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 allow 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 1968 in the former section 690 of the Criminal Code. This section remained in effect for more than thirty years.

The Current Conviction Review Process

The current conviction review process has been in place since 2002, when section 690 of the Criminal Code was repealed and replaced by sections 696.1 to 696.6 (Appendix 1), after a broad public consultation. These provisions, along with regulations (Appendix 2), set out the law and procedures governing applications for ministerial review (miscarriages of justice).

The current conviction review process improved transparency and addressed deficiencies in the previous process by:

• including clear guidelines as to 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 investigating 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.

Criminal Conviction Review Group

The Criminal Conviction Review Group (CCRG) is a separate unit of the federal 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 candid, objective and independent legal advice to the Minister on the disposition of applications for ministerial review.

Throughout the reporting period, six full-time lawyers were employed at the CCRG. They have broad experience in criminal law including defence work, prosecutions and criminal law policy development. In addition, the CCRG supervised law students from the University of Ottawa under the Department's Clinical Internship Program.

Following the legislative changes in 2002, a number of structural changes were made to enhance the arm's-length relationship between the CCRG and the Department of Justice.

The CCRG office is located outside of the Department of Justice Headquarters in a downtown Ottawa office building which has both government and private sector tenants. No other Department of Justice offices are located in this building.

Rather than formally passing through another branch of the Department, advice passes from the CCRG to the Minister through the Deputy Minister's office. Administration and support services are provided to the CCRG by the Department's Corporate Services Branch.

To promote awareness and understanding of the conviction review process, the CCRG provides presentations or lectures, subject to availability, resources and operational requirements. During the reporting period, presentations were made to the executive of the National Parole Board, and classes at Carleton University and the University of Ottawa, as well as several conferences described later in this report.

The CCRG has also taken steps to develop appropriate working relationships with various interested parties including the courts, provincial attorneys general and organizations such as the Association in Defence of the Wrongly Convicted (AIDWYC).

The Special Advisor to the Minister

Bernard Grenier, a retired judge of the Court of Quebec with more than two decades of distinguished experience on the bench, has served as the Special Advisor to the Minister on applications for ministerial review since 2003.

The Special Advisor's position is an independent one. He is neither a member of the public service of Canada nor an employee of the Department of Justice. The Special Advisor is appointed by Order-in-Council from outside the Department and public service.

While the Special Advisor's main role is to make recommendations to the Minister once an investigation is complete, it is equally important that he provide independent advice during all stages of the review process, including the preliminary assessment stage where applications may be screened out. The Special Advisor's involvement ensures that all stages of the review are complete, fair and transparent.

For example, the Special Advisor may request that additional information be collected, or existing information be clarified, before an application is screened out at the preliminary assessment stage. The Special Advisor may conclude that a particular application should not be screened out and recommend to the Minister that the review process continue.

At the investigation stage, the Special Advisor's role may include providing advice and guidance to the CCRG or seeking clarification of issues. Nevertheless, the CCRG or the appointed agents remain responsible for conducting the investigation and are expected to provide candid and independent advice to the Minister along with the investigation report. The Special Advisor reviews the investigation report and any appended material and provides his own advice and recommendations to the Minister, which may or may not differ from the advice provided by the CCRG or agent.

The involvement of the Special Advisor, in concert with the arm's-length relationship between the CCRG and the Department of Justice, ensures that the conviction review process is independent.

Conviction Reviews By Outside Agents

As a practical matter, the Minister is not personally involved in the preliminary assessment, investigation and investigation stages of the conviction review process. These stages are usually carried out on his or her behalf by the CCRG. The Minister does personally decide all applications for ministerial review that proceed to the investigation stage.

In some circumstances, the Department retains an outside "agent" to conduct the review. The outside agent, rather than the CCRG, will provide advice to the Minister.

Typically, a conviction review is conducted by an outside agent where a potential conflict of interest arises, such as where the prosecution was conducted by the Attorney General of Canada (e.g., drug prosecutions, or criminal prosecutions in the Yukon, Northwest Territories and Nunavut). During this reporting period, five applications for ministerial review were referred to outside agents.

Authorizations for the Use of the Minister's Investigative Powers

Under the previous review process, there was no legal procedure to require witnesses to provide information or produce documents that might be relevant to an application. The review of an application was therefore dependent upon the voluntary cooperation of witnesses. This was seen as a weakness in the review process, since information and documents in the possession of a reluctant or uncooperative witness could not be obtained.

This weakness was corrected by the current section 696.2 of the Criminal Code which gives the Minister the powers of a commissioner under the Inquiries Act.¹ Specifically, the Minister has the investigative power to:

• subpoena a witness;
• require a witness to answer questions and give evidence, orally or in writing, under oath or solemn affirmation; and
• require a witness to produce documents or other things that may be relevant to an investigation.

Those involved in the first three stages of the conviction review process may need to use these investigative powers to evaluate an application. Therefore, a lawyer, retired judge or other qualified individual may be authorized in writing by the Minister to exercise these investigative powers. Hence, where it is necessary to do so, the CCRG lawyer or outside agent can, for example, issue a subpoena to a witness and require the witness to answer questions under oath.

The CCRG does not hesitate to seek the Minister's authority to use these powers when warranted. During this reporting period, the Minister gave five written authorizations for the use of his investigative powers.

Contacting the CCRG

Applicants and interested parties are encouraged to communicate with CCRG in writing. Correspondence and inquiries may be forwarded to the Minister of Justice, Criminal Conviction Review Group, 284 Wellington Street, (222 Queen, 11th Floor), Ottawa, Ontario, K1A 0H8. Initial contact with the CCRG may also be made by e-mail to ccrg.inquiries@justice.gc.ca. Replies to inquiries forwarded to the Minister regarding the application process or about specific applications are prepared by the CCRG.

The CCRG Web site can be accessed directly at http://canada.justice.gc.ca/en/ps/ccr/index.html or via the Department of Justice Canada Web site using the site map. The CCRG site provides access to past annual reports, news releases, legislation and other information.

To provide accurate information about the conviction review process to applicants and interested parties, the CCRG has also produced an information booklet entitled Applying for a Conviction Review. The booklet is a step-by-step guide to preparing and submitting an application and contains all the required forms. The CCRG will provide a copy of Applying for a Conviction Review to a potential applicant or interested party who requests one. It is also available on the CCRG Web site.

¹See the Inquiries Act, R.S.C 1985, ss. 4-5.

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