A Miscarriages of Justice Commission
List of Recommendations
B. The Defining Features of the New Commission
- We recommend a proactive and systematic commission as opposed to a reactive commission.
- We recommend an adequately funded independent commission subject to the same arm’s-length treatment from government as the Judiciary.
- We recommend a commission to investigate and prevent miscarriages of justice as opposed to a commission only concerned with factual innocence.
C. The Existing Ministerial Review System (See Analysis Below)
D. The Structure of the Commission
- We recommend that the commission be called the Miscarriages of Justice Commission.
- We recommend that a third of the commissioners have expertise in the causes and consequences of miscarriages of justice; a third of the commissioners be qualified as lawyers; and a third represent groups that are overrepresented in prison and disadvantaged in seeking relief. There should be at least one Indigenous and one Black commissioner.
- We recommend a commission with a minimum of 9 commissioners and the ability to appoint 11 commissioners if necessary.
- We recommend that the commissioners serve staggered and non-renewable terms.
- We recommend that the commissioners be appointed by an independent committee with representation similar to the commission. The appointment committee should be at arm’s-length from government and outside of the political sphere.
- We recommend that the independent appointment committee or another advisory board be established by statute to offer strategic advice to the commission. This committee should be prohibited by statute from being involved in the commission’s decisions about individual applications.
- We recommend that the commission be able to independently hire staff including lawyers, investigators, forensic and other experts and staff to provide outreach and support to applicants and crime victims.
- We recommend that the commission have the power to appoint agents and consultants as required and that it be able to delegate its investigative powers and access to information to such agents and consultants.
- We recommend that the commission’s headquarters be in Toronto or Winnipeg and that it be able to establish regional offices if it believes it necessary to provide coast-to-coast-to-coast coverage.
- We recommend that the commission be supported by the Courts Administration Service which provides support to various Federal courts at arm’s-length from the legislative and executive arms of government.
- We recommend that the commission have an adequate and revolving fund budget that recognizes the difficulty of predicting the number and complexity of applications it will receive in any one year.
- We recommend that the payment of commissioners be tied to the salary of superior courts judges as determined through the arm’s-length process set out in the Judges Act.
- We recommend that the enabling legislation for the commission be contained in a separate part of the Criminal Code to replace Part XX.1 of the Code governing the current Ministerial Review/Criminal Conviction Review Group procedure.
- We recommend that a joint committee of the House of Commons and Senate periodically review the operation of the commission every 3-5 years and that the commission be able to engage its own independent reviews of its work.
- We recommend that a concern about substantive equality and combatting discrimination and colonialism be built into the new commission’s statutory DNA. The commission should be required by statute to report on Indigenous identification, gender, gender identification, age, membership in a racialized grouping, linguistic, disability and other relevant personal characteristics of applicants and those who receive remedies from the commission. This data should be benchmarked to available information about the incidence of those characteristics in both the general and prison populations. The commission should be required by statute reasonably to accommodate linguistic diversity including Canada’s various Indigenous languages.
E. The Mandate of the New Commission
- We recommend that the commission have jurisdiction to investigate alleged miscarriages of justice for all criminal offences, but not for regulatory offences.
- We recommend that the commission have jurisdiction to consider long-term and dangerous offender designations.
- We recommend that the commission have jurisdiction to consider findings that a person is not criminally responsible because of mental disorder.
- We recommend that the commission have jurisdiction over sentences, but limited to new matters of significance with respect to ongoing sentences.
- We recommend that the commission have jurisdiction over conviction cases involving deceased persons.
- We recommend that the commission have jurisdiction to develop its own policies and to set its own priorities in particular with respect to the priority given to the various applications it receives.
- We recommend that the commission have jurisdiction to do systemic reform work related to the prevention of miscarriages of justices
F. The Commission and its Relations with Applicants, Innocence Projects and Victims of Crime
- We recommend that the commission be proactive and provide outreach and support to potential applicants and applicants.
- We recommend that applicants to the new commission not be required to waive solicitor and client privilege.
- We recommend that the commission have the discretion to appoint and pay counsel for applicants when it determines that such an appointment would expedite the preparation and processing of the application or is necessary to allow the applicant effectively to respond to the commission’s provisional decision not to refer the case to the courts.
- We recommend that the commission take a collaborative approach to existing and new Innocence Projects and groups. We believe such groups still can assist applicants and assist with education and systemic reform to prevent miscarriages of justice. In its discretion, the commission should be able to provide funding assistance to Innocence Projects and others who can assist in its work. We therefore recommend that the commission be provided with the appropriate funding authorities to enable it to provide this assistance.
- We recommend that the commission recognize the notification and participation rights contained in the Canadian Victims Bill of Rights, but that it has discretion as to when to notify a victim of crime about an application so as to avoid unnecessary trauma.
G. Preliminary Decision-Making and Bail Pending the Commission’s Decision
- We recommend that the commission have the flexibility to define its own acceptance and screening policies without rigid statutory requirements including those requiring exhaustion of appeals.
- We recommend that bail pending a decision of the commission be available through an expansion of bail pending appeal under s. 679(7) of the Criminal Code.
H. Retention and Investigative Powers
- We recommend that the commission have the authority and power to require all people to retain, catalogue and copy information that is relevant to investigating an application.
- We recommend that the threshold for the commission to use its investigative powers be set by commission policy and not be legislated.
- We recommend that the commission have statutory powers under Part I of the Inquiries Act including the power to examine persons under oath. There should also be legislated provisions to allow the commission to compel the production of information to which any legal privilege applies including, but not limited to, solicitor-client privilege, jailhouse informant privilege, litigation privilege, public interest privilege, joint defence privilege, legal advice from Crown to police, and privileges under ss. 37 and 38 of the Canada Evidence Act. This power should be subject to statutory requirements that the commission keep such information confidential and only use it for purposes authorized by its enabling legislation.
- We recommend that the commission have legislated provisions to compel the production of information to which any statutory or common law claim of privacy apply subject to statutory requirements that the commission keep such information confidential and only use it for purposes authorized by its enabling legislation.
- Section 278.4-91 of the Criminal Code would apply and require judicial approval should the commission disclose private documents to the applicant. In addition, ss.276 and 278.1-91 of the Code would apply at new trials or appeals ordered by the commission.
- We recommend that the commission’s enabling legislation stipulate that the legal privileges belonging to applicants, witnesses and other third parties are preserved for all purposes other than allowing the commission to discharge its statutory duties. The production to (compelled or otherwise), disclosure to, receipt by and/or use of privileged information or documents by the commission should be deemed not to constitute a waiver of the privilege by the privilege holder. This follows precedents in several law society acts.
I. Decision Making, Publicity of Decisions and Judicial Review
- We recommend that the new commission allow applicants adequate time and, if necessary, legal resources to respond to provisional decisions to not refer a case back to the courts. The commission should, at its discretion, consider whether an internal appeal mechanism to the full commission is also advisable.
- We recommend that the commission’s enabling statute allow applicants to judicially review the commission’s decisions in provincial superior courts.
- We recommend that there be statutory requirements that the commission make its decisions on applications public subject to necessary redactions and delays to maintain privacy, legal privileges and fair trials.
J. Referral Grounds and Remedies
- We recommend that the commission refer cases back to the courts on the basis that a miscarriage of justice may have occurred.
- We recommend that the commission, like the Minister presently, be able to order new appeals, new trials, and refer matters to Courts of Appeal. We also recommend that the commission be able to refer matters for a pardon/record suspension. New appeals should be the commission’s presumptive remedy. Orders of new trial or referrals for pardons/record suspensions should only be made when requested by the applicant and justified.
K. Grounds of Appeal and Evidentiary Rules
- We recommend that the existing grounds of appeal from conviction be retained, but with the additional ground that the conviction can be overturned on the grounds that it is “unsafe.” We also recommend that this commission be established without delay should this recommendation prove to be problematic.
- We recommend that Courts of Appeal only be given the power to make a determination of innocence if, contrary to other recommendations, innocence is required for compensation. We oppose, however, a factual innocence requirement for compensation given the difficulty of establishing factual innocence in non-DNA cases. We believe that the commission’s proper focus should be on all miscarriages of justice which include, but are not limited to, the conviction of the factually innocent.
- We recommend that, with the exception of evidence subject to s. 276 and 278.1-91 of the Criminal Code, courts should be required to admit and consider any new evidence that the commission identifies as reliable and probative to its decision to refer the case back to the courts. At the same time, the independent courts will be free to assign whatever weight they wish, including no weight, to the new evidence considered by the commission as a basis for referral. We also recommend that this commission be established without delay should this recommendation prove to be problematic.
L. The Commission’s Relations with Other Bodies
- We recommend that s. 683(1)(e) of the Criminal Code be amended so that Courts of Appeal can request the commission to investigate matters that are not convenient for the Court to investigate and to use the resulting investigation as it sees fit in any appeal. This provision would give Courts of Appeal a new investigatory mechanism that would be available in all appeals and could help prevent miscarriages of justice.
- We recommend that the commission be given statutory powers to refer systemic issues affecting miscarriages of justice to relevant public authorities and bodies, including, but not limited to, the Law Commission, the Uniform Law Commission of Canada, relevant Federal/Provincial/Territorial groups, relevant federal departments and relevant Parliamentary committees.
- We recommend that the commission be given statutory powers to refer possible disciplinary and criminal matters to relevant public authorities and bodies including, but not limited to, law societies and judicial councils.
M. Re-integration and Compensation
- We recommend that the commission be enabled by statute and funding to provide support for the reintegration of applicants during the application process and after they have been released or had their conviction overturned.
- We recommend that Canada enact a no-fault compensation scheme for victims of miscarriages of justice to satisfy its international law obligations under Article 14(6) of the International Covenant on Civil and Political Rights. This scheme should provide quick no fault relief but not preclude civil or Charter litigation by victims of miscarriages of justice. We also recommend that the commission be established as a matter of urgency regardless of whether this reform continues, regrettably, to be problematic.
Report a problem on this page
- Date modified: