ANNUAL REPORT 2011 MINISTER OF JUSTICE

2. Addressing Possible Miscarriages of Justice

History of the Power to Review Criminal Convictions

Historically, at common law the only power to revisit a criminal conviction was found in the “Royal Prerogative of Mercy,” a body of extraordinary powers held by the Crown that allowed it to pardon offenders, reduce the severity of criminal punishments, and correct miscarriages of justice.

Over the years, the Minister’s power underwent various legislative changes, culminating in 1968 in the former section 690 of the Criminal Code. This section remained in effect for more than thirty years.

The Current Conviction Review Process

In 2002, following public consultations, section 690 of the Criminal Code was repealed and replaced by sections 696.1 to 696.6. These provisions, together with the regulations, set out the law and procedures governing applications for ministerial review (miscarriages of justice).

The current conviction review process improved transparency and addressed deficiencies in the previous process by:

• including clear guidelines for when a person is eligible for a conviction review;
• providing a straightforward application form and clear direction on the information and documents needed to support it;
• describing the various stages in the conviction review process;
• specifying the criteria the Minister must consider in deciding whether a remedy should be granted;
• expanding the category of offences for which a conviction review is available to include not only indictable offences but also summary conviction offences;
• giving those who investigate applications on behalf of the Minister the authority to compel the production of documents as well as the appearance and testimony of witnesses; and
• requiring the Minister to submit an annual report to Parliament.

Criminal Conviction Review Group

The Criminal Conviction Review Group (CCRG) is now a separate unit of the Department of Justice. It has five main responsibilities:

• liaising with applicants, their lawyers, agents of the provincial attorneys general, the police and various other interested parties;
• reviewing applications for ministerial review and conducting preliminary assessments;
• conducting investigations where warranted;
• compiling the findings of investigations into an investigation report; and
• providing objective and independent legal advice to the Minister on the disposition of applications for ministerial review.

Following the legislative changes in 2002, a number of structural changes were made to enhance the arm’s-length relationship between the CCRG and the rest of the Department of Justice.

The CCRG office is located outside of the Department of Justice Headquarters in a downtown Ottawa office building which has both government and private sector tenants.

Rather than formally passing through another branch of the Department, advice passes from the CCRG to the Minister through the Deputy Minister’s office. Administration and support services are provided to the CCRG by this same office.

Conviction Reviews by Outside Agents

In some circumstances, the Minister retains an agent from outside the Department of Justice to conduct the review of an application. Typically, this is done where there is a potential conflict of interest, such as where the prosecution had been conducted on behalf of the Attorney General of Canada by the Public Prosecution Service of Canada, formerly the Federal Prosecution Service (e.g. drug prosecutions, or criminal prosecutions in the Yukon, Northwest Territories and Nunavut). In such circumstances, the outside agent, rather than the CCRG, will provide advice to the Minister.

How the Conviction Review Process Works

Applying for a Conviction Review

The conviction review process requires an applicant to submit a formal application form and a number of supporting documents.

The requirements for a completed application, as well as a description of the various steps in the application process, are set out in detail in the booklet, Applying for a Conviction Review. The booklet is available on the CCRG’s Web site.

Anyone convicted of an offence under a federal law or regulation may submit an application for ministerial review. For example, a person who has been convicted under the Criminal Code or the Controlled Drugs and Substances Act is eligible to apply. Convictions for indictable and summary conviction offences are both eligible for review. A person found to be a dangerous offender or a long-term offender under the Criminal Code may also submit an application for ministerial review.

However, an application will not be accepted until the applicant has exhausted all available rights of appeal. Judicial review and appeals to higher courts are the usual ways to correct legal errors and miscarriages of justice. Indeed, the Criminal Code specifically allows a court of appeal to overturn a conviction on the ground that there has been a miscarriage of justice. Convicted persons are therefore expected to appeal their convictions where there are suitable grounds to do so.

A conviction review by the Minister of Justice is not a substitute for, or an alternative to, a judicial review or an appeal of a conviction. An application for ministerial review is not meant to be another level of appeal or a mechanism that would allow the Minister of Justice to take the same evidence and arguments presented to the courts and substitute his or her own judgment.

An application for ministerial review must be supported by “new matters of significance” – generally new information that has surfaced since the trial and appeal and therefore has not been presented to the courts and has not been considered by the Minister on a prior application. Only after a thorough review of the new matters of significance will the Minister be in a position to determine whether there is a reasonable basis to conclude that a miscarriage of justice likely occurred.

Although it is not required, applicants may seek the assistance of a lawyer or organizations specializing in wrongful conviction issues, such as the Association in Defence of the Wrongly Convicted (AIDWYC) or the Innocence Project.

Stages of the Review

There are four stages in the review process: preliminary assessment, investigation, preparation of an investigation report, and the decision by the Minister. They are described in detail in the application booklet and in previous annual reports.

As a practical matter, the Minister is not personally involved in the preliminary assessment, investigation and the preparation of the investigation report stages. These stages are usually carried out on his or her behalf by the CCRG. The Minister does, however, personally decide on all applications for ministerial review that proceed to the investigation stage.

In this final stage, the Minister of Justice personally reviews the investigation report and supporting materials, the submissions from the applicant and the prosecuting agency (usually the provincial attorney general), the advice and recommendations of the CCRG or agent, and the advice and recommendations of the Special Advisor.

The Minister then decides to dismiss or allow the application. In arriving at a decision, the Minister must take into account all relevant matters, including:

• whether the application is supported by new matters of significance that were not considered by the courts or by the Minister in a previous application for ministerial review;
• the relevance and reliability of information that is presented in the application; and
• the fact that an application for ministerial review is not intended to serve as a further appeal and any remedy available on such an application is an extraordinary remedy.

In some circumstances, an application may raise a question on which the Minister may wish the assistance of a court of appeal. The court’s opinion on the question may help the Minister make his or her decision. Hence, the Minister has the legal authority, at any time and prior to any decision, to refer a question or questions about an application to the court of appeal for its opinion. Typically, the court of appeal’s opinion would be sought with regard to a legal issue central to the application such as the admissibility of fresh evidence.

If the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred, pursuant to subsection 696.3(3) of the Criminal Code the Minister may order a new trial, or a hearing in the case of a person found to be a dangerous or long-term offender, or refer the matter to the court of appeal as if it were an appeal by the convicted person or person found to be a dangerous or long-term offender.

Over the years, guidelines and general principles concerning the exercise of ministerial discretion have been established in various ministerial decisions, which are still applicable today. Some have in fact been incorporated into the current Criminal Code provisions.

1. The remedy contemplated by section 696.1 is extraordinary. It is intended to ensure that no miscarriage of justice occurs when all conventional avenues of appeal have been exhausted.
2. Section 696.1 does not exist simply to permit the Minister to substitute a ministerial opinion for a trial 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 the Minister to grant a remedy under section 696.1.
3. Similarly, the procedure created by section 696.1 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 put before the trial and appellate courts. Applicants under section 696.1 who rely solely on alleged weaknesses in the evidence, or on arguments of the law that were put before a court and considered, can expect to find that their applications will be refused.
4. Applications under section 696.1 should ordinarily be based on new matters of significance that either were not considered by the courts or that 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 whether there is “…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.”
6. Finally, an applicant under section 696.1, 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 above analysis, that there is a basis to conclude that a miscarriage of justice likely occurred.

The Special Advisor to the Minister

The Special Advisor’s position is an independent one. He/she is neither a member of the Public Service of Canada nor an employee of the Department of Justice. The Special Advisor is appointed by Order-in-Council from outside the Department and the Public Service.

Although the Special Advisor’s main role is to make recommendations to the Minister once an investigation is complete, it is equally important that he/she provide independent advice at other stages of the review process where applications may be screened out. The Special Advisor’s involvement ensures that the review of all applications is complete, fair, and transparent.

Mr. Bernard Grenier, a retired judge of the Court of Quebec with more than two decades of distinguished experience on the bench, has served as the Special Advisor to the Minister on applications for ministerial review since 2003.

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