Vol. 136, No. 39 — September 28, 2002

Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice

Statutory Authority

Criminal Code

Sponsoring Department

Department of Justice

REGULATORY IMPACT ANALYSIS STATEMENT

Description

A recent amendment to the Criminal Code, Bill C-15A, Chapter 13, improved the conviction review process. These Regulations are in consequence of the amendment and provide to set out how one applies for a review and describe the process of review. These Regulations clarify the process of review and make it more open, accountable and efficient.

Previously, section 690 of the Criminal Code ("the Code") allowed people who believed they were wrongly convicted of an indictable offence, or sentenced to preventive detention under the dangerous and long-term offender part of the Code, to apply for a review of their conviction by the Minister of Justice. That section did not stipulate when one could apply or when one was eligible for a remedy. This generated criticism from interested parties.

With the new law, the Minister of Justice retains the power to review the cases of alleged wrongful convictions and to direct a new trial or appeal proceeding where an applicant establishes that there is a reasonable basis to conclude that a miscarriage of justice likely occurred. Bill C-15A that abrogated former section 690 has created another part of the Criminal Code containing new sections (696.1-696.6) that:

— clearly state when a person is eligible for a review;

— specify the criteria under which a remedy may be granted;

— expand the Minister's powers to include the review of summary convictions; and

— provide those investigating cases on behalf of the Minister with powers to compel witnesses to provide information and documents.

The Minister of Justice will also submit an annual report to Parliament.

These Regulations are made pursuant to section 696.6 of the Criminal Code. Subsection 696.1(2) requires that an application under that part of the Criminal Code be presented to the Minister in the form described in the Regulations. The first part of these Regulations provides for such a form. Subsection 696.2(1) requires the Minister to review the application in accordance with the Regulations. The Regulations describe the usual process followed in the assessment of an application. Namely, upon receipt of a properly completed application form the Minister shall conduct a preliminary assessment of the application. After the preliminary assessment completed, the Minister will advise the Applicant in writing whether or not an investigation will be conducted. When an investigation is not applicable, the Applicant will be provided with an opportunity to make further submissions. Where an investigation is conducted and completed, a report in writing will be provided to the Applicant who will be ask to indicate in writing whether additional information or comment will be added. The Minister must render the final decision in writing. Finally, section 696.5 of the Criminal Code requires the Minister to submit an annual report; these Regulations will outline some of the content of the report.

Alternatives

These Regulations are necessary for the establishment of a new and more open process for conviction review. The amendments to the Criminal Code are the results of a public consultation about the process of conviction review and possible option for reform. These Regulations are the choice of instrument and the form defined in the Criminal Code.

Benefits and Costs

These Regulations will have little or no cost impact as applications for ministerial reviews will be processed in a more streamlined and efficient fashion. The Regulations do not impose new restrictions or burdens on individuals or businesses.

Consultation

Consultation for this initiative started in 1998 with the Minister releasing a Consultation Paper entitled "Addressing Miscarriages of Justice: Reform Possibilities for Section 690 of the Criminal Code". It reviewed the conviction review process and examined possible options for reform. The paper was released the same year the Guy Paul Morin Inquiry Report was issued where it was recommended that ...(#117) "The government of Canada should study the advisability of the creation, by statute, of a criminal case review board to replace or supplement those powers currently exercised by the federal Minister of Justice pursuant to section 690 of the Criminal Code."

That recommendation was somewhat analogous to the one made ten years earlier in the 1989 Donald Marshall Inquiry where it was suggested that the Nova Scotia Attorney General commence discussions with the federal Minister of Justice and the other provincial Attorneys General with a view to constituting an independent review mechanism to facilitate the reinvestigation of cases of alleged wrongful conviction, and that such a body have investigative powers. In response to the Marshall Inquiry, a federal-provincial working group was established and, in its 1991 report, recommended rejecting the proposal of an independent body. The group did recommend the implementation of investigative powers.

The Consultation Paper was widely circulated but only 22 submissions were received. From the submissions, possible options for reform were identified and analysed. They ranged from the creation in Canada of an independent body similar to the British Criminal Cases Review Commission to the elimination of section 690 powers altogether with the broadening of the scope of appellate review. Advocacy groups have asserted that section 690 is inadequate to properly deal with cases of alleged wrongful conviction. Some of its shortcomings, according to some of the claims, included that the role of the Minister of Justice as Chief Prosecutor is incompatible with the role of reviewing cases of persons wrongly convicted, that the procedure led to inordinate delays in the reviews of individual cases and was largely conducted in secret and consequently was without accountability; that the number of cases that have ever been re-opened in Canada was small and that the response of the Courts to the occasional section 690 referral had been unsatisfactory. The Association in Defence of the Wrongly Convicted (AIDWYC) and the Ontario Criminal Lawyers' Association supported the adoption of a British-style independent body. However, the Canadian experience with cases of wrongful convictions bears little resemblance to that of the United Kingdom. The Minister had the opportunity to meet with members of the CCRC, including the Chairman, Sir Frederick Crawford to discuss Britain's system of conviction review. All provinces' responses to the consultation paper were strongly in favour of the power of review remaining with the federal Minister of Justice, as one province noted, most of the prosecutions reviewed under section 690 are provincial prosecutions, so there is no conflict of interest in most cases. When the review deals with a federal prosecution, outside counsel is retained to prepare an advice for the Minister. The Regulations will remove whatever secrecy there was over the process and the annual report to Parliament by the Minister will provide accountability. The new law stipulates when a person is eligible for a review and the criteria for the granting of a remedy; the Regulations clarify the process of review and make it more open, accountable and efficient.

Compliance and Enforcement

Compliance with these Regulations is not an issue as they purport to provide to individuals a form to make an application for the mercy of the Crown, to describe the process to be followed in the assessment of these applications and provide for some of the content of an annual report on the activities generated by these applications.

Contact

For further information concerning these Regulations, please contact: Bernard F. Aubé, LL.B., LL.D., Criminal Conviction Review Group, Department of Justice, 284 Wellington Street, Ottawa, Ontario K1A 0H8, (613) 941-4101 (Telephone), (613) 941-9310 (Facsimile).

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsection 696.1(2) (see footnote a)  and section 696.6 (see footnote b)  of the Criminal Code, proposes to make the annexed Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice.

Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Bernard F. Aubé, LL.B., LL.D., Criminal Conviction Review Group, Department of Justice, 284 Wellington Street, Ottawa, Ontario, K1A 0H8.

Ottawa, September 24, 2002

EILEEN BOYD
Assistant Clerk of the Privy Council

REGULATIONS RESPECTING APPLICATIONS FOR MINISTERIAL REVIEW — MISCARRIAGES OF JUSTICE

INTERPRETATION

1. The following definitions apply in these Regulations.

"Code" means the Criminal Code. (Code)

"Minister" means the Minister of Justice. (ministre)

APPLICATION

2. (1) For the purposes of subsection 696.1(2) of the Code, an application for ministerial review under Part XXI.1 of the Code shall be in the form set out in the schedule and contain the following information:

(a) with respect to the applicant,
(i) the applicant's name, including any alias or former name,
(ii) the applicant's address, date of birth and, if any, the number assigned to the applicant under the Royal Canadian Mounted Police Automated Fingerprint Identification System,
(iii) the name, address and telephone number of the person making the application on the applicant's behalf, if any,
(iv) whether the alleged miscarriage of justice relates to a conviction on an offence punishable on summary conviction or on an indictable offence, or, in the case of a finding of dangerous offender or long-term offender under Part XXIV of the Code, particulars of the finding, and
(v) whether the applicant is in custody;
(b) with respect to any pre-trial hearings,
(i) the date of the preliminary inquiry, if any,
(ii) the court and its address, and
(iii) the number, type and date of any pre-trial motions, as well as the court decision on those motions;
(c) with respect to the trial,
(i) the date on which it started,
(ii) the court and its address, the plea entered at trial, the mode of trial and the date of the conviction and that of sentencing,
(iii) the names and addresses of all counsel involved in the trial, and
(iv) the number, type and date of any motions made, as well as the date of the court decision on those motions;
(d) particulars regarding any subsequent appeals to the court of appeal or the Supreme Court of Canada;
(e) the grounds for the application; and
(f) a description of the new matters of significance that support the application.

(2) The application must be accompanied by the following documents:

(a) the applicant's signed consent authorizing the Minister
(i) to have access to the applicant's personal information that is required for reviewing the application, and
(ii) to disclose to any person or body the applicant's personal information obtained in the course of reviewing the application in order for the Minister to obtain from that person or body any information that is required for reviewing the application;
(b) a true copy of the information or indictment;
(c) a true copy of the trial transcript, including any preliminary hearings;
(d) a true copy of all material filed by the defence counsel and Crown counsel in support of any pre-trial and trial motions;
(e) a true copy of all factums filed on appeal;
(f) a true copy of all court decisions; and
(g) any other documents necessary for the review of the application.

REVIEW OF THE APPLICATION

3. On receipt of an application completed in accordance with section 2, the Minister shall

(a) send an acknowledgment letter to the applicant and the person acting on the applicant's behalf, if any; and

(b) conduct a preliminary assessment of the application.

4. (1) After the preliminary assessment has been completed, the Minister

(a) shall conduct an investigation in respect of the application if the Minister determines that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred; or
(b) shall not conduct an investigation if the Minister
(i) is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred and that there is an urgent need for a decision to be made under paragraph 696.3(3)(a) of the Code for humanitarian reasons or to avoid a blatant continued prejudice to the applicant, or
(ii) is satisfied that there is no reasonable basis to conclude that a miscarriage of justice likely occurred.

(2) The Minister shall send a notice to the applicant and to the person acting on the applicant's behalf, if any, indicating whether or not an investigation will be conducted under subsection (1).

(3) If the Minister does not conduct an investigation for the reason described in subparagraph (1)(b)(ii), the notice under subsection (2) shall indicate that the applicant may provide further information in support of the application within one year after the date on which the notice was sent.

(4) If the applicant fails, within the period prescribed in subsection (3), to provide further information, the Minister shall inform the applicant in writing that no investigation will be conducted.

(5) If further information in support of the application is provided after the period prescribed in subsection (3) has expired, the Minister shall conduct a new preliminary assessment of the application under section 3.

5. (1) After completing an investigation under paragraph 4(1)(a), the Minister shall prepare an investigation report and provide a copy of it to the applicant and to the person acting on the applicant's behalf, if any. The Minister shall indicate in writing that the applicant may provide further information in support of the application within one year after the date on which the investigation report is sent.

(2) If the applicant fails, within the period prescribed in subsection (1), to provide any further information, or if the applicant indicates in writing that no further information will be provided in support of the application, the Minister may proceed to make a decision under subsection 696.3(3) of the Code.

6. The Minister shall provide a copy of the Minister's decision made under subsection 696.3(3) of the Code to the applicant and to the person acting on the applicant's behalf, if any.

ANNUAL REPORT

7. An annual report submitted under section 696.5 of the Code shall contain the following information in respect of the financial year under review in the report:

(a) the number of applications made to the Minister;
(b) the number of applications that have been abandoned or that are incomplete;
(c) the number of applications that are at the preliminary assessment stage;
(d) the number of applications that are at the investigation stage;
(e) the number of decisions that the Minister has made under subsection 696.3(3) of the Code; and
(f) any other information that the Minister considers appropriate.

COMING INTO FORCE

8. These Regulations come into force on the day on which section 71 of the Criminal Law Amendment Act, 2001, chapter 13 of the Statutes of Canada, 2002, comes into force.

SCHEDULE
(Subsection 2(1))

APPLICATION FOR MINISTERIAL REVIEW

Footnote a 

S.C. 2002, c. 13, s. 71

Footnote b 

S.C. 2002, c. 13, s. 71

NOTICE:
The format of the electronic version of this issue of the Canada Gazette was modified in order to be compatible with hypertext language (HTML). Its content is very similar except for the footnotes, the symbols and the tables.

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