Issues With the Ministerial Review Process and the Law of Confessions: Odelia and Nerissa Quewezance’s Fight for Freedom

Authors: Jayden Kyryluk and Andreas Kastellanos

Introduction

The case of Odelia and Nerissa Quewezance (the “sisters”) highlights significant issues within the Canadian criminal justice system, particularly in relation to the law of confessions and the ministerial review process (“MRP”). Convicted in 1994 for the murder of Joseph Dolff, the sisters have maintained their innocence for over three decades, raising serious questions about the voluntariness of their confessions given the context of their interrogation. This blog examines the key evidentiary concerns surrounding their initial conviction, focusing on the potential unreliability of their confessions due to questionable police practices. Furthermore, it critiques the current MRP as a flawed mechanism for addressing potential miscarriages of justice, arguing for systemic reforms to ensure fair and effective post-conviction reviews.

Facts

In 1993, 70-year-old farmer Joseph Dolff was brutally murdered in his home near Keeseekoose First Nation in Saskatchewan.[1] Dolff was stabbed 11 times in the chest, three in the abdomen, twice in the arms, sustained blunt-force trauma to the head and face, and had a phone cord loosely wrapped around his neck.[2] Odelia and Nerissa, aged 21 and 18, were charged for Dolph’s murder, convicted of second-degree murder in 1994, and sentenced to life imprisonment with a minimum of 10 years before parole eligibility.[3] The sisters appealed their convictions, but were dismissed by both the Saskatchewan Court of Appeal and the Supreme Court of Canada (“SCC”).[4] The sisters’ statements to the RCMP, which included admissions regarding their presence and actions at the crime scene, were admitted as voluntary by the court and played a significant role in their conviction.[5] 

On March 30th, 2023, the Court of King’s Bench for Saskatchewan (“SKKB”) granted the sisters a conditional release until the federal Minister of Justice (“Minister”) makes a decision on their application for ministerial review.[6] In the 2023 decision Quewezance v R (“Quewezance 2023”), Justice Donald Layh ruled that “the Quewezance sisters have raised sufficient evidentiary matters that make their application of appropriate strength to support their release.”[7] Notably, Justice Layh ruled that the environment and context surrounding the sisters’ original confession in 1993 to be “questionable circumstances”[8] which warrant a review of its voluntariness.

Legal Context & Case Analysis

The Law of Confession         

Under Canadian law, confessions must be reliable, voluntary, made to a person in authority, and free of an environment of oppression.[9] However, in Quewezance 2023, the defence asserted that the sisters’ confessions in 1993 were obtained under conditions that compromised their reliability and voluntariness, especially given the sisters’ young age, consumption of drugs and alcohol, lack of procedural fairness (the police ignored the sisters’ lawyer’s assertion that they wished to remain silent), and absence of video or audio recordings.[10] Further, the sisters’ defence argued that their “improper and illegal continued detention,”[11] where the police kept the sisters at the detachment and ignored an order to send them to a correctional facility, makes the detention “not authorized by law and arbitrary”[12] and makes the confessions lack sufficient voluntariness. Justice Layh found that the merits of these matters met the threshold of a “sufficiently strong case,”[13] justifying the conditional release of the sisters pending the completion of the ministerial review.[14]

Ministerial Review

The sisters now seek ministerial review of their case as their final means of freedom. Section 696.1(1) of the Criminal Code grants the Minister authority to review convictions, such as the Quewezances’ case, to assess whether a miscarriage of justice may have occurred.[15] Section 696.2(3) outlines the Minister’s several choices, which include: (a) a new trial, (b) refer the matter the court of appeal “as if it were an appeal by the convicted,”[16] or (c) dismiss the application.[17] 

Critical Reflection

Was the Confession Voluntary?

Although the ultimate decision on whether the sisters’ 1993 confessions will be further evaluated is up to the Minister, there are serious reasons to doubt the validity of the sisters’ statements. The fact that there was no video or audio recording during the police interrogations is particularly concerning. The SCC has ruled that recordings, especially video, are essential to upholding the integrity of police interrogations. In R v Oickle, for instance, the SCC stated the following on video recording:

First, it provides a means by which courts can monitor interrogation practices and thereby enforce the other safeguards.  Second, it deters the police from employing interrogation methods likely to lead to untrustworthy confessions.  Third, it enables courts to make more informed judgments about whether interrogation practices were likely to lead to an untrustworthy confession. Finally, mandating this safeguard accords with sound public policy because the safeguard will have additional salutary effects besides reducing untrustworthy confessions, including more net benefits for law enforcement.[18] 

Since the sisters’ 1993 confessions were not recorded, there is no way to know if their Charter rights, such as the right against self-incrimination, were respected or enforced. Secondly, it is conceivable that the lack of recording played a role in the police’s “questionable”[19] interrogation methods. It is likely, for example, that the police would have been more incentivized to comply with the order to move the sisters from the police headquarters to a correctional facility had there been a recording. The recording would have likely made the police more compliant with their duties since recordings “deter”[20] police from neglecting the rights of the accused. Thirdly, it is plausible that the Minister, or Court of Appeal, would have an easier time making an informed decision on the trustworthiness of the sisters’ confessions had there been a recording of the statements. Although written notes can be accurate, they “cannot reflect the tone of what was said and any body language that may have been employed.”[21]  Thus, since there is no way to know for certain the tonality of the sisters during their statements, or what their body language was, it is more difficult to ascertain a proper judgement about the interrogation. While the recording of police interrogations is not strictly mandated by the SCC, we are of the belief that their use should be required by all law force agencies. Tape recorders are both inexpensive and accessible, which enables them to be provided to law enforcement agencies for use during interrogations.

These factors, coupled with the fact that the sisters were under the influence of drugs and alcohol at the time of the supposed confessions, raise reasonable doubt about the truth, accuracy, and reliability of their statements. We believe that it is both problematic and concerning that, up until very recently, the Canadian court system had not engaged in a thorough, procedural review of these obvious evidentiary issues. While we cannot predict the future outcome of the Minister’s ruling, we truly hope that the review will strongly consider, contemplate, and evaluate the “questionable”[22] conduct of the police during the sisters’ 1993 interrogation and its subsequent effect on the confessions.

Issues With Ministerial Review Process

There are several issues with the MRP, specifically with: (a) the cost of the process and its high evidentiary burden, and (b) its historical ineffectiveness. Potential applicants, for example, are required to submit copies of all documents related to pre-trial, trial, and appeal proceedings.[23] These documents are often so large that they can fill up several boxes.[24] As such, in most cases, an individual will require legal assistance to apply for ministerial review due to the large evidentiary burden to do so. They either must pay for a lawyer themselves, or through legal aid, which is unavailable in some provinces, specifically for the post-conviction review process.[25] 

If the sisters were not represented by James Lockyer, senior counsel for Innocence Canada, an organization that advocates for wrongly convicted individuals, they may not have been able to qualify for legal aid.[26] This is because when post-conviction legal aid is available, the application may not be considered unless the applicant can establish, amongst other conditions, that ‘new’ and ‘significant’ evidence exists.[27] As most applicants are incarcerated, they are “unable to conduct their own investigation.”[28] This challenge is reflected in the statistics: of the 53 applications at the preliminary assessment stage in 2022, 36 were from applicants not represented by counsel and 17 were represented.[29] As nearly 70 percent of applicants are self-represented, volunteers from non-profit organizations such as Innocence Canada are left with the burden of discovering new evidence and providing legal assistance, which seems unequitable to those who may have been wrongly convicted.[30] Innocence Canada claims that it is “almost inconceivable that an unrepresented applicant, from his prison cell, could meet any such standard.”[31] While the sisters were fortunate to receive counsel from Innocence Canada, many are unable to receive similar aid, thus demonstrating that costs and a high evidentiary burden are flaws with the MRP.     

Another issue with the MRP is its relative ineffectiveness. The Criminal Conviction Review Group (“CCRG”) reviews and investigates each application and delivers suggestions to the Minister.[32] From April 2005 to March 2007, the CCRG received fifty-seven applications, completed five investigations, and made three decisions: one case was dismissed and two were referred to the Court of Appeal.[33] Moreover, Innocence Canada claims that the Minister intervenes in about one-percent of applications.[34] This number reflects the low success rate of applications and the need for an updated system. Fortunately, the Canadian government recognized this need, committing in 2021 to establishing an independent commission to replace the Minister’s role of investigating and deciding whether to refer claims of miscarriages of justice back to the courts.[35] As the Minister is an elected official and thus subject to certain political pressures, we believe this commission is a step in the right direction to hand responsibility of wrongful commission claims to an independent non-partial body. Nevertheless, it has been nearly three years since this announcement and no such commission has been established. With no commission in place, there are still significant barriers to even beginning the MRP, let alone succeeding in it. While we believe the sisters’ case should be given a second chance, as the sisters await the Ministers’ decision, history has shown it may be exceptionally difficult.

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Conclusion

The fight for freedom by Odelia and Nerissa Quewezance highlights deep flaws in both the law of confessions and the MRP. The absence of recorded interrogations, compounded by the police’s negligent interrogation, casts significant doubt on the voluntariness of their confessions and raises concerns about the validity of their conviction. Additionally, the MRP, with its high evidentiary burdens and low success rate, fails to provide an accessible path to justice for those potentially wrongfully convicted. Although recent developments indicate a move towards establishing an independent review commission, the ongoing delay highlights the urgent need for reforms. In sum, the Quewezance sisters’ case serves as a critical reminder of the necessity for a more transparent, accountable, and fair approach to addressing miscarriages of justice in Canada.

[1] Quewezance v R, 2022 SKKB 260 at para 4 [Quewezance 2022]

[2] Ibid at para 5.

[3] Ibid at para 4.

[4] Ibid.

[5] Ibid at paras 6-7.

[6] Quewezance v R, 2023 SKKB 67 at paras 78-79 [Quewezance 2023].

[7] Ibid, at para 66.

[8] Ibid.

[9] R v Oickle, 2000 SCC 38 at paras 47-69 [Oickle].

[10] Quewezance 2023, supra note 6 at para 66.

[11] Ibid, at para 68.

[12] Ibid.

[13] Ibid, at para 78.

[14] Ibid, at para 82.

[15] Quewezance 2022, supra note 1 at para 17.

[16] Criminal Code, RSC 1985, c C-46, s 696.2(3)(a)(ii).

[17] Ibid at s 696.2(3)(a)-(b).

[18] Oickle, supra note 9 at paras 46.

[19] Quewezance 2023, supra note 6 at para 66.

[20] Oickle, supra note 9 at paras 46.

[21] Ibid.

[22] Quewezance 2023, supra note 6 at para 66.

[23] Canada, Department of Justice, Applications for Ministerial Review – Miscarriages of Justice Annual Report 2014 (Ottawa: Communications Branch, Department of Justice, 2014) at 9.

[24] Andrea S Anderson, “Wrongful Convictions and the Avenues of Redress: The Post-Conviction Review Process in Canada” (2015) 20:5 Rev Current L and L Reform 5 at 13 [Anderson].

[25] James Bell & Kimberley A Chow, “Student Attitudes Toward the Post-Conviction Review Process

in Canada” (2007) 90 J Inst Just Int’l Stud 3 at 91 [Bell].

[26] Quewezance 2022, supra note 1 at para 16.

[27] Anderson, supra note 24 at 13.

[28] Bell, supra note 25 at 91-92.

[29] Canada, Department of Justice, Applications for Ministerial Review – Miscarriages of Justice – Annual Report 2022 – Minister of Justice (Ottawa: Communications Branch, Department of Justice, 2022) online: <https://www.justice.gc.ca/eng/rp-pr/cj-jp/ccr-rc/rep22-rap22/p1.html> [perma.cc/7VKU-D2LR] [Report 2022].

[30] Bell, supra note 25 at 91-92.

[31] Anderson, supra note 24 at 14.

[32] Report 2022, supra note 17.

[33] Anderson, supra note 24 at 13.

[34] Bell, supra note 25 at 92.

[35] Canada, Department of Justice, A Miscarriages of Justice Commission (Ottawa: Communications Branch, Department of Justice, 2022) online: < https://www.justice.gc.ca/eng/rp-pr/cj-jp/ccr-rc/mjc-cej/toc-tdm.html> [perma.cc/LX6N-RRF7].