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Annual Report 2008 - Minister of Justice

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

The current conviction review process has been in place since 2002, when section 690 of the Criminal Code was repealed and replaced by sections 696.1 to 696.6 (Appendix 1) after a public consultation. These provisions, along with regulations (Appendix 2), 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 as to 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 investigating 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 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.

During the reporting period, five full-time lawyers were employed at the CCRG. In addition, the CCRG has supervised law students from the University of Ottawa under the Department of Justice’s Clinical Internship Program.

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 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 Associate Deputy Minister’s office. Administration and support services are provided to the CCRG by this same office.

To promote awareness and understanding of the conviction review process, the CCRG provides presentations or lectures, subject to availability, resources and operational requirements. During the reporting period, presentations were made to several local university classes.

The CCRG has also taken steps to develop appropriate working relationships with various interested parties including the courts, provincial attorneys general and organizations such as the Association in Defence of the Wrongly Convicted (AIDWYC) and the Federal-Provincial-Territorial Heads of Prosecutions Committee.

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. The outside agent, rather than the CCRG, will provide advice to the Minister.

Typically, a conviction review is conducted by an outside agent where a potential conflict of interest arises, such as where the prosecution had been conducted on behalf of the Attorney General of Canada by the former Federal Prosecution Service or the now Public Prosecution Service of Canada (e.g. drug prosecutions, or criminal prosecutions in the Yukon, Northwest Territories and Nunavut). During this reporting period, two new applications for ministerial review were referred to outside agents.

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 from 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.

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 an appeal court 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 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 allows 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.

The Special Advisor to the Minister

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.

The Special Advisor’s position is an independent one. He 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 public service.

While the Special Advisor’s main role is to make recommendations to the Minister once an investigation is complete, it is equally important that he 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.

The involvement of the Special Advisor, in concert with the arm’s-length relationship between the CCRG and the Department of Justice, ensures that the conviction review process is independent.

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.

All reasonable efforts are made to process and review each application as quickly as possible. However, priority is generally given to those applications where the applicant is in custody.

Preliminary Assessment

When an application for ministerial review is received, the first task is to ensure that the required application form has been properly completed and the necessary supporting documents have been submitted. Once the application is complete, the CCRG conducts a preliminary assessment to determine whether it merits further investigation – normally whether the application presents “new matters of significance” that were not available at trial or on appeal.

The time required for a preliminary assessment will depend upon the amount of material to review and whether any of the new matters of significance require preliminary decisions, such as on the credibility of new evidence raised in the application.

If the application does not present new matters of significance, it will be screened out. The Special Advisor reviews the decision to screen out an application at this stage. He may request that additional information be collected or existing information be clarified before an application is screened out. The Special Advisor may also disagree with the decision to screen out the application, and recommend to the Minister that the review process continue.

Where an application is screened out at this stage, the applicant is informed in writing that the matter will not proceed to the investigation stage and is given the reasons for that decision. The applicant has one year to provide further information.

Investigation

The investigation conducted by the CCRG or agent attempts to verify the information in support of the application. Depending on the type of information provided by the applicant, the investigation could involve:

interviewing or examining witnesses to clarify or verify the information in the application;
carrying out scientific tests (e.g. DNA testing paid for by CCRG);
obtaining other assessments from forensic and social science specialists (e.g. polygraph examinations);
consulting police agencies, prosecutors and defence lawyers who were involved in the original prosecution and/or appeals; or
obtaining other relevant personal information and documentation (e.g. Correctional Service of Canada files).

The time required for the investigation depends on the complexity of the application and the availability of information. It should be noted that any of these activities could take place at the preliminary assessment phase as well. Each case is unique, and the contents and nature of the application determine the process.

Investigation Report

The results and findings of the investigation are compiled in an investigation report. This report will summarize the facts gathered from the judicial record and address whether the new information in support of the application has been verified, and if so to what extent. The investigation report may also identify relevant issues and legal authorities. As required by law, the report is sent to the applicant with a request for submissions. The Attorney General for the province where the prosecution occurred is also given a copy of the report and asked for submissions.

When the submissions, if any, have been received – and any further investigation they might merit has been completed – the final version of the investigation report is prepared. The CCRG or agent then prepares written advice and recommendations for the Minister.

The Special Advisor’s role may include providing advice and guidance to the CCRG or seeking clarification of issues. Nevertheless, the CCRG or the appointed agents remain responsible for conducting the investigation, and are expected to provide independent advice to the Minister along with the investigation report. The Special Advisor reviews the investigation report and any appended material and provides his own advice and recommendations to the Minister, which may or may not differ from the advice provided by the CCRG or agent.

The application then proceeds to the final stage of the conviction review process – the Minister’s decision.

Decision by the Minister

As a practical matter, the Minister is not personally involved in the preliminary assessment, investigation and investigation stages of the conviction review process. 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 province, 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.

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 on applications for a conviction review. In 1994, the Minister summarized the guiding principles for the exercise of ministerial discretion under the then section 690 of the Criminal Code in his decision regarding the application of Colin Thatcher:

In creating the role of the Minister of Justice under section 690 of the Code, Parliament used very broad language, and the discretion of the Minister has been cast in the widest terms. Indeed, the section does not contain a statutory test, other than the general reference in clause (a) to the Minister being “satisfied that in the circumstances a new trial or hearing ... should be directed.”

In interpreting and applying section 690, I do not intend to limit or restrict the wide discretion given to the Minister. It is impossible to predict the nature of the cases in which such applications might be brought in the future, and it is in the public interest, in my view, to leave the Minister’s discretion in the broadest possible terms.

Nevertheless, that discretion is to be exercised in accordance with certain governing principles, and I believe that it would be useful to identify those principles here.

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.
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 I might take a different view of the same evidence that was before the court does not empower me, under section 690, to grant a remedy.
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 put before the trial and appellate courts. Applicants under section 690 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.
Applications under section 690 should ordinarily be based on new matters of significance that either was not considered by the courts or that occurred or arose after the conventional avenues of appeal had been exhausted.
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 have affected the verdict?”
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.

Many of these principles have now been codified in sections 696.1 to 696.6 of the Criminal Code. While these principles continue to evolve as a result of experience as well as changes and advancement in the law, they remain a useful guide to assessing applications for ministerial review.

Authorizations for the Use of the Minister’s Investigative Powers

Until the 2002 amendments, there was no legal procedure to require witnesses to provide information or produce documents that might be relevant to an application. The review of an application was therefore dependent upon the voluntary cooperation of witnesses. This was seen as a weakness in the review process, since information and documents in the possession of a reluctant or uncooperative witness could not be obtained.

This weakness was corrected by the current section 696.2 of the Criminal Code which gives the Minister the powers of a commissioner under the Inquiries Act.^[1] Specifically, the Minister has the investigative power to:

subpoena a witness;
require a witness to answer questions and give evidence, orally or in writing, under oath or solemn affirmation; and
require a witness to produce documents or other things that may be relevant to an investigation.

Those involved in the first three stages of the conviction review process may need to use these investigative powers to evaluate an application. Therefore, a lawyer, retired judge, or other qualified individual may be authorized in writing by the Minister to exercise these investigative powers. Hence, where it is necessary to do so, the CCRG or outside agent can, for example, issue a subpoena to a witness and require the witness to answer questions under oath. During this reporting period, the CCRG did not seek such authority.

^[1] See the Inquiries Act, R.S.C 1985, ss. 4-5.