Lametti finds ‘likely’ miscarriage of justice in triple murder conviction, seeks appeal

By Cristin Schmitz

Last Updated: Tuesday, February 14, 2023 @ 10:45 AM

Law360 Canada (February 13, 2023, 5:10 PM EST) -- Citing new evidence and “a reasonable basis to conclude that a miscarriage of justice likely occurred,” federal Justice Minister David Lametti has referred a triple murder conviction to the Manitoba Court of Appeal for appellate review.

Lametti’s decision announced Feb. 13, following what the Department of Justice describes as an “extensive review” of Robert Sanderson’s ministerial review application pursuant to s. 696.1 of the Criminal Code, relates to Sanderson’s first degree murder convictions for the 1996 fatal shooting and stabbing of three men in what was suspected to be a biker-gang-related crime.

“The minister’s decision that there is a reasonable basis to conclude that a miscarriage of justice likely occurred is the result of the identification of new information that was not available to the courts at the time of Mr. Sanderson’s trial or appeal,” the DOJ said, without disclosing any specifics of the ministerial review application Sanderson launched in 2017.

Justice Minister David Lametti

Justice Minister David Lametti

“After a thorough review of Mr. Sanderson’s case, I am satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred and that a new appeal from conviction is warranted,” Lametti said in a statement. “The government of Canada is committed to ensure a reliable and impartial justice system that respects the needs of victims while protecting against potential miscarriages of justice.”

Section 696.1 of the Criminal Code allows a person who has been convicted of an offence and who has exhausted all rights of appeal to apply to the justice minister for a review of their conviction.

Sanderson made his s. 696.1 application two decades after his 1997 conviction on three counts of first-degree murder.

Since his conviction the forensic methodology the provincial prosecutor relied on at trial — purportedly identifying a hair found on one of the victims as Sanderson’s — has been discredited. The Manitoba Crown who prosecuted Sanderson was involved in other cases that culminated in confirmed wrongful convictions and that sparked allegations of wrongful convictions.

The Manitoba Court of Appeal initially dismissed Sanderson’s appeal in a brief decision in March 1999. The Supreme Court of Canada denied leave to appeal later that year.

In 2018, Sanderson’s request for bail, pending completion of the justice minister’s review, was denied. He was paroled shortly afterward, the DOJ’s press release states.

Asked why the Department of Justice took more than five years to decide Sanderson’s 2017 in-custody ministerial conviction review application, DOJ spokesperson Geneviève Groulx told Law360 Canada by email “it would not be appropriate to comment on the specifics of a particular application.”

She said that generally there “can be different reasons for why a file takes longer than others,” including the need to: seek out and review police, Crown and trial information and materials; seek out and interview witnesses; acquire expert opinions; and receive and review additional information and submissions from the applicant and the prosecuting authority. “Priority is also usually given to in-custody applicants,” she said.

Groulx said the DOJ’s criminal conviction review group currently has 63 applications filed with it: 51 are at the preliminary assessment stage and 12 are at the investigation stage of review.

Since he became minister of justice in 2019, Lametti has made six decisions on remedy, including Sanderson’s, she said. New trials were ordered for Glen Assoun (2019), Tomas Yebes (2020), Jacques Delisle (2021), Gerald Klassen in 2022 and Wade Skiffington in 2022.

The department said that the justice minister’s decision “is not a decision about the guilt or innocence of the applicant, but rather a decision to return the matter to the courts where the relevant legal issues may be determined according to the law. When a matter is returned for a new appeal, an applicant’s conviction is maintained and they bear the burden of establishing that errors requiring intervention may have occurred.”

The DOJ said that “determining whether a miscarriage of justice likely occurred involves a close examination of information initially submitted in support of the application, followed by an in-depth investigation” by the department’s criminal conviction review group. “A key consideration is whether the application is supported by new matters of significance, usually new information that has surfaced since the trial and appeal.”

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