A Miscarriages of Justice Commission
The Honourable David Lametti, Minister of Justice and Attorney General of Canada, asked us to lead public-facing consultations on the creation of 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 by individuals of miscarriage of justice back to the courts.
Starting on June 9, 2021, we conducted 45 roundtables involving 215 people. Our first sessions heard from 17 exonerees who have suffered miscarriages of justice. We also spoke to representatives of all five foreign commissions who perform similar functions in England, Scotland, Norway, North Carolina and New Zealand. And we spoke with crime victims and representatives of police, prosecutors, defence lawyers, legal aid officials, judges and forensic scientists. Forty-five domestic and international individuals and organizations provided written submissions to us.
We provided all our consultees in advance a detailed consultation paper setting out a number of possible options for different design features of the new commission. This final report outlines various policy options for the Minister around 51 design options; what we heard in our consultations about each of them and our recommendation for the best options.
Our consultations have convinced us that the government must make three fundamental policy 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 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 justice.
In our view, the commission must be proactive and systemic and not simply react as in the current system to the applications that it receives, often from people who must rely on free legal services from lawyers and Innocence Projects. This is the first fundamental policy choice that animates our report.
The existing Ministerial system has been criticized by commissions of inquiry, courts and applicants as reactive. It fails to achieve access to justice as measured by the low number of applications and referrals to the court compared to the independent foreign commissions.
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 present Criminal Conviction Review Group (CCRG) has received about 18 completed applications a year. Since 2003, the Minister has received 186 applications. The Minister has provided 20 remedies in the form of orders of new trials or appeals. All of the recipients have been men. Only one was Indigenous and another was Black. In 15 of the 20 cases, the application involved a homicide conviction and in 3 cases, it involved sexual assault convictions.
The current system has failed to provide remedies for women, Indigenous or Black people in the same proportion as they are represented in Canada’s prisons. We believe that the new commission must be proactive and reach out to potential applicants, including Indigenous people, Black people, women and others who may have reasons to distrust a criminal justice system that had convicted them and denied their appeals.
The commission should provide culturally and linguistically competent support for applicants, including where appropriate in Indigenous languages. Donald Marshall Jr. was disbelieved by a jury in 1971 and by the Nova Scotia Court of Appeal in 1983 when he testified in English. He was only believed when a subsequent commission of inquiry into his wrongful conviction allowed him to testify in his first language - Mi’kmaq.
Canada’s present reactive system provides much less access to justice than more proactive foreign commissions. For example, the Scottish Commission has received 2,883 applications from 1999 to July 2021 for an average of 131 applications a year. It has referred 85 convictions back to the courts since 1999. Scotland has a population less than one seventh of Canada’s population.
The new commission must be systemic in the sense that it should be concerned about both the correction of miscarriages of justice and their prevention. Like the New Zealand Commission, the commission should make its decisions public and have a mandate to examine and research general matters that contribute to miscarriages of justice.
A systemic commission should also have the power to refer both systemic and possible disciplinary matters that come to light in its work to appropriate public authorities such as the Law Commission, law societies and others. A systemic commission would also be available to assist Courts of Appeal when they determine that a matter relevant to any appeal needs to be investigated because of a danger of a miscarriage of justice. A proactive and systemic commission would support research into miscarriages of justices and the Innocence Projects. It would also help educate the public and criminal justice participants about the causes and consequences of miscarriages of justice. It would also create and listen to advisory committees.
The second fundamental policy choice is that the commission should be as independent and arm’s-length from government as possible and adequately funded. In taking over the Minister of Justice’s power to direct new trials and appeals, the independent commission will exercise unique powers. If it is to have the power to require the independent judiciary to re-hear cases, it should be treated by government as far as possible in the same manner as the independent judiciary. The commission should not be the “poor cousin” as compared to the judiciary because to do so would be to treat applicants to the commission as second class.
We were told by the present CCRG that it is funded through a revolving fund budget process that does not constrain its work. We are concerned that an independent commission may be more vulnerable to underfunding than the CCRG both because it will receive more applications and requests for assistance from Courts of Appeal and because it cannot draw on the resources of the federal Department of Justice.
The budget of the commission should be secured and administered by the Courts Administration Service which provides the budget to a variety of federal courts. The commissioners should have security of tenure and their salaries should be tied to the constitutionally required independent process that determines the salaries of federally appointed judges.
We stress that it is absolutely essential that the commission be adequately funded. Alas, it will be no easy task to ensure adequate funding given the unpredictability of applications. We make a number of recommendations designed to ensure adequate funding that will be discussed in detail below.
- a minimum of nine commissioners with security of tenure who will be paid on a full time or prorated basis tied to the salaries of superior courts judges as determined through a process designed to respect the independence of the judiciary;
- an advisory committee that could, if necessary, advocate for proper funding;
- the ability of the commission to make policies prioritizing applications that can allow the commission to signal if it is not adequately funded and backlogged;
- a mandatory review of the adequacy of funding by the Parliamentary Budget Officer or the Auditor General to precede a mandatory Parliamentary review of the new commission after 3-5 years of operation; and
- a budget determined and managed at arm’s-length from the executive and legislative arms of government through the Courts Administration Service which supplies the budget to various federal courts. All of these recommendations will be discussed in detail below and in light of what we heard during our consultations.
A final fundamental policy choice is that the new commission should be concerned with all miscarriages of justice and not only cases where factual innocence can be established. Proof of factual innocence is often not possible in non-DNA cases. Most convictions including many wrongful convictions of women and less serious cases do not involve DNA. We recognize that factual innocence is very important to exonerees and Innocence Projects. Nevertheless, we do not believe that the commission should be limited by the approach taken by voluntary and poorly funded organizations.
The current Ministerial review regime focuses on whether a miscarriage of justice likely occurred and can include applications related to dangerous and long-term offender designations. We recommend that this mandate be continued and extended somewhat to include other cases where applicants are serving a sentence and raise new matters of significance. This is a more restrictive sentencing mandate than the English, Scottish and New Zealand Commissions, but one we believe is justified and manageable.
The Name and Structure of the New Miscarriages of Justice Commission
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. Exonerees reminded us that they are not “criminal cases” or “criminals”. They are people. They expect their cases to be investigated and not simply subjected to a cursory review. These are legitimate expectations. Hence, we recommend that the commission be called the “Miscarriages of Justice Commission”. We recommend that the commission be established through amendments to the Criminal Code to replace the Ministerial review system and to remind all justice participants of the inevitability of miscarriages of justice. We recommend that the commission’s remedies not be called “extraordinary” because miscarriages of justice are an inevitable by-product of a high volume fallible criminal process run by humans. At the same time, we accept that the new Miscarriages of Justice Commission should not act as another level of appeal.
We recommend a minimum nine person commission with a combination of full-time and part-time appointments. There should also be statutory provisions for the appointment of two more commissioners, if necessary, because of the unpredictable number of applications received.
There should be a chief commissioner who is full time or near full time. One vice chair should have responsibility for systemic and educational matters and another should have responsibility for outreach and support of applicants and crime victims. We recommend vice chairs to ensure adequate attention to matters that we were told are sometimes neglected in the work of foreign commissions.
One third of commissioners should be legally trained, though we would not recommend a requirement of 10 years standing at the bar because it could be a potential barrier to the representation of disadvantaged groups among commissioners.
One third of commissioners should have expertise in the causes and consequences of miscarriages of justice. This expertise requirement reflects that this is a growing and multi-disciplinary field.
One third of the commissioners should represent groups that are overrepresented in prison but disadvantaged in seeking relief. This should include at least one Indigenous and one Black commissioner.
The enabling statute should have operative anti-discrimination provisions and require the commission to reasonably accommodate linguistic diversity including Canada’s Indigenous languages. The commission should be statutorily required in its annual report to report on the demographic characteristics of applicants and those whose cases are referred back to courts, indexed to the representation of gender, gender identification, age, racial, disability and other relevant characteristics in both the population at large and the prison population. A concern about systemic discrimination and colonialism should be built into the legislative DNA of the commission.
We considered but ultimately rejected statutory bars on who can be commissioners, whether they relate to previous work as a criminal justice system participant or a previous criminal conviction. At the same time, the commission should have a public and robust policy to guard against conflicts of interest, tunnel vision, or confirmation bias and employment discrimination. The commission’s organizational culture should be open and encourage collaboration, effective communication and critical internal challenge and review of decisions and policies.
In order to maximize independence from government, the nine commissioners should be appointed by an independent committee after an advertised and competitive process that includes interviews. The commissioners should have staggered and non-renewable terms to ensure both continuity of experience on the commission and independence from government.
The independent appointments committee should have a composition similar to that of the commission itself. It could also serve as an advisory committee for the commission after the commissioners are appointed. An advisory committee should be included in the enabling legislation and should offer strategic advice and be able to engage in advocacy. This committee should not, however, involve itself in individual applications that will be investigated and decided by the commissioners assisted by their staff.
The staff of the commission is very important. There must be adequate funding to hire staff in as independent and competitive manner as possible. The staff should include lawyers with expertise in the frailties of the criminal process, open minds and cultural competence. The staff should also include people qualified to support both applicants and crime victims who may be adversely affected by the commission’s work. It should include those who have investigative skills and qualifications and those with critical knowledge of the forensic sciences. The staff should work collaboratively together and with others, including applicants and their representatives. The commission should have statutory powers, as does the Minister of Justice at present, to hire agents who can exercise delegated investigative powers. We heard from many in our consultations that this was a beneficial part of the current system that should be retained.
There may be some value in locating the commission outside of Ottawa to symbolize its independence from government, but we do not view this as essential. What is essential is a budget that is adequate to ensure that the commission can reach out to potential applicants and investigate their cases from coast to coast to coast.
We considered recommending that the commission be an Agent of Parliament, but concluded that the involvement of leaders of political parties in the appointment of commissioners was not appropriate. Instead, we have recommended an independent appointment committee with a composition similar to the new commission.
The Mandate of the New Commission
The commission should continue to hear applications in both serious and less serious criminal cases because any miscarriage of justice can be damaging and stigmatizing. Because they carry less stigma, the commission should not hear applications about convictions for regulatory offences though at present the Minister’s jurisdiction extends to federal regulatory offences. In practice, applications have not been made in respect to these offences.
The commission should have jurisdiction to hear applications relating to dangerous and long-term offenders, those held not criminally responsible because of mental disorder, and continuing sentences where there is a new matter of significance. The underlying rationale for all of these inclusions is the harm caused by miscarriages of justice. The commission should not be precluded from hearing applications on behalf of the deceased, but should be required to fashion its public policy on the priority it assigns to the applications it receives.
The Commission and its Relations with Applicants, Innocence Projects and Victims of Crime
The new commission should engage in culturally and linguistically competent outreach to potential applicants. We do not see active support by qualified staff on the commission for both applicants and crime victims as inconsistent with its duty to decide cases impartially on the basis of the evidence.
Applicants should not be required to waive solicitor client privilege. The commission should, at its discretion, be able to appoint or fund counsel when necessary to assist in the preparation of an application or response to a provisional decision by the commission. It should take a collaborative and partnership approach in working with counsel and Innocence Projects that may represent applicants.
Consistent with the Canadian Victims Bill of Rights, the commission should notify and allow victims of crime to make their views known to the commission. At the same time, the commission should have discretion both in terms of formulating a policy for its dealings with crime victims and when crime victims should be notified. We heard from many consultees that premature notification of crime victims of applications that will be rejected can be needlessly traumatic for crime victims.
Preliminary Decision-Making and Bail
We recommend that the commission have the flexibility to define its own acceptance and screening policies without rigid statutory requirements. We do not think that there should be a rigid exhaustion of appeal requirement though the existence of new matters of significance should continue to play an important role.
We recommend that bail pending a Minister’s decision should be available pending the commission’s decision. The important development of considering bail pending the Minister’s decision under the current s. 696 should be codified. We recommend that bail pending the commission’s decision be decided under the same standards as bail pending appeal under s. 679(7) of the Criminal Code.
Retention and Investigative Powers
The commission will not succeed in uncovering miscarriages of justice unless it has the strongest possible powers to order that relevant material be retained and produced. Regrettably, there are no standard periods for police, prosecutors, lawyers, courts and forensic scientists to retain information. Retention periods can be quite short in less serious cases. This is an example of a neglected systemic issue that the commission should address. We note that Innocence Projects and the CCRG agree that varying and short retention periods of relevant material is a serious barrier to their work.
The commission should have the power to require all persons to retain, catalogue and where possible copy material that it deems relevant to its investigation. This power should be exercisable at any time by the commission. The commission, unlike the CCRG, should not be hindered by arguments that it does not have investigative powers until it moves towards a formal investigation stage.
The commission should also have the power, as the Minister and delegates currently do, to compel people with relevant information to answer questions under oath. As we heard from representatives of the North Carolina commission, this is a valuable power that, while routine in civil litigation, is not generally available to those accused or convicted of criminal offences.
Like the English Commission, the Canadian commission should be able to obtain relevant material regardless of any claim of legal privilege whether under the common law or statute. This applies to any privilege claimed by any person including police, prosecutors, former lawyers for the applicant or applicants. The commission should be deemed an investigative body for purposes of various privacy laws. Privacy law claims should not defeat the ability of the commission to obtain and examine relevant information in a confidential manner.
Following precedents in Ontario and British Columbia’s law society acts, material that may be subject to a legal privilege should be held in confidence by the commission and only used for purposes authorized by the commission’s enabling statute. The commission should protect the privilege and in appropriate cases seek a court ruling about whether a legal privilege applies and whether exceptions, such as the innocence at stake exception, applies and justifies the disclosure of the information. The commission should also delay and redact its public decisions when necessary to protect legal privileges as well as privacy.
Any disclosure of a crime victim’s private documents in sexual cases to the applicant will be governed by the restrictions and required judicial balancing of competing interests in s. 278.4(1) of the Criminal Code. In addition, the admissibility of privileged material in new trials or appeals ordered by the commission would be a matter for the relevant courts to decide, as would issues of admissibility under ss. 276 and 278.1-91 of the Criminal Code.
As an investigative body, the new commission should be protected from access to information requests under s. 16 (1)(a) and (c) of the Access to Information Act. At the same time, the new commission should make public its reasons for its decisions but subject to necessary editing and time delays in order to protect privacy, legal privileges and fair trial rights.
Decision Making, Publicity of Decisions and Judicial Review
In accordance with present Canadian and best international practices, applicants should be given an opportunity to respond to provisional decisions by the commission not to refer their case back to the courts. Accommodations should be made to allow applicants adequate time to respond to decisions. In some cases, the commission may have to fund counsel for applicants to assist in responding to its provisional decisions.
Applicants should be able to judicially review decisions of the commission on a reasonableness standard and in provincial superior courts. Although the Minister’s decisions are at present reviewed in the Federal Court, we agree with a number of consultees who recommended that future judicial review should be directed by statute to the provincial superior courts which generally have more familiarity with criminal justice matters.
Referral Grounds and Remedies
We recommend that the new commission may refer a case back to the courts where it concludes that a miscarriage of justice may have occurred. This is a lower standard that is more generous to the applicant than the present standard that the Minister may refer if a miscarriage of justice likely occurred. Our recommended standard is, however, consistent with foreign best practices that do not require a probability of a miscarriage of justice before referral. The lower standard should help ensure that the 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. 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.
The commission, like the Minister, should retain discretion to order a new trial or a new appeal as well as to refer matters for assistance from the Court of Appeal. Our consultations have convinced us that the order of a new trial is a valuable and necessary remedy especially in cases where the applicant may be in ill health.
Under our recommendations, Courts of Appeal would be able to call on the commission to assist in matters relevant to appeals. In turn, we believe that the commission should be able to refer matters to the Courts of Appeal, including with respect to the handling of material over which legal privileges are claimed. We believe that miscarriages of justice can be prevented through frequent interaction between the new multidisciplinary commission and the Courts of Appeal.
We considered recommending the commission refer cases back to the courts on an “interests of justice” test as used in New Zealand and Scotland. We ultimately rejected such a test as too vague.
We considered a test that would allow the commission to refer cases back to the courts on “factual innocence” grounds as used in North Carolina. We ultimately rejected such a test on the basis that it was too restrictive.
We do not see either the present test in s. 696.3 of the Code or our recommended test as a “predictive” test in the sense that the English legislation requires the English Commission to direct its mind to whether the Court of Appeal would overturn a conviction or sentence. The new commission should form its own independent view about the possibility that there has been a miscarriage of justice. It should not refer cases only when it is certain that a Court of Appeal would agree.
We recommend that the presumptive remedy provided by the commission should be a new appeal. It should only order a new trial or make a recommendation about the royal prerogative of mercy in cases where applicants specifically request such remedies and the commission finds that such remedies are justified.
We considered the adequacy of existing grounds of appeal from conviction and evidentiary standards for the admission of fresh evidence because the English experience suggests that the confidence in the new commission may depend on these factors.
We recommend amendments that would allow appeal courts to quash convictions on the basis that the conviction is unsafe in addition to the existing grounds for appeal under s. 686 of the Criminal Code. We also recommend that courts be required to consider new evidence that the commission considers to be reliable and probative to its decision to refer a case back to the courts on the basis that a miscarriage of justice may have occurred.
We recognize that this latter recommendation is innovative. But we are concerned that confidence in the commission could be undermined by decisions of courts to refuse to admit fresh evidence that has played a role in the commission’s decision to refer the case back to the courts. Based on our experience, we think requiring courts to admit the evidence that influenced the commission should be manageable. Courts often hear evidence before deciding whether to admit it on the existing law as it relates to fresh evidence. At the same time, the independent courts would retain the ability to assign whatever weight, including no weight, to the evidence considered by the commission.
That said, we believe that the commission has an important role to play even if the existing grounds of appeal and rules regarding the admissibility of fresh evidence are not reformed as we have recommended. The creation of an independent commission should not be delayed should these proposed reforms prove to be problematic. An independent commission was first recommended 32 years ago by the Commission of Inquiry into Donald Marshall Jr.’s wrongful conviction. The victims of miscarriages of justice and all those adversely affected by them have waited too long already. A new independent commission should be created as a matter of urgency.
A new independent, multidisciplinary, proactive and adequately funded commission can help improve our criminal justice system. Courts of Appeal should be able to call on the commission to act as special commissioners under s. 683(1)(e) of the Code to assist when it may be necessary but not convenient to investigate matters relevant to any appeal.
More generally, the new commission will add state funded inquisitorial powers to our adversarial criminal justice system, a system that many consultees told us is under considerable strain given cuts to legal aid and the premium placed on the efficient disposition of cases often through guilty pleas. We note that guilty pleas in Canada have produced a significant number of miscarriages of justice, with over-representation of women, Indigenous, Black and other racialized people and those with cognitive disabilities.
The new commission should be able to make referrals to appropriate public authorities on both systemic matters and possible disciplinary matters revealed in the course of the commission’s work. We heard from exonerees that they were dismayed at the lack of accountability for criminal justice participants that contributed to their miscarriages of justice.
We recommend that the commission should not be involved in or influenced by concerns about compensating victims of miscarriages of justice. We did, however, hear from exonerees, including those who have been compensated, that Canada’s approach to compensation is re-victimizing and slow. Like the existing Ministerial review system, it is reactive and responds only to the most egregious cases.
We recommend that Canada enact a statute that complies with its international law obligations to compensate victims of miscarriages of justice. Canada should abandon factual innocence requirements and caps on non-pecuniary damages that are required by the outdated 1988 federal/provincial/territorial guidelines on compensation but which in practice are frequently ignored. We would add, however, that continued disagreement among governments on this issue, though regrettable, should not be an excuse for delay in creating a new commission.
We were also told by exonerees that they were released with no public supports. Exonerees received less than offenders received when granted parole. Exonerees often had to rely on charity because their relationships with families and their ability to find employment was adversely affected by the time they spent in prison. We recommend that the commission be able to provide support, including temporary financial support, to applicants who are released. We do not believe that such humanitarian support is inconsistent with the independent and impartial role of the commission.
None of the many people we consulted 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 some support for a commission that would generally respond to claims of factual innocence in the most 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, especially if it is under-funded, there are greater dangers in asking it to do too little. The Minister’s record of awarding 20 referrals, since 2002, 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. The CCRG could not inform us about the racial composition of its applicants. We believe that a new proactive and systemic approach is urgently required. It should include in annual reports data about the racial, gender, gender identity, age, disability, linguistic and other relevant personal characteristics of its applicants and those who receive remedies benchmarked against available data on overrepresentation in prison.
If the new commission is to be an improvement on the present system, which is still based on the royal prerogative of mercy, we believe it must take a different and more proactive approach. Canadian courts and commissions have documented the limits of the current reactive system over the last three decades. We believe that the Minister has made a wise choice to abandon the oft-criticized Ministerial review system. We believe that the Canadian Commission, like the English Commission, must have powers to quickly obtain all relevant documents from all parties regardless of claims of privilege or privacy concerns.
Some consultees told us that the commission should focus on factual innocence claims in serious cases. We agree that the commission should give priority to such cases, especially when applicants are still imprisoned. Nevertheless, it would be a mistake to limit the commission’s mandate to such cases. It would be a move backward from the present system. Focusing on miscarriages of justice has the advantage of aligning the commission’s concerns with the existing grounds of appeal.
Our understanding of miscarriages of justice is capable of growth. This is especially so as new injustices are revealed. We believe that more miscarriages of justice will be revealed once the current reactive system with its Catch 22 problem of requiring convicted people to point to new matters of significance, even though they lack powers or funds to find such new evidence, is abandoned.
We cannot emphasize enough that a proactive and systemic commission concerned with investigating and preventing miscarriages must be adequately funded. Concerns about overburdening the commission are legitimate, especially judged against the lengthy experience of the under-funded English commission and evidence that the New Zealand Commission has already received double the number of applications it anticipated. Nevertheless, we believe that the answer is to ensure the adequate funding of the commission and not to limit the new commission to serious cases where factual innocence can be proven. The independent new commission, like the current CCRG, should have access to an adequate revolving fund budget that will allow it to hire and appoint people when necessary to deal with increased numbers and complexity of applications. In order to encourage arm’s-length treatment from government, the commission’s budget should be administered by the Courts Service Administration and the salaries of commissioners tied to the independent process that determines the salaries of superior court judges.
Like the judiciary, the commission should be as independent from government as possible. At the same time, it should not take its independence to the extreme of being detached and non-supportive of applicants or potential applicants. The commission should not be neutral on systemic matters that could prevent the devastating and life-altering harms of miscarriages of justice.
The new commission must recognize that applicants and potential applicants have good reason not to trust the justice system. It must accommodate often cumulative grounds of disadvantage and other harms that victims of miscarriages suffer. It must also provide support for crime victims who were harmed by the criminal justice failures of miscarriages of justice. As David Milgaard told us, when the justice system has failed and harmed people, it should be “non-negotiable” that it not harm the same people again.
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