Applications for Ministerial Review – Miscarriages of Justice Annual Report 2019 - Minister of Justice
Since 1892, the Minister of Justice has had the power, in one form or another, to review a criminal conviction under federal law to determine whether there may have been a miscarriage of justice. The current regime is set out in sections 696.1 to 696.6 of the Criminal Code. The conviction review process begins when a person submits an “application for ministerial review (miscarriages of justice),” also known as a conviction review application.
The Minister must take into account all relevant matters in assessing an application, including whether the application is supported by “new matters of significance” – usually important new information or evidence that was not previously considered by the courts. If the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred, the Minister may grant the convicted person a remedy and return the case to the courts – either referring the case to a court of appeal to be heard as a new appeal or directing that a new trial be held. The Minister may also, at any time, refer a question to the court of appeal in the appropriate province.
The Minister’s decision that there is a reasonable basis to conclude that a miscarriage of justice likely occurred in a case does not amount to a declaration that the convicted person is innocent. Rather, such a decision leads to a case being returned to the judicial system, where the relevant legal issues may be determined by the courts according to the law.
Under section 696.5 of the Criminal Code, the Minister of Justice is required to submit an annual report to Parliament regarding applications for ministerial review (miscarriages of justice) within six months of the end of the fiscal year. This is the 17th annual report, and it covers the period from April 1, 2018 to March 31, 2019. Under the Regulations Respecting Applications for Ministerial Review – Miscarriages of Justice (the Regulations), the report must address the following matters:
- the number of applications for ministerial review made to the Minister;
- the number of applications that have been abandoned or that are incomplete;
- the number of applications that are at the preliminary assessment stage;
- the number of applications that are at the investigation stage;
- the number of decisions that the Minister has made; and
- any other information that the Minister considers appropriate.
2. Addressing Possible Miscarriages of Justice
History of the Power to Review Criminal Convictions
Historically, at common law, the only power to revisit a criminal conviction was found in the Royal Prerogative of Mercy, a body of extraordinary powers held by the Crown that allowed it to pardon offenders, reduce the severity of criminal punishments, and correct miscarriages of justice.
Over the years, the Minister’s power underwent various legislative changes, culminating in the creation of the former section 690 of the Criminal Code in 1968. This section remained in effect for more than 30 years.
The Current Conviction Review Process
In 2002, following public consultations, section 690 of the Criminal Code was repealed and replaced by sections 696.1 to 696.6. These provisions, together with the Regulations, set out the law and procedures governing applications for ministerial review (miscarriages of justice).
The revised conviction review process improved transparency and addressed deficiencies in the previous process by:
- including clear guidelines for when a person is eligible for a conviction review;
- providing a straightforward application form and clear direction on the information and documents needed to support it;
- describing the various stages in the conviction review process;
- specifying the criteria the Minister must consider in deciding whether a remedy should be granted;
- expanding the category of offences for which a conviction review is available to include not only indictable offences but also summary conviction offences;
- giving those who investigate applications on behalf of the Minister the authority to compel the production of documents as well as the appearance and testimony of witnesses; and
- requiring the Minister to submit an annual report to Parliament.
The Criminal Conviction Review Group
The Criminal Conviction Review Group (CCRG) is a separate unit of the Department of Justice. It has five main responsibilities:
- liaising with applicants, their lawyers, agents of the provincial attorneys general, the police, and various other interested parties;
- reviewing applications for ministerial review and conducting preliminary assessments;
- conducting investigations where warranted;
- compiling the findings of investigations into an investigation report; and
- providing objective and independent legal advice to the Minister on the disposition of applications for ministerial review.
In conducting its review, the CCRG is not limited to considering only the information provided by the applicant. Information may be uncovered as a result of the CCRG’s independent review that was not known to, or put forth by, the applicant. The CCRG may also hire experts or arrange for scientific testing where warranted. Furthermore, pursuant to s. 696.2 of the Criminal Code, the Minister has the powers of a commissioner under Part I of the Inquiries Act. Specifically, the Minister has the investigative power during the conviction review process to subpoena witnesses, documents and other information, and to compel testimony under oath or solemn affirmation. The CCRG is usually able to acquire the necessary information and documents through voluntary cooperation but will use this investigative power when necessary to ensure a thorough review.
The Special Advisor on Wrongful Convictions
The Special Advisor on Wrongful Convictions 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 on Wrongful Convictions is the Honourable Morris J. Fish, C.C., Q.C.. He was appointed on November 29, 2018. As a former Supreme Court of Canada justice and defence lawyer, and renowned expert in criminal law, he brings a wealth of experience to the role. His presence brings an additional level of independence and scrutiny to the criminal conviction review process, and helps to ensure that reviews are fair, transparent, and complete.
Conviction Reviews by Outside Agents
In some circumstances, the Minister may retain an agent from outside the Department of Justice to conduct the review of an application. Typically, this is done where there is a potential conflict of interest. However, given the recent increase in the number of completed applications, the Minister has also made use of outside agents to ensure that files are assigned in a timely fashion.
How the Conviction Review Process Works
Applying for a Conviction Review
The conviction review process requires an applicant to submit a formal application form and a number of supporting documents.
The requirements for a completed application, as well as a description of the various steps in the application process, are set out in detail on the CCRG’s website.
Anyone convicted of an offence under a federal law or regulation may submit an application for ministerial review. For example, a person who has been convicted under the Criminal Code or the Controlled Drugs and Substances Act is eligible to apply. Convictions for indictable and summary conviction offences are both eligible for review. A person found to be a dangerous offender or a long-term offender under the Criminal Code may also submit an application for ministerial review of that finding.
However, an application will not be accepted until the applicant has exhausted all available rights of appeal. A conviction review by the Minister of Justice is not meant to be a substitute for, or an alternative to, a judicial review or an appeal of a conviction. Nor is an application for ministerial review meant to be another level of appeal or a mechanism that would allow the Minister of Justice to consider the same evidence and arguments presented to the courts and substitute his or her own judgment.
Judicial review and appeals to higher courts are the usual ways to correct legal errors and miscarriages of justice. Indeed, the Criminal Code specifically allows a court of appeal to overturn a conviction on the grounds that there has been a miscarriage of justice. Convicted persons are therefore expected to appeal their convictions, including ones resulting from a guilty plea, before submitting an application. This may involve seeking an extension of time for leave to appeal. In addition, there may be other legal mechanisms available for correcting a miscarriage of justice in the courts where an individual’s case is no longer in the legal system, particularly where the Crown concedes that a miscarriage of justice has occurred.Footnote 1
In making a decision on an application, the Minister must consider all relevant factors including whether the application is supported by “new matters of significance” – usually new information that has surfaced since the trial and appeal and therefore has not been presented to the courts and has not been considered by the Minister on a prior application. The new matter of significance may be identified by the applicant or discovered by the CCRG during its independent review. Whatever the case, it is highly unlikely that an application will be successful in the absence of such information.
Although it is not required, applicants may seek the assistance of a lawyer or an organization specializing in wrongful conviction issues such as Innocence Canada (formerly the Association in Defence of the Wrongly Convicted or AIDWYC) or the various Innocence Projects throughout the country.
Stages of the Review
There are four stages in the review process: preliminary assessment; investigation; preparation of an investigation report; and the decision by the Minister. They are described in detail on the CCRG’s website and in earlier annual reports.
As a practical matter, the Minister is not personally involved in the preliminary assessment, investigation, and preparation of the investigation report stages. These stages are usually carried out on behalf of the Minister by the CCRG. The Minister does, however, personally decide on all applications for ministerial review that proceed to the investigation stage.
In this final stage, the Minister of Justice personally reviews the investigation report and supporting materials, which typically include the submissions from the applicant and the prosecuting agency (usually the provincial attorney general), the legal advice and recommendations of the CCRG or outside agent, and the legal advice and recommendations of the Special Advisor on Wrongful Convictions.
The Minister then decides to grant a remedy or dismiss the application. In arriving at a decision, the Minister must take into account all relevant matters, including:
- whether the application is supported by new matters of significance that were not considered by the courts or by the Minister in a previous application for ministerial review;
- the relevance and reliability of information that is presented in the application; and
- the fact that an application for ministerial review is not intended to serve as a further appeal and that any remedy available on such an application is an extraordinary remedy.
In some circumstances, an application may raise a question on which the Minister may request the assistance of a court of appeal. The court’s opinion on the question may help the Minister make the decision. The Minister, therefore, has the legal authority, at any time and prior to any decision, to refer a question or questions about an application to the court of appeal for its opinion. Typically, the court of appeal’s opinion would be sought on a legal issue central to the application, such as the admissibility of fresh evidence.
If the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred, pursuant to subsection 696.3(3) of the Criminal Code, the Minister may order a new trial, or a new hearing in the case of a person found to be a dangerous or long-term offender, or may refer the matter to the court of appeal as if it were an appeal by the convicted person or person found to be a dangerous or long-term offender.
Over the years, the following guidelines and general principles concerning the exercise of ministerial discretion have developed and remain applicable today. Some have in fact been incorporated into the current Criminal Code provisions.
- The remedy contemplated by section 696.1 is extraordinary. It is intended to ensure that no miscarriage of justice occurs when all conventional avenues of appeal have been exhausted.
- Section 696.1 does not exist to permit the Minister to substitute a ministerial opinion for a trial verdict or a result on appeal based solely on the Minister’s view of the same evidence.
- Similarly, the procedure created by section 696.1 is not intended to create a further level of appeal. Something more will ordinarily be required than simply a repetition of the same evidence and arguments that were put before the trial and appellate courts. Applicants under section 696.1 who rely solely on alleged weaknesses in the evidence, or on arguments of the law that were put before a court and considered, can expect that their application will be refused.
- Applications under section 696.1 should ordinarily be based on new matters of significance that either were not considered by the courts or occurred or arose after the conventional avenues of appeal had been exhausted.
- Where the applicant is able to identify such new matters or where they are discovered by the CCRG or outside counsel during the review process, the Minister will consider the reliability of the information and relevance to the issue of guilt. The Minister will also have to determine the overall effect of the new matters when taken together with the evidence adduced at trial.
- Finally, for an application under section 696.1 to succeed, the Minister does not need to be convinced of the applicant’s innocence nor must it be proved conclusively that a miscarriage of justice has actually occurred. Rather, an application will be successful where it has been demonstrated, based on the above analysis, that there is a reasonable basis to conclude that a miscarriage of justice likely occurred.
3. Statistical Information
The period covered by this annual report is from April 1, 2018 to March 31, 2019. Table 1 provides an overview of active files during the reporting period.
|Active FilesFootnote 2||47|
|New completed applications received||18|
|Preliminary assessments completed||11|
|Preliminary assessments underway or awaiting assignment||31|
|Decisions by Minister on remedy||1|
This includes people who contact the CCRG for the first time for general information about the conviction review process or to request a copy of the booklet Applying for a Conviction Review or other information. It does not include follow-up inquiries after initial contact.
During the reporting period, the CCRG received 37 such inquiries.
Applications Made to the Minister
Table 2 indicates the number of applications that the Minister actually received during this period. An application is considered “completed” when a person has submitted the forms, information and supporting documents required by the Regulations. During this period, the Minister received 31 applications, 18 completed. As illustrated below, the CCRG continues to experience a significant increase in new completed applications, averaging 17 per year over the past three years, up from an average of five per year from 2003 to 2015.
An application is considered “partially completed” where a person has submitted some, but not all, of the forms, information, and supporting documents required by the Regulations. For example, a person may have submitted the application form but not the supporting documents required. Although it is the applicant’s responsibility to provide the required documentation, CCRG staff frequently assist. It is not unusual for an application to remain “partially completed” for a period of time while the applicant gathers and submits the necessary documents and information. Of the 31 applications made to the Minister during the reporting period, four were “partially completed”.
An application is “screened out” if the person is not eligible to make an application for ministerial review. This covers a variety of circumstances – for example, if an application relates to a provincial offence, involves a civil matter, or deals with the same subject as a previously denied application and does not raise any new matters of significance. The most common reason for screening out applications, however, is where an applicant has not yet exhausted his or her rights of appeal in the court system. Nine applications were screened out during this reporting period, eight because of a failure to exhaust rights of appeal.
|Applications partially completed||4|
|Applications screened out||9|
Progress of Applications through the Conviction Review Process
Table 3 summarizes the work completed in the first three stages of the conviction review process. Eleven preliminary assessments were completed during the period. No investigations were completed and no applications were abandoned.
The time required to conduct a preliminary assessment typically ranges from a few weeks to several months. An investigation usually takes a number of additional months to complete. Both preliminary assessments and investigations can take even longer if the case is particularly complex or a large volume of material has been submitted.
|Preliminary assessments completed||11|
Tables 4 and 5 provide further information about the work done at the preliminary assessment stage. Table 4 summarizes the 43 applications that were at the preliminary assessment stage during the reporting period. At year’s end, there were 15 applications awaiting preliminary assessment, and eleven were completed. Sixteen more were underway but not yet completed. No preliminary assessments were abandoned but one was on hold at the request of the applicant. Table 5 shows that three applications proceeded to the investigation stage following preliminary assessment, while eight were rejected. An application is rejected at the preliminary assessment stage because the CCRG concluded there was no reasonable basis to conclude that a miscarriage of justice likely occurred. When a decision was made to proceed to the investigation stage, the CCRG considered there may be a reasonable basis to conclude that a miscarriage of justice likely occurred.
Of the 43 applications at the preliminary assessment stage, 25 were from applicants not represented by counsel and 18 were represented. Nineteen applicants were in custody, while 23 were out of custody.
|Preliminary assessments completed||11|
|Preliminary assessments abandoned or on hold||1|
|Preliminary assessments under way but not yet completed||16|
|Applications awaiting preliminary assessment||15|
|Applications that did not proceed to the investigation stage following a preliminary assessment||8|
|Applications that proceeded to the investigation stage following a preliminary assessment||3|
Table 6 summarizes the work done on applications that were at the investigation stage. An investigation is considered complete when an investigation report is forwarded to the Minister for review and decision.
No investigations were completed during the reporting period. One investigation was carried over from the previous period and three new investigations began following preliminary assessment.
All applicants at the investigation stage are represented by counsel. Two are in custody after being denied bail pending the outcome of the review. Two are not in custody – one was released on parole prior to his application, the second was granted bail pending the outcome of his s. 696.1 review.
|Investigations under way but not yet completed||4|
Decisions by the Minister
Table 7 summarizes the decisions made by the Minister during the reporting period. One remedy was granted (a new trial) and no applications were dismissed by the Minister.
Appendix: Contacting the Criminal Conviction Review Group
Applicants and interested parties are encouraged to communicate with the CCRG in writing. Initial contact may also be made by e-mail.
Minister of Justice
Criminal Conviction Review Group
284 Wellington Street
Ottawa, ON K1A 0H8
Initial inquiries: firstname.lastname@example.org
Information for contact by telephone will be provided following the initial contact by mail or e-mail.
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