, 2011
PRESENT: The Honourable Madam Justice Johanne Gauthier
BETWEEN:
MICHEL BILODEAU
Applicant
and
THE MINISTER OF JUSTICE OF CANADA
and
THE CRIMINAL CONVICTION REVIEW GROUP
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Bilodeau is asking the Court to review the legality of the decision of the Minister of Justice denying his application for a review of his criminal conviction under the former section 690 of the Criminal Code, RSC 1985, c C-46 (now sections 696.1 to 696.6), because he was not convinced that there was a reasonable basis to conclude that a miscarriage of justice likely had occurred.
[2] The applicant raised a number of arguments to the effect that the Minister had breached his duty to apply the “principles of fundamental justice”, including his duty of procedural fairness in this matter. The parties agree that this is the first time a matter that has progressed beyond the second level of the ministerial review process, namely, a decision after investigation, has been the subject of an application for judicial review and that the Court has had to examine the scope of the Minister’s duty in this context.
Factual background[1]
[3] Michel Bilodeau (or, more precisely, Alphonse Michel Bilodeau) was convicted, on December 23, 1971, of the non-capital murder of William Elieff.
[4] This murder occurred during an attempted armed robbery during the night of March 10 to March 11, 1971, at the Brasserie Normandie on Peel Street in Montréal. At the trial in 1971[2] the Crown’s theory was that Mr. Bilodeau and Yvon Beaulieu were in the billiard hall of the establishment at the time the murder was committed while two persons who were with them, namely, Denis Cloutier and Ms. M,[3] waited for them outside the billiard hall in the second floor staircase leading from the street to the said room.
[5] In his application for review of his criminal conviction in February 2001,[4] Mr. Bilodeau claimed that he had an alibi that had never been raised and he maintained that he had been asleep (drunk) in the automobile used by the four accomplices that night. Apparently Mr. Beaulieu was the only one who had gone into the billiard room, and therefore it was allegedly he who bore sole responsibility for the murder which took place that night.
[6] In support of this “new important question”, Mr. Bilodeau submitted an affidavit from Mr. Cloutier, with whom he claimed he had never spoken from the time he was convicted until a chance encounter with Mr. Cloutier in a supermarket in the summer of 2000. It is important to note at once that Mr. Cloutier had pleaded guilty to a charge of manslaughter and did not testify at the trial of Messrs. Bilodeau and Beaulieu.
[7] Mr. Bilodeau also submitted that he had been the victim of a miscarriage of justice due to the criminal behaviour of the investigating police officers and the compliance of the Crown prosecutor. The officers are alleged to have fabricated evidence and pressured witnesses to perjure themselves.
[8] Specifically, he argued that the testimony of Ms. M, who was a minor at the time (aged 16) was biased if it is taken into account that it was in her interest to help the police out of fear of being charged along with the three men she was with the night of the murder, in addition to the fact that she had been pressured and even sexually abused by the police. In support of these allegations, Mr. Bilodeau relied on Mr. Cloutier’s affidavit, which states that he too was pressured and physically abused by the police into making a false statement incriminating Messrs. Bilodeau and Beaulieu, as well as on recent conversations he allegedly had with Ms. M.
[9] Mr. Bilodeau indicated that, at the time of the incidents, he was young (he was 20 years old when the trial took place), rebellious and had little education. According to him, he understood little of what was happening. Mr. Bilodeau also noted that he did not trust his counsel (Mr. Robert Forest) at the time the trial was held and that he refused to speak with him. However, he also claimed that his counsel had dissuaded him from testifying because of his criminal past and the difficulties he had expressing himself and keeping calm (see D-21). Although Mr. Bilodeau raised the incompetence of his counsel, the applicant did not press the issue before me, given the lack of evidence on this point.[5]
[10] Mr. Bilodeau stated that he had always maintained his innocence and had been unable to appeal the decision for various reasons such as the difficulty in communicating with the outside world at that time, as well as his lack of education and means. He claimed to have tried to have his case reopened around 1980-82 but that the legal fees were too expensive for him.
Available evidence from 1971
[11] In his letter dated February 21, 2001, Mr. Poirier indicated that his mandate was to gather all of the necessary documentation for a review of his client’s conviction. At that time, the transcripts of the trial and the instructions to the jury were no longer in the record. According to him, all that remained was the transcript of the preliminary hearing, the notes of the clerk at trial, a transcript of a visit to the scene of the crime by the judge, the jury, the accused and witness Maria Koliff, as well as the last part of her testimony on December 10, 1971.[6]
[12] At the trial the Crown presented 18 testimonies, the most relevant being those of Ms. Koliff, Ms. M, and Mr. Kit Wong, a 23-year-old student who was part of the last group of clients to leave the billiard hall around midnight. The defence (Mr. Forest) called only one witness, namely, Mr. Boulais, the counsel who had represented Mr. Bilodeau at the preliminary inquiry. The Crown, in rebuttal, called Detective Sergeant Roger David, presumably to respond to the testimony of Mr. Boulais. Counsel for Mr. Beaulieu did not submit evidence.
[13] The only transcript that exists, namely, the one from December 10, 1971, indicates that Ms. Koliff, a waitress at the tavern, was in the billiard hall at the time of the murder. She confirmed:
(i) that there was only one entrance;
(ii) that on the night in question, around midnight (closing time), she was arranging the tables when two men entered the hall. She assumed that Mr. Elieff, whom she could not see from her position, would take care of them;
(iii) that she heard the gunshot but did not see who had fired. Nor did she see that Mr. Elieff had been wounded;
(iv) that she clearly saw the two individuals near the cash register and described their behaviour;
(v) that she found the victim, Mr. Elieff, wounded on the floor after the two men had fled.
The judge and a few members of the jury asked Ms. Koliff questions to verify what she had seen and what she had been able to see from her vantage point that night.
[14] There is nothing in her brief testimony when she returned to court on December 10, 1971, that indicates whether, the previous day, she had identified the two men she claimed to have clearly seen. However, in response to one specific question, she did state that she had never seen these two men before that night.[7]
[15] The parties assumed that the testimonies of Mr. Wong and Ms. M in court were probably more or less consistent with their statements at the preliminary inquiry.[8] Although Mr. Bilodeau was present and heard this evidence, he did not make any specific comments about it. Nor did he comment on Ms. Koliff’s testimony in chief on December 9, 1971.[9]
[16] At the preliminary inquiry, Mr. Wong testified that he had passed four individuals[10] who were going up the narrow staircase (three men and one woman) when he was leaving the billiard hall coming down the same staircase. His testimony on this point was not called into question. He clearly identified the woman as being Ms. M and stated that he recognized Messrs. Beaulieu and Cloutier. He was unable to clearly identify Mr. Bilodeau as the fourth person.
[17] As for Ms. M, it appears that during her testimony she had started by recounting a rather farfetched story whereby none of the four companions had even gone to the Brasserie Normandie. According to her, all of them supposedly went dancing.[11] Then they allegedly went to Toronto and later she claimed to have slept with Mr. Beaulieu in a “tourist room” in Montréal. Then they returned to Quebec City.[12]
[18] After the judge remarked on her bad attitude and the court adjourned at the end of the day, Ms. M changed her testimony the next day. She admitted that she had in fact been outside the billiard hall (second-floor landing) with Mr. Cloutier the night of the crime when Mssrs. Beaulieu and Bilodeau entered the billiard hall. She heard a gunshot and they came out saying that they had shot at but thought they had missed Mr. Elieff. She further stated that the four accomplices had apparently walked to the Brasserie from Mr. Cloutier’s place, which was two blocks away.
[19] It should be noted that during Ms. M’s testimony she was asked a number of questions by Mr. Boulais (counsel for Mr. Bilodeau) to determine why she had changed her version. She indicated that Detective Sergeant David had told her that he was very disappointed with her for not following his advice to tell the truth and that he allegedly told her that she could be charged with perjury.[13] She also indicated that the previous day in court, during a break, she had overheard Detective Sergeant David tell the Crown prosecutor that he was going to have her charged with murder. During close cross-examination by Mr. Boulais, she also testified that the same police officer had told her at one point that she would not be charged with murder if she testified against Messrs. Bilodeau and Beaulieu.
[20] As Ms. M had done before him, Mr. Cloutier testified at the preliminary inquiry that after spending the evening at the Altesse Tavern until about 20 minutes after midnight, he, Messrs. Beaulieu and Bilodeau and Ms. M supposedly went dancing at the Le Crazy Cat discotheque. They allegedly drove to the said discothèque before leaving around 2:30 a.m. and heading for Toronto.
[21] Since Mr. Cloutier had been called as a witness by the prosecution, after this statement, the Crown prosecutor obtained the court’s permission to cross-examine him about an earlier statement, in particular, a statement he had given to police on March 19, 1971. It should be noted that at the beginning of his testimony Mr. Cloutier had asked if he could obtain the protection of the court, which was granted, albeit with a warning that he had to tell the truth,[14] failing which he could be charged with perjury.
[22] It appears from this cross-examination that the earlier statement read at the coroner’s inquest indicated that M. Cloutier apparently stayed at the Altesse Tavern until about 11:30 p.m. with Mr. Beaulieu, Michel Larivière[15] and [translation] “some other friends of Michel’s” he did not know. They also are alleged to have gone to his place with Mr. Beaulieu, Michel and Ms. M and later purportedly walked over to the billiard hall. Mr. Cloutier apparently stayed on the sidewalk because they [translation] “knew me”. Following an objection to the earlier statement being read in its entirety, Mr. Beaulieu clearly indicated that the statement was false and that the police had pressured him into making it, telling him that if he did not testify then it [translation] “would be the others who would testify against him”. It appears that Mr. Cloutier had an opportunity to explain in detail how he had been pressured by the police into making this statement (including having his hair pulled by them).
[23] Following the trial, Messrs. Beaulieu and Bilodeau were sentenced to life imprisonment (D-1), while Mr. Cloutier, who, as was previously mentioned, had pleaded guilty to a lesser charge, was sentenced to seven (7) years’ imprisonment.
Mr. Boro’s investigation reports
[24] After a lengthy correspondence between the Criminal Conviction Review Group (CCRG) and Mr. Bilodeau, on or about March 12, 2003,[16] the Minister instructed Mr. Boro, a criminal lawyer who the parties acknowledged at the hearing before me as being very experienced, to conduct the investigation.
[25] On October 2, 2003, Mr. Boro completed his investigation report[17] and sent it to Mr. Bilodeau for comments. Among other things, Mr. Boro indicated that since Mr. Bilodeau’s counsel confirmed that his client had no further comments or evidence to adduce at that point, and that Mr. Bilodeau, in a letter dated October 10, had indicated that Ms. M did not remember the sequence of events (30 years later) very well, he decided not to meet with Messrs. Bilodeau and Beaulieu or Ms. M. In his report he summarized the evidence, the law with regard to alibis, the arguments raised in support of the application for review and, in his conclusion, indicated that Mr. Bilodeau had one year to submit additional comments to the Minister, in accordance with section 5 of the Regulations Respecting Applications for Ministerial Review - Miscarriages of Justice, SOR/2002-416 (Regulations).
[26] On October 15, 2003, Mr. Bilodeau commented at length on the investigation report. He submitted that, given the importance of the testimony of Ms. M at trial, it was unacceptable that she was not interviewed. In response to this, and to ensure that the matter was investigated fairly and thoroughly, Mr. Boro investigated further. The second report, dated May 6, 2004, summarized the interviews with Mr. Bilodeau and his counsel, with Mr. Cloutier, and with Ms. M. It appears from the said report, which was sent to Mr. Bilodeau,[18] that Mr. Cloutier had changed his version, telling the investigator that it was he and Mr. Beaulieu who had gone into the billiard hall, his role being to point out the proprietor. He added that when he was going into the billiard hall he recalled that he had passed several people who were going down the staircase, including one individual who was of Chinese origin. Mr. Beaulieu was the one who allegedly killed the victim, and everything had happened very quickly. They fled and hid out in his apartment. All that time, according to Mr. Cloutier, Mr. Bilodeau was asleep in the car, which was parked on Peel Street, because he had driven the car to the Brasserie Normandie and later returned home by means of the said car.
[27] According to the report, Mr. Cloutier is alleged to have stated that:
a. the only evidence he had given was at the coroner’s inquest and that he had not been asked to testify at the preliminary inquiry;
b. he was allegedly placed in protective custody after Mr. Beaulieu had threatened him; and
c. he had always denied having participated in the murder.
[28] As for Ms. M, who is now married and who, it seems, has never told her husband about these events, the interview with her revealed little about the alibi issue, because she was accompanied by her husband, who initially refused to allow her to answer questions, believing that the whole thing was a conspiracy cooked up with Mr. Bilodeau to make money. It appears that he gained a better understanding of the situation after it was explained to him.
[29] The report dated May 6, 2004, indicated that Ms. M is a fragile person who is still haunted by these events but that “she stated categorically that she had no intention of renouncing the testimony she had given to the court thirty years earlier … [and] denied having been the victim of threats when she made her deposition at the time”.
[30] Apparently, Mr. Bilodeau had gone to her place of work three times on the pretext that he was writing a book about the case. It should also be noted that Ms. M’s refusal to participate in the investigation stems from her fear of having to testify. The interview had obviously troubled her a great deal.
[31] She did not respond directly when asked whether it was possible that Mr. Bilodeau had been asleep in the car and merely repeated that she was sticking to the version of the facts she had given before the court.
Other measures between May 6, 2004, and the decision
[32] Given that all of the correspondence between the parties (as well as the evidence[19] before the decision-maker) is not before the Court, the period between May 6 and November 29, 2004, the date on which Mr. Bilodeau commented on Mr. Boro’s second report, remains nebulous. The Court understands from Exhibits D-42 and D-43 that on August 9, 2004, Mr. Bilodeau requested that he be sent a complete and unredacted official translation of the second report. This request was denied on August 31, 2004, because the redacted passages were not part of the investigation. According to the CCRG, these passages contained the legal opinion and recommendations to the Minister. On October 5, 2004, Mr. Bilodeau reiterated his request, which was once again denied on October 7, 2004.[20]
[33] However, on November 17, the CCRG changed its mind and confirmed that it would soon send him a complete translation of the report, minus the recommendations. An English version of the non-redacted text, minus the recommendations, is attached.[21]
[34] On November 29, 2004, Mr. Bilodeau submitted brief comments on the further investigation. He wondered how the investigator was able to deliver a recommendation, given the fact that there were no transcripts from the trial, as most of them had been destroyed in 1986 and the remainder were destroyed after his application for ministerial review in 2001.[22] Given that the transcript of Ms. M’s testimony was destroyed in 1986, it was therefore impossible to verify her version of the facts. In his view, the preliminary inquiry provided only a vague idea of her testimony, which was riddled with implausibilities, inconsistencies and lies. It was at this moment that the applicant submitted for the first time that the Minister of Justice and his predecessors had an obligation to keep his court record in a secure location, given the length of the sentence (life) and the type of case (murder).
[35] In his view, the Minister should have been aware of the importance of trial transcripts,[23] which is emphasized by the fact that care was taken to set out, at paragraph 2(2)(c) of the Regulations, that the application for review must be accompanied by, among other things, a true copy of the trial transcript. According to him, this in itself was sufficient to conclude that an injustice had occurred and warranted acceptance of his application.
[36] Mr. Bilodeau also wrote that [translation] “[o]n October 7, 2004, upon reading the report, Mr. Cloutier reiterated the version he gave in February 2001 and emphasized that he had never made the statements attributed to him by Mr. Boro” (D-44 at page 404).
[37] On December 1, 2004, the CCRG informed Mr. Bilodeau that it would review the entire file in order to further examine the application. The CCRG indicated that the file would be examined in light of the information in the record as well as Mr. Boro’s investigation. The eight- (8) page letter listed all of the evidence that had been adduced up to that point, including various references to the relevant parts of Mr. Bilodeau’s prison record that were attached.
[38] It appears that on January 23, 2005, Mr. Bilodeau responded to this letter by filing an access to information request,[24] which was not filed with the Court (see D-46). and by requesting that the Department hire and supervise a polygraph expert in order to remove all doubt as to the [translation] “veracity” of his version of the facts. The CCRG informed him that, upon reviewing his record, it was not convinced that a polygraph test was necessary in this case. It was also confirmed that the time limit to submit additional information was extended to November 29, 2005.
[39] On November 10, 2005, Mr. Bilodeau, in accordance with the Regulations and the provisions of sections 696.1 et seq. of the Criminal Code, submitted his comments, corrections and additional information (30 pages).
[40] Given the scope and diversity of Mr. Bilodeau’s comments, the Court will limit itself to the following points:
a. In his view, Ms. M is not a very credible witness, given the three different versions given before the trial. It was noted that [translation] “at no time did Ms. M mention having kept watch with Denis Cloutier”.[25] In her testimony before the coroner, she instead stated that she had waited outside with Mr. Cloutier. According to Mr. Bilodeau and as indicated by Mr. Boro, on October 2, 2003, Ms. M’s testimony, under the circumstances, could not have been sufficient to warrant the verdict rendered. In support of this argument, he emphasized the fact that Mr. Boro mentioned that her version of events had changed so often that her value as a witness for the purposes of the application for review seemed to him to be extremely dubious.
b. Mr. Bilodeau added that since Mr. Wong was unable to identify him and that Ms. Koliff saw two men, and assuming the fact that he was asleep in the car, the only logical inference was therefore that Mr. Beaulieu and Mr. Cloutier had been at the scene of the crime, in spite of the latter’s affidavit. He further stated that in 2005, at a meeting at the office of his counsel, Mr. Cloutier confirmed that the version described in Mr. Boro’s report (meeting of January 19, 2004) was the correct one.
c. On the important question of when he first revealed his alibi to a third party, it seems there exists no documentary evidence in this regard prior to August 1991.[26] That said, Mr. Bilodeau submitted that there is other, older evidence that generally confirms that he had always maintained his innocence.
d. Mr. Bilodeau argued that, given the nature of the alibi, no prejudice resulted from the fact that he had not declared it earlier because the police would have been unable to verify its authenticity one way or another.
e. Mr. Bilodeau also explained statements he made during his incarceration in which he admitted having committed the murder[27] as well as the reason why his counsel at the time, Mr. Daoust, had not raised this alibi at his parole hearing in 1999.
f. He reviewed the investigation reports in detail and the arguments he raised in finding that the investigation was tainted are more or less the same arguments that have been raised before me.
g. Finally, he submitted two polygraph tests taken by Mr. Bilodeau (the first was inconclusive) and commented on the value of this evidence in the following terms: [translation] “We acknowledge from the outset that criminal courts do not recognize the value of a polygraph test for the purpose of determining an individual’s innocence. However, it should be remembered that even the Honourable Antonio Lamer, sitting on the Supreme Court of Canada, assigned a certain value to polygraph tests, notably in the David Milgard case.[[28]] In fact, before our Supreme Court made a determination regarding Mr. Milgard’s innocence, a request for a polygraph test was successfully received. Our civil courts also recognize that polygraph tests have a certain value. Thus, in cases of fire insurance claims, the line of jurisprudence provides that a judge is entitled to make an adverse inference against an applicant who refused to take a polygraph test sought by a representative of the respondent company. Other authorities also recognize the value of polygraph tests. One need only re-read the ‘Manuel de Directives du Ministère de la Justice du Québec’ on the subject of informant witnesses to see that polygraph tests are important” (D-48 at page 447).
[41] On December 5, 2005 (D-50), the CCRG acknowledged receipt of Mr. Bilodeau’s comments and informed him that a final verification of the information provided in his comments would be conducted before everything was sent to the Minister along with the recommendations of the CCRG. This letter specifically addressed the issue of the destruction of the records and indicated that although Mr. Bilodeau’s file would today be considered incomplete and inadmissible given the absence of transcripts, the Minister had agreed to review his application even though this meant that it would have to be determined solely on the available evidence. It was also indicated that they hoped the prison records of Messrs. Cloutier and Beaulieu would help [translation] “shed some light”.
[42] That same day, the CCRG requested these two records from the Correctional Service of Canada. On February 13, 2006, Mr. Bilodeau received Mr. Beaulieu’s record, as he is deceased, and was informed that Mr. Cloutier’s record (personal information) could only be disclosed to him if Mr. Cloutier consented to this. The applicant was also advised that this record contained information placing him with Mr. Beaulieu in the billiard hall on the day of the crime.
[43] In response, it appears that Mr. Bilodeau chose to send two letters, dated March 16, 2006. The one sent to the CCRG included a report on Mr. Cloutier’s polygraph test while the other was addressed to Mr. Boro and raised various questions.
[44] It appears from D-55, that the letter to the Minister was sent to the wrong address and had to be remailed on March 29, 2006, along with a copy of the letter to Mr. Boro. There was no further communication prior to the Minister’s decision eight months later.
The decision
[45] In his 28-page decision dated November 28, 2007, the Minister reviewed, in detail, the questions raised in support of the application for review. After referring to certain specific documents, he indicated that he had considered the entirety of the record in the Department.
[46] The decision deals with the nature of the application and the test that was applied − whether there was a reasonable basis to conclude that a miscarriage of justice likely had occurred.
[47] The Minister relied on the guiding principles governing the exercise of his discretionary authority under the former section 690 that had been adopted and formulated in April 1994 in an application regarding Mr. Thatcher. Having regard to the issues in this case, it is worthwhile to refer to paragraph 5, which reads as follows:
Where the applicant is able to identify such “new matters,” the Minister will assess them to determine their reliability. For example, where fresh evidence is proffered, it will be examined to see whether it is reasonably capable of belief, having regard to all of the circumstances. Such “new matters” will also be examined to determine whether they are relevant to the issue of guilt. The Minister will also have to determine the overall effect of the “new matters” when they are taken together with the evidence adduced at trial. In this regard, one of the important questions will be: “is there new evidence relevant to the issue of guilt which is reasonably capable of belief and which, taken together with the evidence adduced at trial, could reasonably have affected the verdict?”[29]
[Emphasis added.]
[48] According to the Minister, the 1994 guidelines were reproduced and codified in sections 696.1 et seq., which came into force on November 25, 2002, and he confirmed that he used these provisions as a guide while reviewing the application.
[49] Once again, since it is relevant to the issues in this case, it is worth noting that while the Minister specifically refers to Mr. Bilodeau’s polygraph tests at page 7 of his decision, he does not indicate how much weight he assigned to this evidence and he makes no reference to Mr. Cloutier’s polygraph test.
[50] In addition to reviewing the evidence, the Minister relied on the applicable principles of law with respect to an alibi defence, which is an exception to the general principle that the accused has the right to remain silent. He noted that although it is acknowledged that the defence is under no obligation to disclose an alibi and that such an omission does not prevent future disclosure of the alibi at trial, the accused runs a significant risk that the probative value and credibility of his or her defence may be particularly affected if the alibi is not disclosed in a timely manner. He indicated that when an accused only mentions their alibi at the trial stage, the trier of facts may even draw a negative inference against them. Finally, he noted the difference between an alibi that is not believed − it has no probative force and should not be considered with the rest of the evidence – and a false alibi. When an accused has participated in the fabrication of a false alibi, a guilty inference may be drawn if it was a deliberate attempt to mislead.
[51] As for the application of these principles in this case, the Minister confirmed that none of the accomplices had testified at trial and that the alibi defence was not raised. He noted the explanations as to the lack of an appeal and the fact that the first time this alibi was recorded in writing was on August 26, 1991, more than 20 years after the murder was committed, and that, consequently, the lapse of this time in specifying the nature of the alibi defence raised in support of “your innocence … directly affects its credibility” (D-60 at page 779).
[52] He referred, inter alia, to the admissions made by Mr. Bilodeau to Correctional Service officers in which he stated that he had fired at the victim out of a reflex he could not explain because everything had happened so fast. This reflex theory was also put forward more than once.
[53] As for Yvon Beaulieu’s record, it appears that throughout his detention he claimed that it was Mr. Bilodeau who had shot the victim when he tried to resist and he did not seem to understand why he too had been sentenced to life imprisonment. In this regard, the Minister noted that even if Mr. Bilodeau claimed to have an affidavit of Mr. Beaulieu in his possession[30] confirming that Mr. Bilodeau was not involved in the murder, this was never filed in support of his application.
[54] As for Denis Cloutier’s affidavit, the Minister noted certain obvious errors such as the fact that he described his prison sentence as being 10 years rather than 7 years. He also noted that the version described in the affidavit was contradicted by other testimony (explained in detail in the decision) and by Mr. Cloutier himself and that there was no doubt Ms. Koliff had clearly seen two individuals inside the billiard hall. The Minister also indicated that not only did the affiant change his version often, but that the version in which Mr. Bilodeau was inside the billiard hall is consistent with the versions found in both his and Mr. Beaulieu’s file, as well as in all of Ms. M’s testimony. In the Minister’s view, the version of Ms. M’s testimony whereby she waited at the top of the staircase while the two men entered the billiard hall is supported by the testimony of Mr. Wong and Ms. Koliff.
[55] Finally, the Minister noted that, aside from the testimony of Ms. M and Ms. Koliff, there was circumstantial evidence that could have been used by the jury to draw a negative inference with regard to Mr. Bilodeau’s guilt (such as fleeing to Toronto and changing his appearance by dyeing his hair). In short, the Minister found that there was very little reliable information that supported the thesis of the alibi defence that was advanced and concluded:
The first argument alleges a defence that could be characterized as an alibi the effect of which is to place you somewhere other than on the site of the crime at the time of the commission of the non-capital murder. I note however that this defence is contradicted by the testimony of the eyewitnesses who were heard at the preliminary inquiry and at the trial.
Furthermore, the elapse of more than 20 years before you actually invoked your alibi defence in 1991 directly affects its credibility. I note as well, from reading your correctional file, that you have not always claimed to be innocent of the non-capital murder charged against you and that you have even admitted your responsibility on various occasions.
This alibi defence is also shaken by the fickle version of the affiant Denis Cloutier and is not supported by the information taken from your correctional file. This alibi defence is not supported either by the information taken from the correctional files of your accomplices Denis Cloutier and Yvon Beaulieu since they both place you in the billiard hall on the night of the non-capital murder.
[56] As for the claim of a miscarriage of justice with regard to the criminal conduct of the investigating police officers and the compliance of the Crown prosecutor, as I indicated, given what was disclosed at the preliminary inquiry, the new issue was whether Ms. M had been the victim of sexual abuse on the part of the police officers. The Minister noted that Mr. Bilodeau’s first allegation to this effect had been altered in his letter of October 17, 2001, in which he explained that, during a more recent conversation he had with her, the police had simply [translation] “attempted” to abuse her. The Minister also indicated that when she met with Mr. Boro, Ms. M denied having been the victim of threats when she gave her evidence at the time and stated categorically that she had no intention of recanting her testimony. He found that there was therefore no reasonably credible evidence in the record in support of this new allegation.[31]
[57] As to this last element and the issue of negligence by his counsel, the Minister concluded:
However, you have not provided any new significant information or proffered any evidence in support of your allegations that the police threatened the witnesses [[32]] in order to obtain your conviction. …[As for the] conduct of your lawyer, … you have presented no new information that would suggest that you were the victim of a miscarriage of justice in this regard. There is every indication from your file that your lawyer vigorously represented your interests throughout the trial.
[58] The application for review was dismissed.
Legislation
[59] The parties agree to have the Court determine the issues in light of the Criminal Code provisions in effect as of November 2002 and the Regulations adopted at the same time. The relevant provisions are included in Annex A.
Issues
[60] After the lengthy background analysis which seemed to me to be absolutely essential to place the many issues in their proper perspective, we must now summarize them.
[61] The applicant submits that the Minister breached his duty to comply with the applicable principles of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms (the Charter) and his common law duty of fairness in applying the rules of natural justice. In particular, he cites the following breaches:
a. The Minister or his delegate did not conduct a thorough and neutral investigation. Furthermore, Mr. Boro had illegally delegated certain tasks to other members of his firm and failed to exercise the powers conferred upon him to compel Ms. M to answer his questions;
b. The review, on his own initiative, of the correctional files of the three individuals involved;
c. The failure to disclose Denis Cloutier’s correctional file to him because in his view it was up to the Minister to obtain the necessary consent in order to be able to meet his obligations;
d. The disclosure, beyond the time limit set out in the Regulations, of the information contained in Mr. Beaulieu’s file and its use as an alternative argument by Mr. Cloutier;
e. The lack of a transcript of the meetings between the witnesses and the investigator that would have allowed him to check the accuracy of the investigation report;
f. The refusal to provide him with a complete copy of the report from May 6, 2004 (second report);
g. The failure to refer to and assess his polygraph tests and that of Mr. Cloutier.
[62] He further argues that the Minister’s decision is unreasonable because he clearly disregarded evidence − polygraph tests – or lacked transparency by failing to deal with this important and relevant evidence and by not explaining the reasons why he accepted Ms. M’s ever-changing decision. Moreover, he failed to consider that it was Michel Larivière who went up the staircase and not Michel Bilodeau.[33] Finally, he points out that the Minister misunderstood and exceeded his mandate when he examined the credibility of the evidence submitted rather than simply assessing its reliability and relevance as set out in paragraph 696.4(b) of the Criminal Code.
Analysis
[63] All arguments related to a decision-maker’s breach of the duty of fairness, whether under common law or under section 7 of the Charter, are to be determined on the basis of a correctness standard of review (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43), except those relating to adequacy of reasons, as the Court concurs with the opinion of the Newfoundland Court of Appeal in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2010 NLCA 13, to the effect that the transparency, intelligibility and justification required by the reasonableness standard is sufficient to determine whether the decision maker provided sufficient reasons for his or her decision.
[64] The parties agree and the Court is satisfied that the Minister’s decision with respect to the application for review as such is a question of mixed fact and law, particularly centred on the facts, and is reviewable on a reasonableness standard (Dunsmuir v New Brunswick, 2008 SCC 9 at paras 51, 53; Daoulov v Canada (Attorney General), 2008 FC 544 at para 22, aff’d by 2009 FCA 12 at para 11).
[65] This is to say, therefore, that aside from the above-mentioned question of transparency, the Court must determine whether the Minister’s findings fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. It is not for the Court to substitute its own assessment of the evidence or the material provided for that of the Minister.
A. The scope of the Minister’s duty
[66] Let us state from the outset that whether it is founded on common law or on section 7 of the Charter, the scope of the Minister’s duty of fairness varies according to the context (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at paras 21-22; Idziak v Canada (Minister of Justice), [1992] 3 SCR 631 at para 50). It is also clear that the principles of fundamental justice first require that the protections provided by the rules of natural justice and procedural fairness be respected. Even if in certain cases the parameters set out in section 7 of the Charter can extend beyond the principles of natural justice, they do not necessarily do so in every case.
[67] That said, the Court will analyze this issue by taking into consideration the criteria set out by the Supreme Court in Baker, above.
i) Type of decision
[68] The applicant argues that even if the Minister’s authority is based on the royal prerogative, the fact remains that he is exercising a fundamental right not to be the victim of a miscarriage of justice.
[69] In Bilodeau v Canada (Ministre de la Justice), 2009 QCCA 746 at paras 12-25, a recent decision that dealt with Mr. Bilodeau’s application, the Quebec Court of Appeal considered the issue. It concluded at paragraph 25 that:
[translation]
… the statutory amendments in 2002 did not alter, in its essence, the nature of ministerial authority as it has been codified since 1892. The scope of this authority is outside the traditional sphere of criminal law in that it begins after legal remedies are exhausted. It is a discretionary power which has historically been considered as