A Miscarriages of Justice Commission
Full Report and Analysis
On this page
- A. Our Approach
- B. The Defining Features of the New Commission: An Independent, Proactive, Systemic and Adequately Funded Commission
- C. The Existing Ministerial Review System
- D. The Structure of the New Commission
- E. The Mandate of the New Commission
- F. The Commission and its Relations with Applicants, Innocence Projects and Victims of Crime
- G. Preliminary Decision-Making and Bail Pending the Commission’s Decision
- H. Retention and Investigative Powers
- I. Decision Making, Publicity of Decisions and Judicial Review
- J. Referral Grounds and Remedies
- K. Grounds of Appeal and Evidentiary Rules
- L. The Commission’s Relationships with Other Bodies
- M. Re-Integration and Compensation
The Government of Canada has committed to create an independent commission at arm’s-length from the government to replace the role of the federal Minister of Justice in investigating and deciding whether to refer claims of miscarriages of justice back to the courts.
On March 31, 2021, the Honourable David Lametti, Minister of Justice and Attorney General of Canada, appointed the Honourable Harry LaForme, former justice of the Ontario Court of Appeal, to lead public-facing consultations on the creation of the commission. Minister Lametti named the Honourable Juanita Westmoreland-Traoré, a former judge of the Court of Québec, to assist Justice LaForme in these consultations.
In Canada, as in other countries, there are people who have been failed by our system of criminal justice. Many know of Steven Truscott, the young teen who initially was sentenced to be hanged, and then was jailed for a decade for a murder he did not commit. Donald Marshall Jr. was a Mi’kmaq man who languished in jail for 11 years for a crime he did not commit. Recently the murderer of Christine Jessop was identified but not until after Guy Paul Morin was exonerated and released from his wrongful imprisonment. Miscarriages of justice represent real people, with real family and friends and include those wrongfully convicted and those who have suffered or lost loved ones to crime.
Miscarriages of justice do not occur in a social or legal vacuum. In its 2019-2020 Annual Report, the Office of the Correctional Investigator stated that, “Indigenous over-representation in federal custody had reached a new historic high” at around 30% of Canada’s prison population although Indigenous people make up only around 5% of the Canadian population. The rate is considerably higher for Indigenous women and youth. Despite declines in the overall inmate population, the incarceration rate of Indigenous people has accelerated.Endnote 1
In the ten years leading up to 2012, the number of federally incarcerated Black inmates in Canada increased by 75%.Endnote 2 These figures raise important concerns about the over-representation of Indigenous and Black people, and other marginalized communities, among the wrongfully convicted. The Ontario Court of Appeal has recently recognized that “the existence of anti-Black racism in Canadian society is beyond reasonable dispute and is properly the subject matter of judicial notice. It is well recognized that criminal justice institutions do not treat racialized groups equally.”Endnote 3
The specific needs of women, young people, people with disabilities and those who experience diverse forms of discrimination must be addressed in any process for investigating, correcting and preventing miscarriages of justice. A process aimed at improving fairness and justice for all Canadians must have a criminal justice system that is attentive to these realities.
It is hoped that this report and the consultation process that preceded it will lead to the creation of a proactive and systemic commission attuned to the many manifestations of discrimination, and committed to both the correction and prevention of wrongful convictions.
This report is the product of extensive consultations that commenced in June, 2021 and were based on a consultation paper we wrote outlining 23 different design options for a new commission, each with two to four different policy options. We held 45 roundtables and heard from over 200 people. We received written submissions from 45 individuals and organizations, the longest 247 pages and the shortest one page. They were all valuable and influenced our approach. We are enormously grateful to all of our consultees for their time, wisdom, and passion.
We started our consultations with two roundtables helpfully facilitated by Innocence Canada. We listened to 17 people who had suffered miscarriages of justice. Senator Kim Pate moderated a roundtable with a group of Indigenous women who shared with us their experiences of injustice with the federal corrections system. We also heard from many Innocence Projects both at home and abroad as well as leading lawyers who have represented the wrongfully convicted. We developed a deep respect for their work and passion for justice. We very much hope that Innocence Projects and others who have given so much of their time to assist the wrongfully convicted will continue their invaluable work and assist the work of a new commission, which we say more about below.
As Canada’s leading Innocence Project, Innocence Canada, noted, the fact that so many exonerees “were willing to share their experiences is a testament to the faith that those individuals place in the establishment of a new commission.”Endnote 4 The lived experiences of the survivors of miscarriages of justice impacted us greatly. We hope that the Government of Canada puts in place a robust, independent and adequately funded commission that will not betray the faith and hope that exonerees and many others expressed about a new institution.
We also met with crime victims and representatives from the police, prosecutors, defence lawyers, legal aid officials, judges and forensic scientists. Throughout our deliberations, we were reminded of Bruce MacFarlane Q.C.’s comments that miscarriages of justice fail society and victims of crime, as well as those wrongfully convicted, by “reopening a wound which, with an increasingly cold evidentiary trail, may never be healed.”Endnote 5 Victims of crime advocates, including the Federal Ombudsman for Victims of Crime, supported the creation of a new commission because they have no interest in having the wrong person convicted. Ken Jessop has said the discovery of the true perpetrator of his sister’s murderer was a “kick in the teeth” that came with “a million questions.”Endnote 6
We met with representatives of the five independent commissions in England, Scotland, Norway, North Carolina and New Zealand that have powers to investigate and refer miscarriages of justice back to the courts. We are grateful for their cooperation and know that they are willing to assist a new Canadian Commission. Our hope is to learn from these institutions while proposing an approach that makes sense for Canada.
This report fleshes out models and options for the commission in greater detail than what we presented in our June 2021 consultation paper because we learned so much during our consultations. The design of a new commission is even more complex than we originally imagined.
We have also learned from our consultees that the need for an independent commission is even more urgent than we originally thought. This report assesses various options, but also makes clear that we believe the best path forward is to have an independent commission that is adequately funded and staffed to investigate and correct, as well as prevent, miscarriages of justice.
A. Our Approach
Informed by Who We Are
This report reflects what we have heard, but also our own experiences. It could and should not be otherwise.
The Honourable Harry LaForme was the first Indigenous person to sit on an appellate court in Canada when he was appointed to the Court of Appeal for Ontario in 2004. Mr. LaForme retired from the bench in 2018 and is currently Senior Counsel with Olthuis Kleer Townshend LLP.
Mr. LaForme is Anishinabe and a member of the Mississaugas of the Credit First Nation.
Mr. LaForme graduated from Osgoode Hall Law School in 1977 and was called to the Ontario Bar in 1979. In 1989, he was appointed Commissioner of the Indian Commission of Ontario and in 1991 was appointed as Chair of the Royal Commission on Aboriginal Land Claims. From 1992 to 1993, Mr. LaForme taught the “Rights of Indigenous Peoples” law course at Osgoode Hall Law School. In 1994, he was appointed a Judge of the Ontario Court of Justice (General Division), one of only three Indigenous judges ever appointed to this level of court in Canada at the time.
As a judge, Justice LaForme authored a number of seminal judicial decisions that illustrate his independent thinking and passionate commitment to social justice and the rule of law. He is a frequent speaker on topics such as Indigenous law and issues, criminal law, constitutional law, and civil and human rights. He has published many articles on issues related to Indigenous law and justice.
Mr. LaForme has been honoured with numerous eagle feathers, including one at his swearing in at the Court of Appeal for Ontario and one from the National Indian Residential School Survivors Society. He received the National Aboriginal Achievement Award in the area of Law & Justice. A bursary was created in his name for Indigenous first year law students by the University of Windsor Faculty of Law. He has received honorary doctorates from York University, the University of Windsor, the Law Society of Upper Canada, the University of Toronto, and Nipissing University.
The Honourable Juanita Westmoreland-Traoré was the first Black Canadian to be appointed to the Quebec bench when she was appointed to the Criminal and Penal Division, as well as the Youth Division, of the Court of Quebec in 1999. She retired in 2012, but continued to serve part-time until 2017.
Ms. Westmoreland-Traoré was called to the Quebec Bar in 1969 and to the Ontario Bar in 1997. Prior to her appointment to the bench in Quebec, she left her mark on the legal community through her involvement in organizations such as the Office de la protection des consommateurs du Québec (1979-83) and the Canadian Human Rights Commission (1983-85), as the first president of the Conseil des communautés culturelles et de l’immigration de Québec (1985-1990), as Ontario’s first employment equity commissioner, and as regional representative for the Congress of Black Women of Canada. She participated in several observer missions in Haïti for elections and trials, as well as in South Africa for the South Africa Education Trust Fund. She was the first black Dean of a Canadian law school (University of Windsor Faculty of Law, 1996-99) and the first black female law professor at the Université de Montréal and at the Université du Québec à Montréal. She maintained a part-time law practice in immigration and refugee law, family law and human rights. She has a Doctorate of State in Public Law and Administrative Sciences from Université de Paris II.
Ms. Westmoreland-Traoré received the Rights and Liberties Award from the Commission des droits de la personne et de la jeunesse in 2008 for her work in the fight against discrimination and in 2020 received the Canadian Bar Association’s President’s Award.
In conducting the consultations and expressing our recommendations for a new Commission, we draw on our combined 23 years as trial judges as well as Harry LaForme’s 14 year experience on the Ontario Court of Appeal, a court that hears the most appeals from conviction and sentence in Canada. Our recommendations also undoubtedly reflect our experiences, in Juanita’s case as the first Black Canadian appointed to the Quebec bench, and in Harry’s case as the first Indigenous judge appointed to an appellate court in Canada.
Informed by our Policy Recommendations
We respectfully urge the Minister of Justice to seriously consider the recommendations among various policy options that we make in this report. There are many difficult choices that have to be made in constructing a new commission. In some cases, there are reasonable disagreements about the most appropriate way forward. On other issues, however, there is a consensus among all or most of those we consulted that some options are significantly better than others. There is also a danger that an under-funded and weak commission could be even worse than the present Ministerial system of review.
A commission will only be a success if it commands the broadest public confidence, especially among the people most directly affected, most notably victims of miscarriages of justice and victims of crime. The commission needs to be truly independent, including in the method for the appointment of commissioners. It needs to be adequately funded. It needs to be subject to periodical reviews. It needs to monitor its own processes to ensure access to justice and fairness for all. It must improve the way miscarriages of justice are corrected and prevented.
Informed by What we Heard
Our approach is informed by what we have heard in our extensive consultations. Our initial roundtables with exonerees convinced us that the commission must be proactive and caring. It should be arm’s-length from governments, but not from the applicants that it serves. It should have a different name than a “Criminal Cases Review Commission”. Exonerees correctly reminded us that they are not “criminal cases” whose convictions must be “reviewed”. They are real people who have suffered the most devastating harm at the hands of the state. As David Milgaard told us, the justice system has failed victims of miscarriages of justice, it must not continue to fail them.
Exonerees told us they were released with less support than those who are paroled from their sentences. From the outset, they need financial support for food and shelter. They need counselling and training to help them adjust to freedom and overcome the trauma of years of unjust incarceration. In June 2021, we told the Minister of Justice of these concerns. In this report, we propose a proactive commission that has dedicated staff to help support both applicants and victims of crime.
Informed by Recognition of Systemic Discrimination and Colonialism and the Duty to Accommodate and Provide Equitable Access to Justice
Our approach is based on a recognition that wrongful convictions should be understood in the context of systemic discrimination and colonialism. This includes the over-representation of Indigenous and Black people, and other racialized people, and those with mental health and linguistic challenges, in prison.
We learned from our consultations that it is necessary to understand that the wrongful convictions of females do not fit the dominant male model. Women are more likely to plead guilty to offences such as manslaughter and infanticide than to contest trials and appeals.Endnote 7 Indigenous, Black and other racialized women, and women with disabilities, face their own unique challenges.
The systemic discrimination that will affect many applicants to the commission needs to be understood in an intersectional manner because of cumulative grounds of disadvantage and discrimination. The harms of colonialism and intergenerational trauma also help explain the gross and growing over-representation of Indigenous people in prison and the distinct challenges they face in obtaining remedies for miscarriages of justice.
Since the 2002 reforms, the Minister of Justice has referred cases involving 20 people back to the courts. All 20 have been men. All have been represented by counsel. Of the 20 men, one was Indigenous and another was Black. This does not begin to reflect the overrepresentation of Indigenous and Black people in our prisons.
We were told, and we accept, that women, especially Indigenous and racialized women, are also victims of miscarriages of justice. Since 2002, 12 women and 174 men have applied to the Minister for relief. Only 2 of 45 ongoing applications involve women.
It is impossible to know how many undiscovered, and thus uncorrected, miscarriages of justice exist. But we are confident that there are many and that Indigenous, Black and other disadvantaged groups are overrepresented among the wrongfully convicted and other victims of miscarriages of justice. A new commission must increase access to justice for the wrongfully convicted. Equitable access to justice will require accommodation of differences to overcome the justifiable lack of trust that many disadvantaged people have in the Canadian justice system.
An institution, arm’s-length from government, is necessary to replace the current system of Ministerial reviews of miscarriages of justice in order to increase access to justice. The commission must be proactive and reach out and accommodate those who have good reason to distrust the justice system that overrepresents them in prison and underrepresents them in positions of power. The success of the commission should be evaluated, in part, by whether it receives applications from vulnerable and disadvantaged groups to the extent that they are overrepresented in prison.Endnote 8
Informed by the Frailties of the Larger Legal System
It is a mistake to think that the commission will exist in splendid isolation from the rest of the justice system. The Runciman Commission in England, which made recommendations leading to the creation of the first criminal cases review commission there, took a broad and holistic approach to criminal justice reform by recommending better disclosure and legal aid funding for the defence, and better regulation of forensic science providers. It also recommended that the English Court of Appeal be more willing to receive fresh evidence and overturn convictions on the basis of “lurking doubt”.Endnote 9 Some of the serious complaints directed now at the English Commission reflect the absence of the other criminal justice reforms that the Runciman Commission recommended, such as expanded powers to overturn convictions or admit fresh evidence.
We were warned more than once during our consultations that it would be a mistake to “overload a commission with too much”. There is truth to the warnings, especially if the commission is under-funded. But we think it is also a mistake for the commission to do too little. Most of our consultees expect the commission to have, and to exercise, a robust systemic reform mandate to help prevent miscarriages of justice in the future. This includes many exonerees who do not want others to suffer as they have.
Police, prosecutors and forensic experts have played a widely documented role in wrongful convictions in Canada.Endnote 10 They will be relevant to the work of the new commission including with respect to the retention of material and co-operation with the commission’s investigations.
Legal aid officials will also play a role, for example, when the commission rejects an application because it believes that the applicant should first appeal a conviction or sentence.
Courts of Appeal will hear most cases referred from the commission and we recommend that they should be able to call on the commission to conduct investigations when required to ensure that an appeal does not involve a miscarriage of justice.
Correctional officials will play an important role in helping inform inmates about the commission. They might also want to re-think their approach, which takes an inmate’s refusal to acknowledge responsibility as a sign of defiance and not as a sign of a possible miscarriage of justice.Endnote 11
The commission must be independent, but it will inevitably interact with the larger legal system.
Informed by Respect for the Continuing Role of Innocence Projects and other Community Groups
We have deep respect and appreciation for those who do grass roots work on behalf of the wrongfully convicted. They struggle with poor funding and sometimes lack of cooperation. It would be a mistake if a new commission ended the positive role that Innocence Projects and others have had in the lives of the wrongfully convicted. These groups deserve credit for teaching a too often reluctant justice system that wrongful convictions occur and are inevitable.Endnote 12 They provide in depth education for students and justice participants about the reality and consequences of wrongful convictions.
We believe that the commission should work collaboratively with Innocence Projects and other community groups. A new commission must be independent, but that does not mean that it should operate in isolation. Moreover, it should respect the lived experience and expertise of community groups and victims of miscarriages of justice.
Informed by Comparative Experience
Canada is fortunate to be able to build on the experience that other countries have with existing independent commissions. The commissions created in England and Scotland in the 1990s, and most recently by New Zealand in 2019 serve as an official and permanent recognition that any criminal justice system will make mistakes. We are convinced that these new commissions are valuable and necessary. Their work will continue to improve as more experience and research accumulates.Endnote 13
We have learned much from our consultations with other commissions and will draw on this throughout our report. We deeply appreciate the time that representatives of all five foreign commissions spent with us. We will also do our best to make recommendations that fit with Canada’s vast geography and diversity as well as its history including colonial dispossession and slavery.
We are aware that, starting with the 1989 Public Inquiry into Donald Marshall Jr.’s wrongful conviction, Canadian commissions of inquiry into wrongful convictions have all called for an independent commission to replace the Minister of Justice’s role which remains as a residue of the royal prerogative of mercy. As many of our consultees have told us, they have waited too long. We hope that this wait will soon end with the creation of an independent, culturally competent, properly funded, and proactive commission that will both investigate claims of miscarriages of justice and take steps to prevent them.
Informed by the Need to Move Forward not Backwards
We have undertaken this consultation trusting that the intent behind it was to make improvements. We heard criticisms of the present system of Ministerial review, but we also came to appreciate that the present system has a number of often neglected strengths.Endnote 14 In our view, these strengths should be retained and built upon. These include the broad focus on miscarriages of justice and a broad range of remedies including orders for new trials and appeals as well as references to the courts on questions of law. At the same time, the many weaknesses of the present system in terms of access to justice, limited investigative powers and a reactive approach that is not proactive or systemic should be remedied.
Given our expectation that there is a commitment to make improvements, we were surprised and frankly disappointed by submissions from the Federal/Provincial/Territorial Heads of Prosecution group (FPT HP). Its recommendations, if implemented, would restrict rather than improve access to post-conviction justice. It also raises concerns that the commission needs stronger investigative powers than are currently available to the Criminal Conviction Review Group as well as a specific mandate to provide support for applicants and crime victims.
The FPT HP called for a commission of “experienced appellate judges” with “extensive criminal law experience, both on the bench and behind the scenes, so that they have a rounded foundation on which to assess the merits of applications.”Endnote 15 This ignores the fact that most of those who apply to the commission will have already been unsuccessful on appeal. It also ignores that the composition of our appellate courts regrettably does not reflect the diversity of Canada let alone the over-representation of Indigenous, Black and other disadvantaged groups in prison. In our view, what is needed is not a commission that mirrors our Courts of Appeal. What is needed is an independent commission that reflects the diversity of Canada and the multidisciplinary nature of our criminal justice system.
The FPT HP warned that “overly active outreach risks undermining the independence and objectivity of the CCRC.”Endnote 16 This ignores that the current reactive Ministerial system receives less than 20 applications each year and, in some years, only a handful.Endnote 17 In contrast, the foreign commissions, even with populations significantly smaller than Canada’s, receive hundreds of applications each year. The English Commission receives well over a thousand applications a year. The foreign commissions engage in outreach without undermining their independence or objectivity.
We accept that increasing the number of applications will place burdens on the commission, the police, prosecutors and crime victims. These burdens, however, pale compared to the burdens of a wrongful conviction or sentence. Even when the new and more accessible commission decides that an application does not require referral of the case back to the court, it can improve the system by providing clear and public reasons to explain why such a remedy is not required.
The FPT HP also seemEndnote 18 to call for the commission to focus on factual innocence. They state that a broad mandate to include “procedural miscarriages of justice” and sentencing miscarriages “would increase the ability of the new CCRC to address systemic overrepresentation issues; but would have a greater impact on victims and arguably limit their role. There is a further risk of less public support…. Finally, a process that is too broad to be meaningfully implemented may create inordinate delays, which would serve no one, not least of whom would be those who are factually innocent but languishing in the queue.”Endnote 19
To be fair, the FPT HP were not the only consultees that urged us to restrict the mandate of the commission to factual innocence claims. The Criminal Lawyers Association told us that “the commission should only accept applications from persons alleging factual innocence and a miscarriage of justice.”Endnote 20 Such recommendations would narrow the extraordinary relief that is presently available under s. 696.1-6 of the Criminal Code. It would follow the practice of Innocence Projects which have to ration their resources because they are poorly funded, often relying on charitable donations and one-time only grants.
The FPT HP also suggest that the commission should generally not deal with less serious cases including those that are the product of guilty plea wrongful convictions or sentencing. This in their view should include designations of offenders as dangerous and long-term offenders even though such designations can currently be reviewed by the Minister. They argue that appeals and applications for parole are sufficient.Endnote 21 They warn: “Aiming for too much too soon will involve a massive expenditure and may result in massive mistrust among various stakeholders.”Endnote 22 As will be seen, we believe that the commission should be accessible, especially to applicants who are still in prison and who are concerned that they may be a victim of a miscarriage of justice.
The FPT HP expressed concerns about the present availability of bail pending a final decision by the Minister about whether to grant relief and the present ability of the Minister to grant a new trial. As will be seen below, however, most other consultees told us that these features of the existing system are valuable and should be retained. Bail pending appeal has been an important vehicle that has allowed at least 8 men to be released from prison pending the Minister’s decision.Endnote 23 The Minister has directed a new trial in 8 of the 20 cases that received a Ministerial remedy since 2002.
We were told many times in our consultations that a miscarriage of justice, even in a less serious matter, can have devastating consequences and lasting stigma. Practically excluding less serious crimes from the commission’s jurisdiction might require a cumbersome two-tier system where Ministerial powers and the pardon power would be maintained and used for “less serious cases”.
The FPT HP warned that more frequent use of the broad investigative powers that the Minister has under the Inquiries Act to demand relevant documents and require people to answer questions “may oblige the Crown/police to require s. 37 Canada Evidence Act hearings”.Endnote 24 In plain language, this means that police and prosecutors might challenge the commission’s investigative powers in court on a variety of grounds, including the claim of solicitor client privilege and the privilege against identifying police informants. This possibility has led us to recommend that the commission, like the English Commission, must have powers to obtain relevant documents regardless of any claim of privilege made by any person including police and prosecutors.Endnote 25
Finally, the FPT HP seem to suggest that having a more robust commission will hinder the prevention of wrongful convictions when they assert:
A criminal conviction review system that diverts already scarce resources from police and prosecution services, and legal aid budgets, reduces our ability to prevent wrongful convictions at the trial level. The risk of this happening increases if the scope of the criminal conviction review system is not carefully designed to deal with cases that warrant review, or that places onerous and unpredictable demands on police and prosecution services.Endnote 26
We frankly have trouble understanding this argument. In any event, it does not reflect what the vast majority of our consultees told us: namely, that the prevention and correction of miscarriages of justice are two sides of the same coin.
We do not accept the backward steps in correcting miscarriage of justice proposed by the FPT HP or their concern that outreach and systemic engagement would sacrifice the independence and objectivity of the commission. We also believe that the new commission should, like the Minister at present, be able to order new trials. Bail should also be available pending the new commission’s decision, as it is now pending the Minister’s decision under s.696. In our view, it would be dishonest and alarming for a government to use the reform process of creating a new independent and arm’s-length commission to narrow the relief that is currently available to victims of miscarriage of justice.
B. The Defining Features of the New Commission: An Independent, Proactive, Systemic and Adequately Funded Commission
Ultimately the government must design and fund the commission. In this report we discuss 51 different design options that are available in constructing the commission and its enabling legislation. We go into this level of detail because we became convinced by our extensive consultations and research that creating a new commission is not as simple as it may seem. The devil is in the details.
Nevertheless, all of the multiple reform options that we discuss should fit together and be united by a coherent vision for the commission. As Professor Davy Ireland of the University of Manitoba and the head of their university-based Innocence Project told us, a criminal cases review commission raises “foundational issues” for any criminal justice system. There are a few fundamental policy choices that guide the many recommendations we make on the more granular details discussed later in this report.
Our consultations have convinced us that the government must make fundamental choices between:
- Having a commission that only reacts to individual applications or one that takes a more proactive and systemic approach.
- Having a commission that is treated like a small administrative agency in the federal government or having an adequately funded and independent commission that is subject to the same arm’s-length treatment from government as the judiciary.
- Having a commission that is limited to cases in which factual innocence can be established or one that is concerned about all miscarriages of justices
We recommend a proactive and systemic commission as opposed to a reactive commission.
We see the present Ministerial review system and the English, Scottish and North Carolina Commissions as examples of a predominantly reactive approach. To be sure, some of these commissions have made attempts at outreach by simplifying and translating their application forms into different languages. Nevertheless, they all stress that they are not advocates for the wrongfully convicted. They all express little or sporadic interest in criminal justice policies that may increase or decrease the risk of wrongful convictions. Given their limited resources - and in the case of the English and North Carolina Commissions, manifestly inadequate resources - these commissions devote almost all of their resources to processing the applications they receive. This is also true of the present Ministerial Criminal Conviction Review Group review system.Endnote 27
In 2008, a commission of inquiry into David Milgaard’s wrongful conviction concluded that the Ministerial review process “is reactive and places too heavy an onus on the wrongfully convicted”.Endnote 28 Canadian courts have also recognized that the present Ministerial review system is reactive. The British Columbia Court of Appeal recently characterized the present system as reactive. It explained:
First: the Minister is under no obligation to exercise the discretion under s. 696.2(2) or (3) to order an investigation. The Minister is not required to conduct an investigation and is only required to conduct a “meaningful review” of the application: Hinse v. Canada (Attorney General), 2015 SCC 35 at para. 68.
Second: the Minister is unlikely to order an investigation and make a post-conviction disclosure order unless the application identifies new matters of significance, but the applicant may need to conduct an investigation to determine whether there are such new matters of significance.
This shortcoming of the Part XXI.1 process was identified by Justice MacCallum in the Report of the Commission of Inquiry into the Wrongful Conviction of David Milgaard (September 2008) … as follows, at 364:
… The process remains reactive. The federal Minister does not conduct a proactive investigation on receipt of an application, but rather relies on the applicant, lacking in investigative expertise, to identify the grounds for an alleged miscarriage of justice. The test for the exercise by the Minister of his or her discretion to refer a matter to the Court system has not changed. Finally, the decision as to whether a convicted person can have access to the Court to challenge a conviction still lies with the federal Minister, an elected politician.
Third: if the Minister does decide to investigate, there is no general obligation on the Minister to review police and prosecution files or to disclose those files merely because of a request by a convicted person: Thatcher at para. 15.Endnote 29
The BC Court of Appeal agreed with Justice Perell’s earlier conclusions that “[t]he Ministerial Review process is reactive and not proactive. The Minister will not exercise his or her discretion in the absence of new and significant evidence.”Endnote 30
Quoting conclusions reached by Justice LeSage in the Driskell inquiry, Justice Perell highlighted a “major Catch 22 problem”. The Catch 22 “problem is that the applicant may…need an investigation to determine whether there is new matters of significance that were not considered by the courts or previously considered by the Minister, but there is no provision in the Criminal Code that provides a mechanism for the convicted person to compel disclosure from the police or the Crown of new matters of significance that were not considered by the courts or previously considered by the Minister.”Endnote 31
The present Ministerial review system and the English and Scottish Commissions do not make public reasons for their decisions or the results of their investigation. This reflects a sense that miscarriages of justice are rare events that are of interest primarily only to the parties. The lack of published reasons deprives the system of learning about the mistakes that have been made by various justice participants who participated in the miscarriage of justice.
A reactive system only considers applications from those who have exhausted all of their appeals. The FPT HP told us: “in general, the process should be reactive, initiated by individuals who have exhausted their appeal rights. Overly active outreach undermines the independence and objectivity of the CCRC”.Endnote 32 They also suggested that appeals should be exhausted before the commission considers an application involving a guilty plea.Endnote 33 In contrast, Innocence Canada urged us to take a more proactive and systemic approach that recognized that “seeking an extension of time [for an appeal] is simply a procedural roadblock…False guilty pleas are a known cause of wrongful conviction. Requiring applicants to seek to withdraw their guilty plea prior to reviewing their application further delays the review process.”Endnote 34
Reactive commissions pride themselves on their independence not only from government but also from applicants and their supporters, including Innocence Projects. In the reactive model, there is little need for a commission to have advisory committees or conduct other forms of outreach. The FPT HP reflect a desire for a reactive commission when they state “overly active outreach risks undermining the independence and objectivity of the CCRC.”Endnote 35
The English, Scottish and North Carolina Commissions largely base their decisions on whether to refer cases back to the court on the basis of predictions of whether the courts will overturn the previous judicial decisions. This means that the commissions will react to the specific and perhaps changing tests to be applied by appeal courts. This internal legal focus also helps explain why the Scottish and North Carolina Commissions, as well as Canada’s CCRG, are staffed almost exclusively by lawyers. Lawyers are the experts in the legal tests that will eventually determine whether a case once referred will be overturned by the courts.
This model of a reactive commission is a coherent one. It was urged upon us by many lawyers - both prosecutors and defence - with significant criminal justice experience including the members of the FPT HP that included very experienced prosecutors and police officials. Justice Bernard Grenier who served as special advisor for Canada’s Minister of Justice in relation to s.696 applications for many years also supported a reactive approach.
We were warned that anything more ambitious than a reactive error correction commission would soon be swamped by applications. We were warned that anything but a reactive commission could attract opposition from police, prosecutors, and crime victims. We were warned that a commission that tries to do too much will do nothing well.
We take all these warnings seriously. We will recommend ways for a commission not to set itself up for failure by overloading itself. That said, we are convinced that the reactive model is not ambitious enough. The reactive approach has already been tried. It has been repeatedly criticized as inadequate by Innocence Projects, commissions of inquiry and courts.
The reactive approach has some strengths. Since 2002, it has referred 20 cases back to the courts with convictions being quashed or not pursued in 19 of these cases. These cases were important - we consulted many of those who had their convictions overturned as a result - but we are convinced from our consultations that they are the tip of the iceberg. In our view something more is needed.
The alternative to a reactive commission is a proactive commission that is concerned with both error correction and systemic reform. We see the New Zealand Commission, and to some extent the Norwegian Commission, as the best examples of such a commission. We also note that the English Commission has recently engaged on a few systemic issues. For example, it quite properly alerted the prosecutors and defence lawyers that it was referring many cases where defence counsel failed to raise the defence of being a refugee to offences related to being illegally in the country.
A proactive and systemic mandate fits well with a multi-disciplinary commission that includes, but is not dominated by, lawyers. One of the reasons for having non-lawyers and those with expertise in forensic science, or the discrimination suffered by vulnerable groups, is that such expertise can inform systemic reform. Another reason is that such expertise can play a role in investigation of individual cases while gaining the trust and confidence of applicants.
A proactive commission will include staff with the proper training to provide non-legal support both to applicants and crime victims whereas a reactive commission can be staffed exclusively by lawyers who often focus on the written record. A proactive commission will include properly trained investigators.
A proactive commission will make efforts to reach out in a culturally competent manner to Indigenous and Black people and other disadvantaged groups to ensure that they apply to the commission in numbers that reflect their overrepresentation in prison.
The late Sir Thomas Thorp, a New Zealand High Court judge, attributed low numbers of applications to the New Zealand Minister for relief from Maori and Pacific Islanders to a combination of distrust of the system and the reactive nature of the New Zealand Ministerial relief system. He explained the Ministerial review system was “a totally reactive process - administered by officers of the criminal justice system that, in the eyes of the inmates, has unjustly convicted them and then unjustly dismissed their appeals from conviction”. In his 2005 report, Sir Thomas Thorp called for “more receptive arrangements administered by an authority independent of the criminal justice establishment”,Endnote 36 something that was only realized in 2019 after his death.
A proactive commission is also much more likely to have advisory committees that serve as a bridge to the diverse communities than a reactive commission which only provides reasons for its decisions to applicants challenging their convictions and prosecutors defending them.
A proactive and systemic commission will, as with New Zealand’s new commission, make its reasons public. Although it might redact or delay publication of some information to protect privacy, legal privileges, or fair trials, the reasons for its decisions can help reveal mistakes that have been made in the investigation, trial, and appeal of cases. Reasons not to refer cases back to courts are also valuable. They explain to people who are dissatisfied and often confused about their conviction or sentence what the commission has done and why it will not at this time refer the case back to the courts.
We heard from many exonerees about how frustrated they are with a lack of accountability for the criminal justice system actors that contributed to their wrongful convictions. Although it would not be proper for an independent commission to subject police, prosecutors, defence lawyers, judges or expert witnesses who contributed to wrongful convictions to trials and punishment, a proactive commission could have powers to refer cases involving possible misconduct to the proper public authorities and employers to determine whether misconduct has occurred and whether disciplinary or remedial measures are necessary.
A proactive and systemic commission will recognize that our understanding of the causes and types of wrongful convictions, continues to grow. A proactive commission should engage in research and continuing education, whereas a reactive commission will be reluctant to devote resources to anything other than processing cases.
A proactive commission will also be active in making and publicizing its policies and revising them in light of its experiences and feedback that it receives from applicants and others, including Innocence Projects. For this reason, we think that many of the commission’s procedures should not be rigidly prescribed in either the enabling legislation or the regulations, as is the case with the current reactive Ministerial review system. Rather, we think that the enabling legislation should require the commission to make policies which can be revised when necessary to reflect experience and criticism.
A systemic approach is also indicated given the systemic factors driving the increasing over-representation of Indigenous, Black and other racialized persons incarcerated in federal penitentiaries. More recent commissions, such as that of New Zealand, adopted a proactive and systemic model consistent with the current acceptance of systemic and colonial discrimination in the criminal justice systems of settler societies.
A proactive and systemic commission can and must be impartial. A proactive and systemic commission will make decisions on the basis of reliable information and evidence, some of which it collects. A proactive and systemic commission would pride itself on its independence from government as much as a reactive commission. We reject the idea that a proactive commission would not be impartial.
In summary, there are fundamental differences between a proactive and a reactive commission. A proactive commission would support the applicants and the victims of crime that are affected by its decisions. It would not be staffed only by lawyers. It would not be aloof from the parties and only hear them through formal submissions, as do the courts. It would be concerned with outreach to disadvantaged groups including Indigenous and Black people who are overrepresented in prison. A proactive commission would be willing to collaborate with lawyers and Innocence Projects when they represent applicants and in some systemic reform efforts. It would publish its decisions and policies. It would refer systemic and possible disciplinary matters to other bodies where appropriate. A proactive and systemic commission would support research and educate the public and criminal justice participants about the causes and consequences of miscarriages of justice. It would support efforts to prevent miscarriages of justice in the future as well as correcting them in the past.
In short, a proactive and systemic commission would reach out to provide access to justice. It would recognize that both correction and prevention of miscarriages of justice are required.
We recommend an adequately funded independent commission subject to the same arm’s-length treatment from government as the judiciary.
We struggled with machinery of government issues as we sought to follow the Minister of Justice’s request to explore the options for an independent commission that would be arm’s-length from government and outside of the political sphere. It is much easier to say as a matter of abstract principle that the commission should be independent and arm’s-length from government than it is to translate such an institutional status into practice.
Our concerns about true independence and adequate funding were increased as we researched and heard about the struggles of the first such independent commission, the Criminal Cases Review Commission for England, Wales and Northern Ireland. The All-Party Parliamentary Group on Miscarriages of Justice, co-chaired by Baroness Stern and Lord Garnier QC, recently documentedEndnote 37 30% cuts to the number of days worked by the English commissioners and a reduction from 8.8 full time equivalents in 2014 to 2.5 full time equivalents in 2019.Endnote 38 There has also been controversy and litigation over the government’s refusal to reappoint a commissioner who had been critical of the government’s cost saving and efficiency related measures.
We also heard from representatives of the New Zealand Commission that they already have budget problems because of a higher than expected number of applications since they started work in 2020 and that this may delay their systemic work. We learned that it is difficult for any commission to accurately predict the money it needs because much depends on the number of applications it receives and the complexity of the investigations it must perform.
We were told by representatives of the CCRG that they have not encountered budgetary problems, despite applications increasing by a factor of three since 2015, because they have a “revolving fund” as their budget. The CCRG can in appropriate cases hire outside agents who are delegated the Minister’s powers of investigation and they can conduct tests and solicit outside opinions when necessary. The fact that the CCRG has not suffered budget problems despite recent increases in the number of applications it receives is an important finding and a strength of the existing system that should be retained.
At the same time, we were told by representatives of the Office of the Correctional Investigator that while it has control over the management of its office, it is burdened by having to report to about 40 different parts of the federal government. The Office of the Correctional Investigator has 40 full time positions and spends about $5.4 million a year.Endnote 39
We are very concerned that the commission could, like the New Zealand Commission, soon find itself without an adequate budget. Like the Correctional Investigator, it could have a flat lined budget and extensive administrative costs and obligations. The commission, if created as simply another administrative agency, will be a small one within the federal government and one that may be susceptible to under-funding.
Our concern about under-funding does not assume bad faith by the government but reflects the difficulty of predicting what is required for a commission whose resource demands depend on the number and complexity of the applications it receives in any one year. We also note that yearly applications to the Minister, while still less than 20 in any one year, have increased three times since 2015 and we expect, but cannot predict with certainty, that they will increase dramatically once a new commission is established and known to the populations at risk for miscarriages of justice.
We learned from our consultations that underfunded commissions inevitably focus on deciding applications and reducing backlogs and neglect systemic, preventive and educational parts of their mandate. We have concluded that there is a real, and we assume unintended, danger that the new commission could be more vulnerable to inadequate funding than the present CCRG which assists the Minister.
In looking for the best means to ensure that the commission is truly independent and well-funded we have made a second basic policy choice: namely that the new commission be treated by the government in the same way that it treats the independent judiciary.
We believe that it is better to analogize the commission to courts for purposes of appointment and funding than to an administrative agency. Such an approach is innovative, but we believe it is necessary in part because of the long struggle to have an independent commission in Canada that has generated a degree of distrust among those seeking remedies for miscarriages of justice. Moreover, treating the commission like a court is necessary because the resource demands of the commission, like courts, depend on the cases it receives.
The commission should be as independent and arm’s-length from government as possible in a Parliamentary democracy. This means that it should be subject to appointment, remuneration, security of tenure and funding provisions that are similar to those of the independent judiciary. We will flesh out what this requires in more detail below.
In summary, if the independent commission is to have the power to require the independent judiciary to rehear cases, it should be treated as far as possible in the same manner as the independent judiciary. The commission should not be the “poor cousin” to the judiciary. To do so will set the commission up for failure. Moreover, it would treat applicants as second-class supplicants who are still essentially pleading for the Crown’s mercy as opposed to demanding justice.
We recommend a “Miscarriages of Justice Commission” as opposed to one limited to factual innocence.
The present Ministerial review system and all but one of the foreign commissions are concerned with miscarriages of justice including less serious criminal convictions and some matters involving sentencing.Endnote 40 The one exception is the North Carolina Innocence Inquiry Commission which is exclusively concerned with claims of factual innocence for serious crimes.
As discussed above, the FPT HP and the Criminal Lawyers Association both urged that the commission focus on factual innocence. A number of exonerees told us about the importance of factual innocence. For them, factual innocence was their most valuable truth when the world turned against them. Many, although not all, of the exonerees that we spoke to wished that the same court system that declared them guilty could also declare them factually innocent. We acknowledge and respect the importance of factual innocence to the lived experience of exonerees.
Innocence Canada, however, took a more nuanced approach. It told us that while “innocence should be a key factor in review”,Endnote 41 it should not be the only factor. Despite its limited resources and reliance on charitable donations, Innocence Canada will accept cases where it believes that a person is “likely innocent” but “where establishing innocence may be elusive and unattainable for the convicted person. For example, the passage of time will sometimes mean that the convicted person can no longer find evidence that once existed.”Endnote 42
Neither the University of British Columbia Innocence ProjectEndnote 43 nor an independent advisory group, including exonerees David Milgaard and Ron Dalton and leading lawyer James Lockyer, asked that the commission’s mandate be limited to factual innocence. Indeed, this latter group recommended that the current and broader focus on miscarriages of justice be retained. David Milgaard in particular urged us “not to shut the door” on those who have been unjustly sentenced.
There were other supporters of a broader miscarriage of justice mandate for the commission. The Federal Ombudsman for Victims of Crime suggested that in addition to innocence “it also seems reasonable that the CCRC could make a referral where it determines that the conviction ‘may be unsafe’, the sentence may be manifestly excessive or wrong, or where it concludes that it is in the ‘interests of justice’ to make a referral.”Endnote 44
Independent Senator for Ontario Kim Pate urged us to include sentencing within the mandate of the commission. She argued that “an emphasis on factual innocence and evidence described and privileged as ‘scientific’…has resulted in systemic biases against women and particularly Indigenous and other racialized women”.Endnote 45
We recommend the retention of the present focus on miscarriages of justice as opposed to the narrower and novel factual innocence approach. We recognize that factual innocence has played a role in the acceptance criteria of some Innocence Projects and in some requirements for compensation. Nevertheless, we do not believe that the commission should be limited by the approach taken by voluntary and poorly funded organizations that depend on charitable contributions. We also do not believe that the commission should be influenced by concerns about what we will later argue is an often unjust and re-victimizing compensation process.
It is easier for us to recommend a broader miscarriage of justice mandate because we are confident that factual innocence, where it can be established, is a form of miscarriage of justice. Justice Fred Kaufman, in his investigative report for the Minister of Justice in the Steven Truscott caseEndnote 46 and subsequently the Ontario Court of AppealEndnote 47 in entering an acquittal to correct that wrongful conviction, suggested that factual innocence is a miscarriage of justice. At the same time, both Justice Kaufman and the Ontario Court of Appeal indicated there may still be a miscarriage of justice in less clear-cut cases.
In summary, the many detailed design options that follow are driven and united by three fundamental policy choices:
- the new commission should be proactive and systemic in orientation, as opposed to reactive;
- it should be adequately funded and subject to the same arm’s-length treatment by government as the judiciary; and
- it should be concerned with the investigation, correction and prevention of all miscarriages of justice including but not limited to factual innocence.
C. The Existing Ministerial Review System
The Ministerial Review power was codified in Canada’s original 1892 Criminal Code in a way that was more generous to applicants than the current system. The original provision provided:
748. If upon any application for the mercy of the Crown on behalf of any person convicted of an indictable offence, the Minister of Justice entertains a doubt whether such person ought to have been convicted, he may, instead of advising Her Majesty to remit or commute the sentence, after such inquiry as he thinks proper, by an order in writing direct a new trial at such time and before such court as he may think proper.Endnote 48
The focus on whether the Minister “entertains a doubt” whether an applicant “ought to have been convicted” reflects the foundational role of the reasonable doubt principle in Canadian criminal law. In 1927, the Minister’s powers were broadened to the direction of a new appeal and/or to obtain a decision on a stated question from the appeal court. At the same time, “the original ‘entertains a doubt’ for granting the remedy remained…”.Endnote 49
In 1955, the “entertains a doubt” standard was removed. It was replaced with a broader discretion that the Minister may direct “a new trial before any court that he thinks proper, if after inquiry he is satisfied that in the circumstances a new trial should be directed”.Endnote 50 In 1970, this broad discretion was expanded to include the ability to refer a conviction for a new appeal as well as a new trial and to refer matters to the Courts of Appeal.Endnote 51 The focus in both 1955 and 1970 was on increasing the Minister’s discretion.
The 2002 Reforms
In 2002, the present s. 696.1-6 of the Criminal Code was enacted. It requires the Minister to be satisfied “that there is a reasonable basis to conclude that a miscarriage of justice likely occurred” before ordering a new trial or appeal. This is a higher standard than the earlier “entertain a doubt standard” or the more open-ended standard that the Minister be satisfied that a referral back to the courts was necessary.
The 2002 reforms reflected Minister of Justice Allan Rock’s interpretation of his referral powers in the early 1990’s which stressed that “the remedy is an extraordinary one, as the normal judicial process is designed to ensure that no miscarriage of justice has occurred.”Endnote 52 Arguably, the reference to an extraordinary remedy was already outdated in 2002 because the Supreme Court in 2001 overruled precedents from the early 1990s that allow fugitives to be extradited to face the death penalty in large part because of the inevitability of wrongful convictions in any criminal justice system.Endnote 53
The 2002 reforms were designed to bring greater clarity to the process, but an extensive jurisprudence has developed around the present system. A court has held that it is not necessary for applicants to apply for leave to appeal to the Supreme Court of Canada for the purpose of exhausting appeals before making an application for Ministerial review.Endnote 54 Courts have, however, held that the first level of appeal should be exhausted.Endnote 55 The Minister’s decision on whether a miscarriage of justice likely occurred has been held to be a matter of mixed fact and law.Endnote 56 The Minister’s decisions on law must be reasonable and take into account current jurisprudence.Endnote 57
Despite the changes to the Ministerial review, courts have stated that “the power vested in the Minister is still “one of exception and prerogative” and falls outside the traditional sphere of criminal law. “A conviction review application remains a request for an extraordinary and highly discretionary remedy that derives from the Royal Prerogative of Mercy.”Endnote 58
The Minister of Justice does not give reasons for referring cases back to the court. An external review of the Ministerial review process by a provincial commission of inquiry was unable to discover why David Milgaard’s first application was denied by then Minister of Justice Kim Campbell on February 27, 1991 and why his second application was granted on November 28, 1991 after David’s mother, Joyce Milgaard’s meeting with Prime Minister Mulroney on September 6, 1991. The provincial commission of inquiry was unable to examine the federal process. It noted, however, that the Prime Minister and Minister of Justice told two very different versions about whether the Prime Minister instructed the Minister of Justice to grant Mr. Milgaard’s second application.Endnote 59 The quest of David and the late Joyce Milgaard for justice was an extraordinary event in Canadian history that still casts a shadow over the current Ministerial review process.
The idea that the Minister’s remedy is an extraordinary and highly discretionary remedy is reflected throughout the 2002 reforms. It is a sign of a reactive system that views miscarriages of justice as extraordinary events somewhat akin to airplane crashes.
In 2008, the inquiry into David Milgaard’s wrongful conviction concluded after examining the 2002 reforms:
The conviction review system in Canada is premised on the belief that wrongful convictions are rare and that any remedy granted by the federal Minister is extraordinary. Change is needed to reflect the current understanding of the inevitability of wrongful convictions and the responsibility of the criminal justice system to correct its own errors…. It is my recommendation that the investigation of claims of wrongful conviction be handled by a review agency independent of government and that the independent review agency, not the federal Minister, act as the gate-keeper.Endnote 60
We agree with these statements. Miscarriages of justice are an inevitable and regular feature of any high-volume criminal justice system that places an emphasis on efficiency and encourages people to plead guilty.
As Professor Kathryn Campbell argues in her book Miscarriages of Justice in Canada,Endnote 61 the frequent references in the 2002 reforms to an “extraordinary remedy” are outdated. She details over 70 miscarriages of justice that have been documented in Canada.
Canada sentences about 90,000 people a year to jail for criminal offences. If the error rate was 0.5% – an extremely low error rate – this would result in 450 miscarriages of justice a year.Endnote 62 Courts are working faster today and the justice system spends less time on less serious cases compared to homicide cases that are a majority of the discovered miscarriages of justice. Many knowledgeable consultees told us that the risk of wrongful conviction may be higher in less serious cases than homicide cases. Although it is impossible to know how many miscarriages of justice have and continue to occur, we believe that there are more miscarriages of justice than the 20 complete applications the Minister receives a year, or the 20 cases that the Minister has referred back to the courts since 2002.
The Criminal Conviction Review Group
As a result of an internal Department of Justice review after David Milgaard’s two applications to the Minister of Justice for a referral, the Criminal Conviction Review Group was set up as a separate group of lawyers to advise the Minister with respect to applications. The lawyers work for the Department of Justice but are located in a separate building in Ottawa. The CCRG currently has eight lawyers, a paralegal and a legal assistant and two law students (up from only four lawyers in 2016/2017).
The Minister also has a Special Advisor on Wrongful Convictions who has a mandate to review applications at the various stages of review and to provide independent expert legal advice directly to the Minister of Justice, including advice and recommendations on the appropriate remedy, if any. In 2018, the mandate of the Special Advisor was expanded by Order in Council to include the ability to make recommendations to the Minister of Justice to improve the review process and address any systemic problems that are identified during the review of applications. The current special advisor is retired Supreme Court Justice Morris Fish.
Requirements for a Completed Application to the Minister
One of the major weaknesses of the present process is the heavy burden it places on applicants. For an application for Ministerial relief to be accepted as complete, the application must include true copies of trial and appeal transcripts, court decisions and material filed in those applications.Endnote 63 Applicants also are asked to sign forms to consent to the release of personal information and to waive solicitor-client privilege that protects disclosure of information shared between them and their lawyers.
There are four stages in the processing of an application to the Minister.
1) Preliminary Assessment
After the onerous process of submitting all that is required to complete the application, the CCRG will conduct a preliminary assessment of the transcripts and decisions. It can request defence, police and prosecutorial files and even interview witnesses and obtain expert reports during what is often a lengthy preliminary assessment process. The CCRG informed us these delays are often caused by waiting for responses from third parties for information.
There are at least three judicial decisions that state that the CCRG does not have access to the Minister’s powers to compel the production of documents or the answering of questions until an application moves to a formal investigation.Endnote 64
Thus, the CCRG has to rely on the voluntary cooperation of police, prosecutors, potential witnesses, and others at the preliminary assessment stage. This increases the Catch 22 problem that the courts have identified, where applicants may have difficulty convincing the CCRG to move into an investigation because they, or the CCRG, may not have access to the necessary material. In some cases, applicants are forced to litigate post-conviction disclosure claims against the prosecution.
Most applications to the Minister are denied at the preliminary assessment stage and the applicant has a year to decide whether to litigate.
If the CCRG concludes that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred, the case is required by regulation to move to the investigative stage.Endnote 65 The only exception is if there “is an urgent need for a [Ministerial] decision…for humanitarian reasons or to avoid a blatant continued prejudice to the applicant”.Endnote 66
Once a case has moved to the investigative stage, either the lawyers in the CCRG or independent lawyer/agents exercise the Minister’s powers delegated to them to demand production of documents and require people to answer questions under oath. The CCRG informed us that they give priority to meritorious cases of applicants who are still in custody.
3) Investigative Summary and its Disclosure
When the investigation is done, an investigative summary is compiled and disclosed to both the applicant and the prosecutor, subject to undertakings of confidentiality. The applicant has a year under the regulations to respond to the investigative summary.Endnote 67
The CCRG then provides advice to the Minister of Justice, which is not disclosed to the applicant on the basis that it is subject to solicitor-client privilege. Kerry Scullion, the former head of the CCRG, had defended this practice on the basis that “there are very few cases…where advice to a Minister of the Crown is made public.”Endnote 68 This process of disclosure of investigative summaries and responses add to the time it takes the Minister to decide what, if any, remedy is required.
4) Ministerial Decision
The Minister may, not must, provide a remedy if there is a reasonable basis to conclude that a miscarriage of justice likely occurred. This discretion also applies to whether the remedy is a new trial or a new appeal. Because no reasons are given for a referral, it is not known why the Minister, since 2003, has directed a new trial in 8 of 20 cases and has referred the case for a new appeal in 12 of the 20 cases.
Section 696.4 of the Criminal Code codifies standards first articulated by then Minister of Justice, Allan Rock to structure and clarify Ministerial decision-making and ensure that Ministerial review does not become simply another avenue of appeal. As discussed above, the reference in this section to a referral back to the courts being an “extraordinary remedy” is arguably outdated. This section provides:
In making a decision under subsection 696.3(3), the Minister of Justice shall take into account all matters that the Minister considers relevant, including
- (a) whether the application is supported by new matters of significance that were not considered by the courts or previously considered by the Minister in an application in relation to the same conviction or finding under Part XXIV;
- (b) the relevance and reliability of information that is presented in connection with the application; and
- (c) the fact that an application under this Part is not intended to serve as a further appeal and any remedy available on such an application is an extraordinary remedy.
Since 2003, 186 final decisions on applications have been made by the Minister with the assistance of the CCRG: 154 applications were dismissed at the preliminary assessment stage; 32 applications reached the second investigation stage of review. As noted earlier, 20 applications resulted in the Minister ordering a remedy in the form of a new trial and appeal. In addition, the CCRG currently has 45 active applications, with 11 of those at the investigation stage of review.
What We Heard about the Current Process
We respect and welcome the Minister’s decision to move to a new, independent commission model for referrals. We do, however, believe it is important to report what we have heard about the current system because that bears directly on the design of the new commission.
Innocence Canada complained about delay and lack of transparency in the Ministerial review process,Endnote 69 something that we also heard from others. Although Innocence Canada has been submitting more applications to the Minister since 2015, it noted that only 10 of the 24 exonerations it has secured have come through the Ministerial review process.Endnote 70 The other exonerations have come through appeals being allowed out of time by the Supreme Court of Canada and Courts of Appeal.
Innocence Canada also cited cases where its applicants had to wait more than three years for a decision about whether their application merited moving onto the investigative stage of the Ministerial review process.Endnote 71 It indicated that delays in obtaining Ministerial relief have increased. For example, the Glen Assoun case was before the Minister for 5.9 years and the Jacques Delisle case for 5.8 years. In the Tomas Yebes case, the UBC Innocence Project submitted an application to the Minister in 2019 (albeit after 9 years working on the case). The Minister ordered a new trial in late 2020 and in early 2021, Mr. Yebes was acquitted of murdering his two sons in a 1982 fire in the house he lived in with his sons.
Innocence Canada also expressed concern about duplication of investigative work between itself and the CCRG. It claims that the CCRG retains its own experts in what Innocence Canada argued was “a feature of an adversarial system rather than an inquisitorial system”.Endnote 72 The CCRG replied that it must conduct its own independent and impartial investigation, separate from either the applicant or the prosecution.
We do not wish to rehash or adjudicate grievances between Innocence Canada and the CCRG, but to point out the need for a new commission to be open and collaborative.
The UBC Innocence Project told us about happier experiences, especially dealing with experienced outside counsel that had been delegated some of the Minister of Justice’s broad investigative powers under s. 696.2(3) of the Code.Endnote 73
Concerns were also raised about waiting for police and prosecutors to vet files for privileged information before handing them over to the Minister or delegate. We think this could be a serious problem especially given what the FPT HP has told us about potentially litigating claims of privilege. We will recommend below that the Canadian Commission, like the English Commission, needs very clear powers to obtain all relevant information regardless of privilege claims.
We also heard concerns from academics that the information provided in the annual reports on criminal conviction reviews under s. 696.5 should be much more robust. The reports do not include demographic information about the race, linguistic, disability, gender, gender identity, age or other personal characteristics of either the applicants or those who receive remedies. We asked the CCRG for such information, but they could only supply gender information because they had not asked for or noted other personal characteristics of applicants that may be relevant to questions of systemic discrimination and disadvantage.
More information in the annual reports on trends and causes of wrongful convictions and the disposition of cases that are referred back to the courts would also be helpful. As will be suggested below, such an approach will be part of a necessary change from a reactive approach to individual applications to a more proactive and systemic approach.
Ministerial Review and Access to Justice
There are a number of ways to measure the effectiveness of the present Ministerial review system in providing access to justice.
1. Numbers of Applications
From 2003 to 2015, the Minister of Justice received on average five completed applications for review each year. Since 2016, the Minister of Justice and the CCRG has received about 18 completed applications a year for a current total of 186 applications since 2003. As noted above, the CCRG currently has 45 active applications, 11 of which have reached the second investigation stage.
In comparison, the English Commission, which also hears applications for Wales and Northern Ireland, receives about 1500 applications a year. The population of these jurisdictions combined is less than double Canada’s.
The Scottish Commission received 2,883 applications from 1999 to July 2021 for an average of 131 applications a year. From 1998 to the present, the Minister of Justice received 265 applications. Canada has a population of 37.5 million compared to Scotland’s population of 5.4 million.
The Norwegian Commission received 232 applications in its first year, 2004, and about 150 -170 applications each year since, compared to the 186 applications received in total by the Canadian Minister since 2003.Endnote 74 Norway has a population of 5.3 million people.
From 2006 to July 2021, the North Carolina Innocence Inquiry received 2,971 applicationsEndnote 75 for an average of 198 applications a year. North Carolina has a population of about 10 million.
The New Zealand Commission has received 267 applications as of July, 2021 or an average of 16 applications a month.Endnote 76 Of these applications, 102 have come from Maori, 19 from women and 16 from Pacific Islanders. New Zealand has a population of just over 5 million.
These statistics make clear that the existing commissions receive many, many more applications than Canada’s present system of Ministerial review. It should, however, be acknowledged that all the existing commissions, like Canada’s current system, reject the vast majority of applications in the sense of not referring their cases back to court. That said, they provide reasons to the applicants to justify their decisions. Such reasons can assist people in understanding why they were convicted and if they still have options to appeal in the court system.
2. Number of Cases Referred to the Courts
Another measure of access to justice is the number of cases referred to courts that result in a conviction effectively being quashed.
Since 1999, the Scottish Commission has referred 85 convictions which have resulted in 41 being quashed. Since 1997, the English Commission has referred 750 cases to the Court of Appeal with 522 appeals being decided in favour of the applicant.Endnote 77 The Norwegian Commission has re-opened 351 cases since 2004 and the North Carolina Commission has referred 19 cases involving 27 convicted people back to the courts.
As indicated above, the federal Minister of Justice has, since the 2002 reforms, referred 20 cases back to the courts. Since 1998, the Minister has referred 31 cases back to the courts. The much lower Canadian numbers – for example, 31 cases in Canada since 1998 compared to 750 cases in England since 1997 – are striking.
In 2017, Professors Emma Cunliffe and Gary Edmond wrote:
[We] believe that Canada’s actual rate of wrongful convictions is likely to be broadly comparable to that which has been documented in systems that have adopted more robust procedure to reduce the incidence of wrongful convictions and to detect them when they arise….If Canada’s rate of identifiable wrongful convictions is much the same, per capita, as England and Wales or Scotland, then an effective criminal cases review process would be expected to refer approximately twelve successful appeals per year.Endnote 78
The Minister of Justice has referred about one case a year back to the courts since 2003. This confirms that a Ministerial referral is in fact an extraordinary remedy. Nevertheless, we doubt that miscarriages of justice are so rare in Canada compared to the much greater number of referrals and quashing of convictions by the English, Scottish, Norwegian or North Carolina Commissions.
3. Number of Successful Referrals and Risk Aversion
The English and Scottish Commissioners refer a significant proportion of cases where the conviction or sentence is then not overturned by the courts. In England, there have been 750 appeals heard from referrals since 1997, but 212 of these appeals have been dismissed by the Court of Appeal. The Scottish Commission is even less risk averse. It has referred 85 conviction cases back to the courts with appeals only being allowed in 41 of those cases.Endnote 79
Almost every one of the 20 cases referred by the Minister since 2003 has ultimately resulted in an acquittal. In 4 cases, (Steven Truscott, William Mullins-Johnson, Erin Walsh and D.S.), the provincial Court of Appeal has entered an acquittal and in another (Frank Ostrowski), it stayed proceedings. In six cases (Daniel Wood, André Tremblay, Roméo Phillion, L.G.P., Eric Biddle and Yves Plamondon), the provincial Court of Appeal ordered a new trial after hearing the appeal, but the prosecution decided not to prosecute.
In eight cases (Steven Kaminski, Rodney Cain, Darcy Borge, James Driskell, Kyle Unger, Glen Assoun, Tomas Yebes and Jacques Delisle), the Minister ordered a new trial. The Delisle matter is still before the courts but prosecutors have declined to prosecute all but Rodney Cain. Mr. Cain, who was originally convicted of murder, was convicted of manslaughter on his re-trial.Endnote 80
These results suggest that the Minister has only referred relatively clear examples of miscarriages of justice back to the court. This may reflect the high standard that the Minister must conclude under s. 696.3 of the Code that a miscarriage of justice likely occurred. As will be discussed in Part J of this report, the Canadian referral standard is higher compared to the English standard of a reasonable possibility,Endnote 81 or the Scottish standard that a miscarriage of justice may have occurred.
The above results may also reflect the fact that the reactive Ministerial review system may attract cases that are clearly miscarriages of justice. We have been informed by the CCRG that the 20 persons who have received remedies from the Minister were all represented by counsel. This is understandable given the demands that a reactive system places on applicants to overcome the Catch 22 problem of being able to produce new matters of significance for the Minister of Justice to justify the extraordinary remedy of a referral.
At the same time, 132 of the 186 applicants for Ministerial relief since 2003 were not represented by counsel. All had their applications rejected. They were given an opportunity to respond to the CCRG for such decisions but they may have been disadvantaged in doing so without the benefit of counsel. In any event, it appears that counsel and a very strong case that a miscarriage of justice likely occurred is necessary to obtain a Ministerial remedy.
4. The Demographics of Successful Applicants
The 20 referrals made by the Minister since 2002 have all been men. Only one remedy (William Mullins-Johnson) was provided to an Indigenous man and one (Rodney Cain) was received by a Black man.
None of the referrals came from Saskatchewan or the northern territories which have Canada’s highest concentration of Indigenous people. Only three successful applicants came from Quebec and none from Newfoundland or Prince Edward Island.
This demographic distribution of successful applicants likely reflects access to justice problems. This is particularly evident given the amount of work and investigation that must go into preparing an application for Ministerial review including overcoming the applicant’s Catch 22 problem of finding new matters of significance and the fact that all successful applicants were represented by counsel.
Innocence Canada helpfully volunteered, in their submission, information to us on the demographics of their current cases.Endnote 82 The comparison with those who have received a remedy from the Minister is both striking and troubling.
Innocence Canada reports that 7% of its current cases are women. As noted above, not one woman has received a Ministerial remedy since 2003 and only one woman has received such a remedy since 1998.
Innocence Canada reports that 21% of its cases involve Indigenous applicants. Although this does not reflect the fact that over 30% of Canada’s prison population is Indigenous, it certainly reflects a closer percentage than the 1 out of 20 or 5% of cases of Ministerial remedies that involved an Indigenous man.
Innocence Canada reports that 18% of its applicants are Black, again a higher percentage than the 1 out of 20 cases of Ministerial remedies that involved a Black man.
There may be other problems with access to justice for those with disabilities, those who have English or French as a second or third language and other prohibited grounds of discrimination. Unfortunately, the CCRG does not collect this data. We will return to this issue.
It can be expected that applications to the new commission will increase dramatically. The New Zealand Commission is receiving 16 applications a month and New Zealand has a population of just over 5 million people. There is no particular reason to think that New Zealand has less miscarriages of justices than Canada. Both countries have gross over-representation of Indigenous people in prison, but as will be discussed below, Canada’s over-representation based on the proportion of Indigenous people in the two countries is even higher than New Zealand.
Since 2016, the existing Canadian system is receiving 3 times the number of completed applications it previously received. This underlines the need for the new commission to be adequately resourced.
The data on the under-representation of women, Indigenous, and Black people for those receiving Ministerial remedies is very concerning. It indicates the need for a more proactive approach that will involve outreach, accommodation, and support for applicants. This data, when compared to the overrepresentation of Indigenous and Black people in Canada’s prisons, suggests that the current system is only dealing with a primarily white male tip of the miscarriage of justice iceberg.
D. The Structure of the New Commission
The Name of the New Commission
Option 1: Canadian Criminal Cases Review Commission
This option would have the benefit of name recognition based on the foreign commissions. This recognition, however, is more likely among criminal justice actors than potential applicants.
Option 2: Canadian Conviction Review Commission
This option would avoid the use of the word “criminal” which is appropriate given the mandate to combat wrongful convictions. It also has the advantage of retaining the CCRC acronym which is known by some lawyers and Innocence Projects.
Option 3: The Miscarriages of Justice Commission
This option has the benefit of focusing on both the investigation and prevention of miscarriages of justice and also reflecting the existing ground for referral.
Option 4: The Donald Marshall Jr. and/or Joyce Milgaard Miscarriage of Justice Commission
There has been an important recent debate in Canada and elsewhere about who is represented and celebrated as historical figures and the exclusion of Indigenous and other marginalized groups. The late Donald Marshall Jr. was the first person to be exonerated for his wrongful conviction in the modern era. The late Joyce Milgaard played a key role in the correction of her son David’s wrongful conviction and advocated for other wrongfully convicted individuals.
Option 5: An Indigenous Name
The New Zealand Commission was gifted its name Te Kāhui Tātari Ture by a Maori community in Hamilton, New Zealand where the commission is located. This term roughly translates to The Waiting/Knowledge Group. It is not used in the commission’s enabling statute, but it is used in its interactions with the public. One challenge in Canada would be the linguistic diversity of Indigenous peoples.
What We Heard
Many of the exonerees we consulted objected to the name Criminal Cases Review Commission. As Emily Bolton, the director of the UK group APPEAL, told us, applicants to the commission are people with families, not “criminal cases”. They expect their cases to be investigated, not simply be the subject of a desk top paper review.
A group that includes David Milgaard and Ron Dalton, both of whom are exonerees, told us that Criminal Cases Review Commission is “a sedentary title and does not explain its mandate to members of the public. The emphasis on ‘criminal’ is undesirable.” They proposed a new title: A Commission to Uncover Miscarriages of Justice which they suggest would be more informative to the public.Endnote 83
Some consultees did tell us that the name Criminal Cases Review Commission has currency and should be used.
We started these consultations with an assumption, as reflected in the Minister of Justice’s mandate letter to us, that the new commission would be called the Canadian Criminal Cases Review Commission. Our consultations have led us to question and abandon this assumption.
Based on what we have heard from exonerees and their supporters, we believe that option 1 should not be implemented. Although “criminal cases review commission” is a legal term of art, it sends the wrong message. Those who apply to the new commission are people searching for justice. They are not “criminal cases.” Option 2, calling the commission a conviction review commission, is only a partial improvement.
We recommend option 3, a Miscarriages of Justice Commission. It is possible that this could be creatively combined with options 4 and 5 if the relevant families and communities gave permission. Consistent with the idea that the commission should be proactive and systemic, this may be a matter better left to the commission to explore rather than one that is imposed by legislation, which we hope will be enacted expeditiously.
Who Should the Commissioners Be?
Option 1: Legal and Criminal Justice Expertise
The English, Scottish and New Zealand Commissions all have a requirement that one third of commissioners be legally qualified with 10 years at the bar and that two thirds have experience with the criminal justice system. Requiring that only two thirds of commissioners have legal and/or criminal justice expertise ensures lay perspectives among commissioners.
Option 2: Vulnerable People and Expertise in Cultural Competency and Anti-Discrimination
The New Zealand Commission must by statute have at least one member with knowledge or understanding of te ao Māori and tikanga Māori (roughly translated as Maori world views and correct practices). The New Zealand statute is the only enabling statute that specifically addresses diversity requirements among the commissioners. It is also the most recently enacted statute with the other commissions being created either in the 1990s or early 2000s.Endnote 84
Option 3: The Criminal Stakeholders Model
The North Carolina Innocence Inquiry Commission is chaired by a sitting superior court judge. It must also have a prosecutor, a defence lawyer, a victim advocate, a sheriff, one person who is not a lawyer or employed by the judiciary and two other discretionary members.Endnote 85
What We Heard
The FPT HP group supported the criminal justice expertise approach that would include experienced appellate judges and others with “considerable experience from both spectrums of legal advocacy, from the perspectives of the Crown and Defence.” Projet Innocence Québec also supported a commission composed of former criminal practitioners as did Professor Julian Roberts of Oxford.
In contrast, the group headed by David Milgaard and James Lockyer argued that a criminal justice expertise model was not appropriate because it “would likely result in retired judges, Crown Attorneys and others from the criminal justice system who were involved in prosecution-type roles becoming commissioners…. The new tribunal requires commissioners who do not come from an adjudicative or prosecutorial culture.”Endnote 86 They added that such a group would be too likely to defer to courts and not start “from a premise that courts make mistakes, and plenty of them.”Endnote 87 David Milgaard told us that “the wisdom of exonerees should be reflected in the composition of the Commission.”
Some exonerees told us that having a retired judge as the head of the commission would lend it credibility, including with the courts, given that the commission will often refer cases back to Courts of Appeal.
One person expressed some opposition to requiring representation of Indigenous or racialized people among the commissioners. Even that person, however, recognized the need for such representation among the staff of the commission.
Others such as Marjorie Villefranche from Maison D’Haiti stressed the need for diversity among the commissioners and the staff in order to have a “critical mass” of “different backgrounds and sensibilities”.
The Federal Ombudsman for Victims of Crime, Heidi Illingworth, stressed the importance of Indigenous participation in the commission. She argued “there should certainly be a focus on vulnerable people and cultural competence/humility, as this is often absent or lacking within traditional criminal justice processes…It will be important to decolonize processes due to the power imbalance between victims, offenders, and those within the justice system, particularly in relation to Indigenous persons, where the colonial justice system was imposed upon them.”Endnote 88
There was no real support for option 3, a criminal justice stakeholders’ approach. The Canadian Civil Liberties Association (CCLA) argued that it would produce an adversarial approach when an inquisitorial approach is what is required. The Canadian Bar Association (CBA) stated that a crime victim advocate should not serve on the commission because it would inject “considerations better left to the realm of sentencing and victim impact, than post-conviction review.”Endnote 89 At the same time, it recommended that youth justice specialists and forensic psychiatrists could play a role on the commission.
Most consultees supported a combination of options 1 and 2 which requires both criminal justice and vulnerable people expertise. The Canadian Race Relations Foundation recommended that “Commissioners should be criminal justice experts and at least two seats should be reserved for Indigenous and Black advocates”.Endnote 90 Sarah Malik of the South Asian Bar Association and others expressed concerns that a bilingualism requirement for all commissioners could harm efforts to reflect racial and socio-economic diversity on the commission.
The Advocates Society told us: “it is important to ensure representation of equity-seeking groups among the appointed Commissioners; and furthermore, to provide all Commissioners with education and training regarding systemic racism, discrimination, and unconscious bias, in particular as they relate to wrongful convictions of individuals from equity-seeking groups.”Endnote 91
Tamara Levy of the UBC Innocence Project suggested that, in addition to representatives of Indigenous and racialized communities, there should be someone experienced with females in prisons given the role of gender stereotypes. Professors Cunliffe and Parkes of UBC have also argued that women often suffer different types of wrongful convictions than men and often plead guilty in part because of family responsibilities.Endnote 92
Roslyn Shields of the Centre for Addictions and Mental Health and Caleigh Glawson of the Law and Mental Disorder Association Canada (LAMDA) advocated for a combination of criminal justice expertise and the lived experience of vulnerable populations. LAMDA recommended that “individuals with lived experience of serious mental health issues, preferably those who have also experienced wrongful conviction or wrongful NCR verdicts, should be involved whether in the constitution of the Commission and/or in any advisory body to it.”Endnote 93
Robert Israel of the McGill Innocence Project defended lay representation. He argued that you do not need a legal education to have common sense which plays an important role in discovering wrongful convictions.
Several of our English consultees noted that David Jessel, an investigative journalist, ably served on the English commission. Innocence Canada pointed out that investigative journalists, starting with Isabel LeBourdais’ 1966 book on the Steven Truscott case, have played key roles in uncovering some miscarriages of justice. Innocence Canada has recognized the role played by investigative journalists by naming an award after the late Tracey Tyler of the Toronto Star. They warned, however, “in recent years, coverage of wrongful convictions has tapered off.”Endnote 94
Michael Pollanen, Ontario’s Chief Forensic Pathologist, told us that a modern commission must have multidisciplinary expertise including in forensic sciences and forensic medicine. A number of forensic experts indicated that expertise in statistics would be helpful given developments in the forensic sciences. A few consultees, however, raised concerns that the commission may defer too much to a forensic expert who is a commissioner or that such experts might be asked to opine on matters outside of their expertise. Forensic expertise, in their view, should be obtained on a case-by-case basis.
There was wide-spread support for a combination of options 1 and 2 to have expertise with both criminal justice and vulnerable people. We agree.
We recommend that one third of the commissioners be legally qualified; one third have experience in the causes and consequences of miscarriages of justice, and one third represent groups that are overrepresented in prison but disadvantaged in seeking relief. This should include at least one Indigenous and one Black commissioner. There must also be a significant number of female commissioners.
Legislative requirements that vulnerable groups and women be commissioners will help to ensure that some of the commissioners are familiar with the experience of crime victimization. Indigenous and Black people, women, and those with disabilities are all overrepresented among crime victims.Endnote 95
As discussed above in part C of this report, there are real concerns that people from vulnerable and disadvantaged groups are not applying for relief or receiving remedies from the Minister in proportion to their overrepresentation in prison. And, as mentioned above, only one of 20 people who has received a remedy from the Minister since 2002, William Mullins-Johnson, was Indigenous. No Indigenous women received a remedy even though they represent over 40% of the female prison population. Only one of the 20, Rodney Cain, was Black despite the fact that about 9% of Canada’s prison population is Black.
There is precedent for statutory representation of disadvantaged groups on a commission. By law, the New Zealand commission must have one commissioner with knowledge of Maori worldviews. We were told that the New Zealand Commission has two commissioners and a chief executive officer who are Maori and another commissioner with expertise with respect to the treatment of Pacific Islanders in the justice system.
Arguments that Indigenous representation in the New Zealand criminal justice system is more severe than in Canada and makes the New Zealand approach unnecessary are misguided. The Maori are overrepresented in New Zealand prisons 4 times their representation in the population while Indigenous people in Canada are overrepresented 6 times their representation in the population.Endnote 96
Statutory requirements for diversity should set floors and not ceilings on the inclusion of people from disadvantaged groups. As representatives of the Canadian Bar Association emphasized, all commissioners should be treated equally. All should contribute to the deliberations of the commission. They also argued that wrongful convictions are one of the many traumas of colonization that need to be better understood by all those who exercise power.Endnote 97
There should also be attention to the representation of other groups that are vulnerable to miscarriages of justice and disadvantaged in having them corrected. This last category should to a degree be left open-ended to accommodate evolving knowledge and research.
Most of the consultees made a convincing case that legal skill is required with respect to deciding whether a case will be referred back to the courts and how a miscarriage of justice occurred. There is a need to understand criminal law, the law of evidence, criminal procedure and sentencing. We considered, but rejected a requirement that the legally qualified commissioners have 10 years at the bar because of concerns that this may be a barrier to the pursuit of diversity.
For similar reasons, we do not believe that all of the commissioners should have to be bilingual as long as there are adequate resources to provide bilingual services and interpretation services. There should be supportive programs to allow commissioners and staff to become bilingual. The commission should be required to develop policies in order to ensure fluency in official languages when such fluency is required.
We also accept the point made by Innocence Canada that wrongful convictions have become a more developed and specialized area of law and research. It is therefore appropriate to update the original English requirements for expertise in criminal justice in general with more specialized expertise in the causes and consequences of miscarriages of justice.
Some lay representation is appropriate and desirable on the commission. Lawyers and experts bear some responsibility for miscarriages of justice. The appointment of lay people to the commission could, we hope and expect, provide applicants with some degree of confidence that the new commission is not just another part of a criminal justice system that may have some conscious or unconscious desire to defend itself. The involvement of lay people with critical thinking skills can also make significant contributions to investigating and uncovering miscarriages of justice.
A few consultees argued for a commission composed entirely of criminal justice experts including retired judges, prosecutors and defence lawyers. We recognize that all these groups could contribute to the work of the commission. Nevertheless, we think such an approach would underestimate the understandable distrust that many applicants have towards the system that has convicted them. Criminal justice experts too often have much more in common between themselves than with applicants who will generally have served time in prison. We also believe that non-lawyers with multi-disciplinary expertise in criminal justice, those with lived experience and expertise in systemic discrimination and lay persons can all make important contributions to the work of the commission.
The Milgaard/Lockyer group suggested that employees and recent employees of federal and provincial departments of justice, including the CCRG, should not serve on the commission. It argues: “the new tribunal requires commissioners who do not come from an adjudicative or prosecutorial culture…Commissioners must have the skills and the desire to serve the vulnerable…The new Commission demands a frame of mind that enables its commissioners to see wrongful convictions through a lens of the criminal justice system’s failings. A criminal justice stakeholders’ model would be the antithesis of this.”Endnote 98
There are some precedents for exclusion of people on the basis of past or present occupations even though none of the five existing criminal cases review commissions have such exclusions. For example, sitting and former members of the RCMP are precluded from being members of the Civilian Review and Complaints Commission for the RCMP.Endnote 99 Similarly, officers, non-commissioned members, and employees of the Department of National Defence are not eligible to be members of the Military Police Complaints Commission.Endnote 100 It could be argued that no current criminal justice system participants, including police, prosecutors, defence lawyers, judges, and forensic experts should be a commissioner. We believe that this general or occupation-based approach to conflict of interest is too broad and sweeping.
We accept the Milgaard/Lockyer group’s submissions that commissioners must possess an open and critical mind and understand and accept the frailties of the criminal justice system, including those relating to systemic racism. We do not, however, believe there should be specific statutory exclusion based on someone’s work history.
We can imagine that some former police officers, prosecutors, defence lawyers, judges, exonerees, or investigative reporters could be excellent commissioners. What matters is the person and their open mindedness and not strictly their job history. At the same time, there should be a recurring evaluation of the demographic and multidisciplinary composition of the commission both by the commission and in regular Parliamentary reviews.
The commission should develop and publicize a strong conflict of interest policy, but we do not think any statutory exclusions on who should be a commissioner can be justified.
Number of Commissioners
Option 1: Eleven to Thirteen Person Commission
The English Commission has 12 members. The chief commissioner acts in an executive capacity and does not decide applications. The commission decides to refer cases in panels of three commissioners. The decision of only one commissioner is required to reject an application.
Option 2: Nine Person Commission
A nine person commission could easily be divided into panels of three. It would also reflect that Canada has a smaller population than England, Wales and Northern Ireland, but a larger population and much more geography than Scotland, Norway, North Carolina or New Zealand.
Option 3: Three to Eight Person Commissions
The Norwegian Commission is the smallest commission with 5 commissioners. The New Zealand, Scottish, and North Carolina Commissions have 7 or 8 commissioners. Both the North Carolina and Norway Commissions have alternative members should some commissioners be unable to vote.
What We Heard
The Milgaard/Lockyer group recommended a commission of 11 members who would be full time and could be expanded to 13 members should caseload demand it.
A number of our English consultees told us that the current English practice of many commissioners working one day a week is not desirable given the demands of the work.
We are convinced that option 3 with 3-8 commissioners would be inadequate. The commissions that have this number of commissioners all service populations with less than one seventh of Canada’s population (Scotland, Norway and New Zealand) or less than a third of Canada’s population (North Carolina).
At the same time, option 1 of having 11-13 commissioners may be too ambitious, especially if the commissioners served full time. We have concerns that a chief commissioner who also does not decide applications may be too focused on efficiencies and removed from the complexities of investigating cases.
We recommend option 2 with 9 commissioners with a combination of full and half-time commissioners. The chief commissioner and two deputy chief commissioners should be full time or near full time. One vice chair could have responsibility for ensuring adequate attention to systemic issues and education about the causes and consequences of miscarriages of justice. Another vice chair could have responsibility for ensuring adequate attention to outreach, support and public awareness of the commission. By statute, the commission should have a minimum of 9 commissioners, but have the possibility of expanding to a maximum of 11 commissioners if required. We note that the English legislation requires a minimum of 11 commissioners.Endnote 101
Having 9 commissioners appointed at the start would help as the CCRG transfers about 45 outstanding applications to the new commission. It also provides enough appointments to ensure a representative commission. This number of commissioners is small enough to provide for the possibility for all commissioners to participate in some or perhaps all of the commission’s decisions about whether to refer or decline to refer an application to the courts.
We are not persuaded that the Norwegian or North Carolina models of having alternate commissioners is necessary. We would rather have a larger number of commissioners who can participate in decisions than have alternatives who do not.
We stress that the government must support the new commission both through an adequate budget and appointing and maintaining a full complement of commissioners. We are aware that some federal watchdog bodies such as the Civilian Review and Complaints Commission for the RCMP have only a quarter of the statutory cap of their members. In our view, the legislation should clearly state that there be a minimum of 9 commissioners with the ability to appoint 2 more commissioners if necessary.
Terms of Office
Option 1: Renewable Terms During Good Behaviour
Most of the existing commissions provide for renewable terms. Reappointments in the English, Scottish and Norwegian statutes are limited to one reappointment. The English commissioners now serve an initial three-year term subject to re-appointment for another 5-year term.
The reappointment process has been controversial in England. A commissioner who was not re-appointed after cost cutting changes proposed by the Department of Justice challenged the independence of the commission by judicial review. Despite finding “political interference”, the court found the commission to be independent because the interference was “an isolated instance”.Endnote 102
Option 2: Non-Renewable Terms
The Chair of the Norwegian Commission serves a 7-year term (amended from an original 5-year term to preserve continuity) and cannot be reappointed. As discussed above, the other members serve three-year terms and can be reappointed once.
Option 3: Staggered Terms
The New Zealand commissioners were initially appointed on staggered terms from 3 to 5 years.
What We Heard
Jonathan Rudin, Program Director of Aboriginal Legal Services, and Jean Teillet, a leading Metis lawyer, both told us that allowing reappointments could undermine the commission’s perceived independence. They were concerned that a commissioner who had taken a position critical of government might not be re-appointed.
In contrast, the Canadian Bar Association suggested that commissioners should have renewable terms. At the same time, the CBA stressed the need for independence from government by saying that commissioners, like judges, should only be removable by a joint address of parliament, or if they are unable to perform their duties.
A former appellate court judicial officer warned us against too short a term of office, especially if the appointment cannot be renewed.
We recommend non-renewable but staggered terms that are held during good behaviour. Non-renewable and good behaviour terms are in our view necessary to reaffirm the Minister of Justice’s commitment that the commission be independent and arm’s-length from government.
We also believe that staggered terms are valuable in ensuring continuity of experience and attracting diverse and expert commissioners. Some people may be willing to serve on the commission, but for various regional, career or family reasons, be unable or unwilling to serve for a 5 or 7 year term. We recommend that Canada follow the New Zealand practice and appoint the initial panel of commissioners for staggered terms. We recommend that the maximum term be 7 years and that the chair of the commission be appointed for this period. The minimum period of appointment should be 3-4 years, to enable all commissioners to obtain the necessary experience and contribute to the commission’s work.
In order to ensure independence from government both in fact and perception, the commissioners should only be removable for cause or for reasons of incapacity. Canada’s Correctional Investigator, members of the Civilian Review and Complaints Commission for the RCMP, and members of the Military Police Complaints Commission are appointed for five years. During that time, they hold office unless they are incapacitated or there is cause for their dismissal. The alternative of an appointment “at pleasure” would, we believe, undermine the independence of the commission by indicating that a current or future government can remove commissioners that displease them.
Method of Appointment of Commissioners
Option 1: Appointment by Minister or Governor in Council
Current Ministerial or Governor in Council appointments are generally made after consultation with the Prime Minister’s Office, the Privy Council Office, the responsible Minister’s office, and a senior official of the responsible Minister’s department. Sometimes a selection committee is used with participants generally from within government.
Option 2: By Minister of Justice or Governor in Council after Applications and Advice of an Independent Committee
Commissioner positions could be advertised and qualified candidates could be vetted and interviewed by an independent advisory committee. The New Zealand Commission had an advisory group including the chief commissioner that played a role in selecting its remaining members. Independent committees typically do not play a role in Governor in Council appointmentsEndnote 103, but could play an important role with respect to building confidence that the new commission is independent and arm’s-length from government and removed from the political sphere.
Option 3: Appointment by an Independent Committee
An independent committee with a composition similar to the commission could be created that would interview candidates. Instead of providing a short list for the Minister and/or Cabinet to select from, this committee could by law or undertaking make the final selection which would then be ratified by the Governor in Council.
What We Heard
The New Zealand experience with an advisory committee that interviewed and helped appoint the initial commissioners was a positive experience that helped build confidence in the new institution among a range of affected groups. Colin Carruthers, Chair of the New Zealand Criminal Cases Review Commission, told us that over 100 applications were received for commissioner positions. The advisory committee, comprised of Mr. Carruthers, governmental and Maori representatives, held over 50 interviews. Some members of the advisory committee were subsequently appointed as commissioners.
Sir Robert Neill, a UK Member of Parliament familiar with the English Commission, emphasized the importance of an open and competitive appointment process at arm’s-length from government in order to command public confidence. Representatives of the English Commission told us that there are active competitions for commissioners. As part of the process, candidates are asked to assess a sample application. At the same time, a recent all-party Parliamentary group noted that a number of witnesses had raised concerns about how commissioners are appointed to the English Commission. It concluded that the appointment process was not transparent and the fact that the Prime Minister makes appointments to the commission “places them firmly within the political arena.”Endnote 104
A representative of the Scottish Commission told us that the commission has little say in whom the government appoints to it. He also conceded that there is currently a lack of racialized people and people with disabilities represented as commissioners.
The group headed by James Lockyer and David Milgaard proposed that, while the Minister of Justice should appoint commissioners, “she/he should appoint a person to recommend appropriate commissioners. This person/advisor should have a record and expertise in wrongful conviction work. For example, the Honourable Irwin Cotler would make an excellent choice. There are others. The advisor to the Minister should first and foremost choose as commissioners, women and men who have a history of working on wrongful convictions.” They also recommended that the Assembly of First Nations should select an Indigenous member and the Inuit Tapiriit Kanatami should select an Inuit member.
The Canadian Civil Liberties Association stressed “the importance of establishing an appointment process that is arm’s-length from the government” It suggested that “an independent appointment committee should be established and should be primarily composed of those with a similar expertise to the commissioners themselves.”Endnote 105
Senator Kim Pate stressed to us the value of having commissioners who were nominated by community groups.
Dr. Mike DeGagné, Executive Director of the former Aboriginal Healing Foundation, stressed the importance of having the best people for the job while also representing diversity. He strongly recommended that the commission be proactive and communicate its needs and preferences to those in government responsible for appointing commissioners.
We are concerned that the appointment process may be a weak link in the government’s admirable commitment to establish a commission that is independent and arm’s-length from government and outside of the political sphere. We also believe that an innovative appointment process is necessary because, for over 30 years, commissions of inquiry and others have criticized the Ministerial review process as not sufficiently separated from the government of the day. This has generated a certain amount of distrust. The government’s commitment to an independent commission could easily be undermined by even a perception that the appointment process has not produced fearless and independent commissioners. The appointment process must also be credible especially if, as we suggest, there are no statutory exclusions on former criminal justice participants from serving on the commission.
For the above reasons, we believe that some version of option 3, having an independent appointments committee, is essential to ensure that the groups we consulted will have confidence that the commission is truly independent from government and removed from the political sphere. An independent committee with a diverse and multi-disciplinary composition similar to the commission should interview candidates and appoint them for ratification by the Governor in Council. The appointment committee should be independent and diverse to ensure that no one person or group dominates the appointment process.
We recommend public competitions should be used to attract the best commissioners. As with judicial appointments, there should be attempts to reach out to qualified individuals from disadvantaged groups. We agree with Senator Pate that the case for a candidate could be enhanced through nominations by community groups, Innocence Projects, those with experience and expertise with respect to miscarriages of justice and other groups. We would not, however, delegate the actual appointment of commissioners to any such group because of the need for a competitive process that is at arm’s-length from the political sphere.
As both the Canadian Bar Association and the Milgaard/Lockyer group suggested, the appointment committee should be independent from government just as the new commission must be. It should conduct serious interviews to determine if candidates for commissioners are open-minded and independent in their approach to decision-making.
If the appointment committee was also a permanent advisory committee, it could select not only the initial commissioners but those who will subsequently be appointed to the staggered terms that we suggest. New appointments may be necessary as soon as three years after the commission starts or even sooner should a commissioner become incapacitated or resign. What is essential to avoid is a closed appointment process that may cast doubt on the independence of the commissioners.
If contrary to our recommendation, option 1, a regular Governor in Council appointment process is used, it may be necessary to consider statutory exclusions of former criminal justice participants from being commissioners to help ensure that the commission is reasonably perceived as independent from government. As discussed above, this is not our preference. The best people should be commissioners regardless of their particular job history. That said, we cannot emphasize enough the importance of having an appointment process for an independent commission that is independent from the government of the day and outside of the political sphere.
Should the Commission have an Advisory Board?
Option 1: No Advisory Board
None of the existing commissions have permanent advisory boards. The English Commission has management boards that help provide expertise on financial and technology matters. These boards include commissioners but also outsiders with special expertise appointed by the government.Endnote 106
Option 2: Advisory Board only for Establishment and Appointment of Commission
A representative advisory board chaired by the chief commissioner helped appoint the first set of commissioners in New Zealand but no longer operates.
Option 3: Legislated Advisory Board
A permanent advisory board could be created by the enabling legislation. It could have diversity requirements and ensure representation of different groups affected by the commission’s work. It could play a role in the appointment of commissioners and act as an advocate for the commission on a range of matters including funding and systemic reform. Its statutory mandate could also preclude it from having any role in the commission’s decisions about individual applications in order to protect the commission’s independence and impartiality.
Option 4: Advisory Board at the Commission’s Discretion
The commission could be allowed to decide whether it requires an advisory board and to structure the advisory board itself.
What We Heard
The majority of consultees supported the commission having an advisory board though quite a few questioned whether it was necessary.
John Briggs, who has frequently acted as a delegate exercising the Minister’s existing investigative powers, suggested that an advisory board was not necessary if the commission and staff were structured appropriately. Nigel Marshman, the head of the CCRG, also cautioned about too much bureaucracy that might overburden and slow down the work of a new commission. Sir Bob Neill, member of the UK Parliament, suggested that outside organizations can hold the government accountable for underfunding of a commission and that an advisory board may not be necessary. Similarly, Gerry Sinclair, the outgoing chair of the Scottish Commission, said there was no need for an advisory board. Colin Carruthers, the Chair of the New Zealand Commission, also questioned the value of a permanent advisory board. The Canadian Bar Association cautioned that an advisory board should not be constituted to undermine the independence of the new commission. Any board “must possess the same independent and arm’s length characteristics of the CCRC itself.”Endnote 107
The Milgaard/Lockyer group supported a permanent voluntary advisory board to “provide independent and external advice to the Commission, promote its importance and provide a mechanism for feedback on its performance, policies and priorities.” It noted that the board could “where necessary, serve as an advocate for proper funding of the Commission. This will help avoid the English experience of under-funding in recent years.”Endnote 108 David Milgaard told us about the need for an external “tribute council” of people who had demonstrated the ability to help and care for others.
Ron Dalton, Co-President of Innocence Canada and himself an exoneree, also supported the creation of an advisory board as a civilian oversight body that could help keep the commission on track. Darwin Seed, an Indigenous man with lived experience of the potential harmful consequences of the criminal justice system, supported an advisory board. He advised that the board should have a mix of expertise to prevent discrimination and improve access to justice. Professor Emma Cunliffe argued that an advisory board should be “fierce”. Professor Mai Sato of Monash University, who co-authored a book on the English Commission, suggested that an advisory board could promote public awareness about the commission and guard against under-funding of it. Representatives of the UBC Innocence Project and the University of Ottawa Innocence Project both supported an advisory board which could play more of an advocacy role than the commission could on funding and systemic issues.
The Federal Ombudsman for Victims of Crime told us underfunding is a legitimate concern for a number of federal agencies. She stated “it will be important to have an Advisory Board to guard against under-funding and ensure sufficient ongoing funding, as well as members holding expertise to improve access to justice and prevent discrimination.”Endnote 109 Isabel Schurman, an experienced defence lawyer from Quebec and Vice Chair of the Canadian Council of Defence Lawyers, commented that an advisory board “would appear to be a necessity, especially in light of the problems of underfunding in other jurisdictions.” She added that “one can also envisage interference with the Commission or its funding for political reasons. The structure must guard against these possibilities.”Endnote 110 We were struck by the fact that Innocence Projects, crime victims’ advocates and defence lawyers all supported an advisory board in part because of fears of underfunding.
Stephen Bindman, who teaches a course on wrongful convictions at the University of Ottawa and works with the federal Department of Justice, also suggested that an advisory board could be useful, but warned that it should not be involved with individual applications before the commission. A similar point was made by Dr. Mike DeGagné. He stressed the importance of separating out the policy work of an advisory board from the operational responsibilities of the commission’s decision-making in individual applications. RCMP Chief Superintendent and Director of the RCMP’s General National Forensic Laboratory Service, Don Halina agreed that advisory board members should not be involved in individual cases. Pamela Dixon of the Canadian Society for Forensic Science also told us of difficulties when advisory committee members were subpoenaed to provide testimony about devices used to measure alcohol and drug consumption.
We recommend option 3, a legislated advisory board. We are aware of the dangers of adding too much bureaucracy to the commission. There is merit in Jean Teillet’s advice that the new commission should be “lean and mean.” At the same time, however, we believe that an advisory board is an important part of a proactive commission that is concerned with systemic reform.
We believe there has been a tendency for foreign commissions to de-prioritize systemic work including education in the face of caseload pressures. We also note that none of the foreign commissions have taken strong advocacy positions, even on matters such as their own under-funding or the need to adopt measures that may help prevent miscarriages of justice in the future.
We believe an advisory board that is fully informed about the commission’s work could serve as a vital and often missing link between the commission and the larger justice system and Innocence Projects. We also believe that a representative advisory board should play an important role in the appointment of commissioners. Sitting on the advisory board should be viewed as a real commitment and people should be paid for their time.
Who should be on the advisory committee? Although advisory committees play a role in judicial appointments, the advisory committee should reflect the special expertise that is required in the new commission. There should be lawyers on the advisory committee, but there should also be those with expertise on matters relevant to miscarriages of justice including those with expertise in the forensic sciences. There should also be people with lived experience of miscarriages of justice and lay members. There should be Indigenous and Black people and groups that are disadvantaged in seeking relief from miscarriages of justice.
We considered option 4 of leaving it up to the commission to decide whether to appoint an advisory board. Throughout our work, we have encountered a tension between recommending prescriptive enabling legislation and allowing the commission to develop and refine its own processes. As will be seen below, we generally prefer allowing the commission to define its own processes. Here, however, we make an exception because we believe that a representative advisory board is a key feature of a proactive, systemic and independent commission. An advisory board can help ensure that systemic issues are not neglected; it can guard against underfunding the commission and it can help ensure that the appointment of commissioners remains at arm’s-length from government and outside of the political sphere.
Requirements for Staff
Option 1: Legal Staff
The staff of the Scottish and North Carolina Commissioners are lawyers.
Option 2: Other Criminal Justice Expertise Such as Investigators and Forensic Experts
The English Commission has in-house investigators, some of whom are retired police officers as well as lawyers and paralegals.
Option 3: Outreach and Support Staff
The New Zealand Commission has hired investigators who are not necessarily legally trained, but have relevant education and experience to work with applicants in gathering information, including in prisons.
What We Heard
Our consultations with exonerees stressed the importance of support for those who have been wrongfully convicted. We were told time and time again that Win Wahrer, the Director of Client Services at Innocence Canada, has played a key role in giving exonerees support and hope. Innocence Canada told us that Win, who is not a lawyer, has “devoted her life to improving the plight of the wrongly convicted.” We deeply admire and respect her work. Innocence Canada “recommends that a new commission create a dedicated position similar to Ms. Wahrer’s role at Innocence Canada. This position could be occupied by an exoneree as this may increase confidence in the commission from the perspective of the wrongfully convicted and ensure that their voices are heard.”Endnote 111
Professor Lucinda Vandervort of the University of Saskatchewan stressed the importance of “culturally and socially appropriate” staff. She added that “legal representatives may not be able to communicate effectively and nurture mutual trust in some cases unless there is a core of common life experience.”
Senator Kim Pate spoke to us with a group of Indigenous women with experience in the criminal justice system. They all stressed the need for culturally sensitive support. Both Senator Pate and Correctional Investigator Ivan Zinger told us of the difficulties they have encountered in hiring people with lived experience in prisons because of their criminal records. They indicated that it was possible and may be desirable to hire people with criminal convictions.
The Federal Ombudsman for Victims of Crime, Heidi Illingworth, recommended that Indigenous Elders and others with “specialized expertise and frontline service provision/practice in Indigenous culture” should be included on the staff of the commission. She suggested:
They should be valued as supporters for both Indigenous victims and offenders – while being compensated for this support and expertise. We must also incorporate increased respect for Indigenous worldviews, ancestral laws and ceremonies, which can lead to relationship-building and systemic empathy for all.
Ms. Illingworth added that the enabling statute “should ensure that the Commission staff be of diverse cultural backgrounds and be trained in trauma-informed care, cultural humility, impartiality, and that there are staff members who are Indigenous themselves.”Endnote 112
Innocence Canada stressed the critical role of private investigators in discovering new evidence in many of their cases. It provided concrete examples of finding new evidence such as previously undisclosed material by attending police stations and crime scenes. The Criminal Lawyers Association told us that the commission “must employ experienced investigators with the power to compel witnesses to cooperate, including the power to compel police or prosecutors to answer questions and hand over documents”.Endnote 113
Innocence Canada recommended that a media specialist be hired by the commission either on a contract basis or full time to inform the public of the work of the commission.Endnote 114 Others who favoured a reactive commission advised us against the commission having a media liaison.
Code of Practice for Staff
The Cardiff Innocence Project observed that a commission’s staff should commit to a code of practice based on a clear statement of principles, including:
- a commitment to address all potentially wrongful convictions regardless of institutional, legal, and bureaucratic barriers and traditional practices;
- a commitment to seek change and accountability in existing criminal justice agencies and practices where these are creating or contributing to injustice;
- regular internal and external reviews of staff and commission practices in the form of a values audit.Endnote 115
Hiring of Staff
The CBA recommended that “the CCRC should control all hiring and administrative matters to develop its own expertise with wrongful convictions.”Endnote 116
The staffing of the commission is critically important. We recommend that all of the above three options be implemented. The commission will require talented and skillful lawyers. But it will also require investigators and those with skills and lived experience that will enable them to provide culturally appropriate and trauma-informed support for applicants and crime victims. It needs people who can communicate clearly with applicants, potential applicants, the media and the public at large.
As the Canadian Bar Association recommended, the commission should have independence in hiring the right people. It should not be restricted to hiring from pools of existing civil servants.
The enabling legislation should also clearly indicate that the staff of the commission, including the chief operating officer, answers to the commissioners. Like judges, commissioners should be able to expect that the staff that assists them in performing their independent function work for them. These expectations should be clearly codified to avoid problems that have arisen with the English commission.
An all-party Parliamentary group recently reported that the English commissioners’ lack of explicit management authority over their staff has been “a cause of tension and reduced efficiency” and that this “has significantly shifted the balance of power towards the executive.”Endnote 117. It stressed that the commission model with the commissioners in charge was necessary to “provide independent leadership, regularly bringing in individuals with wider expertise and experience to mitigate the development of an institutional mindset.”Endnote 118 We agree that giving the commissioners and especially the chief commissioner, power over the staff is necessary to ensure the independence of the commission.
The commission’s hiring of staff should be subject to the terms of the Employment Equity ActEndnote 119 regardless of whether it employs 100 people or more or under what schedule it is listed in the Financial Administration Act.Endnote 120
Requirements for Agents/Consultants
Option 1: Commission has power to appoint agents and consultants as required who can exercise the Commission’s investigative powers
This would extend the existing powers under s. 696.2(3) of the Criminal Code to the commission. This provision allows the Minister to delegate investigative powers to compel material and take evidence to lawyers, retired judges or those with similar background and experience. The English Commission also has statutory powers to require a police service to conduct investigations.
Option 2: No Power to appoint agents and consultants
This would require the Commission to conduct investigations and analysis “in house”.
What We Heard
We heard from various Innocence Projects and from Nigel Marshman, head of the existing CCRG, that it is essential for the commission to have wide powers and an adequate budget to delegate investigations to qualified individuals. This allows for the use of investigators familiar with particular communities and the local administration of justice. This can allow an investigator to be appointed by the commission exclusively for a particular case. That investigator would then have all the investigative powers that the commission has including the ability to demand evidence and to question people under oath. This power would also allow the commission to hire extra people when there is an increase or backlog of applications or a conflict of interest within the commission.
A number of Innocence Projects told us that they had good experiences with independent investigators who exercised investigative powers delegated by the Minister. In some cases, they reported that such delegates were more willing to work with them than lawyers employed by the CCRG. They also observed that some of those delegated by the Minister have the necessary local or other special knowledge. In their view, this allowed such independent investigators to operate more efficiently and effectively than the permanent staff of the CCRG located in Ottawa.
Representatives of the Ontario Provincial Police and the RCMP told us that in some cases an effective investigation may require powers and skills possessed by the police. They analogized investigations of applications to the commission with older case investigations. They noted that the police have access to powers and information not possessed by the general public or private investigators.
Professor Cecilia Hageman, a Professor of Forensic Science at the University of Ontario Institute of Technology, told us about the importance of access to the services provided by private laboratories. The RCMP’s General National Forensic Laboratory Service’s Don Halina told us that the “big 3” laboratories (run by the RCMP and the Ontario and Quebec governments) might be able to do work for the commission if there was a perceived conflict of interest in having another laboratory do the work. He emphasized that steps would have to be taken to maintain chain of custody. Ontario’s Chief Forensic Pathologist Michael Pollanen stressed the importance of multi-disciplinary investigations that could involve forensic medical investigators from around the world. This was done in the Charles Smith cases. Dr. Pollanen told us that his death investigation service is willing to provide available material for re-testing to other qualified experts and does so regularly.
In our view, the enabling legislation should allow the commission to delegate its investigatory powers to those qualified to conduct an investigation. We would not preclude the ability of the commission, if necessary, to ask a police service, a special investigation unit, or a body or person with special forensic expertise to conduct an investigation, as well as other qualified persons. The commission must be provided with the proper authorities to enable it to contract with experts it does not have within the commission. It must also have an adequate budget if its statutory powers to delegate investigations and pay outside investigators as needed are not to be made illusory through underfunding.
We are also struck by how police, and to a lesser extent, prosecutors, control access to the RCMP, Ontario and Quebec crime laboratories. To this end, we believe it is important that the commission have explicit statutory powers that allow it to send material to any qualified analyst any place in the world. The commission needs broadly worded powers that can accommodate the rapid evolution in the use of technology and forensic sciences in the criminal justice system.
We would not limit qualifications for those with delegated investigative powers to lawyers or retired judges or those with similar background and experience as is required for a formal delegation of Ministerial investigative powers under s. 696.2(3) of the Criminal Code. We can imagine circumstances where a multi-disciplinary team of investigators would be required that could include private investigators, police services, special investigative units and various types of forensic investigators and experts. We recognize that lawyers or retired judges may be required in cases where people with relevant information will be questioned under oath. We stress that our consultees expect and hope that the new commission will get out of its offices and actively investigate suspected miscarriages of justice. The use of independent expertise often from outside the jurisdiction has often been critical in uncovering miscarriages of justice.
Any external investigators should be subject to the same type of supervision as permanent staff. As a practical matter, we think such supervision should be done by the commission’s executive director, subject to guidance, oversight and direction by the chief commissioner.
The commission should develop policies with respect to its wide power to delegate investigative powers and tasks. These policies should make every effort to avoid real or perceived conflicts of interests that would undermine its independence. The commission should develop policies to ensure that investigations are done collaboratively and do not unnecessarily duplicate work done by the applicants’ representatives.
The Location(s) of the Commission
Option 1: In the Nation’s Capital
The present CCRG is located in Ottawa. The Norwegian and North Carolina Commissions are located in their respective national and state capitals.
Option 2: One Location outside the Capital Region
The English, Scottish and New Zealand Commissions are located outside of the capitals in part to symbolize their independence from the government.
Option 3: Central and Regional Offices
The National Parole Board has both central offices in Ottawa and regional offices. Technology makes regional officers with both commissioners and some staff more feasible.
What We Heard
We heard from the English, Scottish and New Zealand Commissions that their location outside of a capital was designed to emphasize their independence from government, but also because the first chairs of each of these commissions were reluctant to relocate to the capital. We heard that Birmingham and Glasgow were also selected because of good transportation links.
Professor Lucinda Vandervort suggested that “regional offices such as those used in the case of the National Parole Board may be desirable for ensuring access to relevant expertise across the country and avoiding an unduly ‘centrist’ approach or the apprehension thereof.” The Canadian Bar Association told us how differences in the local administration of justice “create different challenges and obstacles to uncovering wrongful convictions…What is appropriate in Vancouver may not be appropriate in Iqaluit.”Endnote 121
Fo Niemi, the Executive Director of the Centre for Research-Action on Race Relations suggested that the commission could be located outside of Ottawa. Professor Joshua Sealy-Harrington of the Lincoln Alexander Law School of Ryerson University stated that the commission’s office should be located out of Ottawa, perhaps in Manitoba.
Bruce MacFarlane Q.C. suggested that given the long history of criticism of the Ministerial review process, it was important that the new commission be located outside of Ottawa. He suggested Winnipeg because of its central location and transportation routes; its Francophone population that could supply bilingual workers; its significant Indigenous population; and the long interest and expertise at the University of Manitoba’s Faculty of Law in teaching and research on wrongful convictions and running an Innocence Project. In addition, Manitoba has held several public inquiries into wrongful convictions and Winnipeg was the site of the late Joyce Milgaard’s famous encounter with Prime Minister Mulroney, which was followed by her son David’s second and successful application for Ministerial review.
The Milgaard/Lockyer group said, “We prefer a central office in Toronto, as the largest city in Canada, and so likely to have the largest number of applicants. Regional offices could be set up in Quebec, preferably Montreal, and in one of the western provinces.”
Bibi Sangha and Robert Moles warned that “it would be hard to imagine how a CCRC could operate effectively from a single location. Some inquiries would require interviews and inspection of files and materials at source, and a sensitivity to the respective needs and possible discriminatory treatment of divergent social groups. As we have seen from the criticisms of the UK Commission’s ‘desktop reviews’ from remote locations may not result in convincing outcomes.”Endnote 122 As discussed above, they proposed that the commission partner with Innocence Projects located in different parts of Canada.
John Briggs recommended that the commission not be located in Ottawa, but have several offices including in Kingston, Winnipeg, and Toronto. Justice Anne Derrick stated that central and regional offices would assist in the commission’s outreach and visibility. Tamara Levy of the UBC Innocence Project told us that the commission should not be located in Ottawa and that technology and the changes in work practices should make regional offices affordable. Robert Israel of the McGill Innocence Project was not opposed to regional offices, but stated that a limited budget should be focused on investigating cases. Emily Bolton of APPEAL also suggested that regional offices could specialize in some matters but also drive other offices to adopt better practices.
Projet Innocence Québec and Kathryn Campbell of the University of Ottawa’s Innocence Project supported a head office in Ottawa “to promote bilingualism” and regional offices “in the major centres of Vancouver, Edmonton, Toronto, Montreal and Halifax.”
There were some warnings about regional offices. Dr. Mike DeGagné told us that regional offices may make it difficult to maintain a cohesive institutional culture. He added that people must have their bags packed and be ready to travel where necessary throughout Canada. Ron Dalton, an exoneree and Co-President of Innocence Canada from Newfoundland stated that a central office is important so that people can collaborate on cases. He was not opposed to an Ottawa office if the commission was truly independent. Moose Jaw Police Chief Rick Bourassa told us a central location at the start could help build institutional culture. Ivan Zinger, the federal Correctional Investigator, operates from a central office but has investigators that spend considerable time in the regions visiting 43 different prisons. Mark Newby, a UK lawyer with extensive experience with miscarriages of justice, told us that where the commission is located matters less than its accessibility to applicants.
We believe there would be some value to locating the commission outside of Ottawa in order to emphasize its independence. At the same time, this is not a strong preference. We agree with the consultees who told us that the ultimate test of the commission’s independence and credibility will be in the work that it does and how accessible it is to applicants and others interested in its work.
The new commission needs to have coast-to-coast-to-coast capabilities and presence. We recommend leaving it to the commission whether it is necessary and feasible to establish regional offices especially if there are commissioners and staff located in the west, east, or the North. At the same time, recent advances in technology may mean there are cost-effective alternatives to regional offices.
If regional offices are used, care should be taken to ensure technological integration and the development of a common collegial culture. We were told that a commission’s work requires multi-disciplinary staff to work together in creative and collegial ways. It requires constant interaction between commissioners and staff as well as working with applicants and criminal justice actors. As David Jessel, a former investigative journalist who served as an early commissioner on the English Commission, stated: “The answer only rarely lurks in the paperwork. I have always found that whenever you actually meet a prisoner or a witness, or go to the scene of the crime, you discover something new. You are unlikely to get the same result from simply interrogating a database.”Endnote 123
Wherever the commission is located, it should be physically distanced from governmental offices, especially those of the Department of Justice, the Department of Public Safety, and the National Parole Board. It should also be separated from any policing, prosecutorial, judicial, defence chambers, Innocence Projects, and correctional authorities in order to emphasize its independence.
The commission should have necessary funding for travel to meet applicants and witnesses. It should also have funding to ensure that it can have access to relevant material while retaining chain of custody of material that has been or might be used as evidence in court.
The Institutional Status and Funding of the Commission
Option 1: Officer or Agent of Parliament
Officers of Parliament. such as the Auditor General of Canada and the Parliamentary Budget Officer, are directly responsible to Parliament. They are generally appointed by Parliamentary resolution for a 7 or 10 year term after consultation with all recognized political parties.
Option 2: Division or Branch of the Public Service under Sch I.1 of Financial Administration Act
These stand-alone entities include the Canadian Human Rights Commission, Courts Administration Service, Office of the Commissioner for Federal Judicial Affairs, Office of the Director of Public Prosecutions, Registrar of the Supreme Court of Canada and Offices of the Privacy and Information Commissioners. All of the above bodies have the Minister of Justice listed as the appropriate Minister. The Office of the Correctional Investigator is also listed in this schedule with the Minister of Public Safety being the appropriate Minister. All of these entities are separate and apart from the line departments, but have an appropriate Minister designated in the legislation for the purpose of reporting to Parliament on matters of finance.
Option 3: Departmental Corporations under Sch 2 of the Financial Administration Act
These departmental corporations are separate and apart from line departments. They appear to differ from those entities listed in Sch I.1 because they are automatically authorized to spend revenue without additional authority. Like those entities listed in Sch I.1, departmental corporations are separate and apart from line departments. Examples include the Law Commission of Canada which has the Minister of Justice listed as the appropriate Minister and the Canadian Border Services Agency that has the Minister of Public Safety as the appropriate Minister.
Option 4: The commission could be supported by the Courts Administration Service which provides support at arm’s-length from the legislative and executive arms of government for various Federal Courts and it, like the CCRG, should be subject to a revolving fund budget that allows funds to be spent with additional authorities.Endnote 124
The Department of Justice plays a role in funding the Courts Administration Service as its sponsoring Ministry under Sch I.1 of the Financial Administration Act even though the Department of Justice is the prime litigant in the various federal courts. The Chief Administrator of the Courts Administration Service also holds office at pleasure and is subject to renewable five-year terms.Endnote 125
What We Heard
We heard many concerns that the commission may be vulnerable to under-funding. This could be because of future across the board governmental austerity measures and/or cuts that reflect a lack of political support for the commission or simply a lack of understanding of the importance of its role. Both Innocence Canada and the Milgaard/Lockyer group warned of the dangers of the commission being backlogged and the harms that delay cause to victims of miscarriages of justice. The Canadian Bar Association stressed that the commission should have an independent budget and “control all hiring and administrative matters to develop its own expertise to deal with wrongful convictions.”Endnote 126
A 2015 Parliamentary committee and 2021 all-party report have each highlighted the under-funding of the English commission. The 2015 report documented a 30% funding cut between 2009/2010 and 2014/2015 at a time of increasing applications and increasing backlogs. The chair of the commission told the committee that for every £10 his predecessor had to spend on an application, he had £4 and that the commission had suffered “the biggest cut that has taken place anywhere in the criminal justice system.”Endnote 127
The all-party report delivered in 2021 concluded that the recommendations of the 2015 Parliamentary committee “were largely unimplemented”. The commission’s 2019/2020 budget was still under £6 million.Endnote 128 It noted that a leading community group Justice had told it that because of funding cuts, “it is harder to overturn a wrongful conviction than it was in the dark days of the 1980’s and 90’s”Endnote 129 which had led to the establishment of the English Commission.
Due to underfunding, case review managers who had a caseload of 12.5 cases in 2010/2011 had in 2017 a caseload of 27 cases. Moreover, their salaries were no longer competitive.Endnote 130
The all-party report recommended that increased funding was necessary so that the commission could carry out more face-to-face meetings with applicants and others with relevant information, conduct necessary testing, obtain full disclosure of material and full trial transcripts.Endnote 131 Professor Carolyn Hoyle of Oxford and the lead author of the leading study of its operations stated that the CCRC was “massively under-resourced” and “decisions about how thoroughly, or how to investigate a case are made with a mind to budget.”Endnote 132
In stark contrast to the under-funding of the English Commission, Nigel Marshman head of the current CCRG described the budgeting process of that entity as based on what seems to be a revolving fund. This ensures that the work of the CCRG, including the appointment of outside agents, is not constrained by yearly budgets. We are concerned that an independent commission may be more vulnerable to underfunding than the CCRG which is funded directly by the Department of Justice.
Problems of underfunding are not limited to the English Commission. A representative of the Scottish Commission noted that £930,000 of its £1.05 million budget is spent on salaries and accommodation so that “doesn’t leave much for an investigative budget, a budget for legal actions and the like.”Endnote 133
The Norwegian Commission does not have to pay expenses relating to its frequent appointment of counsel for applicants or crime victims, interpreters and experts. Still, it warned its “other expenditures depend…on the number of cases which can be difficult to predict. If the commission has to deal with complicated cases, it may have to increase the volume of investigative work and number of extraordinary meetings, and this in turn leads to higher costs.”Endnote 134
We were told by the New Zealand Chief Commissioner that, although he had secured stable government funding of $4 million a year for the first four years of the commission, that funding was already inadequate because the number of applications received by the commission has been double that expected. Without additional funding, the commission may be challenged by backlogs and delay in deciding applications. It may also not be able to pursue general inquiries into systemic matters despite its statutory mandate to do so.
The North Carolina Commission receives a very modest budget through the legislature. It has to lobby politicians to retain even those modest funds. It also has to obtain additional grants from other programs including funds tied to DNA testing and others tied to providing services to crime victims. It even solicits donations on its website.Endnote 135
A few people such as Hannah Quirk, an expert on the English Commission, and Jerome Kennedy, a lawyer who has worked on many miscarriages of justice cases, suggested that the new commission should report to Parliament. Professor Ed Ratushny also suggested that the commission should be an “agency of Parliament”.
The Minister of Justice’s mandate letter contemplates “an independent body that is at arm’s-length from government and outside the political sphere.” We agree with this important principle and goal. We have found it a challenge to situate such an independent entity within the existing machinery of government models.
As discussed in Part B of this report, the commission should be as independent and arm’s-length from government as possible in a Parliamentary democracy and it must be adequately funded. We have decided that the best way to implement this fundamental policy choice is for the federal government to treat the new independent commission in a similar manner as it treats the independent courts. We see this as an important principle that should guide the funding and staffing of the commission including the payment of commissioners.
It is important to recognize that the new Miscarriages of Justice Commission is not just another administrative agency, office or administrative tribunal. By assuming the powers that the Minister of Justice now has, the commission will have the unique powers, possessed nowhere else in the executive, to order new trials or new appeals. Given this, it is important that it not be treated as just another small federal agency susceptible to under-funding or decisions not to appoint a full complement of commissioners in order to save costs.
Our concerns about under-funding do not assume the bad faith of either current or future governments. The number of applications or their degree of complexity simply cannot be predicted in advance. This means that the funding the commission will require in any particular year will be very difficult to forecast.
We are concerned that, contrary to the government’s intent to improve the way alleged miscarriages of justice are investigated, the commission may be more vulnerable to underfunding than the current CCRG/Ministerial review system.
In our view, the new commission, like the CCRG, should have a revolving fund and not have to worry if the demands of its caseload require it to exceed its annual allotted budget in any year. It would be a betrayal of the promise of an independent commission if the new commission struggled with adequate funding when we were informed that this has not been a concern for the CCRG.
We recommend option 4, funding through the Courts Administration Service with a revolving fund that would allow the commission to spend funds when necessary, beyond its yearly allocation. The commission is an important addition to the justice system with the power to refer cases back to the courts. Like the courts, it cannot perfectly predict the demands of its caseload or the need for new technology to deliver vital services to the public.
The Courts Administration Service has been operating since 2003 to provide an arm’s-length buffer in the provision of a range of service to the Federal Court, the Federal Court of Appeal, the Tax Court and the Courts Martial Appeal courts. It is the route for funding (other than salaries which will be discussed below) for these courts. We recognize that the Courts Administrative Service has so far only funded courts, but we believe it would be the best means to fund the new commission. We also hope that this arrangement can help the commission avoid some of the federal bureaucracy and red tape that the Correctional Investigator told us applies to small federal agencies.
That said, we recognize that there are no guarantees against underfunding. The Courts Administration Service is still listed under Sch I.1 of the Financial Administration Act with the Department of Justice as the sponsoring Ministry. We understand that in a Parliamentary democracy, there has to be some link between the expenditures of public funds and Parliament.
We understand why some consultees have recommended that the commission should be an officer or agent of Parliament. They, like us, want to ensure that the commission is independent and adequately funded. That said, we do not believe it would be appropriate for leaders of all recognized political parties to play a role in the appointment of commissioners. This could politicize the appointment process. It could give political parties a de facto veto on the appointment of those who may be controversial in some quarters, but would be excellent commissioners.
Funding of the Commission and the Commissioners
Option 1: Funding as a Departmental Corporation through Department of Justice and Treasury Board with a Revolving Budget
This would be the process if the Department of Justice was the sponsoring department and the commission was listed under Sch 2 of the Federal Administration Act as set out immediately above in option 3.
Option 2: Funding through another Department and Treasury Board
A department other than the Department of Justice could be listed as the sponsoring department for purposes of the Federal Administration Act.
Option 3: Funding Tied to Salaries of Superior Court Judges
The salaries of commissioners could be tied to the independent process established for determining the salaries of federally appointed judges. Not all nine commissioners would necessarily be full-time. Nevertheless, their payment could be linked to superior court judge salaries as determined by an independent constitutionally required process.Endnote 136
What We Heard
The Canadian Bar Association stated that it supports “designating the CCRC as an independent agency, with dedicated funding untethered to the budgets of other government departments”. It also recommended that commissioners, like superior court judges, should only be removable by a joint address of Parliament.Endnote 137 The Advocates Society also advocated protections of security of tenure to “ensure the Commission operates outside of the political sphere as intended.”Endnote 138
The all-party Westminster Commission in England has recently stressed that the CCRC “has a unique role in the justice system, and as the Divisional Court has held, it must be constitutionally independent of government.”Endnote 139 It had concerns that many commissioners who work only one day a week may not gain the necessary experience or have the time to do their jobs properly. Finally, it noted that commissioners are paid a per diem rate that is less than half what judges who are recorders make when they work on a per diem basis.Endnote 140
Innocence Canada pointed to the experience of the English Commission where the Department of Justice has engaged in cost cutting measures and alleged interference with appointments as an example of what must be avoided. It argued that “the integrity and functionality of a Commission can be severely impaired when a government is overly involved in the inner workings of a Commission.”Endnote 141
Recommendations 14 and 15
There is a real danger that an independent commission, especially one that receives more applications and is committed to investigating and preventing miscarriages of justice, will be under-funded as compared to the more reactive approach of the CCRG.
In our view, the best means to guard against underfunding is a combination of options 1 and 3. Option 1 would ensure that the commission has access to a revolving fund budget so that it does not have to delay investigations or refuse to conduct tests or hire outside agents when necessary because it has spent more than its yearly allocated budget. This option comes closest to continuing what the head of the CCRG described as the present state of affairs with a revolving budget that can in a particularly busy year go beyond the annual allocated budget. For example, the CCRG has been able, as it and the new independent commission should, to respond to increases in the number of completed applications it has received since 2015 (from 5 to about 17-18 complete applications a year) without having to be concerned about underfunding. In our view, this state of affairs should continue when the new commission receives even a greater volume of applications.
To ensure that there is a revolving budget, some changes may be necessary to the Courts Administration Service so that it is designated under Sch 2 as opposed to Sch 1.l of the Financial Administration Act.
We also favour option 3. As outlined above, we think it is important to recognize the unique role that the independent commission will play in taking over the Minister of Justice’s current role. The commission is not just another administrative agency or tribunal because of its unique powers to overturn convictions and order new trials and appeals. If the commission is going to make decisions that affect those made by the independent courts, it should receive the same respect and treatment from government as the courts do. For this reason, we recommend option 3 which would ensure that full-time commissioners are paid on rates linked to those received by superior court judges as determined by an independent and constitutionally required process as set out in the Judges Act.
We would add that such an arrangement should not be used as an excuse for under-funding the commission’s overall budget. The commissioners will make the ultimate decision whether to refer cases back to the court, but they will need investigators, specialized lawyers, specialized support workers and the ability to hire independent agents and experts in order to do their work properly.
The Enabling Legislation
Option 1: Amendments to the Criminal Code
Some version of the present s. 696.1-696.6 has been present in the Criminal Code since it was first enacted in 1892. The Norwegian Commission was similarly established as part of that nation’s Penal Code.
Option 2: Separate Enabling Legislation
The English, Scottish, and New Zealand Commissions are all established in separate legislation, though none of these countries have a comprehensive Criminal Code. Some have recommended that watchdog and review agencies, especially in policing, be included in legislation separate from policing acts in order to highlight the independence of the review and complaints process.
What We Heard
The Milgaard/Lockyer group recommended that the commission be established under the Criminal Code as a “warning to all participants in criminal justice that the system is human and therefore fallible.” The Projet Innocence Québec also recommended that the commission be established under the Criminal Code as is the case with present Ministerial review. It added: “We see no policy reason to do otherwise…”.Endnote 142
Jerome Kennedy of Innocence Canada expressed a preference for separate enabling legislation. The Canadian Bar Association also recommended stand-alone legislation to enhance the perception of the commission’s independence as did the Canadian Civil Liberties Association and Professor Kathryn Campbell of the University of Ottawa.Endnote 143
We accept that separate legislation would play some role in highlighting the commission’s independence. We note that separate legislation has been recommended for agencies that act as police watchdogs.
At the same time, separate legislation would be less visible and accessible than the Criminal Code. Moreover, the Criminal Code is different from policing laws because it already provides for judicial scrutiny of police and prosecutorial actions.
As outlined in part C of this report, the need to provide some route to correct miscarriages of justice has been a constant feature of the Criminal Code since it was first enacted in 1892. It would be anomalous to take this out of the Criminal Code at a time when it is widely and correctly accepted that miscarriages of justice are inevitable. We agree with the Milgaard/Lockyer group that establishing the new commission in the Criminal Code would serve as a reminder to justice participants of the dangers and inevitability of error in the justice system.
Establishing the commission in a separate part of the Criminal Code including provisions providing for independent appointment and funding of the new commission should also clearly signal that the commission is independent from other parts of the justice system including the police, prosecutors and courts.
Scheduled Parliamentary and Expert Reviews of the Commission
Option 1: One Time Review by a Parliamentary committee 3 or 5 years after the Commission is established.
Some Criminal Code amendments have scheduled reviews, usually conducted by a committee of Parliament.
Option 2: Reviews by a Parliamentary committee every 3 or 5 years
Legislation could require a series of periodic reviews by a committee of Parliament.
Option 3: No Parliamentary Review
Many Criminal Code amendments contain no scheduled review, but like all legislation, can be re-visited by Parliament in the future.
Option 4: Review by Independent Experts
The 2021 amendments to the Criminal Code with respect to medical assistance in dying require independent reviews to be conducted and tabled in Parliament with respect to those with mental illnesses. The amendments also provide for a review by a Joint Committee of the Senate and House of Commons.
What We Heard
There was widespread support for a scheduled Parliamentary review 3-5 years after the creation of a commission. This review could consider whether the commission was properly funded and whether its mandate should be adjusted in response to the unpredictable number of applications it receives.
There was some support, especially among forensic scientists, for an independent expert review to determine the effectiveness of the commission’s investigations and its use of expert evidence. Forensic science experts stressed that forensic science and technology evolves quickly. Such an independent review could be conducted by the Canadian Council of Academies which draws on the multi-disciplinary talents of all of Canada’s learned societies.
It was also suggested that the Auditor General of Canada or the Parliamentary Budget Officer could be required to prepare a report on the adequacy of the commission’s funding that could be tabled in Parliament and would become part of the evidence considered in the Parliamentary review.
Representatives of the Cardiff Innocence Project stressed that an outside body could also conduct an ethics review of the work of the commission including commissioners and staff.
The Canadian Bar Association, however, opposed scheduled Parliamentary reviews as a potential interference with the independence of the new commission. It was not opposed, however, to a Parliamentary committee or an independent inquiry investigating and reporting back to Parliament “if there are problems in the CCRC’s administration.”Endnote 144
We favour both option 2 of periodical Parliamentary reviews and option 4 but would allow the commission to determine when and if other independent experts should be involved with a review. We also recommend that the periodical Parliamentary reviews of the commission be preceded by reviews by the Auditor General or the Parliamentary Budget Office of the adequacy of the commission’s funding.
Parliamentary reviews of the English Commission have raised important concerns about underfunding and the commission’s relationship to the larger justice system including the adequacy of the Court of Appeal’s grounds of appeal. Parliamentary reviews can also monitor the demographic and multidisciplinary composition of the commission.
Having a joint committee of the House of Commons and the Senate conduct the review will minimize the dangers of partisanship and we favour this type of review. The commission should be an enthusiastic and active participant in such Parliamentary reviews.
Other independent reviews on other topics may also be of assistance, but should be left to the commission to decide whether they are necessary to improve its work.
The continual review process, both inside and outside Parliament, is part of the proactive, dynamic and systemic role we envision for the commission.
Non-Discrimination and Positive Safeguards
Option 1: Non-discrimination and Substantive Equality Provisions Provided in the Legislation
The commission’s anti-discrimination and accommodation obligations could be included in its enabling legislation through a preamble and/or operative provisions. The New Zealand legislation makes specific reference to the need for at least one commissioner to have knowledge of Maori worldviews, laws and customs.
Option 2: No reference to Non-discrimination and Substantive Equality Provisions in the Legislation
The laws establishing the other foreign commissions make no specific reference to equality and non-discrimination. At the same time, general provisions relating to non-discrimination in those jurisdictions would apply to the work of those commissions.
What We Heard
Most consultees supported option 1 of having specific non-discrimination principles and positive safeguards in the commission’s enabling legislation
Nigel Marshman, head of the CCRG, told us he had no strong opinion on this issue. He noted that the new commission would in any event be bound by the Charter and the Canadian Human Rights Act and could develop its own non-discrimination policies. Justice Grenier, a former special advisor to the Minister, expressed a preference for the commission to develop its own anti-discrimination policies without them being included in the enabling statute.
The Advocates Society also told us that it was unnecessary to have specific non-discrimination provisions given existing laws. At the same time, it stated that the commission should develop its own published non-discrimination policies.
Dale Tesarowski of the Saskatchewan Attorney General’s office raised concerns about including positive safeguards because of the danger of leaving out some groups. Bonnie Weppler of the Church Council on Justice and Corrections stated that the problem was more with the enforcement of various anti-discrimination laws rather than their existence.
Most consultees, however, favoured positive safeguards. The Canadian Race Relations Foundation recommended that the commission’s case review protocol “should incorporate a layer of review that examines the role that racism might have played in the conviction of Black, racialized and Indigenous applicants”. It also recommended that the commission should collect race-based statistics that may be relevant to systemic reform to prevent miscarriages of justice.Endnote 145
Innocence Canada proposed that “for Indigenous applicants, the Independent Commission should broaden the scope of offences for which it will accept applications; and, the Independent Commission should develop contacts in Indigenous and racialized communities for outreach programs, to ensure that these communities are aware of the Independent Commission and its function.”Endnote 146
The Milgaard/Lockyer group proposed that the legislation should contain non-discrimination provisions and also that the new commission should develop its own anti-discrimination policies. It also proposed that the preamble to the legislation should make reference to the over-representation of Indigenous and other groups in the justice system.
The Canadian Bar Association supported positive safeguards: “First, they ensure better access to justice by removing unnecessary barriers to post-conviction review. Second, they recognize historical discrimination against particular groups who have been overrepresented in the Canadian justice system.”’Endnote 147
The Canadian Civil Liberties Association also called for “statutory language affirming the importance of abiding by the equality guarantees contained in the Charter, the Canadian Human Rights Act and applicable international law, as well as an explicit recognition of those groups that are over-represented in the criminal justice system.” It added that “preambles or statements of principles can inform statutory interpretation and assist in ensuring that the legislative provisions are interpreted in a way that takes into account the broader context of the justice system.”
Professor Wesley Crichlow told us that the specificities of certain groups should be named with a focus on anti-Black racism and also a recognition of the intersectionality of discrimination. Both Clayton Ruby and Mary Cornish agreed with the importance of making equality a part of the commission’s mandate. Shawn Richard suggested that the collection of race-based data is important in combating racism and systemic discrimination in the work of the commission.
Pauktuutit Inuit Women of Canada, representing Inuit women, warned against taking a pan-Indigenous approach that in its view inappropriately treats Inuit offenders as if they were First Nations.Endnote 148
The Federal Ombudsman for Victims of Crime stated that “developing non-discrimination policies in legislation ensures consistency and legitimacy.” It urged the commission to “institute operational policies and guidelines that include an anti-racist, anti-oppression framework, as well as cultural humility training and practices centering lived experiences of trauma and victimization to ensure folks most at risk are treated with respect, fairness and dignity.”Endnote 149
We agree with the majority of consultees who supported option 1 of including positive safeguards against discrimination and duties of reasonable accommodation in the commission’s enabling legislation. Reference to groups, including Indigenous and Black people who are over-represented in prison in the preamble to the enabling legislation has some value. Nevertheless, it is not nearly enough.
Operative statement of principles in the legislation should reflect that s. 3 of the Canadian Human Rights Act prohibits discrimination on the grounds of “race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.”Endnote 150
Given existing restrictions on pardons and record suspensions, we favour a simple prohibition on the basis of discrimination due to a criminal conviction while ensuring that all commissioners and staff of the commission should be trustworthy with respect to the necessity of safeguarding confidential information. There is educational value in a statement of equality affirming principles. Such principles extend a tangible welcome to applications from members of disadvantaged groups who may have good reasons to be distrustful of public bodies.
The legislation should also mandate the collection of data about the personal characteristics of applicants and those who receive a remedy from the commission. This data should include Indigenous identification, gender, gender identification, age, membership in a racialized grouping, linguistic, disability and other relevant personal characteristics that may be relevant to the measurement of systemic discrimination.Endnote 151 The commission’s enabling statute should require the collected data to be published in annual reports and benchmarked against the prevalence of these characteristics in Canada’s population and its prisons. The commission should work with Statistics Canada and others to provide this data in order to measure overrepresentation in prisons and whether the commission is accommodating and gaining the trust of applicants from disadvantaged groups who are disproportionately represented in prison. In short, we believe that attention to substantive equality and anti-discrimination should be hard wired into the legislative DNA of the commission.
As is the case with respect to the need for a representative advisory committee, we believe that this feature is vital to the success of the proactive and systemic commission we envisage. We thus make an exception from our general recommendation of allowing the commission to develop and define its own policies. That said, the statutory recognition of positive safeguards from discrimination that we contemplate would not preclude the new commission from augmenting them with its own anti-discrimination policies.
The federal Employment Equity ActEndnote 152 should apply to the commission even if the commission has less than the 100 employees necessary to trigger its provisions. This will help ensure that the workforce of the commission is diverse.
We hope that including these positive safeguards and reporting requirements in the enabling legislation will ensure that the commission positively accommodates applicants from disadvantaged groups and increases access to justice for them.
E. The Mandate of the New Commission
Serious and Less Serious Cases
Option 1: More Serious Cases Only
The North Carolina Commission hears only applications involving serious cases such as murder. Innocence Projects in Canada and the United States also generally restrict themselves to homicide cases and sometimes sexual offences where the issue is not consent.
Option 2: All Criminal Convictions
This option would restrict the new commission’s jurisdiction to cases where a person is convicted of a federal criminal offence under the Criminal Code, the Controlled Drugs and Substance Act, the Youth Criminal Justice Act or the Crimes against Humanity and War Crimes Act.
Option 3: All Convictions under Federal Laws and Regulations
The Minister’s jurisdiction under s. 696.1 of the Criminal Code now includes all criminal cases and federal regulatory offences (enacted for a non-criminal purpose such as environmental or shipping offences) even though regulatory offences do not generally result in imprisonment or have the same stigma as criminal offences.
Option 4: Jurisdiction over all criminal cases but subject to delay or commission policy
The commission could be given jurisdiction over all convictions but then either allowed by policy or by delayed proclamation of parts of its enabling statute to start with the most serious case and later, if resources allow, investigate less serious cases.
What We Heard
The submissions we heard fell into three broad categories. Most consultees told us that the new commission should have jurisdiction to consider even less serious criminal cases because any wrongful conviction was an injustice and could have serious consequences for the individual. Others, including Innocence Canada, the Criminal Lawyers Association and the Federal/Provincial/Territorial Heads of Prosecution group all advised limiting the commission to the most serious cases to avoid overburdening it. Finally, some recommended that the commission initially focus on the most serious cases but then expand into less serious cases should it have the capacity to do so.
All Miscarriages of Justice are Serious
The Canadian Race Relations Foundation cited recent work for the Ontario Human Rights Commission finding that Black people in Toronto constituted 32% of arrests for less serious crimes despite only constituting 9% of Toronto’s population.Endnote 153 It recognized that, given limits on resources, the commission should assign priority to applicants who are still in prison, but recommended that the commission have jurisdiction over less serious crimes. The Federal Ombudsman for Victims of Crime similarly told us: “often marginalized folks are criminalized for less serious cases and therefore there is a need to pay attention to these cases to potentially prevent overrepresentation within the justice system.”Endnote 154
The Canadian Bar Association stated that all criminal convictions should be subject to review because they “make individuals ineligible for certain types of employment, volunteer work and educational opportunities. Convictions can affect access to housing and family law proceedings. They can result in significant travel restrictions and other forms of social stigma.”Endnote 155 Tony Paisana, head of the Canadian Bar Association criminal justice section, told us that based on his extensive work in prisons and the criminal justice system, he simply does not believe that everyone in prison will claim that they were wrongfully convicted.
The Milgaard/Lockyer group also noted the harmful consequences of any criminal conviction. It added: “if the commission’s mandate was restricted to more serious cases, it would mean that there would be a two-tier system for review; for serious cases in application to the commission, for less serious cases to the Minister. This is not desirable.”Endnote 156
The Projet Innocence Québec noted that while most miscarriages of justice involve homicide and sexual assault, “the degree of damage does not always depend on the seriousness of the offence. Beyond damage, we believe that our justice system will improve by ensuring that any miscarriage of justice is corrected.”Endnote 157 The UBC Innocence Project similarly told us that it only accepts serious cases but that this “is strictly a funding issue.”Endnote 158
The Law and Mental Disorder Association told us that people with mental health issues are often convicted or required to plead guilty to less serious cases to obtain access to specialized sentencing. It recommended the commission should have jurisdiction to consider applications in less serious cases.Endnote 159
Many other consultees told us that “a wrongful conviction is a wrongful conviction” and should if possible be corrected with the assistance of the commission.
Serious Cases Only
Mary Ainslie of the BC Attorney’s General office told us that “less serious offences often don’t raise as many concerns for miscarriage of justice. If less serious cases are causing overrepresentation, there are many other ways to address those problems.” The FPT HP Group stated that there are many safeguards such as appeals in less serious cases that involve false guilty pleas. It also said that investigation of such cases could tax police and prosecutorial resources and fail to find new evidence because of varying, but often short, retention periods in less serious cases. This group said it did not want the new commission to be “crushed under its own weight. Aiming for too much too soon will involve a massive expenditure and may result in widespread mistrust among various stakeholders.”Endnote 160
The Advocates Society stated that it was “not realistic to think that the commission will have the resources to address less serious matters on a case-by-case basis,”Endnote 161 but suggested that the commission could deal with such matters by way of systemic reform. Judge Mel Green suggested a similar approach. The Criminal Lawyers Association also supported a focus on more serious cases but would make exceptions for cases where a pardon or record suspension was not available, a person could be deported or would be subject to a long-term supervisory order.Endnote 162 Representatives from the North Carolina Commission told us they were comfortable with only considering serious cases.
Serious and then Perhaps Less Serious Cases
A number of consultees proposed that the commission start with the more serious cases and then, should resources allow, expand to less serious cases. For example, Innocence Canada submitted that such a gradual approach would ensure that the new commission is not “overburdened with reviewable applications at the outset and is not set up for failure from its inception.”Endnote 163
We are persuaded that the new commission should have the ability to hear cases involving all criminal convictions as outlined in option 2 and that it should be allowed to establish and revise policies with respect to the priority to be given to applications as contemplated in option 4. We do not think it is necessary for the commission to have jurisdiction, as the Minister presently does, with respect to federal regulatory offences that do not have the same stigma as criminal convictions. We have been advised by the CCRG that this would make no practical difference as applications are not made with respect to federal regulatory offences. We are also concerned that the present system could result in inequitable disparities if those convicted of a regulatory offence in federal laws could apply to the new commission but that those convicted of regulatory offences enacted by other levels of government could not.
We take seriously the warnings of many experienced consultees that the commission may have enough work to do dealing with serious cases. We think it is best for the commission to have a broad jurisdiction to review and investigate all criminal convictions while also establishing a statutory obligation on the commission to develop public policies about the priority it will assign cases. This would allow the commission to interact with various constituencies in formulating such a policy and to revise policies in light of the applications and resources it receives. As mentioned above with respect to underfunding, public and transparent policies on case acceptance and processing will also allow the commission to signal to the public if it does not have sufficient resources to consider all the cases within its jurisdiction.
We think the approach of requiring the commission to make such policies is better than the option of starting with the most serious cases and only over time building in less serious cases. As the Milgaard/Lockyer group suggests, such an approach begs the question of what happens to applications involving less serious cases in the meantime. Again, the commission’s role generally should not be more restrictive than the present Ministerial CCRG system.
Finally, we agree with the many consultees who told us that the impact of a wrongful conviction depends on all the circumstances, including the offender’s personal characteristics and the collateral consequences of a conviction.
Dangerous and Long-Term Offender Applications
Option 1: Commission can consider Dangerous and Long-Term Offender Findings
This is the status quo with respect to s. 696.1. We were informed that the CCRG rarely receives applications in relation to these findings which are also subject to appeals and periodical reviews by the National Parole Board.
Option 2: Commission cannot consider Dangerous and Long-Term Offender Findings
Those subject to Long-Term or Dangerous Offender designation might still be able to apply with respect to convictions of offences that form the basis for the Long-Term or Dangerous Offender designation.
What We Heard
Most consultees favoured allowing the commission, like the Minister, to have jurisdiction over dangerous and long-term offender cases. There were, however, some exceptions. The FPT HP group stated that the right of appeal, which is more robust for the accused than a regular sentencing appeal,Endnote 164 and subsequent review by the Parole Board after seven years of indeterminate detention and every two years thereafter were adequate.Endnote 165 Representatives of the Parole Board noted the Supreme Court’s 1990 decision to grant habeas corpus on the basis of Parole Board errors in detaining the person for 37 years.Endnote 166 Nevertheless, they were confident that such mistakes would not reoccur. Projet Innocence Québec told us they have never had a dangerous or long-term offender case where they could apply for Ministerial review because the applicant still had appeals available under s. 759 of the Criminal Code. It did note that if successful applications were made in relation to the underlying offence, the dangerous or long-term offender “order would no longer have a legal basis.”Endnote 167
In contrast to Projet Innocence Québec, Kathryn Campbell told us that the University of Ottawa Innocence Project has in recent years received many applications from those designated as dangerous and long-term offenders but because of limited resources and expertise had been unable to assist them.
Jonathan Rudin, Program Director of Aboriginal Legal Services, stressed the need to allow applications to the commission that could consider new evidence relating to the offender’s rehabilitation and risk of future offending. He cited one recent caseEndnote 168 where an offender was diagnosed with schizophrenia and placed on medication after his original designation. This made a very positive difference in his participation in correctional programming and in many other aspects of his life. Mr. Rudin added that Gladue reports about the circumstances of Indigenous offenders are often absent in dangerous offender proceedings.Endnote 169 He noted that even if the person is released by the parole board, they are still under an indeterminate sentence. Finally, he suggested that it may be appropriate to refer a dangerous or long-term offender to a trial court that will be in the best position to consider the new evidence and any other relevant evidence.
Professor David Milward of the University of Victoria has written about the lack of programming for Indigenous people subject to a dangerous or long-term offender designation.Endnote 170 He told us that the commission should have the powers that the Minister of Justice presently has to order a new trial or appeal with respect to long term or dangerous offenders.Endnote 171
Quinn Saretsky of Manitoba Elizabeth Fry told us how she has worked with Indigenous women who have been designated dangerous offenders and become frustrated with the Parole Board’s approach to their continued detention. The courts have indicated that judicial review of Parole Board decisions on a reasonableness standard are preferable to use of habeas corpus based on a violation of the right against cruel and unusual punishment.Endnote 172
Kelly Potvin, the executive director of Elizabeth Fry Toronto and co-president of Thunder Woman Healing Lodge said it was important to have another body other than the Parole Board looking at the continued detention of those deemed dangerous offenders. The Milgaard/Lockyer group supported the inclusion of the dangerous offender designation in the commission’s mandate. They expressed concerns that the parole board may not be adequate in such cases and that the commission can play an important failsafe role.
We believe that any new commission should have jurisdiction to hear applications related to designations of people as dangerous or long-term offenders. This accords with the general principle that the commission should generally not take away rights under the existing system of Ministerial review. This is particularly the case where the impact of a conviction and detention are severe as is the case with potentially indeterminate detention or conditions that can be imposed on those designated as dangerous or long-term offenders.
We recognize that the Parole Board conducts periodical reviews, but we are concerned that offenders may not always have the resources to obtain new information and evidence. They may also not trust the Parole Board to act on any new information.
We are also concerned about the limits of judicial review of Parole Board decisions on general grounds of reasonableness. In our view, new evidence that bears on whether a person was correctly designated as a dangerous or long-term offender should be considered by the commission and then, if appropriate, by the courts on its merits.
We are troubled by the position that Indigenous offenders and other disadvantaged groups may find themselves in before the correctional and parole system. They may be in a difficult Catch 22 position where they are unable to obtain new evidence about their rehabilitation because of a lack of programming or restrictions on programming. We do not believe the commission should aggravate this inequality by ignoring it. Even in cases where an application by a person designated as a dangerous or long-term offender might be rejected because the designation has not been appealed to the Court of Appeal, a proactive commission should, in appropriate cases, make efforts to assist the applicant both in exercising an appeal and finding new evidence related to the person’s rehabilitation and possible placements in the community.
Findings of Not Criminally Responsible Because of Mental Disorder (NCR)
Option 1: Commission Can Consider NCR Findings
This option would expand the jurisdiction of the new commission beyond the Minister’s jurisdiction under s. 696.1, to include a review of findings that a person was not criminally responsible on account of mental disorder. We note the English commission can review similar findings.Endnote 173
Option 2: Commission Cannot Consider NCR Findings
This would follow the status quo. As with the dangerous and long-term offender designations discussed above, this option would leave the fate of those found NCR to the Mental Health Review Boards subject to judicial review.
What We Heard
There was little opposition to including NCR verdicts in the commission’s jurisdiction. The Law and Mental Disorder Association noted that offenders, including young offenders, are sometimes required to accept an NCR verdict to get access to treatment or because of a belief that such a disposition is in the “best interests” of those with serious mental disorders. “Some 10 to 15 years or more later, these accused continue to be detained in high secure environments.” NCR verdicts are difficult to appeal, especially where they are historical in nature and legal aid funding is not available or where it is denied. Clients with serious mental disorders generally also have difficulty representing themselves. Self-representation or ineffective assistance lead to many ‘wrongful NCRs.’Endnote 174
Professor Lucinda Vandervort also submitted that the commission’s mandate should be defined broadly to include NCR verdicts to ensure “meaningful access to an effective remedy”.Endnote 175 The Canadian Bar Association told us that the new commission should be able to consider NCR cases because such persons “may have had legitimate defences that were not pursued, or pursued less effectively, because of the accused’s condition at the time of the trial.”Endnote 176
We support option 1, namely that the commission should be able to hear applications challenging an NCR finding. We add that the commission should be able to refer a case back to the Court of AppealEndnote 177 or a new trial if new evidence is discovered that the convicted person may or may not have been NCR at the time of the offence.
As with the case of reviewing dangerous and long-term offenders, we believe that the new commission can fill an important gap in the present system. To be sure, detention and conditions placed on a person found to be NCR are periodically reviewed by the mental health review boards which are subject to judicial review. That said, no system is perfect. Courts that review the reasonableness of decisions made by mental health review boards may miss important new matters of significance and assume the correctness of the original NCR verdict.Endnote 178 The commission thus has a vital failsafe role to play.
Those living under an NCR verdict may not have the resources necessary to find new evidence relating to the accuracy of their NCR verdict. Also, a proactive commission should take steps to provide some assistance to an applicant in an NCR (or dangerous offender) case where an appeal of the original finding or a judicial review of the subsequent administrative review of their disposition has not taken place but could well be successful.
Other Sentence Cases
Option 1: No Jurisdiction over Sentence
The current Ministerial review system does not include applications with regard to sentence with the exception of dangerous offender and long-term offender designations. There is a large established appellate jurisdiction over sentencing.
Option 2: Jurisdiction over Sentence
The English, Scottish, Norwegian and New Zealand Commissions all have jurisdiction over sentences including both new factual matters and new matters of law.
Option 3: Jurisdiction over Sentences Limited to New Evidence after Appeal by a Person Still Serving their Sentence
The jurisdiction of the commission over sentences could be limited to new factual matters for a person still serving a sentence.
What We Heard
Many consultees told us the commission should not consider applications about sentence. Jacques Larochelle, an experienced defence lawyer in Quebec, told us that the commission’s “aim is to prevent an innocent person from being found guilty.” Justice Anne Derrick told us it was difficult to see how sentencing would fit with the nature of other work done by the commission. Robert Israel of the McGill Innocence Project expressed concerns that reviewing sentences may distract from the commission’s focus on wrongful convictions. Projet Innocence Québec added that it would “be difficult to establish a test for assessing the impact of new evidence because of the judge’s broad discretion in sentencing”.Endnote 179 Amanda Carling, who has worked with Innocence Canada, also expressed concerns that a new commission might be overwhelmed with sentencing matters while at the same time supporting its jurisdiction over dangerous and long-term offender designations. Criminal lawyer Mark Sandler similarly expressed the view that a new commission that considered sentencing cases may be “biting off more than it can chew”. The FPT HP group opposed jurisdiction over sentence given the role of the appellate courts and the need “to consider trauma for victims.”Endnote 180 Colin Carruthers, the head of the New Zealand Commission, observed that some members of the judiciary did not support giving the New Zealand Commission jurisdiction over sentencing. He told us that he “would understand” if Canada decided not to include sentence in the mandate of a new commission.
Others defended jurisdiction over sentences. Representatives of both the English and Norwegian Commissions commented that they considered new evidence related to mental health and diminished responsibility as part of sentencing cases. A representative of the Scottish Commission also defended that commission’s jurisdiction over sentences on the basis that sometimes Courts of Appeal get it wrong. He added that the commission does not operate as another level of appeal court but rather focuses on new information.
Professor Julian Roberts of Oxford and Umar Azmeh argued that “an offender serving a five-year sentence when a two-year term would have been the ’fit’ sentence is the victim of a miscarriage of justice.” They argued appellate review alone will not guarantee protection from all sentence miscarriages, any more than it prevents all wrongful convictions. They also stated that miscarriages of justice at sentence generally “will include fresh evidence which was unavailable to the court at the time of sentencing.”Endnote 181 They noted a study which concluded that the concern “that sentence cases would clog up the [English] Commission’s activities has not been realised in practice”.Endnote 182 They suggested that s. 696.4 of the Criminal Code requiring reliable and relevant “new matters of significance” could be used to ensure that the new commission’s role does not supplant the role of the Courts of Appeal in reviewing sentences. They also cited the overrepresentation of minorities in prison and cutbacks in legal aid funding as reasons supporting including sentence within the jurisdiction of the commission.
Hannah Quirk of Kings College London drew a distinction between points of law on sentencing, which in her view should be directed at the courts on regular appeals, and new facts which can be discovered by the commission and referred back to the courts.
The Milgaard/Lockyer group supported including sentences in the commission’s jurisdiction. David Milgaard urged us not to shut the door on sentencing cases. Senator Kim Pate suggested that it was important to consider sentencing cases so the commission would not be limited to a factual innocence framework that “has resulted in systemic biases against women and particularly Indigenous and other racialized women.”Endnote 183 She and Indigenous women she is assisting, many who are subject to life imprisonment sentences, told us of the many difficulties they faced including with respect to the Parole Board.
Pauktuutit Inuit Women of Canada spoke about the challenges Inuit women, many who do not speak English or French, face in prison. It noted that for parole officials, “the need for healing from previous abuse and abusive relationships are seen as a risk.”Endnote 184
A “lifer” at William Head told us that despite judicial recommendations about when a person serving a life imprisonment should be eligible for parole, many parole officers tell lifers: “you have a life sentence, you are eligible when I say you are!”
The Law and Mental Disorder Association submitted that the new commission should be able to consider sentencing cases in part because of misconceptions linking mental illness with danger that still persist in sentencing.
We heard a range of different views from crime victim advocates on whether sentences should be within the commission’s mandate. Steve Sullivan of Mothers Against Drunk Driving and Karen Wiebe of the Manitoba Organization for Victims Assistance stated that sentencing should not be included in the commission’s mandate given its potential impact on crime victims and the Minister’s present mandate. On the other hand, Bonnie Weppler of the Church Council on Justice and Corrections and Heidi Illingworth, the Federal Ombudsman for Victims of Crime, supported the inclusion of sentencing. Ms. Illingworth added that “convicted offenders should have to exhaust all legal appeals before they are able to submit an application against sentence” and that the commission should inform and allow crime victims to participate. The Court of Appeal should make the ultimate determination of sentence in cases where a commission refers the matter back to it.
Our preference, with some qualifications, is that the new commission should have jurisdiction to hear sentencing cases. The qualification is that new evidence bearing on the fitness of a continuing sentence should have been discovered after an appeal to justify a referral by the commission. In these relatively few but serious sentencing cases, crime victims should have the ability to submit a victim impact statement for the commission to consider.
We recommend that the above restrictions be placed on sentencing referrals to avoid the danger of the commission being a second and perhaps less deferential level of appeal for sentences than the Courts of Appeal.Endnote 185 We are comforted that the England and Scottish Commissions have not been overwhelmed with sentencing cases even though they exercise a broader sentencing jurisdiction than we recommend because they make sentencing referrals based solely on points of law as opposed to new evidence that is relevant to an applicant’s continuing sentence. A continuing sentence is one that is still being served by an applicant.
In addition to the statutory restrictions requiring new evidence, at least one appeal and a continuing sentence, we recommend that the commission should have the flexibility to make policies about the priority it assigns to different types of applications. We would understand if the commission makes applications based only on sentencing a lower priority but we can also imagine situations where there could be justifiable exceptions to that general practice.
We also understand why those who want the commission to focus on factual innocence object to the inclusion of sentence only cases. As discussed in Part B of this report, we take a broader and more traditional approach that is concerned with all miscarriages of justice. We believe that a sentence based on a mistaken understanding of the underlying facts of the offences or a mistaken view about relevant characteristics of the offender can be a miscarriage of justice, especially if the applicant is still serving the sentence.
Option 1: Commission that only accepts applications from living persons
Both the New Zealand and North Carolina Commissions can only hear applications from living applicants.
Option 2: Commission that only accepts applications about living persons except in special circumstances
The Norwegian Commission can only hear applications about deceased persons if special reasons exist.
Option 3: Commission that accepts applications about historical cases involving deceased persons
The English and Scottish Commissions can hear applications about the convictions of dead persons and have referred some of the cases, including old death penalty cases, back to the Court of Appeal.
What We Heard
Most consultees supported allowing the commission to hear applications involving deceased persons. Tamara Levy of the UBC Innocence Project noted that many who have served long sentences of imprisonment are in poor health. Her project has applicants who have died and others who are in ill health.
Representatives of Innocence Canada, the Milgaard/Lockyer group and exonerees all told us that the stigma of a criminal conviction is intergenerational and impacts the family and community of a convicted person. They noted the importance and influence of the English Commission’s referral of historical death penalty cases.
The Canadian case of Wilbert Coffin who was executed in 1956 is still under active review by Innocence Canada. Kathryn Campbell of the University of Ottawa Innocence Project told us from first-hand experience how the Coffin family and his community are still very much affected by the case.
David Marshall has explained how his brother Donald Marshall Jr.’s wrongful conviction harmed “our family, my parents, my brothers and sisters, our community of Membertou and our Mi’kmaw Nation… We felt hurt, hopeless and helpless. We were shamed. Our self-worth was challenged every day because people thought our brother was a murderer. It generated fear and mistrust of everyone, but especially the police, lawyers, judges and jails. We lived mired in racism and our hearts were broken.”Endnote 186
Some consultees including Dean David Asper Q. C. and representatives of the New Zealand and Scottish Commissions suggested that the commission should set a threshold for historical cases such as an interest of justice test or policies where the cases of living persons get priority.
Jean Teillet, a leading Métis lawyer and the great grandniece of Louis Riel, told us that she opposes an application for a pardon for Riel’s treason conviction because it would suggest that the Canadian state is forgiving the Métis whereas it should be up to the Métis to decide whether to forgive the Canadian state. She indicated that it should be up to the affected communities and family to decide whether to proceed with an application that focused on whether the conviction was a miscarriage of justice.
A few consultees raised concerns about cases of deceased people. They were concerned about diverting limited resources from cases involving the living. The FPT HP group also articulated these concerns but suggested that the commission could refer an historical case in an exceptional circumstance that complied with the court’s restrictions on hearing appeals about the conviction of deceased persons where it suggested that scarce judicial resources should generally only be expended in cases where there was fresh evidence “that suggested the factual innocence of the convicted offender.”Endnote 187
We accept that the truth never dies and that families and communities suffer stigma and distrust long after the person who has been convicted, imprisoned and perhaps even executed has died. We recommend option 2 which would provide the commission with some discretion to decide whether it was appropriate to proceed with a historical case. We agree with Jean Teillet that the commission must pay attention to whether the relevant families and communities support the application. We also recognize that in some cases communities and families may be divided.
There are a number of ways that the commission could be given structured discretion to decide whether to proceed with an application on the basis of a deceased person. One would be to include a specific statutory provision providing that applications on behalf of the deceased should only be considered in special or exceptional circumstances, or when the interests of justice demand. Another would be to allow the commission to formulate its own policies with regard to such matters and to adjust them in light of its experience and consultations. We prefer the latter approach because of its flexibility and because it requires the commission to be proactive and to reach out to affected families and communities and listen to their concerns. We do not believe that an independent commission should be bound by or attempt to predict judicial decisions about when it will hear a moot case.
Option 1: Reactive Commission that responds only to applications
The North Carolina, English and Scottish Commissions generally have not intervened in systemic matters related to the causes and prevention of wrongful convictions. There are concerns that such involvement might compromise the independence of the commission and strain its limited resources.
Option 2: Commission that also does systemic reform work
The New Zealand Commission has a specific statutory mandate to inquire into systemic issues about policies, procedures and other general matters contributing to miscarriages of justice.Endnote 188 The Runciman CommissionEndnote 189 that recommended the creation of the England Commission also contemplated that it should “be able to draw attention…to general features of the criminal justice system, which it had found unsatisfactory, in the course of its work and to make any recommendations for change that it thinks fit.”
What We Heard
Most consultees supported giving the commission a systemic reform mandate, but quite a few opposed it. Both the representative of the Scottish Commission and Professor Chris Sherrin of Western University warned that a systemic mandate could sap the limited resources of the commission and involve it in controversy. Professor Ed Ratushny of the University of Ottawa and Hannah Quirk of Kings College suggested that the perceived impartiality of the commission could be undermined if it made representations on matters of systemic reform designed to prevent miscarriages of justice in the future. Jacques Larochelle, an experienced defence lawyer who has acted in wrongful conviction cases, opposed a systemic mandate for the commission on the basis that the problems with miscarriages of justice were with the people applying the rules and not with the rules or institutions themselves. He predicted the new commission would be overwhelmed with individual cases and will not have the time to deal with social issues.
Colin Carruthers, the Chair of the New Zealand Commission, told us that because of higher numbers of applications than expected, his commission did not have immediate plans to conduct general inquiries into systemic matters and that it may require additional funding in order to discharge its systemic mandate. Projet Innocence Québec warned that given the demands of investigations, “the commission should not deviate from its primary mandate to correct (current) miscarriages of Justice…This does not prevent the Commission from making recommendations, following a review of a case, on practices to be improved from a systemic point of view.”Endnote 190
The FPT HP group observed that the current Ministerial review system does little to contribute to reform, in part because the results of its investigations remain confidential. As discussed under part B of this report, the confidentiality of a commission’s reasons is part and parcel of the reactive model used in England and Scotland, whereas the publication of the commission’s reasons as required under the New Zealand legislation can support systemic reform.
The FPT HP group drew a useful distinction between the legitimate role of the new commission in educating about wrongful convictions and having the commission act as advocate for change, which it warned could undermine the commission’s perception of independence. Innocence Canada also strongly supported the commission having an educational role. It noted that many commissions of inquiry in Canada have called for criminal justice participants to be educated about the causes of wrongful convictions and how to prevent them. Innocence Canada has done what it can, but observed “not much has been done to implement national programming. The reality is that most educational initiatives and advocacy efforts fall to under-funded organizations such as Innocence Canada.”Endnote 191 It observed that effective education and prevention have the potential to benefit the commission by reducing the number of applications it receives.
The Canadian Civil Liberties Association argued that police complaint bodies, the correctional investigator and privacy commissions all engage in systemic reform without undermining their ability to impartially investigate and decide complaints.Endnote 192 Senator Kim Pate suggested that a solely reactive commission would just “reinforce existing bias and approaches”.Endnote 193 Nigel Marshman of Justice Canada,Endnote 194 academic and defence lawyer Joshua Sealy-Harrington and Catherine Latimer of the John Howard Society all suggested that the commission should produce annual reports where it would identify systemic issues and patterns emerging from individual applications.
Representatives of Innocence Canada, Nigel Marshman and Moose Jaw Chief of Police Rick Bourassa suggested that the commission should also have the power to make policy recommendations to an appropriate body and initiate investigations and inquiries into other cases where similar themes may be present. The issue of the ability of the commission to refer matters to other bodies will be discussed below.
The Federal Ombudsman for Victims of Crime stated that “the Commission should be proactive and have the ability to address systemic concerns that may lead to wrongful convictions and miscarriages of justice. Being an independent agency, it should make recommendations to the legislature… We know that systemic discrimination and racism plague policing and the criminal courts across Canada – it will be important for the Commission to proactively address such concerns, hold systems to account and offer solutions.”Endnote 195 Naïka Champaïgne of Jeunes Queer Youth told us that “investing in workshops organized by community organizations/stakeholders is a good way to disseminate and share information.”Endnote 196
Recommendations 24 and 25
As discussed in Section B of this report, we believe that Canada requires a commission that has a systemic reform mandate. At the same time, we take seriously those who have warned that a systemic mandate requires adequate resources and that the commission should be more concerned about raising awareness and facilitating education and research into the causes and prevention of wrongful convictions than acting as an advocate for reform. We believe that both the advisory committee we recommend and the Innocence Projects and other community groups are in a better position than the commission to advocate for systemic reform.
As noted by Viscount Runciman in his commission report, one legitimate venue for systemic concerns is the commission’s annual reports. Like the federal Correctional Investigator, the commission should make its annual reports readable and newsworthy. If the commission is to gain public confidence, it should be as transparent as possible and publish as much information as it can about its work.
As discussed previously, the commission’s annual report should include data about the personal characteristics of those who apply and receive remedies from the commission relative to the levels of racial and other forms of overrepresentation in prisons. The annual report should also report on the eventual disposition of referrals and comment on national and international trends with respect to wrongful convictions. This will require adequate resources.
In order to ensure that the commission’s systemic reform mandate does not become neglected, we recommend that one vice-chair be given responsibility for systemic reform initiatives. All staff and commissioners should be encouraged to flag systemic issues that arise in their work and report them to that vice-chair. We agree with the Canadian Race Relations Foundation’s recommendation that the commission’s “case review protocol should incorporate a layer of review that examines the role that racism might have played in the conviction of Black, racialized and Indigenous applicants.”Endnote 197
Retired Supreme Court Justice Marie Deschamps, who is now the head of the National Security and Intelligence Review Agency, told us about one initiative that we believe the new commission should emulate. That agency hosts regular educational sessions where academics and others speak and exchange information with both the members of the agency and the staff. The new commission should be committed both to continuing education and educating all criminal justice participants about miscarriages of justice.
F. The Commission and its Relations with Applicants, Innocence Projects and Victims of Crime
Outreach and Support for Applicants
Option 1: Reactive Commission with Minimal Support and Communication with Applicants
There are no obligations in s. 696.1-696.6 of the Criminal Code or the regulations with respect to outreach or support for applicants. We were told that the CCRG has on occasion purchased transcripts and assisted applicants in meeting the quite onerous requirements discussed in part C of this report for a complete application. The CCRG has not implemented an “easy read” application form or the use of languages other than French and English.
Option 2: Proactive Commission that Conducts Outreach and Supports for Potential Applicants
All of the five foreign commissions conduct some form of outreach in prisons. They have all translated information sheets and applications into other languages. The English Commission saw a significant increase in applications as a result of increased outreach and an “easy read” application form. The New Zealand Commission has statutory duties to raise public awareness of its function. It has also hired a full-time engagement manager and a half-time communication advisor. The North Carolina Commission has translated its application form into Spanish. The Norwegian Commission has a statutory duty to assist applicants and has appointed interpreters to assist with applicants.
What We Heard
Most consultees favoured the commission taking a proactive approach that reaches out to inform people about its work and provides support for applicants. The few consultees who raised concerns about outreach and support expressed concerns that the commission may not have adequate resources to conduct its work and that it would attract applications from those who had not exhausted their appeals. The FPT HP group, while not opposing simplified applications and targeted outreach, warned that “overly active outreach risks undermining the independence and objectivity of the CCRC.”Endnote 198
Most consultees supported allowing the commission to conduct outreach and initiate investigations. At two roundtables we held with exonerees, we were told time and time again how the support of Win Wahrer, Innocence Canada’s Director of Client Services, helped them and their families by providing support and hope during the long process of exoneration. Innocence Canada recommended that the new commission have a similar dedicated person who could be an exoneree “as this may increase confidence in the Independent Commission from the perspective of the wrongfully convicted…”.Endnote 199 Innocence Canada also suggested that outreach must be done in Indigenous communities and should be tailored to each community’s culture and language. They suggested that French language outreach is necessary. Most consultees stressed that the commission’s outreach must be culturally and linguistically sensitive.
Almost all consultees supported the commission having statutory requirements for translation and communication assistance. Representatives of the New Zealand Commission told us that work was done on their application form to make it linguistically accessible. Representatives of UBC’s Innocence Project and Innocence Canada suggested that language interpretation should be provided beyond Canada’s official languages. UBC’s Innocence Project suggested that these policies should be developed by the commission and not by statute.Endnote 200
Gregory Stratton, an Australian academic who studies wrongful convictions, told us about an Australian wrongful conviction of an Indigenous man, Gene Gibson, who spoke Pintupi and Kukutja, but barely English. Mr. Gibson was charged with murder but pled guilty to manslaughter in English court proceedings.Endnote 201 He received a $1.3 million payment for 7 years in jail with the crime victim’s family expressing support for the result. There were also recommendations that the police be more culturally competent.
The Royal Commission on Donald Marshall Jr.’s wrongful conviction found that when Mr. Marshall testified before the courts in English, he was asked 29 times to speak up and this may have affected their determinations that Mr. Marshall was not telling the truth. The Royal Commission reported that when Marshall gave his evidence to the commission in the Mi’kmaq Algonquin language spoken by nearly 11,000 Mi’kmaq today, “Marshall’s ability to express himself freely in his native language introduced a comfort level to the proceedings that were absent in his other court appearances. It had the positive effect in obtaining the best evidence possible from the witness.”Endnote 202 The Commission believed Marshall. In contrast, the jury that convicted him and the Court of Appeal that acquitted him but blamed him for his own wrongful conviction did not.
Many consultees told us that translation and communication assistance must be provided for all Indigenous languages spoken in Canada and that cultural training is central to effective communication. We were told that the inadequacies of language services in the criminal justice system “can itself be seen as a cause of wrongful conviction and the CCRC should work to correct this error”.Endnote 203
Nigel Marshman, Department of Justice head of the present system of Ministerial review, the CCRG, suggested that accommodation should be provided on a case-by-case basis.Endnote 204 The Federal Ombudsman for Victims of Crime told us that additional modifications for communication needs should be provided, such as offering video-conferencing or voice synthesizers.Endnote 205
Many consultees told us that “collaborating is really valuable” and should be done by utilizing the existing knowledge and networks of community organizations and representatives, especially for communities where mistrust in the criminal justice system exists. Consultees suggested different forms that outreach could take, including raising public awareness about the commission; locating particular groups who are systematically excluded and/or vulnerable, and having a “navigator” who assists in outreach in such communities.
Representatives of David Milgaard’s Independent Review Board Working Group told us of the need for multi-modal outreach such as using videos, plain language pamphlets and inter-personal outreach. Judge Corrine Sparks and Sylvie Blanchet suggested that anyone conducting outreach should have appropriate training, particularly in trauma. The Federal Ombudsman for Victims of Crime told us that referral mechanisms for legal, health, mental health and other community supports should also be part of the commission’s outreach mandate.Endnote 206
Alena Pastuch told us that she has been a self-represented litigant including representing herself in a five-month trial. She suggested that the commission should make prison visits and that “language translation would be a huge component”. She has a housemate in the federal prison in Edmonton who spoke Swahili and “did not understand any of her legal proceedings, nor her parole hearings.”Endnote 207
We heard from representatives of the North Carolina Commission about its plans to have the person currently designated to provide support for crime victims also provide support for applicants and in particular exonerees who are also victims of injustice and often released without support. As they noted, both victims of crime and exonerees are victims of the justice system. They told us that the victim support person in their commission works independently of those lawyers who investigate the case. This means that the commission’s support person can serve as a check if the commission’s investigators do not act in an appropriate manner.
We recommend a proactive mandate that reaches out to potential applicants and supports applicants. Such a mandate is desirable for several reasons. First, the commission must be proactive if it is to receive more applications for relief than the present reactive Ministerial review system. As discussed in part C, the reactive Ministerial system receives far fewer applications each year than commissions in countries that have much smaller populations and prison populations than Canada.
Second, a proactive and systemic mandate is necessary to gain the trust of those who have been convicted and believe that they are victims of a miscarriage of justice. This is particularly true with respect to Indigenous, Black, and other disadvantaged groups. Without proactive engagement, many people who have been convicted of an offence may see the commission as simply another part of a system that they believe - sometimes with good reason - has failed them.
We were struck by the perceptions of many experienced lawyers and Innocence Projects in England that see the English Commission as a body that is distant from applicants and their lawyers. Michael Naughton of the University of Bristol told us that many in the innocence community in England see the commission as unconcerned, both with applicants and their innocence. Representatives of the Cardiff Innocence Project raised similar concerns.Endnote 208 It is not for us to judge the merits of these concerns, but we believe that the new Canadian Commission should take all reasonable efforts to avoid such damaging perceptions.
We agree with the many consultees who argued that a new commission should work in collaboration with Innocence Projects and lawyers concerned about wrongful convictions. A commission must be independent from the government but that does not mean that it should be aloof to applicants in the same way as a court which discourages ex parte or one-sided communications.
Representatives of the New Zealand Commission told us that their aim is to treat applicants with more respect and compassion than they have been treated, even sometimes by their own lawyers, in the criminal justice system. They told us they want to do something truly different in the criminal justice system. We agree and indeed were inspired by the New Zealand Commission’s aspiration in this regard.
Even when the commission does not refer an applicant’s case back to the courts, it should have the resources to take a caring and helpful approach that may be of assistance to those aggrieved by how the justice system has treated them.
Should Applicants be Required to Waive Solicitor Client Privilege?
Option 1: Waiver Requirement
The present Ministerial review CCRG routinely asks applicants to waive solicitor client privilege so that their lawyers may reveal what was said in confidence between applicants and their lawyers for the purpose of obtaining legal advice. The English Commission requires such waivers, but on a case-by-case basis. Applicants to the North Carolina Commission are required to waive all legal privileges after receiving independent legal advice.
Option 2: No Legislated Waiver Requirement
Section 38 of New Zealand’s Criminal Cases Review Commission does not require privileges to be waived, but a court can on a case-by-case basis order that the commission should have access to privileged information.
A number of Canadian Law Society Acts provide that investigator can have access to material covered by solicitor client privilege for the limited purposes of investigation and subject to confidentiality requirements designed to protect solicitor client privileges for all other purposes.Endnote 209
What We Heard
Representatives of the North Carolina Commission told us that recent amendments to their legislation that require an early waiver by applicants of all legal privileges can be administratively awkward because of requirements that the applicant receive independent legal advice before signing a waiver. A representative of the Scottish Commission told us that waivers are not required because of other provisions that require applicants to assist the commission in its work.
The Milgaard/Lockyer group expressed concerns about blanket requirements that applicants waive solicitor client privilege and preferred that the commission decide this on a case-by-case basis.Endnote 210
We recommend option 2 of having no legislated waiver requirements for applicants. We are concerned that the commission’s early encounter with applicants should not start with requirements that applicants waive their rights. We believe this could create an impression that the commission could harm applicants and is simply another part of a criminal justice system that applicants may perceive to be stacked against them. Representatives of the North Carolina Commission also told us that the necessary process of ensuring that applicants receive independent legal advice before waiving their privileges can cause delay.
Applicants, especially Indigenous, Black and other racialized and disadvantaged applicants, are in a vulnerable position and should not generally be required to waive solicitor client privilege over their past communications with their lawyers. Once a legal privilege is waived, it is generally waived for all purposes. As will be discussed in greater depth in Part H of this report, we recommend that the commission’s enabling legislation have provisions similar to those found in the British Columbia and Ontario Law Society ActsEndnote 211 that would allow the new commission to obtain access to material subject to claims of privilege in a confidential manner for limited purposes connected to the commission’s functions while the privilege is protected and preserved for all other purposes.
Should the Commission be Able to Appoint Counsel for Unrepresented Applicants?
Option 1: No power to appoint and reliance on existing legal aid schemes
Most of the commissions rely on existing legal aid schemes to provide representation of applicants. Legal aid cuts in England mean that less than 10% of applicants now have lawyers, down from about a third.
Option 2: Power to appoint
The commission could be given the power to appoint counsel when it considers necessary. Section 397 of the Norwegian Penal Code provides that the commission may appoint defence counsel “when special reasons so indicate” and these counsels are paid from state funds.
What We Heard
Many consultees told us that funding for legal representation of applicants should be available. Some told us that some applicants may not trust the commission’s staff and lawyers or if they do, they may think that they are lawyers for them whereas they will be employed and answerable to the new commission.
Lawyers who have represented many applicants before the English Commission told us that the commission’s provisional reasons to reject applications are often legally complex and require a lawyer to respond to them.
The CCRG provided us with a nine page redacted letter given to an applicant whose application was rejected at preliminary assessment and did not proceed to investigation. The letter was legally complex. It raised many points of law with respect to the admissibility of fresh evidence and disclosure obligations.
We were told by almost all consultees that provincial legal aid offices are stretched to capacity and that we could not rely on them to provide funding for applicants. For example, the Law and Mental Disorder Association told us that the legal aid system is overwhelmed and that people “fall through the cracks”.
Alena Pastuch provided a concrete example. She initially had legal aid but, “they did not have enough resources and dropped my case, thus forcing me into a Rowbotham application that traumatized me further. I had to self-represent in a 5 month criminal trial with a mental health permanent disability. It was a recipe for disaster for all parties involved.”Endnote 212
The Association of Legal Aid Plans of Canada (ALAP) stated that, “without additional directed funding from the federal government, legal aid plans are simply unable to commit to providing additional services or payments” including those to help applicants prepare an application for the new commission, respond to its provisional decisions, or represent people when the commission refers cases back to the court. This is true even though both commission and advocates agree that such funding can assist the commission and applicants. Federal funding to the commission - as is now provided to fund Rowbotham court appointments of counsel - is required.
ALAP observed that Legal Aid Ontario, the largest legal aid plan, has funded applications for Ministerial review but that they “commonly exceed several hundred thousand dollars and even close to a million dollars in total expenditures”. That includes not only legal fees but “just as importantly, the necessary funds to conduct further investigations, and obtain expert reports.”Endnote 213 ALAP also suggested that there should be a restricted panel list of wrongful conviction defence counsel that could provide applicants who require a lawyer with some choice of counsel. Allowing applicants such choice may assist in overcoming the mistrust in counsel and the justice system that many wrongly convicted persons feel.Endnote 214
Innocence Canada suggested that dedicated funding would benefit vulnerable applicants because it would provide access to specialized lawyers. They emphasized that correcting wrongful conviction is a specialized subset of defence work.
Many consultees told us that legal representation should be automatically available for youth applicants.
Projet Innocence Québec suggested that lawyers who work for the commission should not represent applicants. It suggested that the commission should mainly assist pro bono lawyers or lawyers who are paid by legal aid to obtain necessary documents and expert evidence that are not otherwise available. At the same time, it contemplated that the commission should be able to provide funding for applicants “who do not have access to legal aid and are otherwise unable to retain counsel.”Endnote 215
We have been convinced that in some cases, the new commission should be able to fund counsel for applicants, especially disadvantaged applicants, but only when the commission determines it is necessary for the efficient or fair processing of an application, and only where it is clear that private and provincial legal aid funding is not available.
We recognize that having the commission pay for private counsel could place a strain on limited budgets, but we believe that the commission should have the flexibility to do so in some cases. For example, we can imagine a situation where a vulnerable applicant may have a good relationship with a lawyer experienced in wrongful conviction work. In such a case, allowing the commission to pay that lawyer may be both the most humane and efficient way to process an application. Similarly, where the commission makes a provisional decision to reject an application, it may not be fair to expect an unrepresented applicant to provide an effective response before the decision is finalized.
The commission’s enabling statute could require it to make policies to govern when it will provide funding and at what rates. We do not think that funding for counsel for applicants should be routine. The new commission, like the existing foreign commissions, will function largely as an inquisitorial body. It will employ lawyers, support workers and investigators who will do most of the commission’s work. We agree with ALAP when it states “the more the commission is able to take on an independent and inquisitorial role, the less funding that will be needed for applicants to retain their own counsel.”Endnote 216 That said, the independent commission should have the flexibility in appropriate cases to pay for counsel for applicants when it is necessary to fairly and efficiently decide an application.
Relationship with Innocence Projects
Option 1: Innocence Projects are no Longer Necessary
A publicly funded commission could be said to replace the need for Innocence Projects. A public commission will have much easier access to relevant material and relevant experts and better funding than a voluntary Innocence Project.
Option 2: Innocence Projects as Lawyers for Some Applicants
There is some evidence that applicants to the English Commission who are represented by lawyers, including Innocence Projects, have a higher referral rate than unrepresented applicants. As discussed above, lawyers who specialize in miscarriage of justice work can assist in preparing applications, responding to the commission’s provisional decisions, and representing applicants when a commission refers a case back to the courts.
Option 3: A Collaborative or Partnership Approach between Innocence Projects and the New Commission that Includes Possible Funding
The new commission could collaborate with Innocence Projects on both casework and systemic issues and be able to make grants to those Innocence Projects.
What We Heard
None of the Innocence Projects that we consulted told us that the creation of a commission would or should put them out of operation. All were interested in exploring the optimal role for Innocence Projects once the commission was created. Some thought that Innocence Projects might have more time and resources to devote to systemic reform. Others thought that Innocence Projects and exonerees could play an increased role in the aftercare and reintegration of those who had been wrongfully convicted. Finally, some stated they still have a role to play in representing both applicants and others before the courts.
Retired Supreme Court Justice Morris Fish, who is currently the Minister’s special advisor on wrongful convictions, suggested that Innocence Projects may have a particular role to play, especially in cases where legal aid was not provided or appeals not exhausted.
Representatives of the University of Cardiff Innocence Project told us of the active role that they play in helping applicants before the commission for England, Wales and Northern Ireland. The Canadian Bar Association recommended that “discretionary funding should also be allocated to Innocence Projects and lawyers with special expertise in areas that might arise in wrongful conviction cases (e.g., forensic science, youth)”.Endnote 217
Professor Bibi Sangha and Dr. Bob Moles of Flinders University in Australia, suggested that the existing foreign commissions “have taken the view that they should take responsibility for the whole of the investigation. As a result, those working within the Innocence Project movement and others have felt sidelined.” They argued that “there is in principle no reason why those working on wrongful convictions and CCRCs should be run as separate fiefdoms.”Endnote 218 They proposed that the Canadian Commission should undertake “partnering projects” with Innocence Projects in different parts of the country.
Finally, we heard from university sponsored Innocence Projects that students participating in them find them to be a tremendous learning experience about a unique aspect of the criminal justice system. Often the students continue their volunteer work with the Innocence Project after they conclude their law school studies.
We are convinced that Innocence Projects still have vital roles to play after a new commission is established. We thus recommend option 3 that contemplates a collaborative approach with Innocence Projects and would allow the new commission in its discretion to provide funding to Innocence Projects when it would contribute in an efficient and effective manner to the discharge of the commission’s mandate. We do not think it is helpful to be overly prescriptive about the nature of this collaboration or funding.
Professor Bibi Sangha and Dr. Bob Moles suggested that Innocence Projects could in different parts of the country assist the commission both with respect to casework and systemic reform issues.Endnote 219 Innocence Projects which receive the necessary support and funding including from the commission could also devote more time to reintegration support, after-care and systemic reform. The vital work of Innocence Projects will not be done once the new commission is created.
Notification, Participation and Support of Victims of Crime
Option 1: No Notification, Participation or Support
The legislation creating the English and the Scottish Commissions in the 1990s did not mention victims of crime.Endnote 220
Option 2: Notification but no Participation.
Most commissions will notify crime victims in the minority of cases in which they refer a conviction or sentence back to the courts. In some cases, crime victim notification may occur earlier because of their involvement in the commission’s investigation.
Option 3: Notification, Participation and Support
The Canadian Victims Bill of RightsEndnote 221 gives crime victims the right, upon request, to information about the status and outcome of an investigationEndnote 222; to “convey their views about decisions to be made”Endnote 223 and to present a victim impact statement.Endnote 224 The CCRG told us that it considers itself bound by this legislation. The North Carolina Commission must, by statute, notify crime victims or next of kin and allow them to express their views when an application has reached the formal inquiry or commission hearing stage. That commission also has a crime victim support person. The Norwegian Commission can appoint counsel for crime victims and their next of kin and did so in 11 cases in 2019/2020.
What We Heard
Most consultees supported notifying crime victims before the commission refers a case, but were more divided on victim participation. We were told by Bruce MacFarlane QC that notification of the families of deceased victims of crime can raise extremely difficult issues. Families may question why, after a guilty plea or conviction and an appeal, the conviction is being challenged. Even more troubling, families may be divided on how to respond.
Representatives of the Scottish Commission and Moose Jaw Police Chief Rick Bourassa who is on the Victims of Crime committee for the Canadian Association of Chiefs of Police told us that crime victims should be kept updated throughout the process. Representatives of Norway’s Commission told us that victim notification could be assessed case by case, but should always occur where a case will be widely publicized.
The FPT HP group suggested that the new commission should have funding for a victim support position because even existing victim services will not be familiar with the process. It added: “If the mandate of the CCRC will include sexual offences, it seems inevitable that victims will have a role in providing evidence to investigators. Thought should be devoted to whether victims should be provided with independent legal advice, whether ss. 276 and 278 et seq. of the Codewill be triggered.Endnote 225
Various advocates for women and gender justice, as well as Innocence Canada, told us that victims should not be notified until a case is referred, otherwise it may be re-traumatizing for crime victims. Other consultees suggested that crime victims should be notified earlier at the investigation stage. One consultee said that crime victims should be notified once an application has been made to the new commission.
Drawing on her extensive experience in both international and domestic criminal justice, Élise Groulx, the honourary President of the International Bar, urged that the new commission not exclude victims of crime. She noted that as a former defence lawyer in Quebec, she was initially reluctant to grant victims of crime rights of participation, but has become convinced that an increased role for crime victims is essential to the legitimacy of any criminal justice institution. She warned that the exclusion of crime victims could likely result in their opposition to the process.
The Federal Ombudsman for Victims of Crime told us that the Canadian Victims Bill of Rights suggests that some participation may be required. We were told that crime victim participation is important “for the perception of justice” and that for some, such as Indigenous communities, participation is central to “restoring harmony”.
Other consultees did not support victim participation. Projet Innocence Québec questioned the relevance of a victim’s “perspective on the significance of new evidence to the verdict or the fairness of the trial”. It noted that while crime victims could be notified, “such notification could unduly create a period of uncertainty for them that could cause additional harm.”Endnote 226
Professor Lucinda Vandervort suggested that victims be notified, but “their participation would be subject to the discretion of the commission. This affords flexibility as would be required in instances where the commission could be assisted by the victim’s participation but otherwise bars victim participation.”Endnote 227
We recommend option 3 of notification, support and participation because we believe that crime victims in wrongful conviction cases, like the wrongfully convicted themselves, are people who have been failed by the justice system. As Justice Beard observed in her decision to release Kyle Unger from prison on bail pending a Ministerial review decision, after he served 13.5 years of a murder sentence, “this proceeding will no doubt be raising difficulties for the victim’s family, as they are forced to relive the horrible events surrounding the murder of the 16-year-old victim, the years of court proceedings that followed and the publicity that accompanied those proceedings. The stress for both them and Mr. Unger and his family as they await the final outcome of this application will be great, and I can only encourage those directing this matter to proceed as quickly as is possible without detracting from the thoroughness or fairness of the review.”Endnote 228
We agree with the vast majority of consultees who told us it would be unnecessary to notify crime victims in every case of an application. We also agree that “one size does not fit all”. We support giving the commission the flexibility to make and revise its own policies on victim notification, participation and support. It should do so in consultation with those who represent and work with crime victims.
If the commission is subject to the Canadian Victims Bill of Rights, limited participation by crime victims will be possible. We recognize that many consultees objected to such participation, but we do not believe that allowing crime victims to convey views about the commission’s decisionsEndnote 229 and present victim impact statements with respect to sentencing applicationsEndnote 230 will be inconsistent with the commission’s mandate to help correct miscarriages of justice in a way that is respectful of all affected persons. We are confident that an independent commission will give due weight to submissions by crime victims and apply the criteria for referral in an impartial and fair manner.
G. Preliminary Decision-Making and Bail Pending the Commission’s Decision
Acceptance and Initial Screening of Applications
Option 1: Commission Defines its own Screening Process
The English Commission has developed its own policies for when applications can be heard without an exhaustion of appeals in “exceptional circumstances”.Endnote 231 Applications can be rejected by a single commissioner. It also has a policy that allows the director of casework to declare an applicant persistent, abusive, and malicious. Once this is done, the applicant’s communication will no longer be answered.Endnote 232
Option 2: Statutory Requirements for Acceptance and Initial Screening of Applications
Section 696.1 of the present Ministerial review system requires that an applicant’s “rights of judicial review or appeal have been exhausted” This has been interpreted to require at least an appeal to the provincial Court of Appeal, but not necessarily the seeking of leave to appeal to the Supreme Court of Canada.Endnote 233 As discussed in Part C of this report, the regulations require relevant court decisions, transcripts and material submitted to the courts to be provided before an application is considered complete.
The New Zealand Commission is empowered by statute to take no action or further action in cases where, in its opinion, the application is “frivolous, vexatious or otherwise not made in good faith” or “for any other reason, the commission believes that it is unnecessary or inappropriate for it to take any action or further action.”Endnote 234 The requirement for appeals to be exhausted is not an absolute statutory requirement in New Zealand, but a statutory consideration.Endnote 235
What We Heard
Most consultees favoured a flexible process to accepting and screening applications without rigid statutory requirements. We were told that the “commission must be given the greatest latitude” to “develop its own procedures based on available knowledge, international experiences… and the Canadian situation”.Endnote 236 Professor Mai SatoEndnote 237, defence lawyer Mark Sandler, and defence lawyer Annamaria Enenajor told us that commissioners should have flexibility at the screening stage, especially when reviewing applications from vulnerable individuals. We were told that legislation defining a fixed requirement for accepting applications would “create accessibility barriers”.Endnote 238
We also heard from representatives of the North Carolina Commission about the importance of allowing the executive director of the commission, as opposed to the commissioners, to dismiss applications as outside of the commission’s jurisdiction. Similarly, Innocence Canada told us that case reviewers should be able to reject applications that are outside of the commission’s jurisdiction.Endnote 239 It will be important for the commission to provide detailed reporting on why applications are rejected.
Some consultees told us that a legislative threshold “offers transparency and accountability”. They raised concerns that a commission screening process would be too discretionary and that having clear statutory criteria is more desirable.
UBC’s Innocence Project told us that any statutory criteria should recognize the impact of wrongful convictions on marginalized groups.Endnote 240 The Canadian Race Relations Foundation said that the screening process must have mandatory requirements to examine the role of racism in any given case. The Milgaard/ Lockyer group told us that the legislative threshold should pertain exclusively to the exhaustion of appellate remedies.Endnote 241
The vast majority of consultees told us that a single commissioner should not have the power to make a decision at any stage in the application, investigative or referral process. The FPT HP group warned that multiple decision makers “inevitably leads to lengthier delays”Endnote 242 but others such as Professors Ireland (University of Manitoba) and McLellan (University of Algoma, Innocence Compensation Project) told us that having a single decision maker risks inconsistency, a perception of unfairness and the potential for bias. Similarly, Jean-Claude Bernheim of the John Howard Society of Quebec, suggested that a minimum of three commissioners should be necessary to reject an application. Judge Mel Green suggested that one dissent in a panel of three commissioners should be taken as an indication of the need for the case to be considered by the entire commission. At the same time, representatives of the New Zealand and English Commissions, as well as some experienced practitioners, told us that it is impractical to require the entire commission to be involved at every stage for each case, though we were told that is the practice in Scotland.
We recommend that the new commission have the flexibility to define its own acceptance and screening policies without rigid statutory requirements. We also do not think that there should be a rigid exhaustion of appeal requirement as under s. 696.1 and that it should be subject to exceptions in circumstances defined by the commission. We urge that the commission be flexible and generous in this regard because as the Milgaard/Lockyer group stated, those who have suffered miscarriages of justice should not be denied justice because of the mistakes of their lawyers. Applicants should not be denied justice because they did not know they could still appeal or could not obtain funding for an appeal. In appropriate cases, the commission should assist applicants in exercising their rights to appeal. What must be avoided is an overly bureaucratic, harsh and unkind “tick box” mentality that mechanically denies applications because there has been no appeal and then offers no assistance to rejected applicants. Both the Canadian and foreign experience suggests that the new commission will “reject” most applications. At the same time, it is important that the commission have the necessary resources and desire to be of some assistance to all applicants.
In order to ensure that the commission’s approach is both flexible and transparent, we also believe that the commission should be required, by its enabling statute, to make policies with respect to both exceptional circumstances and frivolous and vexatious cases.
Many of our consultees expressed discomfort with the ability of just one of the English commissioners to reject an application. We share this discomfort, especially given the reality that the challenged decision will in some cases have been made by a jury, generally with an unsuccessful appeal. We also note that concerns have been raised about a lack of consistency in some of the decisions of the English Commission.Endnote 243
We would leave it to the commission to decide whether to develop an internal appeal system for decisions made by a subset of commissioners to the full commission. Such an appeal system could have the advantage of being a quicker and less expensive alternative to having a disappointed applicant judicially review the commission. We were told by many that such judicial review proceedings often require independent commissions to retain outside counsel and can be a source of delay and drain on resources. We will return to the judicial review issue below.
We also agree with those consultees who told us that any application acceptance standard must be administered in an equitable manner that accommodates disadvantages that applicants may have experienced. We would have reservations about either a statute or a policy that would not leave room for justifiable exceptions.
Given the key and widely documented role of tunnel vision and confirmation bias in wrongful convictions, it is important that active and visible steps be taken by the commission to guard against this persistent phenomenon in its own processes. We were impressed by the Scottish model where four commissioners are typically involved in the processing of an application, but decisions are made by all eight commissioners. The four commissioners who were not previously involved in the case can play a challenge role with respect to the recommendation for decision developed by the commission’s staff with the involvement of the four other commissioners.
We would leave it to the commission to develop and revise its own policies to guard against confirmation bias and tunnel vision and to allow appeals and challenges within the commission. This would allow the commission to engage with others and adjust its processes over time, and in particular, in response to the number of applications it receives.
Bail Pending the Commission’s Final Decision
Option 1: Uncodified Status Quo
In a series of cases, superior courts have asserted and exercised the power to grant an applicant bail pending the Minister’s decision on whether to refer the case back to the courts.Endnote 244 One factor in these decisions has been whether the CCRG has moved a case into formal investigation. In one case, the CCRG’s extensive preliminary assessment was used in a process that resulted in an applicant being granted bail pending the Minister’s decision.Endnote 245 Section 679(7) of the Code makes the bail pending appeal provisions available, but only after the Minister has made a reference under s. 696.3.
Option 2: Legislated Provisions for Bail pending the Commission’s Final Decision
Section 679(7) of the Code could be amended to make clear that bail pending appeal is also available pending the commission’s final decision and not just after a referral by the commission.
What We Heard
Most consultees support legislation to codify the process for obtaining bail pending post-conviction review. James Lockyer supported the amendment of s. 679(7) to include bail pending a final decision by the new commission. This would depart from the current bail pending a Minister’s decision process by having a single judge of the Court of the Appeal make the decision as opposed to a superior court and by making the single Court of Appeal’s judge decision on bail appealable to three judges of the Court of Appeal.
The Canadian Bar Association told us that tying a bail application to a successful preliminary assessment by the present CCRG or in the future by the new commission is too restrictive.Endnote 246 The UBC Innocence Project argued that in most cases it “would be unconscionable to deny the applicant release on bail for the duration of an investigation.”Endnote 247 Projet Innocence Québec cautioned that the commission’s decisions about the processing of an application should not be influenced by considerations of public safety that will influence bail decisions.
The FPT HP group stated “bail should be embedded in an appropriate place in the process” and should incorporate ss. 679(3), 515(10) and 493.1 of the Code. It noted that lack of notification and disclosure to the Crown in the Ministerial review process “can mean that the Crown is unprepared for bail applications in complex and dated matters.”Endnote 248
In our view, option 2 of amending s. 679(7) of the Code to allow Courts of Appeal to grant bail pending the commission’s final decision as well as in cases of referrals by the commission should be implemented. This would solidify and make more transparent the current practice.
Hopefully the commission will be adequately resourced and able to decide cases more quickly than the Minister under the present system. That said, we recognize that the thorough investigation of alleged miscarriages of justice takes time. Bail can play a critical role in mitigating some of the harms of wrongful convictions. As Freeman J.A. noted when granting Clayton Johnson, a man wrongfully convicted of killing his wife, bail pending the appeal of a Ministerial reference:
neither justice nor the public interest can be served by requiring him to remain in prison until the process has worked itself through… As his counsel point out, the months unjustly taken from him, if he is innocent, can never be restored to him, but if at the end of the day he is still found to be guilty, they can be added to the time he must serve. I find that Mr. Johnson’s detention is not necessary in the public interest.”Endnote 249
We also prefer including bail pending the commission’s decision under s. 679(7) because the process for granting bail under that section of the Code has recently been clarified by the Supreme Court.Endnote 250
We are concerned that the decision to move an application into formal investigation could play too large a role in the decision to grant bail pending the commission’s decision. Our reading of the bail pending Ministerial decisions suggests that it is a mistake to think that the decision whether or not to move an application into formal investigation is either a necessary or sufficient condition for granting bail.
Bail applications have been made when Ministerial review applications are still subject to preliminary assessment.Endnote 251 Conversely, bail has been denied even though the Minister has moved the application into an investigative stage.Endnote 252 As Justice Watt noted in the first such bail decision, it is “neither necessary nor desirable to examine, much less determine the merits of the main application. It is for the Minister to say whether there is a reasonable basis to conclude that a miscarriage of justice likely occurred in this case.”Endnote 253
Depending on whether the commission has discovered new matters, bail applicants may require assistance from the commission in establishing whether the applicant’s case is not frivolous, which in turn plays a role in determining whether it is in the public interest to grant bail. In many cases, the commission should be able to rely on the Crown’s continuing disclosure obligation to disclose such material to the applicant. If, however, the Crown does not possess or refuses to disclose material that the commission possesses and that is relevant to the bail hearing, the commission should disclose such material to the court hearing the bail application. This will ensure that privileged material is not disclosed and that appropriate undertakings and publication bans are in place. The Court of Appeal judge will also decide whether and how the new material possessed by the commission will be disclosed to the applicant and the prosecution.
This should respond to what the FPT HP group complained was a lack of disclosure from the CCRG, which makes it difficult for prosecutors to take positions on bail applications pending the Minister’s decision. We recognize that such disclosure may raise complex issues about both privilege and publication bans, but believe that this should be left to the Court of Appeal judge who under our proposals will make the bail decision.
We also believe that sentence applications to the commission should be governed by the terms of s. 679(4). In a case where the applicant is applying to the commission with respect to a sentence only, this would require the Court of Appeal judge to apply s. 679(4) which has a similar three-part requirement to bail pending appeal of a conviction under s. 679(3).Endnote 254
One final note is necessary on bail. In many of the cases where the wrongfully convicted have been released on bail pending a Minister’s decision, they have been subject to extremely onerous conditions. Glen Assoun told us about the harms and indignities such onerous conditions caused to him.Endnote 255
The Supreme Court of Canada has recently warned against imposing unnecessary bail conditions. The Court criticized a culture of risk aversion and consent with respect to bail. We fear that such bail culture may be even stronger in cases where a person has been convicted, lost appeals, and is now applying for bail pending a decision by the Minister or the new commission.Endnote 256
The Court also noted: “that onerous conditions disproportionately impact vulnerable and marginalized populations, those living in poverty, or with addictions or mental illnesses… Indigenous people, overrepresented in the criminal justice system, are also disproportionately affected by unnecessary and unreasonable bail conditions and resulting breach charges.”Endnote 257
As Justice Martin warned: “Bail conditions may be easy to list but hard to live.”Endnote 258 We agree. We hope that the suffering that Glen Assoun experienced while on stringent bail conditions, such as having to report to his bail supervisor “all intimate sexual and non-sexual friendships with females” or prohibiting his attendance at any place that sells alcohol as its primary business,Endnote 259 are not repeated in future cases.
H. Retention and Investigative Powers
Option 1: Powers to ask police and prosecutors to retain, catalogue and copy information relevant to the commission’s investigation
The commission could be given powers to ask individuals and public agencies to retain, catalogue and copy all relevant documents with respect to an application. This power could also include powers to question individuals about the existence and location of material.
Option 2: No powers to ask for retention
The enabling legislation for the commission could remain silent on issues of retention. This may require the commission to use its investigative powers (to be discussed next) for the purposes of trying to ensure the retention of relevant material.
What We Heard
Most consultees stressed the importance of retention of relevant information. The current Ministerial review CCRG told us it requests retention once an application is complete and that lack of retention of material is a significant obstacle to its work.
Representatives of the RCMP and other police services told us retention periods were long for homicide cases, but were significantly shorter in less serious cases. They appear to vary from police service to police service. For example, the Toronto police permanently retain some material in homicide cases, but only for seven years in robbery and sexual assault cases.
Nicholas St-Jacques of Projet Innocence Québec warned that lawyers in Quebec only have to retain files for seven years. Other law societies take different approaches with only Manitoba and Northwest Territories specifically counselling lawyers that where there is a risk of a wrongful conviction, it would be prudent for lawyers to keep their files indefinitely. Retention of court files and scientific evidence also differ from province to province.
The FPT HP group defended a reactive commission that focuses on establishing factual innocence in serious cases, in part because a broader remit “places onerous and unpredictable demands on police and prosecution services” including with respect to retention of material.Endnote 260 It also stated:
The system must formally recognize obligations on the defence side. At a minimum, this must include trial and appeal counsel preserving their files to an applicant. In addition, a focus on factual innocence is consistent with reciprocal disclosure, and the requirement for affidavits from applicants.Endnote 261
The group warned that the new commission should not create “massive file disclosure obligations and drain on scarce human and financial resources. Some of this pressure could be alleviated if applicants were to be required to first seek disclosure from their trial lawyer and/or appellate lawyers.”Endnote 262
Despite its broad powers, the English Commission has struggled with delays in police and prosecutors producing relevant material, and with the destruction of relevant material. An all-party report recently recommended that police, prosecutors, and courts retain material for longer periods.Endnote 263
We have been convinced that the new commission should have statutory powers to order any public or private body and any person to retain, catalogue and copy material that the commission considers relevant to deciding an application. This power should be exercised as soon as reasonably possible. It should not depend on whether all the transcripts and factums in the courts have been submitted by an applicant or otherwise obtained.
We recognize that early retention orders will require all criminal justice system participants, including courts and defence counsel, to spend resources retaining, searching and copying relevant material. Nevertheless, we believe this must be done to ensure that the commission can quickly and effectively investigate cases.
We reject the FPT HP group’s suggestion that police and prosecutorial resources devoted to retention of relevant material “reduces our ability to prevent wrongful convictions at the trial level.”Endnote 264 In our view, police and prosecutors, as public bodies, have special obligations to retain relevant material and assist the new commission in their work. We hope and expect that police, prosecutors and all others who work in the criminal justice system will cooperate and work collaboratively with the commission.
We are concerned that claims of legal privilege and redactions to preserve privilege and privacy will slow down the commission’s investigations. We also believe that giving the commission strong retention and investigative powers should minimize the expense and delay that has been caused in recent years by applicants attempting to obtain relevant material from police and prosecutors through claims for post-conviction disclosure.Endnote 265 The commission should have broad statutory powers to obtain all relevant material regardless of privilege claims or the precise ambit of post-conviction disclosure obligations under s. 7 of the Charter.
We accept the FPT HP group’s concern that the commission should also have access to material held by the applicant’s former lawyers. Law societies should impose longer retention periods on lawyers in criminal cases with clear warnings that documents should be retained indefinitely if there is any risk of a miscarriage of justice. The law societies should act to protect clients because the interests of applicants and their former lawyers with respect to retention and co-operation with the commission unfortunately may not be identical. This is especially true if there are possible ineffective assistance of counsel and/or civil liability claims by the client against the former lawyer.
Digital technology should decrease the costs of indefinite file retention, but attention needs to be paid to changes in technology that could make older forms of electronically retained files inaccessible.
One of the reasons why the new commission should be proactive is the need for it to negotiate MOUs with the RCMP and other police services, prosecutorial services and death investigation services with respect to increased retention periods and quicker means to produce relevant material to the commission while maintaining the chain of custody. The commission should also be active with law societies and courts in increasing and standardizing retention periods for criminal law files held by lawyers. It should attempt to introduce some national standards in this important area where we were told there are many provincial and even local differences in retention policies.
We see retention periods as one of many examples of how the commission’s mandate to help investigate and correct miscarriages of justice is inseparable from its mandate with respect to systemic reform. The commission should not be neutral with respect to the need for longer retention periods. Rather, it should try to persuade all criminal justice participants to adopt longer retention periods to allow for more thorough and quicker investigation of alleged miscarriages of justice and more frequent correction of them.
Option 1: Legislated threshold
Section 4(1)(a) of the regulations enacted under s. 696.1 of the Criminal Code provides that the Minister “shall conduct an investigation in respect of the application if the Minister determines that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred.” Section 4(1)(b)(i) provides that an application can move straight to the Ministerial decision stage if there is an urgent need for such a decision “for humanitarian reasons or to avoid a blatant continued prejudice to the applicant.”
Option 2: Threshold Set by Commission Policy
The decision whether to exercise investigative powers could be left to the commission to develop its own policies
What We Heard
Most consultees support the new commission setting its own criteria or policy about when to investigate. David Milgaard told us that any investigative threshold should be reduced to allow for the new commission to assist applicants. He stated that a new commission should not let “jurisprudence stand in the way of truth and justice.” The jurisprudence that Mr. Milgaard refers to includes three judicial decisions that suggest that the Minister’s current investigative powers do not apply until an application moves to the formal investigative stage.Endnote 266
Representatives of CCRG told us that they have been able to overcome their lack of investigative powers at the preliminary assessment through undertakings or accepting redactions from police and prosecutors designed to secure legal privilege and confidentiality. In some cases, the CCRG had sufficient grounds to move the case into the investigative stage where it could use its investigative powers.
The UBC Innocence Project told us that wrongful convictions will simply not be discovered without full and unredacted access to all relevant files and physical exhibits for testing. They note that most wrongful convictions are caused in part by lack of full disclosure.Endnote 267
There were some defenders of the status quo of legislated investigative standards. The FPT HP group supported the current investigative threshold and stated, “the threshold must respect the presumption of regularity and should start from the proposition that standards were complied with absent compelling reliable evidence that demonstrates otherwise.”Endnote 268 Projet Innocence Québec also supported the current test for investigations on the basis that “if properly applied, the test is low…”.Endnote 269 Mary Ainslie of the British Columbia Crown’s office told us that the threshold should be “high”. She warned that investigations by the new commission will burden the police and prosecutors.Endnote 270
We recommend option 2 of allowing the commission to develop its own policies for using its investigative powers. We would strongly caution against imposing a legislative standard that could inhibit the commission’s use of its investigative powers.
Although the existing regulations provide a legislative standard, it is confusing.Endnote 271 As such, it has generated unnecessary litigation and delay. Three courts have interpreted the provision as only providing investigative powers when applications have moved beyond preliminary assessment by the CCRG.Endnote 272
We agree with the Milgaard/Lockyer group that splitting the review into the separate preliminary assessment and investigative stages has caused delays and that investigative powers should be available and used in all but frivolous cases.Endnote 273 We were told by many experienced practitioners that intuition, hunches and even luck play a role in successful investigations that find new evidence that reveal miscarriages of justice.
There may have been good intentions in 2002 in requiring applications to proceed to investigation under certain criteria, but we do not believe that such legislative prescription is necessary or advisable when the ultimate decision maker is an independent commission that is at arm’s-length from government. The commission should have the freedom to order investigations even in cases that are at a preliminary stage. All people with relevant information should respect the commission’s judgment that the use of its investigative powers is necessary. This follows from the general principle that the commission should as far as possible be treated as equal in status to the courts.
We reject the FPT HP group’s suggestion that the commission should assume that convictions are regular and not undertake an investigation “absent compelling reliable evidence that demonstrates otherwise.”Endnote 274 We think this puts applicants in an impossible Catch 22 situation. As Innocence Canada suggests, “wrongful convictions are rarely obvious at first glance”. We agree with Innocence Canada’s suggestion that the commission “must proactively investigate applications and ensure that applicants are not burdened with the task of acquiring materials, especially when there is no mechanism for applicants to do so.”Endnote 275
Leaving the triggering of investigative powers at the commission’s discretion may also encourage those who work for the commission to adopt a collaborative approach with applicants to the investigation of their case. What must be avoided is an overly bureaucratic approach where the vast majority of applications only result in desk-top reviews of the documents as opposed to actual investigations designed to find new evidence. The victims of miscarriages of justice rightly expect investigations, not paper reviews by the independent commission.
Option 1: Statutory powers under Part I of the Inquiries Act
The Minister and delegates presently have powers under s. 4 of the Inquiries ActEndnote 276 to summon witnesses and require them “to (a) give evidence, orally or in writing, and on oath or, if they are persons entitled to affirm in civil matters on solemn affirmation; and (b) produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to examine.” Under s. 5 of the Inquiries Act, the Minister and delegateshave the “same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases.”
Option 2: Statutory powers under Part I of the Inquiries Act with legislated provision to overcome any claim of privilege including, but not limited to, solicitor-client privilege, jailhouse informant privilege, litigation privilege, common interest privilege, joint defence privilege, legal advice from Crown to police, privileges under ss. 37 and 38 of the Canada Evidence Act and to overcome any claim that a record or document is confidential, covered by common law or statutory protections for privacy or subject to restrictions on the production of material to the accused or admissibility of evidence in sexual cases.
In addition, the legislation should, following precedents in several law society acts, stipulate that the legal privileges belonging to all 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 new commission should be deemed not to constitute a waiver of the privilege by the privilege holder.
The first paragraph of this option would follow s. 17(4) of the Criminal Appeal Act 1995Endnote 277 that provides that the English Commission’s powers to obtain relevant documents “is not affected by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by or by virtue of an enactment) which would otherwise prevent the production of the document or other material to the Commission or the giving of access to it to the Commission.” It also follows the English practice of the commission having access to examine, in private, documents relating to complainants/crime victims in sexual cases.
The second paragraph of this option follows s. 88 of British Columbia’s Legal Profession ActEndnote 278 which the British Columbia Court of Appeal has concluded means that: “A lawyer is free to provide required information to the Law Society and the privilege of the client is maintained intact.”Endnote 279 Section 49.8 of Ontario’s Law Society ActEndnote 280 has a similar provision that requires lawyers to produce to law society investigators documents that are privileged or confidential.
Option 3: Statutory powers under Part I of the Inquiries Act with the ability to obtain Court Orders to have access to information covered by legal privileges
Section 195I of the Criminal Procedure (Scotland) Act, 1995Endnote 281 and s. 40 of New Zealand Criminal Cases Review Commission Act 2019 allow those commissions to have access to privileged information but only with a court order after a judicial balancing of the competing interests between the commission’s need for the information and the importance of maintaining the privilege.
What We Heard
Almost all consultees told us that the commission should have the power to compel production from public and private entities and to compel witnesses to answer questions. The Canadian Bar Association told us that anything less “would be superficial” and “unnecessarily narrow”.Endnote 282 The FPT HP group, Innocence Canada and Projet Innocence Québec all told us that the existing Ministerial investigative powers should also be given to the commission. Projet Innocence Québec elaborated that these powers have allowed it to obtain “several documents…that we never could have obtained through access to information or otherwise.” It added that, “requiring individuals to be questioned under oath is necessary since in several cases it will often be difficult, if not impossible, for the applicant to obtain a version from individuals, who can sometimes fill in the missing pieces or reveal how the police investigation actually went.”Endnote 283 A representative of the North Carolina Commission stressed to us that the ability to question people, including police and prosecutors, under oath was an extremely valuable investigative tool.
Although they supported giving powers under Part I of the Inquiries Act to the new commission, the FPT HP group warned that these powers may not allow the commission to obtain relevant material that is subject to a legal privilege designed to protect important interests such as solicitor client communications, the identity of police informants, national security and any other specified public interest. The group stated: “there is currently no mechanism in the law that would permit the disclosure of documents to a CCRC pertaining to Informer Privilege. Indeed, insistence on such information, or utilizing subpoena powers to compel its production, may oblige the Crown/police to require s. 37 Canada Evidence Act hearings.”Endnote 284 Such hearings allow judges to make orders that prohibit the disclosure of material on the basis of a specified public interest after weighing competing interests.
At the same time, many other consultees told us that the new commission must, when necessary, have the statutory power to override any legal privilege where the information is necessary to determine the validity of a conviction. Lida Sara Nouraie, President of the Montreal Criminal Defence Lawyers Association and Projet Innocence Québec, the Milgaard/Lockyer group, and the head of the Canadian Bar Association criminal law section, all told us that rules could be implemented that would allow the commission to obtain privileged information while taking steps to ensure that the privileged material does not become public and the privilege is preserved for purposes other than the commission’s investigation. The Canadian Bar Association also stressed that the new commission’s work “dovetails with ‘the innocence at stake’”Endnote 285 exception for many legal privileges. We were told that without access to privileged information “your hands are tied” and that “if we’re looking for truth,” the new commission “needs the most power as possible to find the truth”.
Recommendations 35, 36, 37 and 38
In our view, it is absolutely essential that the commission have as contemplated in option 2, the broadest possible legal powers to have quick access to material over which any person or entity claims legal privilege and/or the various protections that attach to private documents.
Although the issue has not been tested in court, investigations by the CCRG and the Minister and by the new commission could be delayed and blocked by litigation by people and entities that refuse to produce documents or answer questions on the basis that the underlying information is protected by a broad range of legal privileges and claims of confidentiality. The Supreme Court has held that powers similar to those under Part I of the federal Inquiries Act do not overcome privileges in relation to police informantsEndnote 286 or those relating to judicial independence.Endnote 287 The latter decision applied to failed attempts to inquire about the record and composition of a panel of the Nova Scotia Court of Appeal that blamed Donald Marshall Jr. for his own wrongful conviction. The CCRG has also informed us that it has so far avoided litigation by using undertakings to obtain documents from police and prosecutors or accepting documents from them that are redacted to preserve various legal privileges.
Using claims of legal privilege to defeat or even delay the commission’s investigation could undermine public confidence in the new commission. We start from the position that no legal privilege is absolute. For example, solicitor-client privilege has evolved from a rule of evidence to a principle of fundamental justice under section 7 of the Charter. Even in light of its constitutional character, it may be infringed when “innocence is at stake.” In R. v McClure, the Supreme Court of Canada allowed this privilege to be intruded upon “where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction.”Endnote 288 It cannot be overstated that the commission’s core mandate will be to address applications from individuals whose “innocence is at stake”, who may have been wrongfully convicted, or who may have suffered a miscarriage of justice.
The possibility that the commission’s investigations will be slowed down and stopped by litigation about whether it can have access to material over which privilege or privacy has been claimed, has convinced us that option 2 is essential if the new commission is to be able to investigate applications fully and efficiently. We cannot overstate the importance of this conclusion. Most consultees expect that the commission will have quick and unimpeded access to all relevant material. They do not expect that police, prosecutors or defence lawyers or others can resist producing documents to the commission or answering questions from the commission by claiming a legal privilege or asserting some other form of confidentiality or privacy over the information sought. We believe these are legitimate expectations.
The FPT HP group itself stressed that the new commission should not be plagued by delays that have at times occurred in the present Ministerial review process and that harm both applicants and crime victims. For this reason, we reject option 3 because it would require the new commission to go to the time and expense to convince a court every time it sought access to information that is subject to a privilege or privacy claim. Rather, we conclude that it is essential that the commission’s statute includes something akin to s. 17(4) of the Criminal Appeals Act 1995 which allows the English commission to have access to relevant material regardless of any common law or statutory privilege or confidentiality. This, we believe, is essential.
We expect that some police, prosecutors, defence lawyers and crime victims may object to the commission having powers to obtain otherwise privileged and private information. We agree that the interests protected by legal privileges and various privacy protections are important. That is one reason why we suggested that applicants should not always be required to waive solicitor-client privilege as a precondition to making an application. We are well aware that disclosure of information covered by police informant privilege can place lives in danger. We are aware that production and disclosure of private material in sexual cases is regulated in order to protect privacy and equality rights and to encourage reporting of sexual violence.
Fortunately, there are Canadian statutory precedents to allow investigators to have unfettered access to privileged and private material while at the same time taking steps to preserve the legal privilege and to protect the confidentiality of private information. The second paragraph of our recommended option 2 contemplates that the commission be subject to provisions similar to those found in several law societies acts that allow investigators privately to examine privileged and confidential material for the limited statutory purposes while protecting the legal privileges for other purposes.
Section 88 of British Columbia’s Legal Profession ActEndnote 289 requires that lawyers must provide documents that are subject to solicitor client privilege to law society investigators. The British Columbia Court of Appeal has concluded that under this provision: “A lawyer is free to provide required information to the Law Society and the privilege of the client is maintained intact.”Endnote 290 Section 49.8 of Ontario’s Law Society ActEndnote 291 requires that the person subject to investigation must provide information and documents even if they are privileged or confidential.Endnote 292 Further, investigators “may receive from any person or body information or documents… even if the information or documents are privileged and confidential.”Endnote 293 Section 49.8 (3) of Ontario’s Law Society Act preserves privilege. The production to, receipt by, and use by the law society of privileged information and documents “…does not negate or constitute a waiver of any privilege, and… the privilege continues for all other purposes.”Endnote 294
We see no reason why a similar provision cannot be included in the commission’s enabling legislation. This should be coupled with the Canadian equivalent of s. 17(4) of the Criminal Appeal Act 1995 that will allow the commission to have access to relevant material even if a common law or statutory privilege or privacy protection is claimed. The public interest in investigating claims of miscarriages of justice requires no less. At the same time, the second paragraph of option 2 should ensure that the privileged or private material obtained by the commission remains private and is only used for specifically articulated statutory purposes that advance the compelling public interest of investigating claims of miscarriages of justice.
We recognize that the above statutory provisions that enable the commission to have access to privileged material but also obligate the commission to take steps to protect the privilege with respect to third parties will place difficult obligations on the commission. The commission may not be in a position to make full or immediate disclosure to the applicant of information it has obtained from the police or prosecutor that is subject to a non-frivolous claim of privilege or privacy protection. Conversely, the commission may not be able to disclose to the prosecutor material that would be subject to a non-frivolous claim of privilege or privacy protection. The commission’s reasons for its decisions may have to be redacted so as to preserve relevant legal privileges and privacy protections.
The commission will need the necessary resources and legal skills to protect privileged and private information. In some cases, the commission may have to seek the assistance of courts that can definitely rule on whether a legal privilege or exceptions to the privilege such as innocence at stake apply. Over time, the commission can develop policies to govern the conditions that justify and require disclosure of the information to the applicant, to other parties, to courts and to the public. This task will present many challenges for the commission, but in our view, there is no alternative if the commission is to be able completely and efficiently to conduct relevant investigations into alleged miscarriages of justice where the applicant’s innocence may be at stake.
Privacy Act and the Access to Information Act
Privacy laws are a potential barrier to the new commission’s work. The commission should have clear statutory powers to collect personal information that is relevant to its investigative tasks. It should be empowered to develop policies to govern the disclosure of private information that will account for the competing public interests. We anticipate that the commission would, like the courts, often anonymize the names of complainants in sexual cases and in cases where applicants and witnesses are young or otherwise vulnerable.
The commission should also be subject to the exemptions in s. 22 of the Privacy ActEndnote 295 and s.16 of the Access to Information ActEndnote 296 to demands from the public and the press to access to information held by an investigative body involved in law enforcement. As will be discussed below, the primary form of transparency to the public of the commission’s work should be through its publication of its reasons for its decisions.
Private Records in Sexual Cases
Although the commission should generally be relied upon to develop its own policies with respect to the disclosure of private information, we believe that an exception is justified with respect to the restrictions on the disclosure of a complainant’s private records to the accused in ss. 278.6 and 278.7 of the Criminal Code. These provisions should bind the commission. We recognize that this may delay the resolution of applications that concern convictions for sexual offences and require private documents to be disclosed by the commission to the accused/applicant, but believe that this is necessary to protect the complainant’s/crime victim’s reasonable expectation of privacy. A judge would balance the competing interests under s. 278.7(2) and could impose conditions on disclosure of private documents to the accused/applicant under s. 278.7(3). The restrictions on publicity in s. 278.9 would also apply.
That said, we do not believe that the restrictions in s. 278.4 on producing documents to judges should apply to the commission’s ability to demand production and examine private documents in sexual cases. This restriction on production in the Criminal Code applies to adversarial attempts by the accused to have access to the complainant’s private records. In contrast, the commission will act as an impartial inquisitorial body. The English Commission frequently has access to documents, including medical records, that in Canada would be covered by the s. 278.1 regime.Endnote 297 That said, the commission should only request private documents when necessary for an investigation. It should be aware of the concerns expressed by Parliament in s. 278.5 about the competing rights of the accused/applicant and the privacy and equality rights of complainants/crime victims and society’s interests in encouraging the reporting of sexual offences and the obtaining of treatment by complainants/crime victims. Even when it determines it must have access to private documents, the commission should examine them in private, thus hopefully minimizing the adverse impacts on complainants/crime victims. We would also be concerned that the work of the commission in sexual cases could be excessively delayed if it had to litigate before the courts first to obtain access to private documents. This is especially the case because applications in sexual cases form a quarter of all applications to the English Commission.Endnote 298
We were informed by the current CCRG that issues under the ss. 278.1-278.98 regime have not arisen in its work. We were also told by the FPT HP group that such issues may arise in the new commission’s work, especially if, as many consultees predicted, a significant number of applications are made with respect to convictions in sexual cases. Like legal privilege issues, these issues are very complex. They will require the commission to be adequately resourced with skilled legal staff and also to consult with all those who are affected by its work.
Section I. Decision Making, Publicity of Decisions and Judicial Review
Process of Decision-Making
Option 1: Provisional Written Decision subject to Comments by the Applicants
Most commissions provide applicants with provisional written decisions when they deny an application. Applicants often have a short period, generally 28 days, to respond before the decision is made final. There have been cases where an applicant’s response has caused the English Commission to reconsider and change its provisional decision to reject an application.
The present Ministerial review system CCRG in Canada requires that an applicant have a year to respond to either a decision to reject an application or the results of CCRG’s investigation. The CCRG’s advice to the Minister is not disclosed to the applicant on the basis of solicitor-client privilege. The present system and all of the foreign commissions allow an unsuccessful applicant to re-apply if there is new information.
Option 2: Appeals to the full Commission and/or hearings by the Commission
None of the commissions have devised an internal appeal mechanism but one could be devised by statute or policy. The North Carolina Commission is the only commission that is statutorily required to hold public hearings after an application has been investigated. The Norway Commission has discretion to hold public hearings about an application.
What We Heard
We were told by lawyers who had represented applicants to the English Commission that provisional decisions to reject applications can be quite lengthy and technical. As such, legal assistance may be necessary for the applicant to effectively respond to the provisional decision. Clare Wade QC told us that written responses to the commission’s decisions “work quite well” and can change the commission’s decision, but are “time consuming.”Endnote 299 Professor Bibi Sangha and Dr. Bob Moles of Flinders University suggested that university-based Innocence Projects could play a role in helping applicants respond to provisional decisions to reject their applications. Representatives of the New Zealand Commission told us that they are attempting to make provisional decisions more comprehensible for unrepresented applicants. In one early case, one of the commissioners even visited a prison to explain the reason for rejecting an application to the applicant in person.
As resources have decreased for the English Commission, it has spent less time evaluating applicant’s responses to provisional decisions. Applicants respond in roughly half of the cases, but only in 0.7% of those cases does the English commission change its provisional decision not to refer the case back to the courts. This is a very low percentage but because of the high volume of applications received, it still represented 10 cases between 2005-2014.Endnote 300
We were told that applicants should have longer than 28 days to respond to provisional decisions with additional time, accommodation, and assistance. Projet Innocence Québec told us that at least six months should be allowed because lawyers often assist pro bono and may need time to try to bring new matters to the commission’s attention that could avoid the need to reapply.Endnote 301
There were divided views on having an appellate process internal to the commission. Some said giving applicants the ability to appeal to the full commission may be too onerous, resource intensive, and unnecessary since judicial review will also be available. On the other hand, others supported an internal appeal mechanism as a means of ensuring consistency in decisions and avoiding long and costly judicial reviews of the commission’s decisions.
Most consultees told us that applicants should be able to re-apply to the commission if new matters of significance come to light.
We support option 1 where applicants are able to respond to provisional decisions to reject their application. We stress, however, that the commission should attempt to express its reasons for not referring a case in plain language. It should attempt to avoid bureaucratic boilerplate or overly legalistic explanations. It should take seriously the need to give the applicant a genuine opportunity to respond as part of its obligation to treat all applicants fairly and with dignity.
The commission should allow a time for the applicant to respond that is realistic in all the circumstances. We do not believe that a time limit for applicant responses should be “one size fits all” or codified. We recognize that 28 days for most applicants will be too short. At the same time, one year may be too long for some applicants. The commission’s policy governing the time and form of response from the applicant should accommodate any disadvantage suffered by the applicant.
The commission should have sufficient funding to enable it in its discretion to pay for lawyers experienced with wrongful convictions to assist applicants in responding to provisional decisions not to refer a case back to the courts. We also agree with Professor Bibi Sangha and Dr. Bob Moles that university-based Innocence Projects may also be of assistance. Finally, the commission also needs sufficient resources to evaluate the responses it receives from applicants about its provisional decision not to refer a case and to provide a reasoned response.
We would leave it to the new commission to decide whether to implement option 2 of an internal appeal mechanism. Appeals from decisions made by three commissioners to the full nine members of the commission could assist in making the work of the commission more transparent and consistent. Concerns have been raised by some that the English Commission can be both secretive and inconsistent depending on whom in the commission is making decisions. Internal appeals may be less costly, quicker and more helpful to the commission than judicial reviews of the commission’s decisions.
We believe that applicants, with new matters of significance, should be able to re-apply. Although this is contrary to the finality of the commission’s decisions, the new commission is an institution that is designed to mitigate the harmful effects of the great weight that the rest of the legal system gives to the finality of decisions. The commission as an institution dedicated to investigating miscarriages of justice should recognize that its own decisions are fallible. This should be considered if the commission develops its own policies on repetitive or frivolous applications.
Option 1: Attempts could be made in the enabling statute to preclude judicial review of the Commission’s decision
This is done in the North Carolina legislation and courts have declined to review the decisions of that commission.Endnote 302
Option 2: The enabling legislation could be silent on judicial review
This is done with respect to s. 696 of the Criminal Code, but several judicial review actions have been conducted.
Option 3: The enabling legislation could allow judicial review to the Federal Court
Judicial review of the CCRG’s and the Minister’s decisions have been in the Federal Court.
Option 4: The enabling legislation could allow judicial review to the provincial superior courts
Some federal statutes such as s. 57 of the Extradition ActEndnote 303 specifically allow judicial review in the provincial superior courts.
What We Heard
We were told that judicial review is necessary and can ensure procedural fairness, transparency and accountability. We spoke with an English lawyer, Mark Newby, who had successfully judicially reviewed a decision of the English Commission not to use DNA testing. His client was exonerated when the DNA was tested, but is currently litigating in the European Court of Human Rights over compensation.
At the same time, the Westminster Commission warned that judicial review does not provide a “meaningful and effective way of challenging CCRC decisions either in relation to the investigative strategy or the decision about a referral”. It viewed the limited quality control of judicial review as “likely to have a detrimental impact on confidence in the CCRC and the quality of its investigations and decisions.”Endnote 304
Many consultees such as James Lockyer and Innocence Canada told us that commission decisions should be reviewable by provincial Superior Courts, and not the Federal Court. They argued that provincial Superior Courts had expertise and familiarity with criminal cases to review the new commission’s decisions.Endnote 305
We support option 4 of providing for judicial review in the provincial superior courts. We do not believe that the enabling legislation should attempt to preclude judicial review. Judicial review, of both the work of the current Canadian CCRG and of the foreign commissions, provides a necessary check to ensure fairness and reasonable decisions that take into account the available evidence and legal standards.Endnote 306 Judicial review can also challenge alleged governmental interference with the work of an independent commission.Endnote 307 In the vast majority of more than 50 reported case, decisions of the English and Scottish Commissions to reject an application have been upheld by the courts upon judicial review.Endnote 308
In our view, the new commission should take all reasonable efforts to work with disappointed applicants to avoid judicial review. Judicial review can be avoided by taking a collaborative approach that recognizes that applicants are experts about their own cases. It can also be avoided by developing internal appeals within the commission and responding clearly and effectively to the applicants’ responses to a provisional decision not to refer a case back to the courts.
Judicial review enforces only minimal standards of fairness and reasonableness. The new commission must avoid a defensive stance that only aspires to the legal minimum of decisions that cannot be overturned on judicial review. There are concerns that some English commissioners have taken such an approach when reviewing decisions to reject applications.Endnote 309
We agree with a number of consultees that judicial review will be most effective as the ultimate quality control check if done by judges who have criminal justice expertise. For example, one successful judicial review involved Justice Mosley finding the Minister erred in the application of constitutional rules relating to failures to disclose evidence.Endnote 310 This leads us to recommend that the enabling legislation provide that the provincial superior courts, as opposed to the Federal Court,Endnote 311 have jurisdiction to review the decisions of the new commission. Section 57(1) of the Extradition Act and s. 183(1) of the Bankruptcy and Insolvency Act provide statutory precedents.
The provincial Superior Courts may also have some inherent powersEndnote 312, but without a clear grant of jurisdiction to them, there may be lengthy and costly delays as disappointed applicants attempt to have their cases heard in the provincial Superior Courts, including by making post-conviction disclosure claims under s. 7 of the Charter. It is better in our view to recognize the jurisdiction of the provincial Superior Courts from the start and avoid needless litigation.
Publicity of Decisions
Option 1: Statutory Restrictions on Publicity of Commission’s Decision
The English and Scottish Commissions are subject to severe restrictions on the disclosure and publicity of their decisions. The rationale for such restrictions seems to be concerns about invading privacy of those mentioned in the decisions and to protect the fairness of subsequent trials should they be necessary after a referral back to the courts. The Canadian CCRG releases its decisions to reject applications and its investigative summaries to the applicant and prosecutors but subject to an undertaking of confidentiality. The CCRG does not provide reasons to justify a decision to refer an application for a new appeal or new trial but the Minister’s orders are public.
Option 2: Statutory Requirements that Decisions made Public subject to Necessary Redactions to Maintain Privacy and Fair Trial
The Norwegian and New Zealand Commissions publish their decisions, as does the North Carolina Commission though the sitting judge who heads the North Carolina Commission can impose temporary sealing orders.
What We Heard
Most consultees supported a requirement that decisions and reasons be made public subject to redactions designed to protect privacy, fair trials, and legal privileges. Dean David Asper and Professor Kathryn Campbell both stressed the relationship between transparency and legitimacy. Projet Innocence Québec supported public discussion because “the current system is being criticized for its lack of transparency…The public must be able to assess whether and how the system is able to correct its errors.”Endnote 313
The recent Westminster Commission recommended that the English Commission be given some powers to publish at least part of their decisions when the public interest requires, but subject to the agreement of applicants.Endnote 314 It noted that some applicants saw the English Commission as unnecessarily secretive, something we also heard in relation to the current system of review by the CCRG and the Minister.
At the same time, many consultees advised that the new commission should be prepared to redact some parts of its decisions. Full publication could revictimize applicants, witnesses, and crime victims. It might also deter such persons from coming forward and cooperating with police, prosecutors, and the commission. Full publicity could in some cases prejudice the fairness of future trials. It could also result in a loss of legal privileges designed to preserve important interests such as solicitor-client confidences and the identity of police informants The UBC Innocence Project argued that the commission’s decisions only be made public after a final decision by the courts.Endnote 315
Some consultees such as the Federal Ombudsman for Victims of Crime and retired Supreme Court Justice Morris Fish suggested that publication decisions could be made in consultation with, or with the consent of, applicants and crime victims, especially those under 18 years of age.Endnote 316
Representatives of the New Zealand Commission told us that despite the requirement that they make all their decisions public, they are considering anonymizing the name of applicants whose applications are rejected.Endnote 317 The UBC Innocence Project and some exonerees told us that publishing the names of applicants whose cases were not referred to the courts could cause prejudice.
Consistent with our general recommendation for a proactive and systemic commission, we believe that it is essential that the new commission have statutory obligations to publish its decisions as contemplated in option 2. We note that those statutes that created similar commissions in the 2000s opted for publicity of decisions. A representative of the Scottish Commission expressed some regret to us that the disclosure of their decisions was so severely restricted by legislation enacted in the 1990s. In our view, the publication of decisions is essential to illustrate that the new commission represents real change from the present system of Ministerial review through the CCRG.
The disclosure of thorough and well-reasoned decisions to not refer cases back to the court could build public confidence in the work of the commission. The FPT HP group stated that the current refusal to publish investigative reports or reasons for the Minister’s decisions to refer cases means, “no information is provided to the public and members of the criminal justice system that could explain and help prevent miscarriages of justice.”Endnote 318 We agree. The publication of the commission’s decisions could increase our knowledge about the causes of wrongful convictions. The commission’s reasons for a referral could be especially important in the significant number of cases where a new trial is ordered but the prosecutor does not prosecute.
Representatives of the English Commission warned that people, including police, prosecutors and witnesses, may be less willing to cooperate with the commission if the eventual decision will be made public. This may be the case, but in our view the answer is to ensure that all persons are required to provide the commission with necessary information. The Westminster Commission responded to similar concerns by noting that the English Commission had been given “statutory powers to compel disclosure precisely because it should not have to rely on co-operation from such agencies.”Endnote 319 We agree and have proposed similarly strong statutory powers for the new Canadian commission.
We recognize, as does the FPT HP group, that redactions and delays in publishing the commission’s reasons for decisions will be necessary in some cases. For example, the CCRG’s 90-page preliminary assessment was subject to a wide publication ban when it was first disclosed in relation to Glen Assoun’s application for bail pending the Minister’s decision.Endnote 320 Justice Chipman justified the ban because the CCRG’s material contained information “from persons who are both vulnerable and marginalized in society” and who “had no expectation that their information would find its way into a public forum.” He also added that some of the information may be “privileged and protected by statute” and “that if released may jeopardize an ongoing investigation”.Endnote 321
At the same time, there is no reason why all or most of the commission’s investigations and reasons cannot eventually be made public. Justice Chipman lifted the publication ban in 2019 after Mr. Assoun’s acquittal as a result of a new trial ordered by the Minister. He reasoned that:
Mr. Assoun must be able to tell his story. The Media must be able to report on why the Minister made his decision and why the Crown had no evidence on the new trial… Members of the general public must be able to appreciate why relevant and reliable information was not disclosed to Mr. Assoun when it should have been. The public should be able to appreciate why bail was granted. They must be able to see why the Minister made his decision. The public has the right to know why the Crown led no evidence at the new trial and why the second-degree murder charge was dismissed. It is in the interest of Mr. Assoun and the general public that Mr. Assoun’s story be told.Endnote 322
Glen Assoun’s case provides a rare glimpse into the complexity of determining what should and should not be made public and the timing of publication. It will be essential that the new commission has adequate resources and expertise to make these decisions. Fortunately, there is well-established jurisprudence on reconciling the public interest in transparency in the criminal justice system with competing concerns about privacy, equality, and fair trials in the future. As in other areas, we favour allowing the commission to make and revise policies with respect to publicizing its decisions and when necessary, redacting them and delaying their publication. We do, however, believe that it is essential that the enabling statute require the new commission to publicize its decisions subject to necessary redactions and time delays. Nothing less will ensure that the commission genuinely improves on the existing system, commands public confidence, and contributes to systemic reform.
Section J. Referral Grounds and Remedies
Court referral test
Option 1: Current Section 696.3(3) Test that a Miscarriage of Justice Likely Occurred
The current test requires that the Minister of Justice be satisfied that there is reasonable basis to conclude that a miscarriage of justice likely occurred.
Option 2: Referral on the Basis that a Miscarriage of Justice May have Occurred
A less onerous test would require that a miscarriage of justice may have occurred. This would be closer to the degree of certainty required under s. 4 of the regulations to trigger a formal investigation by the Minister.Endnote 323 It would also be closer to the judicial interpretation of the English “real possibility” testEndnote 324 and the referral test for the Scottish Commission which is, in part, that “a miscarriage of justice may have occurred”.Endnote 325
Option 3: Options 1 and 2 combined with “An Interests of Justice” Test
The referral test for the Scottish Commission is that a miscarriage may have occurred and “that it is in the interest of justice that a reference should be made.”Endnote 326
Option 4: Referral when in the Interests of Justice
The referral test for the New Zealand Commission is that it “considers that it is in the interests of justice to do so”Endnote 327
Option 5: Referral when Factual Innocence is Likely or Possible
The statutory criteria for the North Carolina Innocence Inquiry Commission to refer a case to the courts is that there is sufficient evidence of factual innocence to warrant judicial review. Factual innocence is defined as “complete innocence of any criminal responsibility for the felony for which the person was convicted and for any other reduced level of criminal responsibility relating to the crime, and for which there is some credible, verifiable evidence of innocence that has not previously been presented at trial or considered at a hearing granted through postconviction relief.”Endnote 328 All eight commissioners must agree to this standard if the applicant pled guilty, but only five of eight commissioners must agree in other cases.
What We Heard
We heard a wide range of views on the proper referral test. Defence lawyer Mark Sandler, the Canadian Race Relations Foundation, Projet Innocence Québec, and UBC’s Innocence Project all supported the current test that a miscarriage of justice likely occurred.
In contrast, defence lawyer Jacques Larochelle argued that the current test, that a miscarriage of justice likely occurred, is “far too high” because it requires a probability that a miscarriage of justice occurred. A more appropriate test, in his view, was that there is a “serious possibility that a miscarriage of justice may have occurred.” Similarly, the Milgaard/Lockyer group submitted that the “Minister’s powers of referral are severely limited by the current legislation.”Endnote 329 It also suggested that the new commission should be able to refer a case “on any ground that a miscarriage of justice may have occurred”Endnote 330 with a non-exclusive list of examples of miscarriages of justice. The Canadian Bar Association also supported a referral test on the basis that a miscarriage of justice may have occurred or when it is in the interests of justice to make a referral, with examples of the latter category including changes in the law or forensic science.Endnote 331
Some consultees such as representatives of the New Zealand and Scottish Commissions, Professor Mai Sato and Nigel Marshman of the CCRG favoured an “interests of justice” test as an exclusive referral test because it is broad and flexible. At the same time, the Canadian Civil Liberties Association opposed an interests of justice test because it “invites the introduction of extraneous and ultimately irrelevant considerations such as the nature of the underlying conviction and public opinion.”Endnote 332 Projet Innocence Québec similarly stated that the interests of justice test should not be used because “it is too vague and could result in a loss of confidence in the commission beyond that already often experienced by the justice system.”Endnote 333
Some consultees such as retired Supreme Court Justice and current special advisor to the Minister on Wrongful Convictions, Morris Fish and Professor Kathryn Campbell supported the English “unsafe verdict” test because it covers many eventualities. The UBC Innocence Project, while supporting the current test for referral, also strongly supported adding the English safety test as the grounds of appeal from conviction. This topic will be discussed below.
The FPT HP group argued that: “factual innocence would be consistent with an inquisitorial process and with mutual disclosure obligations, which could be highly productive and much more expeditious. A factual innocence standard would ensure broad public support for the work of the CCRC.”Endnote 334 This group also stated that “regardless of whether the overall threshold is limited to factual innocence, ‘a likely miscarriage’ for the appellate court to determine and grant relief is knowable, is understood, and is sufficiently stringent to reconcile any competing interests as to the outcome. We recommend that the standard as reflected in the current regime remain.”Endnote 335 The Criminal Lawyers Association recommended that “the commission will only accept applications from persons alleging factual innocence and a miscarriage of justice.”Endnote 336
Some consultees, including the Canadian Bar Association, told us that the “new matters of significance” provision in s. 696.4 of the Codeshould not apply to the new commission because it places too many restrictions on the power to refer a case back to the courts.Endnote 337 Professor Kathryn Campbell opposed the reference to referrals as an “extraordinary remedy” given the frequency of wrongful convictions. Others, such as the FPT HP group, defended s. 696.4 including its reference to referrals being an extraordinary remedy. They told us such a provision was necessary to ensure that the new commission not be another level of appeal and to recognize the value of finality and the availability of appeals in the criminal justice system.
We recommend option 2 that would have the commission refer a case back to the courts when it concludes that a miscarriage of justice may have occurred. The current standard that a miscarriage of justice is likely to occur is a more difficult standard for an applicant to satisfy than that of our foreign counterparts.
We support the requirement in s. 696.4 of the Code that there should generally be “new matters of significance” and that these new matters should be relevant and reliable. We also agree that the commission is not meant to serve as a further appeal. Given our increased knowledge of the prevalence of miscarriages of justice and the need for the commission to be a complete break with the existing system derived from the royal prerogative of mercy, however, we recommend that any reference to a referral being an “extraordinary remedy” should be dropped.
We recommend the use of the term “miscarriage of justice” in the statutory grounds for referral because it is broad and capable of growth in light of new knowledge. In the Steven Truscott reference, five judges of the Ontario Court of Appeal observed that a miscarriage of justice:
can reach virtually any kind of error that renders the trial unfair in a procedural and substantive way. The section has been applied on appeals where there was no unfairness at trial, but evidence was admitted on appeal that placed the reliability of the conviction in serious doubt. In these cases, the miscarriage of justice lies not in the conduct of the trial, but rather in admitting the conviction in the face of new evidence that renders the conviction unreliable.Endnote 338
We view it as healthy that the term miscarriage of justice is capable of growth as our knowledge about the frequency and causes of miscarriages of justice grows.
We see merit in providing a non-exhaustive list of examples of miscarriages of justice as proposed by the Milgaard/Lockyer group. This would also serve an educational purpose in outlining some concrete examples of the types of justice system errors found in past miscarriages of justice.
We are opposed to option 1 of the current test for Ministerial relief because it essentially requires the applicant to establish on a balance of probabilities that a miscarriage of justice likely occurred. Although this is the current standard used by the Minister in Canada, it is a higher standard than that applied by the Scottish Commission, which is concerned with whether a miscarriage of justice may have occurred. It may also help explain why, since this high standard was enacted in 2002 (based on standards articulated by the Minister of Justice in the early 1990s), the Minister has only awarded 20 remedies with almost all of them resulting in an acquittal or no prosecution since this high standard took effect as part of the 2002 reforms.
No Predictive Test
We have been persuaded by all of the experienced English lawyers we consulted that it would be a huge step backward should the new commission’s test or practice for referrals be based on a predictive judgment about whether the Court of Appeal will overturn a conviction. Fortunately, even the present test in s. 696.3(3) of the Code is not a test based on predictions about what, in the Canadian context, ten different Courts of Appeal might decide on a referral or what would happen at a new trial. The present test asks whether a miscarriage of justice “likely occurred”, regardless of what a Court of Appeal would do with the conviction referred, or the result of a new trial.
The new commission, like the Minister at present, should form an independent opinion of whether a miscarriage of justice occurred. Even under England’s predictive test, the commission and the Court of Appeal disagree quite frequently about whether a conviction should be overturned. We view disagreements between a multidisciplinary commission and appeal courts as both inevitable and healthy to the gradual improvement of the justice system.
Interests of Justice
We appreciate the flexibility of the open-ended referral ground of “interests of justice”. It is used in New Zealand as the sole criteria for referral, and in Scotland as an additional requirement to the requirement that a miscarriage of justice may have occurred. We were told by representatives of the Scottish Commission that in practice the commission applies the interest of justice test first, to eliminate some applications. An example given would be in a case of a minor conviction where the offender had a long criminal record. This approach gives us pause.
We are concerned that an interests of justice test could potentially work to the disadvantage of Indigenous, Black, and other marginalized applicants, and applicants that may appear unsympathetic and perhaps dangerous. We understand the comfort for legal decision-makers in having “wiggle room” in the legal tests they apply. The “reasonable man” test has provided this comfort for centuries. But too often the reasonable person has been defined in light of the experiences of white men. The referral test for the commission should be defined to command the broadest public confidence in both the commission and the justice system. It should not be defined for the comfort of the commission by giving it “wiggle room” in its decisions. We thus prefer that the commission be required to refer a case where it concludes that a miscarriage of justice may have occurred.
If an interest of justice test is used, we believe it is essential that as recommended by the Canadian Bar AssociationEndnote 339, it be used as an additional ground of referral for cases where the commission cannot conclude that a miscarriage of justice may have occurred. This approach will ensure that the flexible and vague interests of justice test is used to benefit applicants. In our view, an interest of justice test should not, as in Scotland, work to the disadvantage of applications by resulting in the rejection of applications without inquiring into whether a miscarriage of justice may have occurred. If an interests of justice test is used, the statute or the new commission should flesh out the vague term. As recommended by the Canadian Bar Association, this should include matters such as changes in law and forensic science.
Why Factual Innocence Should not be the Exclusive Ground for Referrals
We do not believe that the new commission with its systemic and proactive orientation should only refer cases if it concludes that factual innocence is likely or even possible. We understand and respect the decisions that Innocence Projects have made to limit themselves to those they believe are factually innocent. But there is a fundamental difference between community groups that rely on voluntary contributions and a public institution that is designed to correct and prevent errors in the criminal justice system.
The concept of factual or actual innocence was developed by those who founded volunteer Innocence Projects in the United States in order to convince people that a criminal justice system that employed capital punishment made errors. But the founders of Innocence Projects were well aware that the DNA evidence that is generally necessary to establish factual innocence is only available with respect to a minority of crimes.Endnote 340
To impose a factual innocence requirement in Canada would in our view be a step backward. It would create a new commission with a more limited error correction mandate than the Minister of Justice currently has. It would require a novel definition of factual innocence, one that courts have been reluctant to develop and apply.Endnote 341
A factual innocence mandate would also limit the ability of the commission to contribute to systemic reform. As Barry Scheck and Peter Neufeld, the founders of the United States Innocence Project, stated, DNA exonerations should provide only a temporary and closing window on the fallibility of the criminal justice system. In cases where bodily substances with DNA are available at the crime scene, any competent justice system should test them against the accused before, or just after, charges are laid. This should result in the dropping of charges against those exonerated by DNA long before any criminal trial.
If miscarriages of justice are equated with proof of factual innocence, remedied miscarriages of justice may eventually shrink to nothing, leaving people with the false impression that our criminal justice system does not make errors. But no criminal justice system run by humans can be perfect. There are many miscarriages of justice that have not been discovered, recognized, or even yet understood as miscarriages of justice. For this reason, we believe that it would be a mistake, and an unnecessary step backward, to only allow the new commission to refer cases back to the courts on factual innocence grounds.
That said, factual innocence matters. It matters to the exonerees who shared their experiences with us. They told us that their knowledge of the truth of their factual innocence was what kept them going when it seemed as if the entire world had turned against them. Factual innocence also matters with respect to current dated compensation standards that apply in Canada, a matter to which we will return to below.
Our understanding of miscarriages of justice is that it includes proven factual innocence. But it also includes cases where a conviction is no longer reliable, accurate, or fair. It also includes grave procedural errors such as the destruction of relevant material that make it impossible for the accused to demonstrate that the conviction is unreliable.
We recognize that applicants, the new commission, and the courts may not always agree about what constitutes a miscarriage of justice or whether one is present in a particular case. But we believe that the question of whether there may have been a miscarriage of justice is the correct question for the commission to ask.
We reiterate that having the new commission and the courts both direct their minds to whether a miscarriage of justice may have occurred does not mean that the commission should make decisions based on its prediction of whether the applicant will win in the Court of Appeal, or on appeal to the Supreme Court of Canada or predictions about what will happen if a new trial is ordered. Both the commission and the courts should form their own independent views on the information before them. They must both do their assigned tasks, but with the common goal of improving the criminal justice system by correcting miscarriages of justice.
Remedies: New Trials, New Appeals and Pardons
Option 1: Status Quo of Options of New Appeal, New Trial and/or Reference to the Court of Appeal
Section 696.3 (3) currently provides the Minister with the options of ordering a new trial or a new appeal when he or she concludes that a miscarriage of justice likely occurred. Section 696.3(2) allows the Minister at any time to refer a question relating to any application to the Court of Appeal. The Norwegian Commission can also order new trials as well as new appeals.
Option 2: Option of New Appeal Only
The English, Scottish and New Zealand commissions can all only refer convictions and sentences to the Court of Appeal and the North Carolina Commission can only refer cases to a specially constituted 3 judge panel.
Option 3: Additional Option of Recommending a Pardon
This power is available to the English Commission, but has not been exercised.
Option 4: Commission Can Quash a Conviction without an Order for a new Trial
Under s. 696.3(3), the Minister does not have the power to quash a conviction without ordering a new trial. None of the foreign commissions have the power to quash a conviction and all must refer the case back to the courts.
What We Heard
The consultees were divided, but most supported option 1 of giving the commission the same remedies presently available to the Minister of Justice. Innocence Canada highlighted that the Minister of Justice has recently used the remedy of ordering a new trial in cases dealing with applicants who were not in good health. James Lockyer and Sean MacDonald both defended this new trial remedy. They stressed the delay and expense of preparing for an appeal and hearing new evidence on appeal. Professor Kathryn Campbell told us that “without the power to quash convictions and order a new trial – the success of a new CCRC would be bound to the approach that the Court of Appeal takes to its referrals”.Endnote 342
Justice Morris Fish, the Minister’s special advisor on wrongful convictions, Nigel Marshman head of the CCRG, and Jean-Claude Bernheim of the John Howard Society of Quebec told us that the default remedy should be a referral to the Court of Appeal with an option to order a new trial in exceptional circumstances. Professor Emma Cunliffe told us that the threshold for a new trial should be very high. The UBC Innocence Project told us that the commission should have the ability to make non-binding recommendations to the prosecutor if a new trial is ordered by the commission.Endnote 343
The FPT HP group proposed that the new commission should only be able to refer cases to the Court of Appeal. It argued that “from a practical perspective, an order for a new trial is often illusory, because the file tends to be so dated that there is little realistic prospect of proceeding.”Endnote 344 It added that the new appeal approach “properly places the burden on the applicant in their quest for a remedy”Endnote 345 and is more consistent with respect for the separation of powers and respect for the judiciary. Many of the English lawyers we consulted expressed surprise at the current ability of the Minister of Justice to effectively quash a conviction when ordering a new trial. At the same time, a few consultees and the Association of Legal Aid Plans of Canada recommended that the new commission should be able to quash a conviction without referring the case back to the courts.
Sir Bob Neill and Justices Jonathan Dawe, Mel Green, and Alan Whitten, all told us that one benefit to limiting the commission to appeals is the opportunity for a more public record. They recognized that in the majority of cases where the Minister orders new trials, the prosecution withdraws charges or calls no evidence. In the past, prosecutors often stayed proceedings, a practice criticized by a number of commissions of inquiries. Projet Innocence Québec suggested that the power of ordering a new trial should be retained, but only used when an applicant requests it.Endnote 346
Consultees who support commission involvement with pardons such as exoneree Maria Shepherd, told us that the new commission should be able to “automatically pardon a wrongly convicted person” because they were “innocent before proven guilty and that should be the way it is after exoneration”.Endnote 347 The Milgaard/Lockyer group recommended that the new commission be able, in appropriate cases, to recommend a free or conditional pardon.Endnote 348 The Federal Ombudsman for Victims of Crime said “it could be beneficial for the commission to have an advisory role with respect to the pardon process…”.Endnote 349 The UBC Innocence Project recommended that the new commission should be able to refer pardon/record suspension matters to the National Parole Board and the National Parole Board should likewise in appropriate cases be able to refer applicants to the new commission to investigate a miscarriage of justice that might lead to the courts quashing a conviction.
Amanda Carling of the University of Toronto Faculty of Law and formerly of Innocence Canada cautioned us that the commission should not “force a pardon” on applicants because pardons imply culpability. There was some concern that the new commission might recommend a pardon as a consolation prize. A representative of the Scottish Commission told us that the commission should not be involved because the pardon system is an “extrajudicial process” that does not require the commission’s expertise.
The UBC Innocence Project told us that, in its view, the powers of the Minister under s. 696.3(2) to refer to Courts of Appeals questions in relation to an application with which the Minister desires assistance is under-used and could be helpful with respect to systemic reform. This issue is tied to the admissibility of fresh evidence, which we will discuss below. In some cases, it may be possible for the commission to have the option of a direct reference to the Supreme Court of Canada, as was done in David Milgaard’s case.
We were initially attracted to option 2 of following the foreign commissions and restricting the new commission to referring a case to an appeal court. Nevertheless, we have come to the conclusion that the remedy of directing a new trial can be justified in some circumstances and that the commission should, as contemplated in option 1, have the powers that the Minister now has to order a new trial, refer a case to a Court of Appeal and/or ask a Court of Appeal for assistance on a question in relation to an application.
In making this recommendation, we are influenced by the fact that the Minister of Justice has ordered a new trial in close to 40% of the twenty cases where a referral has been made since 2003. The new trial remedy has become more attractive to applicants now that prosecutors, following the advice of public inquiries, are more reluctant to use prosecutorial stays and provide successful applicants with the benefit of a not guilty verdict by calling no evidence, even when a new trial is not possible. Orders for new trials can result in efficient dispositions if prosecutors make prompt decisions not to proceed with a new prosecution after a new trial is ordered, Finally, we are extremely reluctant to recommend that an existing right that some applicants believe is critical, especially in cases of ill health, should be taken away from them in the guise of what should be an improvement of the system.
The FPT HP group opposed the new trial remedy, in part, on the basis that the Minister of Justice presently does not give reasons for the decision. As discussed above, we view the giving of public reasons as a critical feature of the new commission so this should no longer be an issue. The commission’s reasons may be especially important for both the applicant and the public when a new trial is ordered but the prosecutor decides that there is no reasonable prospect of conviction and the new trial is not held.
We also reject the FPT HP group’s argument that it is appropriate for the applicant to always bear the burden when a case is referred back to the courts for a new appeal. We note that successful applicants will already have discharged their burden to persuade the commission that a miscarriage of justice may have occurred. We also note that the Royal Commission on Donald Marshall Jr.’s wrongful conviction was critical of the Minister’s decision to require Mr. Marshall to bear the burden of establishing grounds of appeal when the Minister referred his wrongful conviction back to the Nova Scotia Court of Appeal.Endnote 350
We believe that the existing powers of the Minister under s. 696.3(2) could be used in a less adversarial manner to request that the Court of Appeal assist the commission on an issue, including possibly a systemic issue, raised by an application. The UBC Innocence Project told us that powers to seek assistance from Courts of Appeal can be useful but are presently under-used.
We also support option 3 in terms of allowing the new commission, in exceptional cases, to make a direct recommendation about a pardon/record suspension. That said, we recognize that even free pardons are not generally an appropriate vehicle for recognizing a miscarriage of justice. There is also a need for reform and consolidation of the pardon/record suspension process beyond the scope of our mandate. The executive can refer some pardon-related matters to the English and New Zealand Commission. We do not think this is advisable given the independence of the commission from government and the differences between miscarriages of justice and pardons that both Jean Teillet and Amanda Carling stressed to us.
In general, the presumptive remedy from the commission should be a new appeal, unless the applicant requests either a new trial or a recommendation for a pardon, and the commission determines that such remedies are justified.
We considered giving the new commission the power to quash convictions without referring them back to the courts. The Association of Legal Aid Plans made the point that this could be more efficient. That said, we are satisfied that the current approach, where the Minister or the new commission only refers cases back to the courts, respects the separation of powers and in particular the role of the independent judiciary.
K. Grounds of Appeal and Evidentiary Rules
Grounds for Allowing an Appeal
Option 1: Maintain existing grounds of appeal from conviction or sentence in Canada
This option would mean that Courts of Appeal would continue to apply established grounds of appeal in s. 686 of the Code when a new commission refers a conviction to them.
Option 2: Expand existing grounds of appeal from conviction to include lurking doubt
This was recommended by Justice Kaufman in the public inquiry into Guy Paul Morin’s wrongful conviction, but subsequently rejected as too subjective by the Supreme Court.Endnote 351
Option 3: Expand existing grounds of appeal from conviction to include whether the conviction is unsafe
This reform would be patterned after the English approach to appeals in s. 2 of the Criminal Appeal Act 1968.Endnote 352
Option 4: Allow second and subsequent appeals on the basis of fresh and compelling evidence
There are no criminal case review commissions in Australia, but some states have created a right of the accused to bring second and subsequent appeals on the basis of fresh and compelling evidence.Endnote 353
Option 5: Allow Appeal Courts at the Request of the Accused to Make a Determination of Factual Innocence
Canadian Courts of Appeal have refused to make determinations of factual innocence in the absence of statutory direction. They have expressed concerns that making such a determination will introduce a “third verdict” that will dilute the meaning of the not guilty verdict and the presumption of innocence.Endnote 354
What We Heard
There was significant support among consultees for expanding the existing grounds of appeal from conviction under s. 686 of the Code to allow an appeal from conviction on the additional ground that a verdict is unsafe. Bruce MacFarlane, Clayton Ruby, retired Justice Morris Fish, the Milgaard/Lockyer group and the UBC Innocence Project all suggested adding the English “unsafe conviction” test to the existing grounds of appeal in s. 686 of the Code.
Both the Milgaard/Lockyer group and the UBC Innocence Project pointed to the Tomas Yebes case as an example of the need for reform of the existing grounds for appeal. In 1987, the Supreme Court upheld Mr. Yebes’ conviction for killing his sons in 1982. It reasoned that the task of the appellate court was to ask whether the verdict was one that the jury could reasonably have reached. It concluded that given the evidence heard at trial, the conviction should be sustained.Endnote 355 As both the UBC Innocence Project and the Milgaard/Lockyer group note in their submissions, the Supreme Court’s 1987 decision affirming Mr. Yebes’ conviction became and remains a leading precedent on the powers of appellate courts when the accused challenges the reasonableness of a conviction. Yebes has been cited as authority in almost 2,500 cases including in over 30 subsequent Supreme Court decisions.
Mr. Yebes always maintained his innocence. The UBC Innocence Project and lawyers working pro-bono took on his case in 2010. In 2019, they submitted a s. 696 application for Ministerial relief. It argued that the forensic science used to say that the fire was set deliberately and that the boys were dead before the fire was set was flawed. In 2020, the Minister of Justice ordered a new trial for Mr. Yebes. In 2021, Mr. Yebes was found not guilty after the prosecutor called no evidence.Endnote 356
The Milgaard/Lockyer group argued that the Supreme Court’s 1987 decision in Yebes was “a disastrous decision…The failure of our appellate courts to quash Yebes’s convictions highlights a massive systemic failure of our criminal process.”Endnote 357 The UBC Innocence Project told us “Had the Minister sent the case back to the Court of Appeal rather than ordering a new trial, the case law to date may not have supported” overturning the conviction. It recommended that “serious consideration should be given to expanding the grounds of appeal available to include a lurking doubt or unsafe verdict standard…”.Endnote 358 The Milgaard/Lockyer group made a similar recommendation. They also added that Courts of Appeal should be able to refer matters to the new commission if they have concerns about the safety of a guilty verdict and additional investigation is necessary.Endnote 359 This could be helpful in cases like Mr. Yebes that depend on forensic evidence.
Support for expanding the grounds of appeal was not universal. The FPT HP group and the Federal Ombudsman for Victims of Crime suggested that the current grounds for allowing an appeal are adequate.Endnote 360 The unsafe standard is used in England, but has been criticized by many as too restrictive. Two Parliamentary bodies have recently recommended that the Law Commission examine the adequacy of the grounds of appeal in England.
We were overwhelmingly told that the Court of Appeal should not have the discretion to refuse a case referred by the new commission. We were told that there should be guidance provided to the Court of Appeal as to whether to order a new trial or enter an acquittal and that re-trials should be the exception and not the rule.Endnote 361
Bibi Sangha and Bob Moles from Flinders University recommended following Australian states that have created second and subsequent rights of appeals on the basis of fresh and compelling evidence. Based on the New Zealand experience, they expressed concerns that a new commission could soon become overwhelmed and backlogged with applications and that a new right of a second and subsequent appeal could operate as a kind of safety valve for applicants who were represented by lawyers and Innocence Projects.
Some consultees told us that a finding of innocence is important to the individual, but others found this standard too difficult to prove and suggested that it excludes many wrongful convictions. Professor Debra Parkes told us that a factual innocence standard could also reinforce structural problems that often do not remedy miscarriages of justice experienced by women, Indigenous people, and racialized groups.
Recommendations 44 and 45
It was important for us to examine the adequacy of existing appeal grounds because of the concerns that the effectiveness of the English Commission has been impaired by its Court of Appeal taking a restrictive approach to appeals. Even though the new commission should not try to predict what a Court of Appeal will do on a referral, applicants will generally have to satisfy both the commission and the Court of Appeal that their convictions must be set aside or their sentence changed.
We support option 2 that the grounds of appeal should be expanded to allow courts of appeal to overturn convictions, in addition to the existing grounds, “where the court finds the verdict to be unsafe.”Endnote 362 The approach taken by the Supreme Court to the ability of appellate courts to overturn convictions in the 1987 leading reasonable verdict case of Yebes and even in the leading BiniarisEndnote 363 case which rejected lurking doubt in 2000 was taken before the courts recognized the inevitability of wrongful convictions.Endnote 364 It should be updated.
The current test for appellate intervention relies heavily on “judicial experience”Endnote 365. The lack of diversity in the judiciary and the lack of universal judicial understanding of the causes and consequences of wrongful convictions, however, concern us. Appellate courts can be especially deferential to determinations by trial judges or juries about whether a witness is telling the truth, a factor that may also be influenced by unconscious bias based on the appearance and presentation of witnesses.Endnote 366 The current test also creates more barriers to appeal from convictions by juries as opposed to judge-alone trials.Endnote 367
We believe that, as suggested by the Milgaard/Lockyer group, there should be a role for the commission to assist appellate courts by investigating matters raised by appeals but not fully explored at trial. As the Milgaard/Lockyer group suggests, the appeal process can be improved to better guard against miscarriages of justice including in first appeals by the accused. The Yebes case is an important cautionary note, but it is far from the only one. Courts of Appeal should be prepared to use the new commission as a means to prevent miscarriages of justice by investigating specific matters that cause the Court of Appeal concern. In the vast majority of criminal cases, the provincial and territorial Courts of Appeal are the accused’s last chance to avoid a wrongful conviction.
The commission as an inquisitorial and investigative body is in an excellent position to respond to some of the weaknesses of the adversarial system especially given what we heard about restrictions on legal aid and the difficulties that the accused may have in challenging the state’s forensic evidence, raising alibi defences and presenting alternative suspects. An appellant to the Court of Appeal could attempt to convince it to ask the commission to investigate a specified matter that could make the conviction a miscarriage of justice.
At the same time, we recognize that our recommendation to expand existing grounds of appeal may be controversial. Debate about whether an additional ground of appeal from conviction is necessary should not slow down the urgent need to create a new independent commission, which in our view could be effective even under the existing grounds of appeal. We say this because even Justice Kaufman, in his recommendation that lurking doubt be added as a ground of appeal, acknowledged that the existing appeal criteria are flexible. Adding the English standard of safety will not be a magic panacea. Indeed, the safety standard has frequently been criticized by many in England as too restrictive and the Court of Appeal has often been reluctant to employ the lurking doubt standard.
We appreciate that a new commission could become overburdened including by new requests for assistance from Courts of Appeal. Creating a right to second and subsequent appeals, as in some Australian states, could operate as a form of safety valve. That said, we have concerns about how restrictive Australian courts have been in limiting what constitutes fresh and compelling evidence.Endnote 368
More fundamentally, we have reservations about the equity of a two-tier system where applicants who can retain a lawyer and find and present new and compelling evidence can go directly to a Court of Appeal for a second appeal, while others who do not have legal assistance have to apply to a publicly funded (but hopefully not under-resourced) commission. Such an approach would replicate what the Association of Legal Aid Societies told us were the inequities of the present system, especially for Indigenous and Black accused. We agree with the Legal Aid Societies, that the new commission should be designed and adequately funded to “ensure that it is available to all persons, and not simply for those who have their own resources to fully engage and benefit from the process.”Endnote 369 The commission should also be properly funded to assist Courts of Appeal in cases where matters need to be independently investigated by the commission in order to assist the Court of Appeal to determine if there is a miscarriage of justice. The proper approach in our view is to ensure that the commission is properly resourced and that it can provide access to justice for all.
We have, however, struggled over whether to recommend option 5 with respect to allowing Courts of Appeals to make determinations and declarations of factual innocence. As discussed above, we think it would be regressive to have the new commission only refer cases on factual innocence grounds. At the same time, we heard from many exonerees that factual innocence matters very much to them. We are also aware that 1988 Federal/Provincial and Territorial Guidelines require proof of factual innocence as a prerequisite for compensation. At the same time many settlementsEndnote 370 and now Charter damage awardsEndnote 371 are made without proof of factual innocence.
We believe that compensation should not require proof of factual innocence given the difficulties of establishing such a standard in the absence of DNA evidence. If, however, governments continue to maintain factual innocence as a formal requirement for compensation, we think in fairness that appellants to the Court of Appeal should be allowed to request it to make a determination of factual innocence. This would at least allow the compensation issue to be resolved much more quickly.
Evidentiary Rules Allowing the new Admission of Fresh Evidence on Appeal
Option 1: Maintain Existing PalmerEndnote 372 Rules
When the Minister refers a decision for a new appeal, the Court of Appeal applies the rule in Palmer about whether fresh evidence will be admitted. Palmer requires that the Court of Appeal determine that the evidence is relevant on a decisive or potentially decisive issue; that it is credible; that if believed, it will have affected the result; and the evidence could not have been obtained with due diligence at the original trial. The appeal courts are more flexible with the due diligence requirement if applying it could result in a miscarriage of justice including on a referral from the Minister.Endnote 373
Option 2: Replace Palmer Rules with Rules Based on TailleferEndnote 374/DixonEndnote 375
Taillefer/Dixon allows for fresh evidence to be considered when there is a reasonable possibility that fresh evidence could have affected the verdict or the overall fairness of the trial. The test is more generous to the applicant than option 1 but at present only applies when the fresh evidence was in possession of the Crown at the time of the trial and not disclosed at that time.
Option 3: Require Appeal Courts to Consider the Fresh Evidence that the Commission Considers Justifies the Referral or Order of New trial
The Courts of Appeal could by statute be required to consider the new evidence that the commission relies upon to refer a case back to the courts. It would, however, remain a matter for the Court of Appeal to decide what, if any, weight to attach to the evidence that caused the commission to make a referral. An exception would be made to require courts on a referral by the new commission to follow the procedures and restrictions with respect to the admissibility of prior sexual conduct and private records in ss. 276-278.1-278.91 of the Criminal Code.
What We Heard
We heard from several English practitioners including Mark Newby that Court of Appeal decisions refusing to admit fresh evidence played a role in some of the wrongful convictions that led to the creation of the English Commission. He and other lawyers told us that restrictive court decisions on the admissibility of fresh evidence compromise the ability of the Court of Appeal to hear some referrals from the English Commission on their merits. Professor Carolyn Hoyle has similarly stated that the English Commission at times does not refer cases because of concerns that the Court of Appeal will not accept evidence as fresh evidence.
The current CCRG provided us with an anonymized letter rejecting an application for Ministerial relief. This letter discussed the fresh evidence test in Palmer at length and in a manner that suggests that the CCRG, and perhaps the Minister, would try to predict and then defer to possible Court of Appeal decisions about whether evidence was admissible as fresh evidence when deciding whether a referral to the courts was required. The Canadian Civil Liberties Association expressed concerns that cases could be referred by the new commission on the basis of evidence that is ruled inadmissible by the Court of Appeal under the Palmer test for fresh evidence.Endnote 376
The Milgaard/Lockyer group recommended that s. 683(1) of the Criminal Code be amended to codify the less restrictive Taillefer/Dixon test for the admissibility of all fresh evidence on appeal. It also suggested that s. 683 of the Code be amended to reflect this test and that courts of appeal on a reference by the new commission should “generally” not consider issues of due diligence and tactical reasons at trial as reasons not to admit fresh evidence. They argued that victims of miscarriages of justice should not have to pay for the mistakes that their lawyers made at trial.Endnote 377
In contrast, the FPT HP group argued that there was no need to change the existing rules governing the admissibility of fresh evidence on appeal. It stated that even on a reference from the Minister “the individual bears the responsibility of demonstrating the admissibility of fresh evidence…The rules of evidence should not be discarded…The Court of Appeal’s powers after referral must be the same as the powers after appeal. If they were broader, it would fundamentally undermine the Canadian criminal justice system” and overburden the new commission.Endnote 378 The FPT HP group also warned about the need to consider ss. 276 and 278.1-278.91 of the Criminal Code even though the CCRG advised us that such concerns have not arisen under the current system.
We recommend option 3 as a means to ensure that Courts of Appeal admit new evidence that the commission has determined has justified a referral. We share the Canadian Civil Liberties Association’s concerns that a case could be referred by the commission on the basis of new material only to have a Court of Appeal refuse to admit the new material as fresh evidence. We are concerned that such a result could undermine public confidence in the new commission.
The Ontario Court of Appeal recognized in the Truscott Reference that “by ordering this Reference, the Minister has determined that a further judicial inquiry is necessary to clear the cloud overhanging the appellant’s conviction. By doing so, the Minister has indicated that the integrity of the criminal justice will best be maintained by considering the admissibility of evidence on its merits and not by excluding otherwise admissible fresh evidence for want of due diligence in the name of finality concerns”.Endnote 379 We believe that a referral of a case from the new commission will raise similar concerns about clouds over convictions. We also agree that it is best that the courts decide such cases on their merits.
We recognize that the Ontario Court of Appeal in Truscott maintained its own ability to determine whether evidence, including that assembled by Justice Kaufman as the Minister’s delegate, was admissible as fresh evidence.Endnote 380 Nevertheless in our experience, Courts of Appeal often hear fresh evidence before deciding whether it is admissible under Palmer. It would thus not be a large or burdensome step for the courts simply to accept as admissible fresh evidence any new material that the new commission has determined is reliable and decisive in deciding that a miscarriage of justice may have occurred.
Under our recommendation, the Court of Appeal would remain free to assign whatever weight it chooses to the new material that was the basis for the new commission’s referral. A similar approach could be applied when the commission orders a new trial. Again, the trial judge or jury would be free to assign whatever weight it decided is appropriate, but it should hear the new evidence that was the basis for the commission’s decision to refer the case back to the courts. We recognize that this recommendation may force courts to consider evidence about the causes of miscarriages of justice, such as faulty eyewitness identification, that they have traditionally been reluctant to hear. We view this as part of a healthy dialogue between a multidisciplinary commission and the courts.
Option 3, however, makes an exception that would require the courts to determine at a new appeal or new trial whether material that the commission had privately considered should be admissible under ss. 276 and 278.1-278.91 of the Criminal Code. As the FPT HP group argued in its submission: “if the mandate of the CCRC will include sexual offences, it seems inevitable that victims will have a role in providing evidence to investigators. Thought should be devoted to whether victims should be provided with independent legal advice, whether ss. 276 and 278 et seq of the Code will be triggered.”Endnote 381 This is an area that calls for respect for statutory procedures on the admissibility of evidence in public trialsEndnote 382 that have been held to be consistent with the Charter.Endnote 383
There may also be merit to option 2 as recommended by the Milgaard/Lockyer group. We agree with its argument that it is wrong to make applicants pay for any lack of diligence or tactical decisions made by trial counsel. We also think that the commission and courts on referrals should focus on the merits and not be slowed down and side tracked through inquiries about due diligence, tactics and ineffective assistance of counsel.
Despite our recommendations for reforms with respect to what evidence is considered on referrals, we reiterate that a new commission could be successful even under the status quo as represented by option 1 in which courts apply the existing Palmer rules considering fresh evidence. The English experience suggests that under this scenario, the new commission should interpret fresh evidence rules generously to benefit the applicant, but that Courts of Appeal may not always find that new material that the commission considered should be admitted as fresh evidence. Hopefully such disagreements would be rare because they could undermine public confidence in the commission process. That said, the creation of any new commission should not be delayed should either option 2 or 3 prove to be controversial.
L. The Commission’s Relationships with Other Bodies
Commission Involvement with Appeals
Option 1: No Involvement with Appeals
At present the current Ministerial review CCRG has no involvement with appeals.
Option 2: Statutory Provision that allows the Commission to be involved with Appeals
Section 15 of the Criminal Appeal Act 1995 allows the Court of Appeal to direct that the English Commission investigate matters that may help the Court of Appeal decide appeals.
What We Heard
The Milgaard/Lockyer group told us that the new commission should be able, at the request of Courts of Appeal, to investigate matters relevant to all appeals. Courts of Appeal have powers under s. 683(1) (e) to appoint special commissioners to inquire into any matter relevant to the appeal that cannot be conveniently inquired into before the Court of Appeal. This power is rarely used, but has helped uncover at least one wrongful conviction.Endnote 384
A multi-disciplinary commission might also be available to assist appeal courts in cases where there is a concern that there may be a miscarriage of justice, but there is a need for an investigation that cannot conveniently be done by the Court of Appeal. The commission’s subsequent report, like the special commissioner’s report, could then be used in the appeal in the manner that the Court of Appeal “thinks fit to do so.”Endnote 385 This would be done most frequently in ordinary appeals that will not have the benefit of the new commission’s investigation. In this way, the commission could, at the request of Courts of Appeal, add some inquisitorial and investigative elements to the appeal process that has failed to detect some miscarriages of justice.
We recommend option 2 that allows an Appeal Court to call on the new commission to conduct investigations that the Court of Appeal determines are relevant to an appeal. We believe this power may help appellate courts to prevent wrongful convictions by providing some investigative and inquisitorial elements to make up for the limits of the adversarial system.Endnote 386
The English Commission is the only foreign commission that is called upon by the Court of Appeal to assist when required in investigating matters that are relevant to the disposition of appeals and the prevention of miscarriages of justice. Between 1997 and 2017, the English Court of Appeal made 95 requests to the English commission to investigate matters under s.15 of the Criminal Appeal Act 1995. The English Commission investigated a range of matters including alleged jury irregularities, alleged police misconduct, witness retractions and alternative suspects. The commission conducted such investigations as a priority matter, even though the Court of Appeal often has “no idea the amount of work involved to investigate it thoroughly and properly”Endnote 387
The unpredictable demands that 13 provincial and territorial Courts of Appeal may place on the commission again points out the difficulties of determining in advance an adequate budget. This is another reason why the commission requires an adequate revolving fund budget.
Giving the new commission powers to assist Courts of Appeals is important to ensure that the commission contributes to systemic reform of an appeal system that has missed miscarriages of justice in the past and may miss more in the future given what we have heard about limits on legal aid and a premium on efficiency.
Commission’s Ability to refer Systemic and Possible Disciplinary Matters
Option 1: No Statutory Powers of Referral
None of the commissions have statutory powers to refer matters to bodies or public authorities other than the courts.
Option 2: Statutory Powers to Refer Systemic and Disciplinary Matters to Other Bodies
The English Commission has recently referred some systemic issues arising from a series of miscarriages of justice related to a faulty computer system to a Parliamentary committee. It has also engaged with the law society and prosecutors on a pattern of referrals where people pled guilty to being unlawfully in the country even though they may have had a defence of being a refugee.
What We Heard
Exonerees told us that they were disillusioned with what they believe is a lack of accountability for criminal justice system participants who were responsible for their wrongful convictions. They understandably felt quite strongly about this lack of accountability for conduct that caused them to be wrongfully convicted and serve substantial sentences of imprisonment.
We heard from consultees in England that referrals of systemic measures by the commission could help redress some of the systemic causes of miscarriages of justice while not overburdening the commission.
Recommendations 48 and 49
We think it is extremely important that the proactive and systemic commission we contemplate be able to make references and representations to the Department of Justice, the Law Commission of Canada, the Uniform Law Conference, and others about matters that it believes are relevant to the discharge of its systemic mandate to better understand and help prevent miscarriages of justice.
We also agree that the commission should have explicit statutory powers to refer possible misconduct discovered in a case to the appropriate regulatory body including law societies, police complaints or special investigation bodies, forensic regulators, and federal or provincial Judicial Councils. Although this does not guarantee accountability, it responds to the exonerees’ understandable and well-founded concerns about the lack of accountability for criminal justice system participants that helped cause miscarriages of justice.
M. Re-Integration and Compensation
The New Commission and Re-Integration
Option 1: The commission should provide support for the re-integration of applicants during the application and referral processes and after they have been released or had their conviction overturned.
In the case of Kyle Unger who was wrongfully convicted, the judge who granted him bail pending the Minister’s decision observed: “I would strongly recommend, in fact expect, the government to make appropriate counselling services available to Mr. Unger and his family if he is released to ensure that his reintegration would be as smooth and successful as possible, as it would be terrible and a further victimization of Mr. Unger, a possibly innocent man, if he did not receive at least the same level of reintegration support as is available to those who are guilty. It would be very unfair for the government to terminate support services and then use that as a reason to keep Mr. Unger in jail.”Endnote 388
Option 2: Commission should not provide support for re-integration or be involved with compensation
None of the foreign commissions or Canada’s CCRG provide financial support for applicants released because of their efforts. Some commissions would see such support as evidence that the commission was no longer independent and impartial. In England, the CCRC can refer people whose case it has referred to the Court of Appeal to a Miscarriage of Justice Support Service run by a publicly funded Royal Courts of Justice Citizens Advice Bureau. The Bureau can provide support to CCRC applicants in obtaining accommodation, healthcare, and benefits.Endnote 389
What We Heard
We heard from many exonerees that they struggled after they were released. They did not receive the financial support and other housing or job training supports that they needed and that are sometimes available to those on parole. This seems fundamentally unjust. It is another example of the current system re-victimizing the wrongfully convicted.
Win Wahrer, Gavin Wolch and Lori Kuffner eloquently reminded us:
When a wrongly convicted person’s dream of freedom finally becomes reality, they experience a rude awakening: there is no Canadian institution to help them get back on their feet. They often leave prison without any livelihood, without a home, without credit, and burdened with trauma beyond institutionalization… And they are expected to function in society, earn a living, and support themselves like nothing ever happened. When a wrongly convicted person gains their liberty, they are not yet free.Endnote 390
They proposed the creation of a committee that would include a wrongfully convicted person and also represent “the gender, racial, linguistic, geographic, and economic diversity of Canada, with space expressly reserved for Indigenous voices”. This committee would vet applications and distribute the necessities of life for victims of miscarriages of justice that have not yet received compensation or might not receive compensation.
Nicole Porter, a rehabilitation specialist who volunteers her time and works with David Milgaard to assist the wrongfully convicted, told us that victims of miscarriages of justice immediately upon their release require affordable housing, workplace training, legal assistance in regaining custody of children, and other forms of support.Endnote 391 Like many others, Nicole Porter told us that there are no current programs to provide such necessities of life for Canada’s victims of miscarriages of justice.
We were told by most consultees that the new commission should be able to provide counselling, financial, health/dental, housing, and workforce assistance for victims of miscarriages of justice. Some pointed to the Goudge commission that ensured that a qualified and experienced counsellor was available free of charge during the inquiry process for the victims of miscarriages of justice caused by Charles Smith. Such support was not seen as inappropriate even though some of these victims of miscarriages of justice had not received a judicial remedy at the time that counselling was provided to them.Endnote 392
Representatives of the North Carolina Commission told us of their hope that a person within their commission who is not a lawyer and provides support for crime victims, could also in the future provide support for applicants including exonerees. This makes sense. Both crime victims and exonerees are victims of the criminal justice system’s failures.
Some might argue that support for applicants is inconsistent with the independent and impartial nature of the commission, especially if the support is provided to an applicant before a final judicial remedy is entered. For example, representatives of the English Commission told us that the commission’s caseworkers have an independent and arm’s-length role from applicants and cannot serve as their support person. At the same time, representatives of the North Carolina Commission told us that their support person for crime victims works apart from those in the commission who investigate cases.
The Royal Courts of Justice Citizen Advice Bureau provides support to applicants after their case is referred by the CCRC to the Court of Appeal, including before the applicant receives a judicial remedy. The support includes assistance with securing the necessities of life such as housing, health care and social benefits. The Bureau is funded by but independent from the UK Ministry of Justice.Endnote 393 The Canadian Bar Association supported a similar scheme for Canada to provide “counselling, legal representation in civil proceedings, housing and other necessities of life” so that those who receive a remedy from the new commission can get “back on their feet.”Endnote 394
Heidi Illingworth, the Federal Ombudsman for Victims of Crime, told us that “applicants whose cases move past an initial review/vetting to an investigation phase will benefit from mental health, health, legal, and community supports… The new commission should provide these supports to applicants through referrals to assist them during and after the commission reviews their case…it is important to ensure that caseworkers and staff lawyers operate with cultural humility in mind, are trauma-informed, and have options specifically for BIPOC applicants.” She added that “Indigenous Elders are also a valuable resource… They should be valued as supporters for both Indigenous victims and offenders - while being compensated for this support and expertise.”Endnote 395
Jonathan Rudin of Aboriginal Legal Services told us that any reintegration support needs to be culturally relevant. In his view, the commission should contract with community organizations to provide support for applicants. The Federal Ombudsman for Victims of Crime told us that “a statutory scheme may also be required to ensure designated community agencies are properly funded to provide resources” and assist with integration.Endnote 396
David Milgaard stressed the importance of a kind and caring approach to the re-integration of the wrongly convicted who have been “failed by the justice system once already. Failing a second time is not negotiable.”Endnote 397
We recommend that the new commission provide necessary supports for applicants during the application process and after their release as contemplated in option 1. The type of proactive and systemic commission we envision would not turn its back on applicants either during the application process or once they have been released from prison. We are convinced, based on what we heard, that there is a need for counselling, support and kindness to deal with the unfair and undeserved stigma of a wrongful conviction.
There should be a legislative mandate for the commission to assist applicants both through the commission and appellate process, and after applicants have been released or had their conviction quashed. Consistent with the theme of not overly prescribing the new commission’s policies, we would leave it to the commission to decide how and in what form to provide supports. There is merit to Innocence Canada’s Win Wahrer’s suggestions that the commission could appoint a committee with diverse representation, including a wrongfully convicted person, to consider applications from successful applicants for temporary financial support. There is also merit to Jonathan Rudin’s suggestions that the commission should contract with culturally competent community groups to deliver temporary support.
The UK system of having a publicly funded bureau assist CCRC applicants with respect to existing benefits and housing schemes is also desirable. A study of over 60 CCRC applicants assisted by the Advice Bureau found that while three quarters of the wrongfully convicted were employed prior to their wrongful conviction, only a third were employed after they left prison. The Advice Bureau helped 80% of the CCRC applicants referred to it find housing and 94% of those referred to it find public benefits.Endnote 398 This indicates that support for the wrongfully convicted will often involve helping them access existing supports. The wrongfully convicted might also need assistance to find existing supports in the community.
Our conversations with exonerees have convinced us that only those with experience with miscarriages of justice can truly understand some of the unique challenges faced by the wrongfully convicted. Wrongful convictions understandably produce profound distrust and multi-generational harms. There needs to be accommodation for the distinct harms caused by wrongful convictions and for linguistic, education, mental health and other challenges that applicants may face. Such an approach is also in our view consistent with recommendations made to us by the Canadian Bar Association about the need for holistic support for applicants to the new commission.
The Commission and Compensation
Option 1: The Commission should be involved in compensation of the wrongfully convicted
Concerns have been raised that even when the victims of miscarriages of justice receive a remedy from the commission and subsequently from the courts, they often struggle after they are released from prison and must commence or threaten litigation against governments to obtain compensation.
Option 2: The Commission should not be involved in compensation of the wrongfully convicted
None of the foreign commissions have a role to play in compensation of the wrongfully convicted.
Option 3: There should be a separate legislative scheme for compensation
Canada is bound by Article 14(6) of the International Covenant on Civil and Political Rights (ICCPR) to provide compensation for victims of miscarriages of justice who have been finally convicted when a newly discovered fact shows conclusively that there has been a miscarriage of justice or who have their conviction overturned after appeal on the basis of new evidence. In 2011, Canada was found by the United Nations Human Rights Committee to be in breach of this obligation.Endnote 399 Nevertheless, Canada has not followed the United Kingdom or many American states in enacting a statutory compensation scheme.
What We Heard
Few consultees supported the commission’s involvement in compensation. Nigel Marshman of the CCRG and James Lockyer, both told us that the new commission should not be involved with compensation because consideration of financial consequences could be distracting and adversely impact on the decision to make a referral. This was also the view of Justice MacCallum in the inquiry into David Milgaard’s wrongful conviction. He concluded: “It is a mistake to attempt to use the criminal process as a vehicle for obtaining declarations of factual innocence in order to lay the groundwork for a compensation claim. The conviction review process must not be hampered by either the wrongfully convicted individual’s desire to receive compensation, or a desire on the part of the authorities to avoid payment. …The fundamental concern of the conviction review process must be that those who are wrongly convicted and imprisoned regain their freedom.”Endnote 400
Robert Baltovich and other exonerees told us that long and adversarial fights for compensation are for them a “re-victimization” process that provides unnecessary and cruel barriers to their reintegration into society. Professors Kathryn Campbell and Myles McLellan both suggested that the existing federal provincial guidelines devised in 1988 should be revised and replaced by legislation.Endnote 401 Sean MacDonald and Ruth van Vierzen told us that a scheme could be set up where the burden of compensation was shared amongst the various bodies who were responsible. Both Sean MacDonald and James Lockyer warned, however, that any new compensation scheme should not preclude the possibility of civil and Charter damage claims for those who are prepared and able to engage in such litigation.Endnote 402
Michel Dumont and his wife Solange Tremblay urged us not to ignore the question of compensation. Mr. Dumont served 34 months in prison before his wrongful conviction for sexual assault was quashed and he was acquitted by the Quebec Court of Appeal in 2001. He then commenced civil litigation to be compensated for what he suffered. He told us he spent over $40,000 in civil litigation fees and lost his house as a result. His civil action for damages was dismissed in 2009. That decision was upheld by the Quebec Court of Appeal in 2012. The courts did not find that Mr. Dumont had established the fault that they concluded was necessary for a damage award. They also found that the Charter does not incorporate Article 14(6) of the International Covenant on Civil and Political Rights (ICCPR).Endnote 403
Mr. Dumont was understandably not satisfied with the lack of compensation for his wrongful conviction. The United Nations agreed. In 2010, the United Nations Human Rights Committee held that Canada had violated his right to an effective remedy and his right to compensation under Article 14(6) of the ICCPR.Endnote 404 It found that Canada “has no procedure for launching a new investigation in order to review the case and to possibly identify the real perpetrator”.Endnote 405 The Human Rights Committee noted that Canada had argued that proof of factual innocence was required to justify compensation, but did not endorse this view and noted it may conflict with the presumption of innocence.Endnote 406
Michel Dumont and Solange Tremblay told us eleven years later that Canada has still not paid them compensation or enacted a procedure to implement its obligations under Article 14(6) of the ICCPR. This is a shame that we urge the Minister to address.
Although the commission should not be involved in compensating the wrongfully convicted for the harms the state caused them, we believe that option 3 of a legislated scheme of no-fault compensation should be pursued. We also believe that it should not require proof of factual innocence as required in the 1988 Federal/Provincial/Territorial (FPT) guidelines. A factual innocence standard was proposed in the drafting of ICCPR, but was rejected.Endnote 407 The reference in Article 14(6) of the ICCPR to miscarriages of justice which include, but are not limited to, the conviction of the factually innocent are another reason why we have focused on miscarriages of justice throughout this report.
New Canadian legislation should also in our view abandon the 1988 FPT guidelines that require either a free pardon or an acquittal being entered by a Court of Appeal. Given the 8 of 20 cases since 2003 where the Minister has ordered a new trial as a remedy, such requirements limit access to compensation in an arbitrary, overbroad and grossly disproportionate manner.
In our view, the new legislation should follow Article 14(6) of the ICCPR by tying a right to compensation to newly discovered facts after a person has finally been convicted that conclusively show there has been a miscarriage of justice. This standard appropriately focuses on justice errors that cause a miscarriage of justice.
The reference in Article 14(6) to there being no right to compensation if the non-disclosure of the facts revealing a miscarriage of justice are attributable to the accused should be interpreted restrictively given our increasing knowledge about guilty plea wrongful convictions and the general principle that those who have suffered a miscarriage of justice should not be made to pay mistakes of their lawyers or mistakes that they could not reasonably have been expected to avoid.Endnote 408 As the United Kingdom Supreme Court has said when restrictively interpreting a similar provision codified in domestic law: “Many who are brought before the criminal courts are illiterate, ill-educated, suffering from one or another form of mental disability, or of limited intellectual ability. A person who has been wrongfully convicted should not be penalized should this be attributable to any of these matters.”Endnote 409
Research suggests that only about 45% of the 70 plus people whose wrongful convictions have been recognized in Canada have received any compensation. The total amount of compensation has been estimated at $37 million.Endnote 410 We were told that the federal Department of Justice pays its usual 50% share of compensation for the wrongfully convicted out of its end of the year surpluses. It usually does not have to approach Treasury Board for additional funding. This suggests that the financial burden of having the federal government assume responsibility for compensating victims of miscarriages of justice as required under Article 14(6) should not be unduly onerous. Payment of such no-fault compensation should not preclude the victim of miscarriages of justice from suing any relevant party under fault principles found in the civil law of tort or delict or under the Charter. At the same time, courts may not allow double recovery should victims of miscarriages of justice pursue litigation, as is their right.Endnote 411
The Honourable Sydney Robins found that there is no civil claim for compensation for wrongful convictions in Canada. He noted that most of the ex gratia payments made by governments have departed from restrictive and outdated 1988 FPT guidelines on compensation that require proof of factual innocence, cap non-pecuniary damages and limit compensation for family members. He recommended compensation for Steven Truscott and his wife, even though Mr. Truscott faced “insurmountable hurdles to establishing his factual innocence.”Endnote 412 Like its Ministerial review system, Canada’s current compensation system is reactive, non-transparent and seems only capable of responding to the most egregious cases.
The factual innocence requirement for compensation should be abandoned given the difficulty of establishing factual innocence in non-DNA cases.Endnote 413 We also believe that the federal government should abandon its cap on non-pecuniary damages in the 1988 guidelines as well as restrictions on providing compensation for the families of victims of miscarriages of justice. The Grand Chamber of the European Court of Justice has stated in interpreting Article 3 of Protocol 7 of the European Convention on Human Rights that it is designed “not merely to recover any pecuniary loss caused by a wrongful conviction but also to provide a person convicted as a result of a miscarriage of justice with compensation for any non-pecuniary damage such as distress, anxiety, inconvenience and loss of enjoyment of life.”Endnote 414
Myles Frederick McLellan has recently called on Canada to enact compensation legislation that does not require proof of factual innocence or preclude civil claims. He argues:
Liberal democracies like Canada are honour bound, if not constitutionally mandated, to make provisions for innocence compensation far beyond the onerous and cost prohibitive pursuit of litigation against the State, and the currently highly secretive and inadequate ex gratia environment requiring an elusive exercise of mercy.Endnote 415
A 1995 public opinion survey suggested that 90% of Canadians support compensation for the wrongfully convicted.Endnote 416
A compensation statute need not be limited to paying money for years spent in prison. It could also provide counselling and assistance with employment and education and other forms of reintegration.Endnote 417 This will provide longer term supports for reintegration than those provided by the new commission as contemplated in the above recommendation.
Given what we were told about the relatively low expense of compensating the wrongfully convicted and Canada’s international obligations, we believe that the federal government should lead on this issue and no longer insist on provincial agreement or cost sharing. This would also preclude the need for provincial agreement or support of a new no fault compensation scheme for victims of miscarriages of justice.
Should option 3 of no-fault compensation legislation to implement Article 14(6) of the ICCPR prove to be problematic, we believe that the new commission, with the ability to provide support for applicants to assist in re-integration, should be established without delay. Without reforms that allow for compensation to be quickly paid to victims of miscarriages of justice, there will be even a greater need for the commission to be funded to provide necessary and holistic reintegration supports.
In the last 30 years, awareness about the danger of wrongful convictions has increased in Canada and the world. In our consultations, a number of the wrongfully convicted asked us to remember Donald Marshall Jr. The late Mr. Marshall Jr. was wrongfully convicted of murder and sent to the high-security Dorchester Penitentiary as a 17-year-old Mi’kmaq youth. He served 11 years there for a murder he did not commit. His release and his eventual exoneration still serve as a beacon of hope and inspiration for the wrongfully convicted even though the Nova Scotia Court of Appeal in 1982 made the unconscionable decision to try to blame Mr. Marshall for his own wrongful conviction. Like the Phoenix depicted on our logo, Donald Marshall Jr. rose from his wrongful conviction. He went on to win a landmark Treaty fishing rights case for his people, the Mi’kmaq.Endnote 418
None of the many people we consulted – crime victims, criminal justice stakeholders including representatives of police, prosecutors, defence lawyers, the judiciary, Innocence Projects and the exonerated – opposed the creation of a new independent body at arm’s-length from the government to replace the federal Minister of Justice in hearing applications for remedies for wrongful convictions.
At the same time, we heard support from the FPT HP group and a few others for a commission that would be reactive and respond to those who were able to make applications based on factual innocence in serious cases. We were warned that a wider mandate and a more proactive approach would strain police and prosecutorial resources and harm crime victims.
Although there are dangers in asking the commission to do too much, there are more dangers in asking it to do too little. The Minister’s record of awarding 20 referrals since 2003, all involving men and only one involving an Indigenous man and one involving a Black man does not reflect the population at risk for wrongful convictions as measured by the overrepresentation of Indigenous and Black people in Canada’s prisons.
If the new commission is to be an improvement, we believe it must take a different and more proactive approach than the present reactive system, which is still based on the royal prerogative of mercy. Canadian courts and commissions have documented the limits of the current reactive system over the last three decades. We believe that the Minister of Justice has made a wise choice to abandon the oft-criticized Ministerial review system.
Our consultations have convinced us that the government must make three fundamental policy choices: 1) the new commission must be proactive and systemic and not continue a reactive approach to miscarriages of justice; 2) the commission should be concerned with correcting and preventing all miscarriages of justice including, but not limited to, the conviction of the factually innocent; and 3) the independent commission should be adequately funded and treated respectfully by government and at arm’s-length as is the independent judiciary.
The new commission should have a proactive and systemic orientation and not be reactive, detached or non-supportive of applicants. It should engage in outreach to potential applicants and support of applicants. We do not believe that this is inconsistent with the commission’s independent and impartial role in deciding whether to refer cases where there may a miscarriage of justice back to the courts.
A concern for substantive equality should be built into the statutory DNA of the commission through statutory equality and non-discrimination principles and requirements that the personal characteristics of applicants and those who receive a remedy from the commission are published in annual reports, benchmarked to available data about the same characteristics in the population at large and the population in prison.
The commission must extend access to justice for the wrongfully convicted in a non-discriminatory manner. To achieve this end, there should be a statutory minimum of 9 commissioners, including a third who are legally trained, a third with expertise in the causes and consequences of miscarriages of justice and a third from groups that are overrepresented in prison and disadvantaged in obtaining relief from miscarriages of justice. There must be at least one Indigenous and one Black commissioner and equitable representation of women on the commission.
Another fundamental policy choice is that the commission should be concerned with all miscarriages of justice including, but not limited to, the conviction of the factually innocent. The existing Ministerial review system has a mandate that is concerned with all miscarriages of justice, including cases where there are serious reasons to doubt the validity of a conviction even though it may not be possible to establish factual innocence. The existing system also allows the Minister to consider new matters of significance that raise concerns about dangerous and long-term offender designations. We believe that the new commission should continue to have jurisdiction over these cases, as well as not criminally responsible verdicts. We also believe that the commission should be able to refer sentences back to courts (as do most other commissions), but only where new evidence of significance suggests that a sentence that an applicant is still serving, may be a miscarriage of justice.
Focusing on miscarriages of justice has the advantage of aligning the new commission’s concerns with the existing grounds of appeal. But in our view the commission must form its own judgment about whether there may be a miscarriage of justice as opposed to the present standard of miscarriages of justice being likely. Our recommended referral standard of whether there may be a miscarriage of justice accords better with the practice of similar foreign commissions. It should help ensure that the new commission, unlike the Minister, does not have a risk averse practice of only referring cases that are almost always overturned by appellate courts or not prosecuted in the event of a new trial being ordered as a remedy. The new commission, like the Minister under the existing regime, should not try to predict what courts will do with the cases it refers back to them. We add that our very understanding of what constitutes miscarriages of justice is capable of growth as new injustices that taint convictions and sentences are revealed.
We also believe that the new commission, like the Minister today, should have the option of ordering a new trial as well as a new appeal and referring matters to the Court of Appeal. The Court of Appeal should also have the option of requiring the commission when necessary to conduct investigations to assist in its resolutions of appeals. The English Court of Appeal uses similar powers as part of the legislation establishing its commission. We believe that investigations by the new commission could help prevent miscarriages of justice and improve the resolution of appeals through impartial and independent investigations to respond to weaknesses in the adversarial system, including those caused by declining legal aid.
We heard throughout our consultations concerns that the new commission would be under-funded and warnings that it should thus not be over-burdened. These concerns about under-funding are well-founded because of the experience of under-funding of the English commission and evidence that the New Zealand Commission has already received double the number of applications it anticipated.
Concerns about under-funding do not assume bad faith by governments. They simply reflect the difficulty of predicting in advance the number and complexity of the applications and other requests for service that the new commission will receive in any one year. We were told that the current CCRG has been able to deal with recent increases in applications by hiring more lawyers and delegating investigations to agents that are hired for that purpose because it has access to a revolving fund budget. We believe that this approach to funding is appropriate and necessary, but we fear that a new independent commission may perversely be more vulnerable than the present Ministerial review/CCRG to underfunding.
The new independent commission should not be treated like a small administrative agency, but rather it should be subject to the same arm’s-length treatment from government as the independent judiciary. The new commission must be adequately funded. Like the CCRG, it should have access to a revolving fund budget which we believe should be administered by the Courts Administration Service which secures and administers the budget for federal courts.
The commission will have unique powers to refer cases back to the courts. In our view, the salaries of commissioners should be set by the same constitutionally required process as the salaries of superior court judges. Moreover, there should be at a minimum a nine person commission with adequate staff. The staff should include lawyers, investigators and experts in the forensic sciences as well as persons qualified to support applicants and crime victims.
In addition, the commission should have the power to set its own policies and priorities with respect to the applications it receives. The commission should be subject to periodical Parliamentary reviews preceded by independent evaluations of the adequacy of its budget. The commission should have an advisory committee to assist in discharging its systemic mandate and to guard against underfunding. That advisory committee, however, should not have a role in deciding individual applications
The new commission should be as independent from government as possible, but it should not take its independence to the extreme of being detached and non-supportive of applicants or potential applicants. It should also not be neutral on systemic matters that could prevent the devastating and life altering harms of miscarriages of justice. When the commission has available evidence or powers that can be used to help prevent miscarriages of justice, it should not hesitate to act. It should not remain silent.
The commission must recognize that applicants and potential applicants may have good reason not to trust the justice system. It must accommodate such distrust and the often-overlapping grounds of disadvantage that victims of miscarriages suffer.
The commission should provide support for both applicants and crime victims adversely affected by miscarriages of justice. It should be open, caring, courageous and committed to justice. It should not be closed, defensive, bureaucratic or risk averse. It should be adequately funded. As David Milgaard told us, when justice has failed and harmed people, it should be “non-negotiable” that it not fail and harm the same people again.
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