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, or what is often called a "wrongful conviction." If the Minister is 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. However, a miscarriage of justice can also occur as a result of errors or irregularities in the criminal proceedings that deprive a person of 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 issue of guilt is determined by the courts according to law.

Applying for a Conviction Review

The conviction review process requires an applicant to submit a formal application form and a number of supporting documents. Under the previous section 690 process, a conviction review could be initiated by a simple request in writing. Time and effort was often needlessly wasted in obtaining the particulars of an application and supporting documents before a conviction review could proceed.

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 updated information booklet, Applying For A Conviction Review. A copy of the booklet is forwarded to each applicant and to any person who inquires about submitting an application for ministerial review. A copy of the booklet is also available on-line at the CCRG Web site (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 apply for a conviction review. For example, a person who has been convicted under the Criminal Code or the Controlled Drugs and Substances Act is eligible to apply for a conviction review. Convictions for indictable and summary conviction offences are both eligible for review. A person found to be a dangerous offender or a long-term offender under the Criminal Code may also apply for a conviction review. However, an application for ministerial review 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. This point needs to be emphasized, since it is sometimes misunderstood. A conviction review application 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 to second-guess a decision rendered by those courts or to substitute his or her own judgment.

An application for ministerial review must be supported by "new matters of significance" – generally new information, evidence or arguments that were 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 are encouraged to 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. Experience has shown that applicants who obtain legal advice are generally better able to identify legal issues and important information in support of their applications. A well-presented and properly supported application for ministerial review will have the greatest prospect of success.

Guiding Principles

A number of basic principles guide the CCRG in its review of applications for ministerial review. The conviction review process is animated by an approach that is:

• Independent: 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 all CCRG lawyers to provide candid, objective and independent advice to their client – the Minister of Justice.
• Impartial: Where the CCRG has a conflict of interest, an application for ministerial review will be referred to a lawyer outside of the Department of Justice (i.e., an agent) for review. That outside lawyer will provide advice to the Minister rather than a CCRG lawyer. 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 lawyers. In most criminal cases, the prosecutions are conducted by provincial attorneys general. No conflict of interest exists in such cases. The CCRG will remain fair and impartial in its approach to an application as between the applicant and the provincial attorney general.
• Thorough: 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 of the conviction review process. Those that are not so supported will be screened out, and the applicants will be given reasons in writing for that decision. The CCRG conducts a thorough investigation of all application 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: The CCRG gathers information during its investigations in a neutral and non-adversarial fashion. The emphasis is on determining whether the information in support of an application can be verified.
• Objective: CCRG lawyers provide objective advice and recommendations to the Minister based on the facts, the law and any other relevant considerations.
• Transparent: The CCRG is dedicated to an open and transparent conviction review process, subject to legitimate privacy interests.
• Accountable: 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 serving a sentence of imprisonment.

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, a CCRG lawyer conducts a preliminary assessment to determine whether it merits further investigation – notably, whether the application presents new matters of significance that were not available at trial or on appeal and that could have affected the outcome or fairness of the trial.

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 the preliminary assessment stage. The Special Advisor may disagree with the decision to screen out the application and require the matter to proceed to the investigation stage.

Where an application is screened out at the preliminary assessment stage, the applicant is informed in writing that the matter will not proceed to the investigation stage and the reasons for that decision. The applicant has one year to provide further information in support of the application for ministerial review.

Investigation

The investigation is conducted by a CCRG lawyer and is a process of attempting to verify the information in support of the application. Depending on the type of information provided by the applicant, the investigation could involve any of the following:

• interviewing or examining 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 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.

Investigation Report

The results and findings of the investigation are compiled in an investigation report. The investigation report will summarize the facts derived from the judicial record and will address if, or the extent to which, the new information in support of the application has been verified. The investigation report is sent to the applicant with a request for comments.

When the applicant's comments, 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 investigating lawyer then prepares written advice and recommendations for the Minister.

The Special Advisor reviews the investigation report, final comments of the applicant and advice prepared by the investigating lawyer. The Special Advisor 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 the final stage of the conviction review process, the Minister of Justice reviews the investigation report and supporting materials, the materials submitted
by the applicant, the advice and recommendations of the investigating lawyer, 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 matters that the Minister considers relevant including:

• Whether the application is supported by new matters of significance that were not considered by the courts or considered by the Minister in a previous application for ministerial review;
• The relevance and reliability of information that is presented in connection with 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 for ministerial review may raise a question for 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, 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.

Over the years, guidelines and general principles concerning the exercise of the Ministerial discretion have been established in various Ministerial decisions regarding applications for a conviction review. In 1994 the then Minister of Justice, Allan Rock, summarized the guiding principles for the exercise of ministerial discretion under section 690 of the Criminal Code in the application of Colin Thatcher:

In creating the role of the Minister of Justice under section 690 of the Code, Parliament used very broad language, and the discretion of the Minister has been cast in the widest terms. Indeed, the section does not contain a statutory test, other than the general reference in clause (a) to the Minister being "satisfied that in the circumstances a new trial or hearing ... should be directed".

In interpreting and applying section 690, I do not intend to limit or restrict the wide discretion given to the Minister. It is impossible to predict the nature of the cases in which such applications might be brought in the future, and it is in the public interest, in my view, to leave the Minister's discretion in the broadest possible terms.

Nevertheless, that discretion is to be exercised in accordance with certain governing principles, and I believe that it would be useful to identify those principles here.

1. The remedy contemplated by section 690 is extraordinary. It is intended to ensure that no miscarriage of justice occurs when all conventional avenues of appeal have been exhausted.
   
   
2. The section does not exist simply to permit the Minister to substitute a ministerial opinion for a jury's verdict or a result on appeal. Merely because I might take a different view of the same evidence that was before the court does not empower me, under section 690, to grant a remedy.
   
   
3. Similarly, the procedure created by section 690 is not intended to create a fourth level of appeal. Something more will ordinarily be required than simply a repetition of the same evidence and arguments that were put before the trial and appellate courts. Applicants under section 690 who rely solely on alleged weaknesses in the evidence, or on arguments of the law that were put before and court and considered, can expect to find that their applications will be refused.
   
   
4. Applications under section 690 should ordinarily be based on new matters of significance that either were not considered by the courts or that occurred or arose after the conventional avenues of appeal had been exhausted.
   
   
5. Where the applicant is able to identify such "new matters", the Minister will assess them to determine their reliability. For example, where fresh evidence is proffered, it will be examined to see whether it is reasonably capable of belief, having regard to all of the circumstances. Such "new matters" will also be examined to determine whether they are relevant to the issue of guilt. The Minister will also have to determine the overall effect of the "new matters" when they are taken together with the evidence adduced at trial. In this regard, one of the important questions will be "is there new evidence relevant to the issue of guilt which is reasonably capable of belief and which, taken together with the evidence adduced at trial, could reasonably have affected the verdict?"
   
   
6. Finally, an applicant under section 690, in order to succeed, need not convince the Minister of innocence or prove conclusively that a miscarriage of justice has actually occurred. Rather, the applicant will be expected to demonstrate, based on the analysis set forth above, that there is a basis to conclude that a miscarriage of justice likely occurred.

Many of these principles have now been codified in section 696.1 to 696.6 of the Criminal Code. While these principles continue to evolve as a result of experience as well as changes and advancement in the law, they remain a useful guide to assessing applications for ministerial review.

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