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DEPARTMENT OF JUSTICE BACKGROUND INFORMATION AND SUMMARY OF DECISION
On June 13, 1984, a jury convicted Sidney Vincent Morrisroe ("Mr. Morrisroe" or the "Applicant") and his co-accused Scott Ogilvie Forsyth of first degree murder for the killing of Joseph Philliponi on Sunday, September 18, 1983. Mr. Philliponi was the 71-year-old owner of the Penthouse Supper Club in Vancouver, British Columbia.
Mr. Forsyth fired the shot that killed Mr. Philliponi. Although Mr. Morrisroe was not present at the scene of the crime, he was convicted, in accordance with section 21 of the Criminal Code, on the basis that he planned the murder with Mr. Forsyth and committed one or more acts that aided and abetted Mr. Forsyth in carrying out the murder.
Both Mr. Morrisroe and Mr. Forsyth were sentenced to the mandatory term of life imprisonment without parole eligibility for 25 years. Both men appealed their convictions to the British Columbia Court of Appeal. On December 2, 1986, the Court dismissed both appeals. Mr. Forsyth sought leave to appeal to the Supreme Court of Canada, but his application was dismissed on June 22, 1987.
On June 11, 1992, through his counsel, Mr. George Wool, the Applicant applied for a section 690 Criminal Code review of his conviction. As recently as August 7, 1995, additional submissions were made on behalf of Mr. Morrisroe to support his application. In his application, Mr. Morrisroe sought a new trial. If he was not successful in his request for a new trial, he sought either a reference to the Supreme Court of Canada or the commencement of a new investigation by non-departmental counsel.
The Minister of Justice concluded that, in the circumstances of this case, there was no basis to grant any of the relief that the Applicant sought.
The Nature of the Section 690 Process and the Role of the Minister
Section 690 of the Criminal Code reads as follows:
690. The Minister of Justice may, on 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 XXIV,
(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 on which he desires the assistance of the court, and the court shall furnish its opinion accordingly.
Section 690 provides that the Minister of Justice may direct a new trial if, after inquiry, the Minister concludes that a new trial is justified; similarly, the Minister of Justice may refer the case to an appellate court for hearing. This procedure can lead to a judicial reconsideration of cases where new evidence or information raising doubts about the correctness of a conviction has arisen after the full judicial process, including appeals, has been exhausted. It is not the function of the Minister of Justice to retry the case.
The remedy is an extraordinary one, as the normal judicial process is designed to ensure that no miscarriage of justice has occurred. In the Reasons for Decision in the section 690 application of W. Colin Thatcher, the principles that govern the exercise of the discretionary powers in section 690 were outlined.
These principles are the following:
1. The remedy contemplated by section 690 is extraordinary. It is intended to ensure that no miscarriage of justice occurs when all conventional avenues of appeal have been exhausted.
2. The section does not exist simply to permit the Minister to substitute a ministerial opinion for a jury's verdict or a result on appeal. Merely because the Minister might take a different view of the same evidence that was before the court does not empower him, under section 690, to grant a remedy.
3. Similarly, the procedure created by section 690 is not intended to create a fourth level of appeal. Something more will ordinarily be required than simply a repetition of the same evidence and arguments that were before the trial and the appellate courts. Applicants under section 690 who rely solely on alleged weaknesses in the evidence, or on arguments of law that were put before the court and considered, can expect to find that their applications will be refused.
4. Applications under section 690 should ordinarily be based on new matters of significance that either were not considered by the courts or occurred or arose after the conventional avenues of appeal had been exhausted.
5. 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 be expected to have affected the verdict?"
6. Finally, an applicant under section 690, in order to succeed, need not convince the Minister of innocence or prove conclusively that a miscarriage of justice has actually occurred. Rather, the applicant will be expected to demonstrate, based on the analysis set forth above, that there is a basis to conclude that a miscarriage of justice likely occurred.
The Examination of the Application
The Minister of Justice reviewed Mr. Morrisroe's initial application of June 11, 1992; the information and materials provided by Mr. Morrisroe, his counsel and members of his family periodically since that date; the entire record of trial and appellate proceedings; and the information gathered during the departmental assessment of the application. This information included the transcript of interviews with witnesses who had testified at trial and others who had not testified.
The issues in this application fell into the following general categories:
the accuracy of the testimony of trial witnesses Denise MacKinnon (formerly Morrisroe), Scott Forsyth and Valerie Matson; the alternative account of events surrounding the murder provided by the Applicant; and miscellaneous matters such as the alleged existence of a vendetta among members of the Vancouver police against the Applicant, the Applicant's criticisms of his trial counsel, and the Applicant's criticisms of the trial judge's charge to the jury.
Conclusions and Disposition
At trial, the Crown assembled a compelling case against the Applicant. The jury convicted him after carefully weighing the evidence and deciding issues of credibility. The trial decision was carefully reviewed by the British Columbia Court of Appeal to ensure that the trial had been conducted according to law.
The role of the Minister of Justice in the section 690 process is to provide a unique recourse for persons who have exhausted their appellate remedies but maintain that they were wrongly convicted. The remedy contemplated by section 690 is extraordinary. It is intended to ensure that no miscarriage of justice occurs and it comes into play only when all conventional avenues of appeal have been exhausted. The procedure is not intended to be a fourth level of appeal.
One of the principles by which the Minister of Justice is guided is that the Minister does not disturb a jury's factual findings by merely substituting his opinion for that of the jury. Therefore, challenges to the jury's findings on issues such as credibility, which were reviewed by a Court of Appeal, will not provide a basis for a section 690 remedy unless there are new matters of substance which are capable of belief and which provide a reasonable basis to conclude that a miscarriage of justice likely occurred.
Mr. Morrisroe did not provide any new information of significance that is reasonably capable of belief. Much of the new information was expressly refuted by the very people who were said to be its source.
With respect to the alleged perjury of Denise MacKinnon and Valerie Matson, their respective post-trial affidavits were obtained under questionable circumstances and were not credible. When interviewed, each of these witnesses reaffirmed their trial testimony, and stated that nearly all of the information in their affidavit was untrue. Ms. MacKinnon claimed, credibly, that she was forced to recant her trial testimony as a result of intense and persistent pressure from family members and that she was acting in the hope of restoring family harmony. Ms. Matson was uncertain whether the signature that appeared on the statement attributed to her was her own. While she recalled signing a document, it was different from the one submitted in the application.
Mr. Morrisroe also alleged that Scott Forsyth had lied at trial because police had promised him that they would reduce the charge against him. The only evidence offered to support this otherwise implausible submission was a letter purporting to be signed by Scott Forsyth, but which Mr. Forsyth denies having signed.
Mr. Morrisroe presented evidence from other witnesses who he said had relevant information. Some witnesses were offered to provide new evidence as to the alleged motive of those witnesses who it was argued had lied at trial. Others were offered to provide evidence to contradict the substantive testimony of the witnesses whose truthfulness was being challenged.
This information was inconsistent; much of it contradicted evidence provided from other sources, including from Mr. Morrisroe himself. In any event, nearly all of this information was provided to support submissions against the credibility of the trial witnesses. It consisted mainly of anecdotal references to post-trial encounters with trial witnesses and second-hand information received from individuals who had talked to trial witnesses. Some of the issues raised on this application, such as the credibility of Denise MacKinnon, were before the jury at trial.
Finally, Mr. Morrisroe's new version of his own role in the events surrounding the murder was not credible. Many aspects of his story flew in the face of the facts and testimony of one or more witnesses at trial.
A considerable part of the information provided by Mr. Morrisroe was riddled with serious inconsistencies. It was illogical and unreliable.
At trial, the jury had the benefit of hearing and seeing the witnesses called by the prosecution and the defence. The jury was entitled to determine issues of credibility. The trial judge clearly instructed the jury as to what evidence was admissible against whom, as was discussed in the British Columbia Court of Appeal.
The Minister of Justice examined this case bearing in mind the governing principles that are set forth above. Having done so, and having considered the submissions made by the Applicant, the Minister of Justice came to the conclusion that neither the arguments nor the new evidence were such that they led reasonably to the conclusion that a miscarriage of justice likely occurred in this case. Accordingly, the Minister of Justice was not prepared to grant any discretionary remedies contemplated by section 690 of Criminal Code in this case.
During a section 690 review, the Minister of Justice may recommend that the Governor in Council seek the opinion of the Supreme Court of Canada on any relevant question of law or fact. Mr. Morrisroe requested a reference to the Supreme Court of Canada. Such a reference is to be made only in exceptional circumstances. It is appropriate when there is a matter in the public interest requiring the attention of the Supreme Court of Canada to maintain the integrity of the judicial system. The Minister of Justice found the new information provided by the Applicant to be unreliable and without merit. It would have been inappropriate to ask the Supreme Court of Canada to review a case in such circumstances.
Finally, the Minister of Justice found that it was not necessary in these circumstances to commence a new investigation by non-departmental counsel. He was satisfied that the investigation carried out by departmental officials was fair and thorough.
Mr. Forsyth fired the shot that killed Mr. Philliponi. Although Mr. Morrisroe was not present at the scene of the crime, he was convicted, in accordance with section 21 of the Criminal Code, on the basis that he planned the murder with Mr. Forsyth and committed one or more acts that aided and abetted Mr. Forsyth in carrying out the murder.
Both Mr. Morrisroe and Mr. Forsyth were sentenced to the mandatory term of life imprisonment without parole eligibility for 25 years. Both men appealed their convictions to the British Columbia Court of Appeal. On December 2, 1986, the Court dismissed both appeals. Mr. Forsyth sought leave to appeal to the Supreme Court of Canada, but his application was dismissed on June 22, 1987.
On June 11, 1992, through his counsel, Mr. George Wool, the Applicant applied for a section 690 Criminal Code review of his conviction. As recently as August 7, 1995, additional submissions were made on behalf of Mr. Morrisroe to support his application. In his application, Mr. Morrisroe sought a new trial. If he was not successful in his request for a new trial, he sought either a reference to the Supreme Court of Canada or the commencement of a new investigation by non-departmental counsel.
The Minister of Justice concluded that, in the circumstances of this case, there was no basis to grant any of the relief that the Applicant sought.
The Nature of the Section 690 Process and the Role of the Minister
Section 690 of the Criminal Code reads as follows:
690. The Minister of Justice may, on 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 XXIV,
(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 on which he desires the assistance of the court, and the court shall furnish its opinion accordingly.
Section 690 provides that the Minister of Justice may direct a new trial if, after inquiry, the Minister concludes that a new trial is justified; similarly, the Minister of Justice may refer the case to an appellate court for hearing. This procedure can lead to a judicial reconsideration of cases where new evidence or information raising doubts about the correctness of a conviction has arisen after the full judicial process, including appeals, has been exhausted. It is not the function of the Minister of Justice to retry the case.
The remedy is an extraordinary one, as the normal judicial process is designed to ensure that no miscarriage of justice has occurred. In the Reasons for Decision in the section 690 application of W. Colin Thatcher, the principles that govern the exercise of the discretionary powers in section 690 were outlined.
These principles are the following:
1. The remedy contemplated by section 690 is extraordinary. It is intended to ensure that no miscarriage of justice occurs when all conventional avenues of appeal have been exhausted.
2. The section does not exist simply to permit the Minister to substitute a ministerial opinion for a jury's verdict or a result on appeal. Merely because the Minister might take a different view of the same evidence that was before the court does not empower him, under section 690, to grant a remedy.
3. Similarly, the procedure created by section 690 is not intended to create a fourth level of appeal. Something more will ordinarily be required than simply a repetition of the same evidence and arguments that were before the trial and the appellate courts. Applicants under section 690 who rely solely on alleged weaknesses in the evidence, or on arguments of law that were put before the court and considered, can expect to find that their applications will be refused.
4. Applications under section 690 should ordinarily be based on new matters of significance that either were not considered by the courts or occurred or arose after the conventional avenues of appeal had been exhausted.
5. 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 be expected to have affected the verdict?"
6. Finally, an applicant under section 690, in order to succeed, need not convince the Minister of innocence or prove conclusively that a miscarriage of justice has actually occurred. Rather, the applicant will be expected to demonstrate, based on the analysis set forth above, that there is a basis to conclude that a miscarriage of justice likely occurred.
The Examination of the Application
The Minister of Justice reviewed Mr. Morrisroe's initial application of June 11, 1992; the information and materials provided by Mr. Morrisroe, his counsel and members of his family periodically since that date; the entire record of trial and appellate proceedings; and the information gathered during the departmental assessment of the application. This information included the transcript of interviews with witnesses who had testified at trial and others who had not testified.
The issues in this application fell into the following general categories:
the accuracy of the testimony of trial witnesses Denise MacKinnon (formerly Morrisroe), Scott Forsyth and Valerie Matson; the alternative account of events surrounding the murder provided by the Applicant; and miscellaneous matters such as the alleged existence of a vendetta among members of the Vancouver police against the Applicant, the Applicant's criticisms of his trial counsel, and the Applicant's criticisms of the trial judge's charge to the jury.
Conclusions and Disposition
At trial, the Crown assembled a compelling case against the Applicant. The jury convicted him after carefully weighing the evidence and deciding issues of credibility. The trial decision was carefully reviewed by the British Columbia Court of Appeal to ensure that the trial had been conducted according to law.
The role of the Minister of Justice in the section 690 process is to provide a unique recourse for persons who have exhausted their appellate remedies but maintain that they were wrongly convicted. The remedy contemplated by section 690 is extraordinary. It is intended to ensure that no miscarriage of justice occurs and it comes into play only when all conventional avenues of appeal have been exhausted. The procedure is not intended to be a fourth level of appeal.
One of the principles by which the Minister of Justice is guided is that the Minister does not disturb a jury's factual findings by merely substituting his opinion for that of the jury. Therefore, challenges to the jury's findings on issues such as credibility, which were reviewed by a Court of Appeal, will not provide a basis for a section 690 remedy unless there are new matters of substance which are capable of belief and which provide a reasonable basis to conclude that a miscarriage of justice likely occurred.
Mr. Morrisroe did not provide any new information of significance that is reasonably capable of belief. Much of the new information was expressly refuted by the very people who were said to be its source.
With respect to the alleged perjury of Denise MacKinnon and Valerie Matson, their respective post-trial affidavits were obtained under questionable circumstances and were not credible. When interviewed, each of these witnesses reaffirmed their trial testimony, and stated that nearly all of the information in their affidavit was untrue. Ms. MacKinnon claimed, credibly, that she was forced to recant her trial testimony as a result of intense and persistent pressure from family members and that she was acting in the hope of restoring family harmony. Ms. Matson was uncertain whether the signature that appeared on the statement attributed to her was her own. While she recalled signing a document, it was different from the one submitted in the application.
Mr. Morrisroe also alleged that Scott Forsyth had lied at trial because police had promised him that they would reduce the charge against him. The only evidence offered to support this otherwise implausible submission was a letter purporting to be signed by Scott Forsyth, but which Mr. Forsyth denies having signed.
Mr. Morrisroe presented evidence from other witnesses who he said had relevant information. Some witnesses were offered to provide new evidence as to the alleged motive of those witnesses who it was argued had lied at trial. Others were offered to provide evidence to contradict the substantive testimony of the witnesses whose truthfulness was being challenged.
This information was inconsistent; much of it contradicted evidence provided from other sources, including from Mr. Morrisroe himself. In any event, nearly all of this information was provided to support submissions against the credibility of the trial witnesses. It consisted mainly of anecdotal references to post-trial encounters with trial witnesses and second-hand information received from individuals who had talked to trial witnesses. Some of the issues raised on this application, such as the credibility of Denise MacKinnon, were before the jury at trial.
Finally, Mr. Morrisroe's new version of his own role in the events surrounding the murder was not credible. Many aspects of his story flew in the face of the facts and testimony of one or more witnesses at trial.
A considerable part of the information provided by Mr. Morrisroe was riddled with serious inconsistencies. It was illogical and unreliable.
At trial, the jury had the benefit of hearing and seeing the witnesses called by the prosecution and the defence. The jury was entitled to determine issues of credibility. The trial judge clearly instructed the jury as to what evidence was admissible against whom, as was discussed in the British Columbia Court of Appeal.
The Minister of Justice examined this case bearing in mind the governing principles that are set forth above. Having done so, and having considered the submissions made by the Applicant, the Minister of Justice came to the conclusion that neither the arguments nor the new evidence were such that they led reasonably to the conclusion that a miscarriage of justice likely occurred in this case. Accordingly, the Minister of Justice was not prepared to grant any discretionary remedies contemplated by section 690 of Criminal Code in this case.
During a section 690 review, the Minister of Justice may recommend that the Governor in Council seek the opinion of the Supreme Court of Canada on any relevant question of law or fact. Mr. Morrisroe requested a reference to the Supreme Court of Canada. Such a reference is to be made only in exceptional circumstances. It is appropriate when there is a matter in the public interest requiring the attention of the Supreme Court of Canada to maintain the integrity of the judicial system. The Minister of Justice found the new information provided by the Applicant to be unreliable and without merit. It would have been inappropriate to ask the Supreme Court of Canada to review a case in such circumstances.
Finally, the Minister of Justice found that it was not necessary in these circumstances to commence a new investigation by non-departmental counsel. He was satisfied that the investigation carried out by departmental officials was fair and thorough.
Submitted on November 14, 2005 in By David.
