Date:  20040108

Docket:  CR 91-01-09940

Indexed as:  R. v. Driskell

Cited as:  2004 MBQB 3

(Winnipeg Centre)

 

 

COURT OF QUEEN’S BENCH OF MANITOBA

 

 

IN THE MATTER OF an application under section 696.1 of the Criminal Code

 

AND IN THE MATTER OF an application for habeas corpus

 

AND IN THE MATTER OF an application pursuant to sections 7 and 24(1) of the Canadian Charter of Rights and Freedoms

 

AND IN THE MATTER OF section 52 of the Constitution Act, 1982

 

AND IN THE MATTER OF the inherent jurisdiction of the Manitoba Court of Queen’s Bench, a court of superior jurisdiction

 

 

BETWEEN:
JAMES PATRICK DRISKELL,	)        For the Applicant:
	)        Alan Libman
Applicant,	)        James Lockyer
	)
- and -	)        For the Respondent:
	)        E. William Olson, Q.C.
HER MAJESTY THE QUEEN IN RIGHT OF THE MINISTER OF JUSTICE FOR MANITOBA,	)        Hymie Weinstein, Q.C. ) )
	)        Judgment delivered:
Respondent.	)        January 8, 2004

SCURFIELD, J.

[1]              On June 14, 1991, after a trial before a judge and jury, James Patrick Driskell was convicted of the offence of first degree murder.  Following that conviction, the trial judge imposed upon Mr. Driskell the mandatory sentence of life imprisonment without eligibility for parole for 25 years.  All of his subsequent appeals were dismissed.

[2]              Mr. Driskell has steadfastly maintained his innocence.

[3]              Mr. Driskell has recently made an application under section 696.1 of the Criminal Code, R.S.C. 1985, c. C-46, to the Minister of Justice for a ministerial review of his conviction on the grounds of miscarriage of justice.  He now applies to this court for an order releasing him from custody pending the result of his section 696.1 application.  This application is based on the Canadian Charter of Rights and Freedoms.  The Criminal Code does not establish a process for the interim release of an applicant for a ministerial review.  Nevertheless, the section 696.1 application remains the foundation for this application for interim release.

[4]              Although it is an extraordinary process, this court has the jurisdiction to order such a release absent an express statutory provision:  see R. v. Phillion, [2003] O.J. No. 3422.  For the purposes of this application, the Crown agreed that I have jurisdiction that flows from the Charter.  Section 7 of the Charter guarantees citizens the right not to be deprived of their liberty except in accordance with the principles of fundamental justice.  Pursuant to section 24(1) of the Charter, if I find a breach of section 7, I am entitled to fashion a just and appropriate remedy.

ISSUES

[5]              The issues in this case are simple:

(a)              What is the appropriate standard for granting an order of interim release under section 24 of the Charter pending the result of a section 696.1 application?

(b)              Does the evidence presented to the court meet that standard?

STANDARD FOR INTERIM RELEASE

[6]              Mr. Driskell is seeking an extraordinary remedy.  He exhausted all of the ordinary avenues of appealing his conviction with no success.  Thus, he stands before me as a person convicted of the most serious offence in the Criminal Code.

[7]              The Minister of Justice has performed a preliminary assessment of Mr. Driskell’s section 696.1 application and pursuant to the regulations under section 696.6 of the Criminal Code, he has referred the matter for an investigation because he has decided “that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred”.

[8]              My function is limited to determining if it is appropriate to release Mr. Driskell from custody pending the result of the more formal investigation.  It is not my job to determine if Mr. Driskell is innocent of the crime for which he has been convicted.

[9]              In Phillion, supra, Watt J., when reviewing an application for interim release that was at a similar stage in the process of the section 696.1 application, characterized the standard for release as determining whether continuing the applicant’s detention accords with the principles of fundamental justice.  Watt J. also suggested that it would be reasonable to apply the standards set out in section 679(3) of the Criminal Code to the application for interim release.  That section deals with persons who are appealing a conviction at trial to the Court of Appeal.  Section 679(3) has been indirectly incorporated into section 696.3(3) when, as a consequence of the investigation conducted at the second stage in the process, the Minister chooses to refer the matter to a Court of Appeal for a new appeal.  However, before making that referral, the Minister must be satisfied that there is, as opposed to may be, a reasonable basis to conclude that a miscarriage of justice likely occurred.

[10]         Section 679(3) requires the appellant to establish:

(a)      that the appeal or application for leave to appeal is not frivolous,

(b)     that he will surrender himself into custody in accordance with the terms of the order, and

(c)               that his detention is not necessary in the public interest.

[11]         In order to establish that the application is not frivolous, Watt J. found that an applicant need not prove actual or near certainty of success.  In his opinion, it should be sufficient if the applicant demonstrates that there are serious concerns about the “accuracy of the verdict” because of new evidence.  The Crown argues that this standard is too low.

[12]         There is no direct appellate authority on this point.  However, there is no doubt that at such an early stage in this extraordinary process, the standard for release should be high.  After all, Mr. Driskell is a person who has been convicted of a crime at a trial before a judge and jury.  He has exhausted the ordinary appeal process without success.  The new evidence upon which he relies has not been adjudicated by any independent body.  These factors support the imposition of a high onus on any applicant who seeks interim release at the preliminary stage in the process of a section 696.1 application.

[13]         What then is the appropriate standard for release?  The Crown does not reject the formulation of the test in Phillion directly.  Rather, it says that the test developed by Watt J. should not be applied to applications for interim release after the preliminary assessment.  It says that the Phillion test is more appropriately applied after the Minister of Justice has completed an investigation and referred the application to a Court of Appeal for a new appeal.  With respect, I agree.  I am not persuaded that the same standard for release should be applied to an application that has just passed the preliminary stage in the process since the new evidence has not yet been subjected to a rigorous review.

[14]         The Crown submits that at this early stage in the process of a section 696.1 application, there must be not just serious concerns, but “very serious concerns” about the reliability of the conviction before I can consider releasing Mr. Driskell.  For the purposes of this application, I am content to apply that higher standard.  However, it appears to me that what will give rise to very serious concerns requires some further definition.

[15]         Mr. Driskell seeks a Charter remedy.  The court does not need to invent totally new principles to guide such an application.  Clearly, as Watt J. stated, the submission of new evidence that leads the court to conclude that keeping Mr. Driskell in custody would be fundamentally unjust meets the standard.  However, some new evidence will be contentious, and some will be beyond dispute.  Thus, the community’s tolerance for keeping an applicant in custody will logically vary with the extent to which the new evidence has been validated by an independent process, or is incontrovertible on its face.  This logic supports a standard that is driven as much by the quality of the evidence as the stage in the process.

[16]         Finally, since this application for interim release is closely connected to a section 696.1 application, the court should consider the evidence relied upon by Mr. Driskell in the context of the evaluative principles that the Minister of Justice is obligated by section 696.4 to consider when conducting his review, including

(a)      whether the application is supported by new matters of significance that were not considered previously by the courts or by the Minister in a previous application;

(b)     the relevance and reliability of information that is presented in connection with the application; and

(c)      the fact that the application itself is not intended to serve as a further appeal and any remedy available on such an application is an extraordinary remedy.

[17]         In essence, section 696.4 of the Criminal Code also provides this court with a reasonable approach to assessing the significance of the evidence being offered in support of the application.

[18]         In conclusion, it is always difficult and often unwise to define a standard in absolute terms.  Suffice it to say that at a preliminary stage in the process of a section 696.1 application, an applicant clearly meets the standard to be considered for interim release when he establishes on a balance of probabilities that there is new, reliable evidence that is sufficiently material to raise very serious concerns as to the reliability of the original conviction.  Once that standard has been met, before ordering interim release, the court should still consider whether it is probable that the particular applicant will surrender himself into custody if required to do so, or whether he generally presents as a danger to public safety.

HAS MR. DRISKELL MET THE STANDARD FOR INTERIM RELEASE?

[19]         I have reviewed the evidence introduced at trial and the new evidence upon which Mr. Driskell relies.  My focus must be on the impact that the new evidence might reasonably have had on Mr. Driskell’s original trial:  see R. v. Taillefer, [2003] S.C.J. No. 75.

[20]         The theory of the Crown, and the evidence upon which it relied at trial, is easily identified by reviewing the closing address of Crown counsel at the original trial.  Perry Dean Harder and James Patrick Driskell were jointly charged with a number of property crimes in November 1989.  Mr. Harder gave a statement to the police wherein he implicated Mr. Driskell.  This, the Crown argued at trial, gave Mr. Driskell a strong motive to kill Mr. Harder.

[21]         Mr. Harder went missing in June 1990 shortly before he was to have entered a guilty plea to the property offences.  His body was discovered in September 1990 in a shallow grave just outside of the City of Winnipeg.  A subsequent autopsy revealed that he had been killed by gunshot wounds to the chest.  Forensic evidence indicated that he was probably shot with a .22 calibre rifle.  The police were able to prove that Mr. Driskell once owned a .22 calibre rifle.  However, the murder weapon was never located or specifically identified.

[22]         The Crown supported the motive evidence by calling as witnesses Reath Zanidean and John Gumieny, criminal associates of Mr. Driskell and Mr. Harder.  They suggested that Mr. Driskell had told them that he wanted to kill Mr. Harder.  One of the ways it was suggested that this might be done is by abducting Mr. Harder and transporting him in Mr. Driskell’s van to a place of execution.

[23]         Several hairs were located in a search of Mr. Driskell’s van.  The R.C.M.P. hair and fiber expert said that these hairs were probably from Mr. Harder’s head.

[24]         Mr. Zanidean attempted to elicit a confession from Mr. Driskell on tape.  He was largely unsuccessful, although he did obtain some cryptic comments that might be considered inculpatory.  In the final analysis, the case against Mr. Driskell was circumstantial.

[25]         I will now briefly review the new evidence presented at this application.

PAYMENT TO WITNESSES

[26]         Suffice it to say that the Crown’s case relied heavily on the evidence of Mr.  Zanidean and Mr. Gumieny.  Both had lengthy, serious criminal records.  At trial, defence counsel was able to attack their general credibility because of their bad character.  However, he did so without knowing the full extent to which these witnesses were specifically compromised by deals that they had made or believed they had made with the Crown.

[27]         The new evidence proves that Mr. Zanidean was paid approximately $70,000 as a result of his cooperation with the police.  This fact was not disclosed to the defence until recently.  Mr. Gumieny was also paid money as a consequence of his role as a witness.  However, most of the records of such payments were destroyed before the recent disclosure.  Thus, the exact amount that he was paid has not yet been ascertained.

[28]         In 1993, as a consequence of publicity that suggested that Mr. Driskell had been wrongfully convicted, the Winnipeg Police Service conducted an internal review of the case referred to as the “Perry Dean Harder Homicide Review”.  Most of the investigators and witnesses in the case were re‑interviewed.  The authors of the report concluded that Mr. Zanidean was a very important witness whose credibility was “suspect”.  They also discovered that the investigating officers knew that Mr. Zanidean was strongly focused on obtaining money from them.  This report was not disclosed until after the current application had been filed.

IMMUNITY

[29]         In addition, the evidence establishes that Mr. Zanidean was offered immunity, or believed that he would receive immunity, in respect of an arson charge in Saskatchewan as a result of testifying for the Crown.  While it is not yet clear who led Mr. Zanidean to believe he would receive immunity, it is clear that he received such immunity.

[30]         None of this important information was revealed to defence counsel on a timely basis.  Indeed, it would appear that Mr. Zanidean misled the jury as to the benefits he was receiving in exchange for his testimony.  At trial, he painted a picture that would have led the jury to conclude that he was experiencing financial hardship as a result of his decision to give evidence.  That impression is inconsistent with the new evidence.  Similarly, he was not candid with the jury about his understanding that he was to receive immunity on the arson charge in exchange for his testimony.  These inconsistencies were known, or at least ought to have been known by the Crown, before the appeal of Mr. Driskell’s conviction was concluded.

THE RECANTATION

[31]         Finally, there is the recantation of evidence by Mr. Zanidean.  In an anonymous telephone conversation recorded by Mr. Driskell’s counsel shortly after the trial, Mr. Zanidean, although speaking in the third person, told Mr. Brodsky that a lot of the evidence which he gave at trial was “made up” or was “bullshit”.  While Mr. Brodsky suspected the caller was Mr. Zanidean, he could not prove it.

[32]         The Homicide Review confirms that the police knew very shortly after this telephone call that Mr. Zanidean had flirted with recanting his evidence in a telephone call to Mr. Brodsky.  The recantation call was concurrent with demands for more money.  This was not disclosed to defence counsel.

[33]         As was pointed out by Commissioner Kaufman after the Morin inquiry when investigating the possibility of a wrongful conviction, the focus in a recantation situation is not on the recantation itself, but on its implications in respect of the credibility of the evidence given by that witness at trial.  The failure to disclose the recantation, and the recantation itself, is clearly another factor that must be viewed in the overall context of the evidence as it now stands.  [See F. Kaufman, The Commission on Proceedings Involving Guy Paul Morin, vol. 2 (Toronto:  Publications Ontario, 1998) at 1174-75.]

FAILURE TO DISCLOSE

[34]         The case of R. v. Stinchcombe, 1991 CanLII 45 (S.C.C.), [1991] 3 S.C.R. 326, was decided on November 7, 1991.  That decision imposed a clear legal obligation on the Crown to disclose all evidence material to the defence.  However, the duty to disclose all material evidence existed long before Stinchcombe (see Taillefer, supra).  Mr. Driskell’s appeal was heard in December 1992.  Prior to that time, the Saskatchewan Justice Department had reminded Manitoba Justice of the duty to disclose.  Yet, no disclosure of the important information concerning Mr. Zanidean’s credibility was made to defence counsel prior to the appeal.

THE FORENSIC EVIDENCE

[35]         Tod Steven Christianson was called as a hair and fiber expert on behalf of the Crown.  He testified that three hairs were found in the back of Mr. Driskell’s van that matched the hairs that came from Mr. Harder’s head.  This evidence was important because it supported the evidence given by Mr. Zanidean and Mr. Gumieny.  In effect, it was used to support or rehabilitate the evidence of witnesses whose credibility was suspect.  They testified that Mr. Driskell had told them that he intended to kidnap and kill Mr. Harder.  One of the methods for executing this plan involved using his van.  Mr. Driskell has always denied the fact that Mr. Harder had ever been in the van.

[36]         Mr. Christianson told the jury that he was able to observe 20 characteristics in a hair.  He said that when he examined the hairs from Mr. Harder’s head and those found in Mr. Driskell’s van, they were “exactly within the range” and there were “no variations”.  He told the jury that the chances were not very high that these hairs were not from the same person.  Quite properly, the trial judge, in his charge to the jury, summarized this evidence by saying that the chances were small that the hairs came from someone other than Mr. Harder.  Taking his evidence as a whole, the impression that this expert left with the jury was that Mr. Harder had probably been in Mr. Driskell’s van.

[37]         Surprisingly, indeed perhaps shockingly, the DNA evidence indicates that the three hairs, which Mr. Christianson examined, were from three different people and none of those people were Mr. Harder.  Whether this is a comment on Mr. Christianson’s skill or on the science itself does not matter for my purposes.  Suffice it to say that his testimony was invested with the aura of science.  Moreover, it was used by the Crown attorney in his final address to the jury in a very skillful manner to support the evidence of Mr. Zanidean and Mr. Gumieny.

CONCLUSION

[38]         When the evidence is viewed as a whole, including both the original trial evidence and the new evidence, I am driven to conclude that Mr. Driskell has met the very high standard for release.

[39]         The new evidence does not simply identify procedural irregularities as suggested by the Crown.  It goes to the heart of the Crown’s case.  Further, the evidence itself is not contentious.  No credibility finding is required to give it weight.

[40]         In my opinion, there is a high degree of probability that the new evidence would have been admissible at the trial of this matter if it had been available and that it might reasonably have affected the result.  Thus, I have very serious concerns as to the reliability of the conviction.  In so saying, I point out that if this were a simple appeal of the conviction, the court’s focus would be on whether the appellant has demonstrated by the new evidence “a reasonable possibility that the verdict might have been different”.  See R. v. Dixon, 1998 CanLII 805 (S.C.C.), [1998] 1 S.C.R. 244, and R. v. Taillefer.  In that regard, the DNA evidence alone is sufficient to lead me to this conclusion.  It proves that a material piece of evidence upon which the jury may have relied was wrong.

[41]         Further, I do not accept the Crown’s argument that the failure to disclose evidence of the payments made to Mr. Zanidean and Mr. Gumieny, and Mr. Zanidean’s belief that in exchange for his testimony he would receive immunity on the serious charge of arson, and Mr. Zanidean’s attempted recantation, could not have changed the outcome of the trial.  In so finding, I reject the Crown’s argument that the new evidence is immaterial because the jury already knew that these individuals were doubtful characters who were prone to lying.

[42]         I acknowledge that the trial judge instructed the jury to be very careful with their evidence because of their general bad character.  However, the fallacy in the Crown’s argument is that a credibility decision, and the weight attributed to suspect witnesses, is often assessed cumulatively after weighing all of the evidence that impacts on their trustworthiness.  It is reasonable to conclude that the evidence of payment to the witnesses together with Mr. Zanidean’s belief that he was obtaining immunity in respect of a serious arson charge could have constituted the straw that broke the jury’s confidence in these witnesses.  Certainly it would have been a factor in their proper deliberations.

[43]         In order to convict Mr. Driskell, the jury must have placed significant weight on the evidence of Mr. Zanidean and of Mr. Gumieny.  That was the conclusion of the Homicide Review.  I agree.  Therefore, evidence that might reasonably have altered that credibility assessment cannot be dismissed as inconsequential.

[44]         Based on the principles identified in Dixon, supra, Courts of Appeal have been instructed to order a new trial wherever “there is a reasonable possibility the non-disclosure affected the outcome at trial”.  Ultimately, the focus is on the overall fairness of the trial process.  In determining that issue, it is not sufficient to restrict the examination to the nature of the fresh evidence.  The court must also consider the potential use of that evidence by experienced defence counsel (see Taillefer).  In the present fact situation, I have no hesitation in concluding that the non-disclosure in this case affected trial fairness and could have affected the outcome of Mr. Driskell’s trial.

[45]         I also find support for my decision to order interim release in the two decisions in R. v. Khan.  In R. v. Khan, [1998] M.J. No. 443 (C.A.), Twaddle J.A. noted that persons who have been convicted of murder should only be released pending appeal in exceptional circumstances.  Those circumstances, he stated, included cases where the applicant’s appeal appears to be high in merit and where there may be excessive delay in processing the appeal.

[46]         In R. v. Khan, [2000] M.J. No. 89 (C.A.), Huband J.A., speaking for the court, noted that the granting of leave by the Supreme Court of Canada in a criminal case signifies, at a minimum, that the reviewing body believes there is an arguable case.  That is a significant factor which he found favoured the granting of interim release.

[47]         In the present circumstances, by analogy, the Minister of Justice’s decision to refer the section 696.1 application to the second stage in the process, based as it must be on a decision that there “may be” a reasonable basis to conclude that a miscarriage of justice likely occurred, adds weight to the application for interim release.  The material filed also satisfies me that previous section 696.1 applications have sometimes taken years to process.  Thus, the logic of the two Khan decisions is supportive of Mr. Driskell’s application before me.

[48]         For the purposes of this application, there is no need for me to decide whether or not Mr. Driskell was wrongfully convicted.  However, I am satisfied that he has met the very high standard to be considered for release.  It would be fundamentally unjust to keep him in custody pending a review which will certainly take many months if not years to complete, unless there is some concern that he will not appear before the court when required to do so in the future or it would not otherwise be in the public interest to do so.

VOLUNTARY SURRENDER/PUBLIC INTEREST

[49]         The Crown has not argued that Mr. Driskell is unlikely to appear in court in the future as and when required.  Indeed, he has provided the court with a proposed surety and a reasonable release plan that the Crown does not challenge.  Therefore, it is not in the public interest to keep Mr. Driskell in custody unless there is evidence that he is the type of person who, because of his character and background, poses a real danger to the community if released.  The Crown has not raised these concerns.  Indeed, the evidence is to the contrary.  I am, therefore, going to order Mr. Driskell’s interim release on reasonable terms.

________________________________J.