How the Conviction Review Process Works

The Criminal Code gives the Minister of Justice the power to review a conviction under a federal law to determine whether there may have been a miscarriage of justice. If satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred, the Minister has the authority to order a new trial or refer the matter to the court of appeal for the province or the territory in question.

When an innocent person is found guilty of a criminal offence, there has clearly been a miscarriage of justice. A miscarriage of justice can also occur where new information surfaces which casts doubt on whether the applicant received a fair trial. Thus, 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 are determined by the courts according to law. The issue of guilt or innocence, therefore, is determined by the courts, not the Minister.

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 in the information booklet, Applying for a Conviction Review. The booklet is available on-line at http://canada.justice.gc.ca/en/ps/ccr/index.html and, in many circumstances, from corrections authorities.

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 now 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.

An application will not be accepted until the applicant has exhausted all available rights of appeal. 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 an appeal court to overturn a conviction on the ground that there has been a miscarriage of justice. Convicted persons are therefore expected to appeal their convictions where there are suitable grounds to do so.

A conviction review by the Minister of Justice is not a substitute for, or alternative to, a judicial review or an appeal of a conviction. An application for ministerial review is not meant to be another level of appeal or a mechanism that allows the Minister of Justice to take the same evidence and arguments presented to the courts and substitute his or her own judgment.

An application for ministerial review must be supported by "new matters of significance" - generally new information that was not presented to the courts or considered by the Minister on a prior application. Only new matters of significance will put the Minister in a position to determine whether there is a reasonable basis to conclude that a miscarriage of justice likely occurred.

Although it is not required, applicants may seek the assistance of a lawyer or organizations specializing in wrongful conviction issues such as the Association in Defence of the Wrongfully Convicted (AIDWYC) or the Innocence Project.

Guiding Principles

A number of basic principles guide the CCRG in its review of applications for ministerial review:

• Independence: The independence of the conviction review process is supported by the arm's-length relationship between the CCRG and the Department of Justice, the involvement of the Special Advisor and the ethical obligation of the CCRG to provide candid, objective and independent advice to the Minister.
• Impartiality: Where the CCRG has a conflict of interest, an application for ministerial review will be referred to an agent outside the Department for review. That outside agent, rather than the CCRG, will provide advice to the Minister. For example, cases that were prosecuted by Department of Justice lawyers (e.g., drug cases or criminal cases in the Yukon, Northwest Territories and Nunavut) are referred to outside agents. In most criminal cases, prosecutions are conducted by provincial attorneys general. Therefore, no conflict of interest exists in most of these cases. The CCRG will remain fair and impartial in its approach to an application between the applicant and the provincial attorney general.
• Thoroughness: Each application for ministerial review will receive thorough and meaningful consideration. Those that are supported by "new matters of significance" will proceed to the investigation stage. Those that are not will be screened out, and the applicants will be given reasons in writing for the decision. The CCRG conducts a thorough investigation of all applications and will, where warranted, use the substantial powers of investigation that are available (e.g. subpoena) to require the production of information or documents. At the decision stage of the process, the applicant will be provided with reasons in writing for the Minister's decision.
• Non-adversarial approach: The CCRG gathers information during its reviews in a neutral and non-adversarial fashion. The emphasis is on determining whether the information in support of an application can be verified.
• Objectivity: The CCRG provides objective advice and recommendations to the Minister based on the facts, the law and any other relevant considerations, including protecting the integrity of its review.
• Transparency: The CCRG is dedicated to an open and transparent conviction review process, subject to legitimate privacy interests and other concerns.
• Accountability: The CCRG is accountable for the performance of its responsibilities to the Minister, through the Deputy Minister's office.

All reasonable efforts are made to process and review each application as quickly as possible. However, priority is generally given to those matters where the applicant is in custody.

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.

Preliminary Assessment

When an application for ministerial review is received, the first task is to ensure that the required application form has been properly completed and the necessary supporting documents have been provided. Once the application is complete, the CCRG conducts a preliminary assessment to determine whether it merits further investigation - normally whether the application presents "new matters of significance" that were not available at trial or on appeal.

The time required for a preliminary assessment will depend upon the amount of material to review and whether any of the "new matters of significance" require preliminary decisions, such as on the credibility of new evidence raised in the application.

If the application does not present new matters of significance, it will be screened out. The Special Advisor reviews the decision to screen out an application at this stage. The Special Advisor may disagree with the decision to screen out the application and recommend to the Minister that the review process continue.

Where an application is screened out at this stage, the applicant is informed in writing that the matter will not proceed and given the reasons for that decision. The applicant has one year to provide further information.

Investigation

The investigation conducted by the CCRG or agent attempts to verify the information in support of the application. Depending on the type of information provided by the applicant, the investigation could involve:

• interviewing or examining witnesses to clarify or verify the information in the application;
• carrying out scientific tests (e.g. DNA testing paid for by CCRG);
• obtaining other assessments from forensic and social science specialists (e.g. polygraph examinations);
• consulting police agencies, prosecutors and defence lawyers who were involved in the original prosecution and/or appeals; or
• obtaining other relevant personal information and documentation (e.g. Correctional Service of Canada file).

The time required for the investigation depends on the complexity of the application and the availability of evidence. It should be noted that any of these activities could take place at the preliminary assessment phase as well. Each case is unique and the contents and nature of the application determine the process.

Investigation Report

The results and findings of the investigation are compiled in an investigation report. This report will summarize the facts gathered from the judicial record and will address whether the new information in support of the application has been verified, and if so, to what extent. The investigation report may also identify relevant issues and legal authorities. As required by law, the report is sent to the applicant with a request for comments. The attorney general for the province where the prosecution occurred is also given a copy of the report and asked for submissions.

When the submissions, if any, have been received - and any further investigation they might merit has been completed - the final version of the investigation report is prepared. The CCRG or agent then prepares written advice and recommendations to the Minister.

The Special Advisor reviews the investigation report and any additional submissions, and prepares his own advice and recommendations to the Minister. The application then proceeds to the final stage of the conviction review process - the decision of the Minister.

Decision by the Minister

In this final stage, the Minister of Justice personally reviews the investigation report and supporting materials, the materials submitted by the applicant, the advice and recommendations of the CCRG or agent, and the advice and recommendations of the Special Advisor.

The Minister then decides to dismiss or allow 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 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 wish the assistance of the court of appeal. The court's opinion on the question may help the Minister make his or her decision. Hence, the Minister has the legal authority, at any time and prior to any decision, to refer a question about an application to the court of appeal for its opinion. Typically, the court of appeal's opinion would be sought with regard to a legal issue central to the application.

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 hearing in the case of a person found to be a dangerous or long-term offender, or 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.

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