Court to hear Ross’s application for judicial review

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This article was published 15/04/2013 (4587 days ago), so information in it may no longer be current.

Nearly 18 years after he was sentenced to jail for defrauding a partnership of investors in a local restaurant franchise, former Brandon lawyer Deveryn Ross could learn today whether his Court of Queen’s Bench trial will be declared a miscarriage of justice.

A federal court in Toronto was scheduled to hear Ross’s application for judicial review this morning, a process that is expected to last about two days.

“This is my one last shot,” Ross told the Brandon Sun on Friday.

In May 1995, Ross was convicted on two counts of fraud for his role in a botched Perkins restaurant venture — a fraud over $1,000 involving the sale of units of Perkins Limited Partnership to investor Ronald Simpson and of fraudulently transferring $700,000 belonging to the PLP to another limited partnership he created.

One month later he was sentenced to 18 months in jail, though he would ultimately only serve part of that term.

Ross, who pleaded not guilty but never testified during the trial, has always maintained that several hundred pages of information, not disclosed by the Crown prior to his conviction, would have proven his innocence and changed the way his lawyer, Tim Killeen, handled his case. He claims that in excess of 100 documents from the Manitoba Securities Commission alone exist that were not disclosed to him.

In 2004, Ross filed an application under the Criminal Code to have his case reviewed by the federal justice minister. In July of that year, the Department of Justice Canada assigned Alex Pringle, a noted Alberta lawyer, to review the case. This was done to avoid a conflict of interest — the prosecutor in Ross’s case, Paul Jensen, had moved from the provincial Department of Justice to become the head of the federal Department of Justice in Winnipeg, just prior to Ross’s 2004 application.

As the Winnipeg Free Press reported in March 2010, Pringle finished interviewing witnesses in February 2007. A preliminary investigative report was completed in May 2008 and a final report was sent to the federal Justice Minister Rob Nicholson in June 2009.

Pringle’s conclusions in his draft report appeared to back up what Ross had maintained — that had the Crown’s information been disclosed, Ross’s lawyer would have conducted his cross examination of Crown witnesses differently. As well, Pringle concluded that Ross would have been called to testify at trial.

“We have crossed the finish line on the facts. What we have now is a difference of opinion of what the consequence should be.”

Under federal Criminal Code regulations, Ross says the minister was obligated to provide him and his legal team with a copy of the final investigative report and allow one year for Ross to provide comment. Instead, however, Nicholson issued Ross an 11-page letter that laid out Pringle’s findings, without giving him a chance to see the actual report or respond to it.

And though the minister essentially confirmed much of Pringle’s findings, Nicholson disagreed with the investigator’s decision that Ross would have testified and denied his application.

“The minister cannot even issue a decision until he’s complied with the regulations,” Ross said.

“All we know is what’s in the minister’s letter, where he says Mr. Pringle concludes that Mr. Ross would have testified, ‘but I disagree.’ But even now, we requested in court for a copy of the report and they refused to give it to us.”

When the Sun asked for a copy of the minister’s letter Ross refused over concerns that doing so could harm his case.

According to Ross, the minister based his conclusion on a factual finding that in Killeen’s 2002 affidavit that was taken out of context.

But more concerning, Ross says, is the appearance that the minister took the advice of a Justice Department employee — Paul Jensen, the former Crown attorney at Ross’s trial — over that of the Alberta-based investigator.

Jensen had been interviewed by Pringle twice as a witness in the case. Following the release of the 2008 draft report, Manitoba Justice was given four months to respond.

“On the anniversary of the four-month deadline, we get a copy of the response. And it’s signed by Paul Jensen on behalf of Manitoba Justice. He doesn’t work for them at this point. He’s a witness in the case. Pringle was hired because of the conflict created by Jensen’s involvement and here we have Paul Jensen making arguments on behalf of Manitoba Justice even though he doesn’t even work for them anymore.

“We raised this immediately with Pringle. We raised this with the minister, with the minister’s special advisor Bernard Grenier, we get no reply. … In this entire narrative, the only person who ever argued that I would not have testified because I was so scared of Paul Jensen, is Paul Jensen.”

Federal Department of Justice spokesperson Carole Saindon said the minister of Justice dismissed Ross’s application on Sept. 29, 2010, “and he was provided with the reasons for the decision.”

Saindon also said it would be “inappropriate to comment further,” as the matter is pending before the court.

Since the minister’s decision, it has taken nearly three years for Ross to have his application for judicial review of that decision heard before the federal court. And there are several possible outcomes.

The judge could dismiss the application. He could issue a direction to the minister to make a new decision, he could order a new trial, or he could make a declaration that Ross’s conviction was a miscarriage of justice.

“Merely sending it back to the minister and having him disclose the report to us guarantees we’ll end up right back where we are two to three years from now,” Ross said. “And what’s the point of that? Because the facts aren’t going to change.

“I would love to have a new trial ordered on Tuesday. That’s what I would love to have.”

The judicial review was scheduled to proceed at 8:30 a.m. CDT.

» mgoerzen@brandonsun.com