The Miscarriage of Justice Review Commission

On December 17, 2024, the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law) received Royal Assent and became law. This bill amended the Criminal Code to establish an independent commission to review, investigate, and decide which criminal cases should be returned to the justice system due to a potential miscarriage of justice.

The Miscarriage of Justice Review Commission will have the mandate to review, investigate, and decide which cases should be returned to the justice system due to a potential miscarriage of justice. The Commission has been established under the Criminal Code as a stand-alone entity, independent of the Department of Justice.

The role of the Commission

As an investigative body, the Commission will be granted powers of investigation under Part I of the Inquiries Act. These include the power to require witnesses to testify under oath and the power to compel the production of information and evidence.

The Commission will not be an alternative to the courts. Appeals will continue to be heard on the grounds of a miscarriage of justice. Applicants will first need to appeal their conviction before requesting a review by the Commission.

Unlike the current process where the Minister of Justice decides if a miscarriage of justice likely occurred, the Commission will decide if a miscarriage of justice may have occurred and if it is in the interest of justice to direct a new trial, a new hearing, or refer the case back to the Court of Appeal.

The Commission’s review process will consider:

• specific personal factors of the applicant
• distinct challenges applicants who belong to certain populations face in obtaining a remedy for a miscarriage of justice, with particular attention to the circumstances of Indigenous or Black applicants

The Commission will consist of one full-time Chief Commissioner and 4 to 8 full- or part-time commissioners appointed by the Governor in Council. In making recommendations for commissioner appointments, the Minister must seek to reflect the diversity of Canadian society and consider issues such as gender equality and the overrepresentation of certain groups in the criminal justice system, including Indigenous people or Black persons.

Existing ministerial review process

The existing criminal conviction review process is handled by the Criminal Conviction Review Group (CCRG) within the Department of Justice Canada. The CCRG will continue to review applications from potentially wrongly convicted people until the independent Commission is operational.

Individuals who have exhausted their rights of appeal can continue to apply to have their convictions reviewed. The CCRG conducts a review on behalf of the Minister of Justice and advises the Minister on the appropriate remedy, if any. The Minister then reviews relevant material and decides on the basis of the facts and the law, whether a review application should be dismissed or allowed. Existing applicants will have the option to have their application transferred to the new commission once operational, if they have passed the preliminary assessment stage.

Until the Commission is operational, the Minister of Justice retains the authority under the Criminal Code to review a conviction under a federal law and to order a new trial or appeal where there is a reasonable basis to conclude that a miscarriage of justice likely occurred.

More information about how the review process currently works can be found on the Criminal Conviction Review page.