The Review Process

A criminal conviction review process is an important component of a well-functioning justice system. A review may be the last chance to correct a potential miscarriage of justice. Each application is assessed conscientiously and thoroughly in recognition of this fact.

The process has four stages:

Preliminary Assessment

When a conviction review application is received by the Department of Justice, it is first reviewed to ensure that it is complete. The applicant or the person acting on their behalf (e.g. a lawyer) is informed as to whether the application is complete. Once the application is complete, the file is assigned to Criminal Conviction Review Group (CCRG) counsel for preliminary assessment.

At the preliminary assessment stage, the information that has been provided is examined closely. Typically, this involves reviewing the materials submitted, including the court decisions in the case and the transcripts of proceedings. The CCRG may also take additional steps at the preliminary assessment stage to ensure a thorough review. This may include seeking access to the police and Crown files, speaking to certain witnesses, police and counsel involved in the case, and/or acquiring expert opinions.

At the preliminary assessment stage and throughout the review process, the CCRG (on behalf of the Minister of Justice) must take into account all relevant matters. This includes the relevance and reliability of information presented in connection with the application and whether the application is supported by new matters of significance that were not considered by the courts or considered by the Minister in a previous application. An application is highly unlikely to succeed if it merely repeats arguments made at a trial or appeal and is not based on new or significant information.

If the preliminary assessment process leads to the conclusion that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred, the applicant is informed that their application will proceed to the investigation stage.

If following a preliminary assessment there is no basis to conclude that a miscarriage of justice likely occurred, the applicant is informed that their application will not proceed to the investigation stage. This decision may be reassessed if the individual is able to provide new information at a later date.

Investigation

At the investigation stage, CCRG counsel carries out a more in-depth examination of the legal and factual issues raised by the application. The ultimate goal is to prepare an investigation report to be presented to the Minister of Justice. If an application proceeds to the investigation stage, the Minister of Justice will personally decide whether a remedy is appropriate.

Depending on the nature of an individual’s application, 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, and defence lawyers that were involved with the case; and:
  • Obtaining a Correctional Service Canada file or other personal information.

Witnesses and documents may be subpoenaed when necessary. The length of the investigation will depend on the complexity of the case and the availability of the evidence.

Investigation Report

When the investigation is completed, CCRG counsel prepares an investigation report that summarizes the information gathered. The applicant is provided with a copy of the report and asked to comment on it.

At this stage, the prosecuting agency (usually the provincial attorney general) which handled the case is given an opportunity to provide submissions on the investigation report.

Once all comments have been received and addressed, or the time for providing comments has expired and no further information has been received, the application proceeds to the next stage, which is a decision by the Minister.

Decision by the Minister

At this final stage of the conviction review process, CCRG counsel will forward the following to the Minister of Justice:

  • All the submissions that have been made;
  • Any submissions from the prosecuting agency;
  • The investigation report and supporting materials; and:
  • A confidential memorandum of legal advice prepared by CCRG counsel.

The Minister will then review all of this material and decide whether, on the basis of the facts and the law, an application should be dismissed or allowed.

The Minister has the power to do any of the following things:

  • Refer a question of law to the provincial or territorial court of appeal;
  • Order a new trial; or
  • Order a new appeal.

If the Minister is not convinced there has been a miscarriage of justice, the Minister will dismiss the application and inform the applicant of the decision.

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