Recent years have seen a significant increase in attention to wrongful convictions. Cases such as those of Donald Marshall, Guy Paul Morin, Thomas Sophonow, and David Milgaard, coupled with the Commissions of Inquiry following some of these cases, have alerted key players in the Canadian criminal justice system, along with the Canadian public, that our system of justice is fallible. Although the body of research on the causes of wrongful convictions in Canada is small, it is likely that, for the most part, the causes in this country do not differ significantly from those in other jurisdictions, including factors such as the frailties of identification evidence, law enforcement tunnel vision, lack of disclosure, incompetent defence counsel, and poor and/or unreliable scientific evidence, to mention but a few. The focus of this commentary is not on the causes associated with wrongful convictions; rather, it examines an existing remedy to address wrongful convictions in Canada, as well as some of the criticisms of this remedy. I am referring specifically to an application to the Minister of Justice pursuant to section 696.1 of the Criminal Code of Canada (formerly s. 690). It should be noted that while some past criticisms may have disappeared with the 2002 amendments to the Criminal Code, which were accompanied by the new Regulations Respecting Applications for Ministerial Review--Miscarriages of Justice, those opposed to the involvement of the Minister of Justice or, more generally, of the government in the criminal conviction review procedure continue to suggest that the process is flawed. In this discussion, I address these and other issues related to this process.
The Criminal Code of Canada gives the federal Minister of Justice the power to review a conviction under federal law to determine whether there may have been a miscarriage of justice, or what is often called a "wrongful conviction." If the review indicates that a miscarriage of justice is likely to have occurred, the Minister of Justice has the authority to order a new trial or to refer the matter to the Court of Appeal for the province or the territory in question.
Basic principles (1)
The powers of the Minister of Justice to review convictions are set out in sections 696.1 to 696.6 of the Criminal Code. The procedure that applies to conviction review is addressed in the Regulations Respecting Applications for Ministerial Review--Miscarriages of Justice. The Minister's power to correct a miscarriage of justice is an "extraordinary" one that can be exercised only in those exceptional cases where a person presents new and significant information that casts doubt on the correctness of his conviction.
The role of the Minister of Justice is not to second-guess the decision rendered by the courts or to substitute his opinion of the evidence or the arguments already considered by the courts. The Minister does not decide whether a convicted person is guilty or innocent; that role is assigned to the courts. A person may apply for a conviction review once she has exhausted all her rights of appeal, as appeals to higher courts are the usual way to correct legal errors and miscarriages of justice in Canada.
An application for review pursuant to s. 696.1 of the Criminal Code must be based on new and significant information. Information will be considered new if the courts did not examine it during the trial or appeal or if the information surfaced after all court proceedings were over. The information must be reasonably capable of belief, relevant to the issue of guilt, and capable of affecting the verdict if it had been presented at trial.
If, on examining the information in the conviction review application, the Minister is satisfied that a reasonable basis exists to conclude that a miscarriage of justice likely occurred, he has several options available to address this injustice: 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. …