APPENDIX 3

APPLYING FOR A CONVICTION REVIEW

Introduction

The Criminal Code gives the federal Minister of Justice the power to review a conviction under a federal law to determine whether there may have been a miscarriage of justice, or what is often called a "wrongful conviction." If a miscarriage of justice likely occurred, the Minister of Justice 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.

If you want your conviction reviewed, you must submit an application to the Minister of Justice. You can prepare the application yourself, or have a representative (e.g. your lawyer) prepare the application on your behalf.

Basic Principles

The powers of the Minister of Justice to review convictions are set out in sections 696.1 to 696.6 of the Criminal Code. These sections of the Criminal Code appear at the back of this booklet (Appendix 1). The procedure that applies to conviction reviews is laid out in regulations that also appear at the back of this booklet (Appendix 2).

The Minister's power to correct a miscarriage of justice is an "extraordinary" one which can only be exercised in those exceptional cases where a person presents new and significant information that casts doubt on the correctness of that person's conviction.

The role of the Minister is not to second-guess the decision rendered by the courts or to substitute his or her opinion of the evidence or the arguments already considered by the courts. The Minister does not decide if a convicted person is guilty or innocent. That role is assigned to the courts.

Conviction Review

Who May Apply?

You may apply if you have been convicted of an offence under a federal law or regulation. For example, if you were convicted of an offence under the Criminal Code or the Controlled Drugs and Substances Act, you are eligible to apply for a conviction review.

You may also apply for a review if a court has found you to be a dangerous offender or a long-term offender under the Criminal Code.

The Minister of Justice may review convictions both for indictable offences (e.g. murder, manslaughter) and for summary conviction offences (e.g. minor theft).

When May You Apply?

You may apply for a conviction review when you have exhausted your rights of judicial review or appeal for your conviction or the court's finding that you are a dangerous or long-term offender. You may not apply for a conviction review if a judicial review or an appeal of your conviction is still before the courts.

Judicial review and appeals to higher courts are the usual ways to correct legal errors and miscarriages of justice. Therefore, convicted persons are expected to appeal their convictions where suitable grounds exist. A conviction review by the Minister of Justice is not a substitute for or alternative to a judicial review or an appeal of your conviction.

If you have not appealed your conviction, you may still be eligible to apply for a conviction review if the time for appealing has expired and you have since become aware of new and significant information that casts doubt on the correctness of your conviction. However, you should apply to the court of appeal for an order extending the time for appealing based on new information, where it is feasible to do so.

What is New and Significant Information?

Your application for a conviction review must be based on new and significant information. Information will be considered new if the courts did not examine it during your trial or appeal or if you became aware of it after all court proceedings were over.

Information is significant if

• it is reasonably capable of belief;
• it is relevant to the issue of guilt; and
• it could have affected the verdict if it had been presented at trial.

The following are examples of information that might support a conviction review application if it were both new and significant:

• Information that establishes or confirms an alibi.
• The confession of another person to the crime.
• Information that identifies another person at the scene of the crime.
• Scientific evidence that points to another person's guilt or supports a claim of innocence.
• Proof that important evidence was not disclosed.
• Information that shows a witness gave false testimony.
• Information that substantially contradicts testimony given at trial.

A conviction review application is not meant to be another level of appeal or a mechanism that allows the Minister of Justice to substitute his or her decision for that of a court. Simply repeating the same evidence or legal arguments that were made in the trial and appeal courts does not amount to providing new and significant information.

What Can the Minister Do?

On a conviction review application, the Minister of Justice does not decide whether you are guilty or innocent. That is a question only a court can decide.

If the information in your conviction review application satisfies the Minister that there has likely been a miscarriage of justice, the Minister can correct this injustice by granting any of the following remedies:

• ordering a new trial;
• ordering a new hearing for a person who was found to be a dangerous offender or a long-term offender; or
• referring a case to the court of appeal of a province or territory to be dealt with as if it were an appeal.

If the Minister is not satisfied that there has likely been a miscarriage of justice, your conviction review application will be dismissed.

In some cases, the Minister may wish to have the assistance of a provincial or territorial court of appeal in regard to a question arising from a conviction review application. The Minister has the power, in those cases, to refer one or more specific questions to the court of appeal for its opinion.

Who Assesses the Application?

In most cases, lawyers with the Criminal Conviction Review Group (CCRG) will assess the conviction review application by conducting the preliminary assessment and the investigation, and by providing advice to the Minister on whether or not a remedy is warranted in a particular case. Most wrongful conviction applications are based on criminal matters where the prosecution was conducted by one of the provincial Attorneys General. However, if a wrongful conviction application is received as a result of a matter that was prosecuted by the Attorney General of Canada (e.g. drug cases or criminal matters prosecuted in the territories), all the various stages within the conviction review process will be conducted by lawyers from outside the CCRG.

When Does the Assessment Begin?

An assessment of a conviction review application discussed below may begin only when a fully completed application form and all required supporting documents have been received by the CCRG.

The Review Process

A conviction review application is important both to the applicant and to society. It may be the last chance to correct a wrongful conviction. Each application is assessed conscientiously and thoroughly in recognition of this fact. There are four stages in the process:

• Preliminary Assessment
• Investigation
• Investigation Report
• Decision by the Minister

Preliminary Assessment

When your conviction review application is received, it is first reviewed to ensure that it is complete. You or the person acting on your behalf (e.g. your lawyer) will be informed as to whether the application is complete or not. Once the application is complete, a CCRG lawyer will examine the information you have provided and compare it with trial and appellate court records.

If the application presents new and significant information that was not available at trial or on appeal and that could have affected the outcome of your case, you will be informed that the application will proceed to the next stage of the process.

In certain cases, the investigation stage may be bypassed, but only where the Minister is satisfied by the information in the application that a likely miscarriage of justice has indeed occurred and that there is an urgent need to grant you a remedy for humanitarian reasons or to prevent you from continuing to suffer from a blatant injustice.

If your application does not present new and significant information, you will be informed that your application will not proceed to the investigation stage. You will also be told that you may provide additional information in support of your application within one year. If you do so, the preliminary assessment will continue. If you provide additional information after the one-year period, a new preliminary assessment will be necessary.

Investigation

At the investigation stage, a CCRG or outside lawyer will closely examine the new information you provided in your application to see if it is reliable (i.e. it is reasonably capable of belief) and relevant (i.e. it relates to guilt or innocence).

Depending on the type of information you provide, the investigation could involve any of the following:

• Interviewing witnesses to clarify or verify the information in the application.
• Carrying out scientific tests (e.g. DNA testing).
• Obtaining other assessments from forensic and social science specialists (e.g. polygraph examinations).
• Consulting police agencies, prosecutors who were involved in the original prosecution, and defence lawyers who were involved in the trial and the appeals.
• Obtaining other relevant personal information and documentation (e.g. your Correctional Service Canada file).

How long this investigation will take depends on the complexity of the case and the availability of the evidence.

If the investigation raises issues that you did not cover in your application, you may be asked to provide additional information within a specified time period so that everything that needs to be considered in the application can be dealt with at the same time.

In some cases, a witness may be able to give important information, documents or other evidence but refuses to do so. To aid the investigation of a conviction review application, the Minister of Justice has the power to subpoena such a witness and force him or her to testify under oath or hand over documents or other evidence. The Minister may delegate this special power to a CCRG or outside lawyer or other qualified person.

Investigation Report

When the investigation is completed, the CCRG or outside lawyer will prepare an investigation report that summarizes the information gathered. You will be provided with a copy of this report and asked to provide comments on it within a prescribed period of time. Although you have up to one year to provide further comments, the sooner you do so, the sooner the application will proceed to the next step.

Your application will proceed to the next stage - a decision by the Minister - once your comments have been received and addressed, or the time for providing comments has expired (i.e. one year) and you have not provided any further information.

Decision by the Minister

At this final stage of the conviction review process, the CCRG or outside lawyer will forward the following to the Minister of Justice:

• All the submissions that you have made.
• The investigation report.
• A memorandum of legal advice prepared by the lawyer who investigated the application.

The Minister will then review all of this material and decide whether, on the basis of the facts and the law, your application should be dismissed or allowed.

As mentioned earlier, in some circumstances, the Minister may refer a question or questions to a provincial or territorial court of appeal.

If satisfied by the information contained in the application that there is a reasonable basis to conclude that a miscarriage of justice likely occurred, the Minister has the power to grant you a remedy (i.e., a new trial or hearing or a new appeal proceeding).

If the Minister is not convinced there has been a miscarriage of justice, the Minister will dismiss the application and inform you of the decision.

How to Apply

Preparing a conviction review application will take some time and effort from you. The following steps will tell you how to proceed.

Step 1: The Application Form (Form No. 1)

Form no. 1 is the application for a conviction review (i.e. Application for Ministerial Review - Miscarriages of Justice). You must use this form to apply for a conviction review. A letter or other document requesting a conviction review will not be accepted.

Fill out all parts of the application form. All of the information requested is important. If you fail to provide the information requested in the application form or provide incomplete or inaccurate information, the processing of your conviction review application will be delayed.

Make sure that your writing or typing is clear and can be easily read.

Step 2: Consent to the Release of Personal Information (Form No. 2)

You must fill out all parts of the Consent to the Release of Personal Information (Form no. 2). Sign and date the form and have someone sign and date the form as your witness.

Privacy laws protect and limit access to your personal information. This form allows CCRG to:

• have access to your personal information that is relevant to your conviction review application (e.g. personal information held by other government departments), and
• disclose your personal information to another person or body in order to obtain information that is useful in assessing your application (e.g. obtaining a forensic report from an expert).

Step 3: Waiver of Solicitor-Client Privilege (Form No. 3)

Fill out all parts of the Waiver of Solicitor-Client Privilege (Form no. 3). Sign and date the form. Have someone sign and date the form as your witness.

Solicitor-client privilege means that any lawyer who represented you at any time during the proceedings (e.g. preliminary inquiry, trial, appeal to the provincial court of appeal, appeal to the Supreme Court of Canada) must keep all information provided by you, or to you, completely confidential. Your lawyers cannot disclose any of this information without your permission.

The Waiver of Solicitor-Client Privilege gives your lawyers permission to disclose information that is relevant to your conviction review application to the CCRG.

Step 4: Supporting Documents

You must submit a number of documents with your conviction review application. Before submitting your conviction review application, obtain the following documents:

• Copies of all documents from the pre-trial proceedings, including the information or indictment, motion material filed by the defence, motion material filed by the Crown, preliminary hearing transcript, and transcripts of other pre-trial proceedings.
• Copies of all documents from the trial proceedings, including the information or indictment, material filed by the defence, material filed by the Crown, trial transcript, and trial court's decision.
• Copies of all documents from the appeal proceedings, including fresh evidence applications, leave applications, appellant's factum(s), respondent's factum(s), court of appeal decision, and Supreme Court of Canada decision.
• Copies of any other supporting documents (e.g. statements from witnesses, affidavits from witnesses, transcripts of examinations of witnesses, letters, photographs, plans, drawings, technical and scientific reports).

Your trial lawyer and/or your appeal lawyer should have these documents or be able to assist you in locating them.

You should also note that you may be asked to submit additional information in response to questions that arise during the course of the review.

Step 5: Submitting the Application

Send your application form, Consent to the Release of Personal Information, Waiver of Solicitor-Client Privilege, and all supporting documents to:

Minister of Justice
Criminal Conviction Review Group
284 Wellington Street
Ottawa, Ontario

K1A 0H8

There is no fee for submitting a conviction review application.

Checklist

Before sealing the envelope, be sure you have completed steps 1 to 5. Use the checklist below to ensure that your conviction review application is complete.

1. Application (Form no. 1): Ensure that all parts of the application have been filled out clearly, completely and accurately
2. Consent to the Release of Personal Information (Form no. 2): Ensure that you have filled out all parts of the form clearly, completely and accurately and that both you and your witness have signed and dated the form.
3. Waiver of Solicitor-Client Privilege (Form no. 3): Ensure that you have filled out all parts of the form clearly, completely and accurately and that both you and your witness have signed and dated the form.
4. Supporting Documents: Ensure that all required documents are included and/or that arrangements have been made to forward to us all documents not in your possession.

Acknowledgement

When the Minister of Justice receives your conviction review application, you will be sent a written acknowledgement. If the application is incomplete, you will be notified as soon as possible. A preliminary assessment cannot begin until your application is complete.

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