The Review Process
A conviction review application is important both to the applicant and to society. It may be the last chance to correct a wrongful conviction. Each application is assessed conscientiously and thoroughly in recognition of this fact. There are four stages in the process:
- Preliminary Assessment
- Investigation Report
- Decision by the Minister
When your conviction review application is received, it is first reviewed to ensure that it is complete. You or the person acting on your behalf (e.g. your lawyer) will be informed as to whether the application is complete or not. Once the application is complete, a CCRG lawyer will examine the information you have provided and compare it with trial and appellate court records.
If the application presents new and significant information that was not available at trial or on appeal and that could have affected the outcome of your case, you will be informed that the application will proceed to the next stage of the process.
In certain cases, the investigation stage may be bypassed, but only where the Minister is satisfied by the information in the application that a likely miscarriage of justice has indeed occurred and that there is an urgent need to grant you a remedy for humanitarian reasons or to prevent you from continuing to suffer from a blatant injustice.
If your application does not present new and significant information, you will be informed that your application will not proceed to the investigation stage. You will also be told that you may provide additional information in support of your application within one year. If you do so, the preliminary assessment will continue. If you provide additional information after the one-year period, a new preliminary assessment will be necessary.
At the investigation stage, a CCRG or outside lawyer will closely examine the new information you provided in your application to see if it is reliable (i.e. it is reasonably capable of belief) and relevant (i.e. it relates to guilt or innocence).
Depending on the type of information you provide, the investigation could involve any of the following:
- Interviewing witnesses to clarify or verify the information in the application.
- Carrying out scientific tests (e.g. DNA testing).
- Obtaining other assessments from forensic and social science specialists (e.g. polygraph examinations).
- Consulting police agencies, prosecutors who were involved in the original prosecution, and defence lawyers who were involved in the trial and the appeals.
- Obtaining other relevant personal information and documentation (e.g. your Correctional Service Canada file).
How long this investigation will take depends on the complexity of the case and the availability of the evidence.
If the investigation raises issues that you did not cover in your application, you may be asked to provide additional information within a specified time period so that everything that needs to be considered in the application can be dealt with at the same time.
In some cases, a witness may be able to give important information, documents or other evidence but refuses to do so. To aid the investigation of a conviction review application, the Minister of Justice has the power to subpoena such a witness and force him or her to testify under oath or hand over documents or other evidence. The Minister may delegate this special power to a CCRG or outside lawyer or other qualified person.
When the investigation is completed, the CCRG or outside lawyer will prepare an investigation report that summarizes the information gathered. You will be provided with a copy of this report and asked to provide comments on it within a prescribed period of time. Although you have up to one year to provide further comments, the sooner you do so, the sooner the application will proceed to the next step.
Your application will proceed to the next stage - a decision by the Minister - once your comments have been received and addressed, or the time for providing comments has expired (i.e. one year) and you have not provided any further information.
Decision by the Minister
At this final stage of the conviction review process, the CCRG or outside lawyer will forward the following to the Minister of Justice:
- All the submissions that you have made.
- The investigation report.
- A memorandum of legal advice prepared by the lawyer who investigated the application.
The Minister will then review all of this material and decide whether, on the basis of the facts and the law, your application should be dismissed or allowed.
As mentioned earlier, in some circumstances, the Minister may refer a question or questions to a provincial or territorial court of appeal.
If satisfied by the information contained in the application that there is a reasonable basis to conclude that a miscarriage of justice likely occurred, the Minister has the power to grant you a remedy (i.e.,a new trial or hearing or a new appeal proceeding).
If the Minister is not convinced there has been a miscarriage of justice, the Minister will dismiss the application and inform you of the decision.
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