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, until it was revised and replaced in 2002. Prior to the 2002 amendments to the Criminal Code, section 690 read as follows:

690. The Minister of Justice may, upon an application for the mercy of the Crown by or on behalf of a person who has been convicted in proceedings by indictment or who has been sentenced to preventive detention under Part XXIV,

(a) direct, by order in writing, a new trial or, in the case of a person under sentence of preventive detention, a new hearing, before any court that he thinks proper, if after inquiry he is satisfied that in the circumstances a new trial or hearing, as the case may be, should be directed;

(b) refer the matter at any time to the court of appeal for hearing and determination by that court as if it were an appeal by the convicted person or the person under sentence of preventive detention, as the case may be; or

(c) refer to the court of appeal at any time, for its opinion, any question on which he desires the assistance of that court, and the court shall furnish its opinion accordingly.

Background to the Current Conviction Review Process

During the last two decades, there have been several high-profile cases involving miscarriages of justice in Canada. A number of these cases were the subject of public inquiries. Although some of the miscarriages of justice in question were discovered and dealt with before a conviction review application was ever submitted to the Minister of Justice, the conviction review process under section 690 of the Criminal Code nonetheless came under scrutiny and was subject to criticism.

The Government of Canada decided to examine the process further and consider whether reforms were required. In October 1998, the Minister of Justice released a consultation paper, entitled Addressing Miscarriages of Justice: Reform Possibilities for Section 690 of the Criminal Code, which examined 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 reform options for more detailed consideration. These options ranged from the creation of a separate agency to review criminal convictions, similar to Criminal Cases Review Commission in the United Kingdom (a change long 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.

After this broad consultation, the Government decided that the Minister of Justice would retain the power to review criminal convictions but legislative changes would be made to improve the process. These changes, known as the "reform model," represented a compromise position between a separate review agency similar to the United Kingdom model and the status quo under section 690 of the Criminal Code. The Government of Canada then proceeded with legislative and non-legislative changes to implement the reform model in 2002. Parliament passed the necessary legislative changes and amended the Criminal Code.

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). 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 an application;
  
• 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 on conviction reviews.
  

Criminal Conviction Review Group

The Criminal Conviction Review Group (CCRG) is now a separate unit of the federal Department of Justice. The CCRG assesses applications for ministerial review and provides advice to the Minister on how the applications should be decided.

Prior to 1993, conviction review applications were evaluated on an ad hoc basis by lawyers who worked in the prosecution service of the Department of Justice.

In 1993, the CCRG was set up as a separate unit of lawyers dedicated to conducting conviction reviews on a full-time basis. In addition, responsibility for conviction reviews was moved from the Federal Prosecution Service to the Department's Criminal Law Policy Branch. Under the new arrangement, CCRG lawyers reported through the Assistant Deputy Minister responsible for criminal law policy, rather than through the Assistant Deputy Attorney General in charge of federal prosecutions. In this way, all responsibility for conviction reviews was removed from the Attorney General function within the Department of Justice.

Following the legislative changes in 2002, structural changes were made to enhance the arm's length relationship between the CCRG and the Department. First, the CCRG was physically moved from its office space within the Department of Justice Headquarters to a separate location. Second, the path by which the legal advice and other material prepared by the CCRG passes to the Minister was simplified and made more direct. Rather than formally passing through another branch of the Department, advice passes from the CCRG to the Minister through the Deputy Minister's office. Third, the CCRG was removed from the Criminal Law Policy Branch, and arrangements were made to provide administration and support services to the CCRG through the Department's Corporate Services Branch. Fourth, the position of Special Advisor was created to provide independent advice on the conviction review process and give the Minister advice on applications for ministerial review that would be independent of that given by the CCRG. The role of the Special Advisor is discussed in greater detail below.

Staff, Administration and Facilities

The CCRG 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, five full-time lawyers were employed at the CCRG. They have broad experience in criminal law including defence work, prosecutions and criminal law policy development. During the reporting period, CCRG lawyers have attended continuing legal education and other professional development programs related to criminal law and other matters, including the Federation of Law Societies National Criminal Law Program as well as relevant Departmental programs. Support staff attended relevant training and professional development programs as well.

Administration and support services have been provided to the CCRG by the Department's Corporate Services Branch during this reporting period.

The CCRG office is located outside of the Department of Justice Headquarters in a downtown Ottawa office building which has a mixture of government and private sector tenants. No other Department of Justice operations are located in this building. The Special Advisor has an office on site.

The CCRG has its own reference library on site, but it also has access to the large holdings of the departmental library a short distance away. Information technology (IT) support is provided to the CCRG by the Department.

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 of the Department of Justice 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 conviction 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 that 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. The independence of the process is essential to its credibility.

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 of the conviction review process are usually carried out on his behalf by the CCRG. The Minister does personally decide applications for ministerial review when they reach the decision stage.

In some circumstances, it may not be appropriate for the CCRG to conduct a conviction review. In such a case, the Department retains an outside "agent" to conduct the conviction 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). Other reasons may also justify referring an application for ministerial review to an outside agent. During this reporting period, two applications for ministerial review were referred to outside agents because of potential conflicts of interest.

Authorizations for the Use of the Minister's Investigative Powers

Under the previous section 690 conviction review process, there was no legal procedure to require witnesses to provide information or produce documents that might be relevant to matters raised in an application for ministerial review. 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 for ministerial review. Therefore, a lawyer, retired judge or other qualified individual may be authorized in writing by the Minister to exercise the investigative powers described above. Typically, a CCRG lawyer or outside agent is given this authority. 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 the broad investigative powers available under section 696.2 of the Criminal Code where warranted. During this reporting period, the Minister gave two written authorizations for the use of his investigative powers.

Communications and Outreach

The CCRG's communications objectives focus on:

• facilitating easy communication with CCRG;
• promoting awareness and understanding of the conviction review process;
• providing timely and accurate information on the conviction review process to applicants and interested parties; and
• developing an appropriate working relationship with interested parties.

Applicants and interested parties are encouraged to communicate with CCRG in writing. Correspondence and inquiries in writing may be forwarded to the Minister of Justice, Criminal Conviction Review Group, 284 Wellington Street, (222 Queen, 11^th 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 conviction review applications are prepared by the CCRG.

In an effort to provide accurate information about the conviction review process to applicants and interested parties, the CCRG produced an updated information booklet entitled Applying For A Conviction Review. The information booklet is a step-by-step guide to preparing and submitting an application for ministerial review. The booklet contains all the forms required for an application. The CCRG will provide a copy of Applying For A Conviction Review to a potential applicant or interested party who requests one. The booklet is also available on the CCRG web site (http://canada.justice.gc.ca/en/ps/ccr/index.html).

The CCRG web site can be accessed via the Department of Justice Canada web site (http://canada.justice.gc.ca/en/index.html), under "Programs and Services." The CCRG web site provides access to the information booklet, annual reports, relevant news releases, legislation and other information.

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 on the conviction review process were made to the Canadian Association for Civilian Oversight of Law Enforcement and the Defence Counsel Association of Ottawa.

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

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

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