Applications for Ministerial Review – Miscarriages of Justice – Annual Report 2022 – Minister of Justice

1. Introduction

Since 1892, the Minister of Justice has had the power, in one form or another, to review a criminal conviction under federal law to determine whether there may have been a miscarriage of justice. The current regime is set out in sections 696.1 to 696.6 of the Criminal Code. The conviction review process begins when a person submits an “application for ministerial review (miscarriages of justice)”, also known as a conviction review application.

The Minister must take into account all relevant matters in assessing an application, including whether the application is supported by “new matters of significance” – usually important new information or evidence that was not previously considered by the courts. If the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred, the Minister may grant the convicted person a remedy and return the case to the courts – either referring the case to a court of appeal to be heard as a new appeal or directing that a new trial be held. The Minister may also, at any time, refer a question to the court of appeal in the appropriate province.

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 relevant legal issues may be determined by the courts according to the law.

Under section 696.5 of the Criminal Code, the Minister of Justice is required to submit an annual report to Parliament regarding applications for ministerial review (miscarriages of justice) within six months of the end of the fiscal year. This is the 21st annual report, and it covers the period from April 1, 2022 to March 31, 2023. Under the Regulations Respecting Applications for Ministerial Review – Miscarriages of Justice (the Regulations), the report must address the following matters:

2. 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 allowed 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 the creation of the former section 690 of the Criminal Code in 1968. This section remained in effect for more than 30 years.

The Current Conviction Review Process

In 2002, following public consultations, section 690 of the Criminal Code was repealed and replaced by sections 696.1 to 696.6. These provisions, together with the Regulations, set out the law and procedures governing applications for ministerial review (miscarriages of justice).

The revised conviction review process improved transparency and addressed deficiencies in the previous process by:

The Criminal Conviction Review Group

The Criminal Conviction Review Group (CCRG) is a separate unit of the Department of Justice. It has five main responsibilities:

In conducting its review, the CCRG is not limited to considering only the information provided by the applicant. Information may be uncovered as a result of the CCRG’s independent review that was not known to, or put forth by, the applicant. The CCRG may also hire experts or arrange for scientific testing where warranted. Furthermore, pursuant to s. 696.2 of the Criminal Code, the Minister has the powers of a commissioner under Part I of the Inquiries Act. Specifically, the Minister has the investigative power during the conviction review process to subpoena witnesses, documents and other information, and to compel testimony under oath or solemn affirmation. The CCRG is usually able to acquire the necessary information and documents through voluntary cooperation but will use this investigative power when necessary to ensure a thorough review.

The Special Advisor on Wrongful Convictions

The Special Advisor on Wrongful Convictions has a mandate to review applications at the various stages of review and to provide independent expert legal advice directly to the Minister of Justice, including advice and recommendations on the appropriate remedy, if any. In 2018, the mandate of the Special Advisor was expanded by Order-in-Council to include the ability to make recommendations to the Minister of Justice to improve the review process and address any systemic problems that are identified during the review of applications.

The current Special Advisor on Wrongful Convictions is the Honourable Morris J. Fish, C.C., K.C.. He was appointed on November 29, 2018. As a former Supreme Court of Canada justice and defence lawyer, and renowned expert in criminal law, he brings a wealth of experience to the role. His presence brings an additional level of independence and scrutiny to the criminal conviction review process, and helps to ensure that reviews are fair, transparent, and complete.

Conviction Reviews by Outside Agents

In some circumstances, the Minister may retain an agent from outside the Department of Justice to conduct the review of an application. Typically, this is done where there is a potential conflict of interest. However, the Minister has also made use of outside agents to ensure that files are assigned in a timely fashion.

How the Conviction Review Process Works

Applying for a Conviction Review

The conviction review process requires an applicant to submit a formal application form and a number of supporting documents.

The requirements for a completed application, as well as a description of the various steps in the application process, are set out in detail on the CCRG’s website.

Anyone convicted of an offence under a federal law or regulation may submit an application for ministerial review. For example, a person who has been convicted under the Criminal Code or the Controlled Drugs and Substances Act is eligible to apply. 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 submit an application for ministerial review of that finding.

However, an application will not be accepted until the applicant has exhausted all available rights of appeal. A conviction review by the Minister of Justice is not meant to be a substitute for, or an alternative to, a judicial review or an appeal of a conviction. Nor is an application for ministerial review meant to be another level of appeal or a mechanism that would allow the Minister of Justice to consider the same evidence and arguments presented to the courts and substitute his or her own judgment.

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 a court of appeal to overturn a conviction on the grounds that there has been a miscarriage of justice. Convicted persons are therefore expected to appeal their convictions, including ones resulting from a guilty plea, before submitting an application. This may involve seeking an extension of time for leave to appeal. In addition, there may be other legal mechanisms available for correcting a miscarriage of justice in the courts where an individual’s case is no longer in the legal system, particularly where the Crown concedes that a miscarriage of justice has occurredFootnote 1.

In making a decision on an application, the Minister must consider all relevant factors including whether the application is supported by “new matters of significance” – usually new information that has surfaced since the trial and appeal and therefore has not been presented to the courts and has not been considered by the Minister on a prior application. The new matter of significance may be identified by the applicant or discovered by the CCRG during its independent review. Whatever the case, it is highly unlikely that an application will be successful in the absence of such information.

Although it is not required, applicants may seek the assistance of a lawyer or an organization specializing in wrongful conviction issues such as Innocence Canada (formerly the Association in Defence of the Wrongly Convicted or AIDWYC) or the various Innocence Projects throughout the country.

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. They are described in detail on the CCRG’s website and in earlier annual reports.

As a practical matter, the Minister is not personally involved in the preliminary assessment, investigation, and preparation of the investigation report stages. These stages are usually carried out on behalf of the Minister by the CCRG. The Minister does, however, personally decide on all applications for ministerial review that proceed to the investigation stage.

In this final stage, the Minister of Justice personally reviews the investigation report and supporting materials, which typically include the submissions from the applicant and the prosecuting agency (usually the provincial attorney general), the legal advice and recommendations of the CCRG or outside agent, and the legal advice and recommendations of the Special Advisor on Wrongful Convictions.

The Minister then decides to grant a remedy or dismiss the application. In arriving at a decision, the Minister must take into account all relevant matters, including:

In some circumstances, an application may raise a question on which the Minister may request the assistance of a court of appeal. The court’s opinion on the question may help the Minister make the decision. The Minister, therefore, has the legal authority, at any time and prior to any decision, to refer a question or questions about an application to the court of appeal for its opinion. Typically, the court of appeal’s opinion would be sought on a legal issue central to the application, such as the admissibility of fresh evidence.

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 new hearing in the case of a person found to be a dangerous or long-term offender, or may 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, the following guidelines and general principles concerning the exercise of ministerial discretion have developed and remain applicable today. Some have in fact been incorporated into the current Criminal Code provisions.

  1. The remedy contemplated by section 696.1 is extraordinary. It is intended to ensure that no miscarriage of justice occurs when all conventional avenues of appeal have been exhausted.
  2. Section 696.1 does not exist to permit the Minister to substitute a ministerial opinion for a trial verdict or a result on appeal based solely on the Minister’s view of the same evidence.
  3. Similarly, the procedure created by section 696.1 is not intended to create a further 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 696.1 who rely solely on alleged weaknesses in the evidence, or on arguments of the law that were put before a court and considered, can expect that their application will be refused.
  4. Applications under section 696.1 should ordinarily be based on new matters of significance that either were not considered by the courts or occurred or arose after the conventional avenues of appeal had been exhausted.
  5. Where the applicant is able to identify such new matters or where they are discovered by the CCRG or outside counsel during the review process, the Minister will consider the reliability of the information and relevance to the issue of guilt. The Minister will also have to determine the overall effect of the new matters when taken together with the evidence adduced at trial.
  6. Finally, for an application under section 696.1 to succeed, the Minister does not need to be convinced of the applicant’s innocence nor must it be proved conclusively that a miscarriage of justice has actually occurred. Rather, an application will be successful where it has been demonstrated, based on the above analysis, that there is a reasonable basis to conclude that a miscarriage of justice likely occurred.

3. Statistical Information

Overview

The period covered by this annual report is from April 1, 2022 to March 31, 2023. Table 1 provides an overview of active files during the reporting period.

TABLE 1: OVERVIEW OF ACTIVE FILES
Active FilesFootnote 2 77
New completed applications received 20
Preliminary assessments completed 14
Preliminary assessments underway or awaiting assignment 53
Investigations completed 2
Investigations underway 12
Decisions by Minister on remedy 2

Inquiries

This includes people who contact the CCRG for the first time for general information about the conviction review process or to request a copy of the booklet Applying for a Conviction Review or other information. It does not include follow-up inquiries after initial contact.

During the reporting period, the CCRG received 43 such inquiries.

Applications Made to the Minister

Table 2 indicates the number of applications that the Minister actually received during this period. An application is considered “completed” when a person has submitted the forms, information and supporting documents required by the Regulations. During this period, the Minister received 34 applications, 20 completed. The CCRG continues to experience a significant increase in new completed applications, averaging 17 or 18 per year since 2016, up from an average of five per year from 2003 to 2015.

An application is considered “partially completed” where a person has submitted some, but not all, of the forms, information, and supporting documents required by the Regulations. For example, a person may have submitted the application form but not the supporting documents required. Although it is the applicant’s responsibility to provide the required documentation, CCRG staff frequently assist. It is not unusual for an application to remain “partially completed” for a period of time while the applicant gathers and submits the necessary documents and information. Of the 34 applications made to the Minister during the reporting period, 12 were still “partially completed” at year’s end.

An application is “screened out” if the person is not eligible to make an application for ministerial review. This covers a variety of circumstances – for example, if an application relates to a provincial offence, involves a civil matter, or deals with the same subject as a previously denied application and does not raise any new matters of significance. The most common reason for screening out applications, however, is where an applicant has not yet exhausted their rights of appeal in the court system. Two applications were screened out during this reporting period, one because of a failure to exhaust rights of appeal and the other because it was not a federal conviction.

TABLE 2: APPLICATIONS MADE TO THE MINISTER FROM APRIL 1, 2022 TO MARCH 31, 2023
Applications completed 20
Applications partially completed 12
Applications screened out 2
TOTAL 34

Progress of Applications through the Conviction Review Process

Table 3 summarizes the work completed in the first three stages of the conviction review process. Fourteen preliminary assessments were completed during the period. Five investigations were completed and no applications were abandoned.

The time required to conduct a preliminary assessment typically ranges from a few weeks to several months. An investigation usually takes a number of additional months to complete. Both preliminary assessments and investigations can take even longer if the case is particularly complex or a large volume of material has been submitted.

TABLE 3: PROGRESS OF APPLICATIONS THROUGH THE CONVICTION REVIEW PROCESS FROM APRIL 1, 2022 TO MARCH 31, 2023
Preliminary assessments completed 14
Investigations completed 5
Applications abandoned 0
TOTAL 19

Preliminary Assessments

Tables 4 and 5 provide further information about the work done at the preliminary assessment stage. Table 4 summarizes the 67 applications that were at the preliminary assessment stage during the reporting period. At year’s end, there were 17 applications awaiting preliminary assessment, and 14 were completed. Thirty-six more were underway but not yet completed. No preliminary assessments were abandoned. Table 5 shows that of the fourteen preliminary assessments completed, four proceeded to the investigation stage, while ten were rejected. An application is rejected at the preliminary assessment stage because the CCRG determined that there was no reasonable basis to conclude that a miscarriage of justice likely occurred. When a decision was made to proceed to the investigation stage, the CCRG determined that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred.

Of the 67 applicants at the preliminary assessment stage, three were women and the rest men. 43 applications were from individuals not represented by counsel, while 24 were represented. Thirty applicants were in custody, while 37 were not in custody.

TABLE 4: SUMMARY OF APPLICATIONS AT THE PRELIMINARY ASSESSMENT STAGE FROM APRIL 1, 2022 TO MARCH 31, 2023
Preliminary assessments completed 14
Preliminary assessments abandoned or on hold 0
Preliminary assessments under way but not yet completed 36
Applications awaiting preliminary assessment 17
TOTAL 67
TABLE 5: DISPOSITION OF APPLICATIONS FOLLOWING PRELIMINARY ASSESSMENT STAGE FROM APRIL 1, 2022 TO MARCH 31, 2023
Applications that did not proceed to the investigation stage following a preliminary assessment 10
Applications that proceeded to the investigation stage following a preliminary assessment 4
TOTAL 14

Investigations

Table 6 summarizes the work done on applications that were at the investigation stage. An investigation is considered complete when an investigation report is forwarded to the Minister for review and decision.

Two investigations were completed during the reporting period. Eight investigations were carried over from the previous period and four new investigations began following preliminary assessment.

All applicants at the investigation stage were represented by counsel. Two were women and the rest were men. One was in custody for all of the reporting period. Three others were in custody at the beginning of the reporting period but were subsequently released - two were granted bail pending the outcome of the review and the third received parole. Another applicant had already received bail pending the outcome of their review. The remaining nine applicants were already out of custody prior to submitting their applications.

TABLE 6: SUMMARY OF APPLICATIONS AT THE INVESTIGATION STAGE FROM APRIL 1, 2022 TO MARCH 31, 2023
Investigations completed 2
Investigations under way but not yet completed 12
TOTAL 14

Decisions by the Minister

Table 7 summarizes the decisions made by the Minister during the reporting period. Two remedies were granted, no matters were with the Minister for decision at the end of this reporting period, and no applications were dismissed by the Minister following investigation.

TABLE 7: DECISIONS MADE BY THE MINISTER FROM APRIL 1, 2022 TO MARCH 31, 2023
Applications dismissed 0
Remedies granted 2
Decisions pending 0
TOTAL 2

APPENDIX #1

Contacting the Criminal Conviction Review Group

Applicants and interested parties are encouraged to communicate with the CCRG in writing. Initial contact may also be made by e-mail.

Mail

Minister of Justice
Criminal Conviction Review Group
284 Wellington Street
Ottawa, ON
K1A 0H8

E-mail

Initial inquiries: ccrg-grcc@justice.gc.ca

Telephone

Information for contact by telephone will be provided following the initial contact
by mail or e-mail.

CCRG Website