Addressing Possible Miscarriages of Justice

Overview

Canadians should be proud and confident that their criminal justice system is one of the best in the world. Our system includes many safeguards to ensure that an accused person receives a fair trial, from the Canadian Charter of Rights and Freedoms to the various appellate courts and procedures. However, excellence is not synonymous with infallibility; accused persons have at times been wrongfully convicted, and such miscarriages of justice can still occur.

Historically, at common law the only power to revisit a criminal conviction was found in the "Royal Prerogative of Mercy." When Canada's first Criminal Code was enacted in 1892, it recognized the potential for miscarriages of justice and provided a legislative remedy by codifying one aspect of the Prerogative. The original section 748 allowed the Minister of Justice to direct a new trial where the Minister entertained a doubt as to whether a person ought to have been convicted. Over the years, this remedy underwent various legislative changes, culminating in 1968 in the former section 690. This section remained in effect for more than thirty years, until it was revised and replaced in 2002. The Minister's power to review convictions is now set out in sections 696.1 - 696.6 of the Criminal Code.

Reforming the Conviction-Review Process

In 1993, the Department of Justice undertook an internal study of the conviction-review process. At that time, conviction-review applications were being processed on an ad hoc basis by legal counsel involved in federal prosecutions. In response to this study, a separate Criminal Conviction Review Group (CCRG) was formed. The CCRG would now report to the Assistant Deputy Minister responsible for criminal law policy, as opposed to the Assistant Deputy Attorney General in charge of federal prosecutions; as a result, all responsibility for conviction reviews was removed from the Attorney General function within the Department of Justice.

Following several high-profile cases involving miscarriages of justice, the government decided to further examine the section 690 remedy. (In fact, many of the miscarriages of justice in question had been discovered and dealt with before a section 690 application was ever filed with the Minister of Justice). In October 1998, the Minister of Justice released Addressing Miscarriages of Justice: Reform Possibilities for Section 690 of the Criminal Code, a consultation paper that looked at the conviction-review process and discussed possible options for reform. The consultation paper was widely circulated. From the submissions received, as well as other contributions from legal experts and interest groups, it was possible to identify several options for more detailed consideration.

These options ranged from the creation of a separate agency to review cases, similar to England's Criminal Cases Review Commission (which had long been advocated by some critics of the old review process), to the elimination of section 690 altogether with a proposed broadening of the scope of appellate review.

The result of the consultation and review was the decision that the federal Minister of Justice should retain the power to review cases of alleged wrongful conviction, but that legislative changes were needed to improve the process.

These changes were embodied in what was called the "Reform Model." The Model represented a compromise between a separate review body similar to the English model and the status quo of section 690 of the Criminal Code. As well, this model had the full support of the provincial and territorial Attorneys General and Ministers of Justice.

Legislative Reforms

In June 2000, a number of proposed amendments designed to strengthen the process for investigating allegations of wrongful convictions were passed in Parliament. On November 25, 2002, these amendments to the Criminal Code (696.1-696.6), along with new Regulations Respecting Applications for Ministerial Review-Miscarriages of Justice concerning the conviction-review process, came into force.

The amendments:

• included guidelines as to when a person is eligible for a review;
• provided the criteria for when a remedy may be granted;
• expanded the category of offences for which a review is available to include summary conviction offences;
• gave those investigating applications on behalf of the Minister the authority to compel the production of documents and the appearance of witnesses; and
• included regulations that set out how to apply and govern the review process generally.

The amendments also created a legal requirement for the Minister to submit an annual report to Parliament.

Structural Changes

Equally important were a number of non-legislative changes designed to create an arm's-length relationship between the Department of Justice and the review process. These included the creation of a more separate CCRG, and a proposal to appoint a Special Advisor to the Minister of Justice from outside the Department to oversee the review process and provide advice directly to the Minister. Under this model, applications for review are assessed and investigated by lawyers within the CCRG, except in cases where the prosecution of the applicant had been undertaken by the Department of Justice itself (e.g. drug prosecutions, prosecutions in the North) or where special circumstances require the appointment of other counsel. In these cases, agents appointed from outside the Department conduct the review process.

To enhance the arm's-length relationship, the CCRG was physically moved from its office space within the Department's Headquarters to another location within the city of Ottawa.

For administrative purposes, CCRG lawyers (as Justice employees) will report to the Deputy Minister's office. However, the Special Advisor, who reports directly to the Minister, will oversee the Group's conviction review activities. The Minister of Justice retains responsibility for the ultimate decision in the criminal conviction-review process, but with the benefit of the Special Advisor's recommendations, which will increase independence in the review process.

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