The Long and Winding Road to Justice for the Wrongfully Convicted in Canada - Charlie Newton
The journey to exoneration for individuals who have been wrongfully convicted in Canada is complex and deserves consideration. This discussion will outline the process for how an individual who has been wrongfully convicted in Canada becomes exonerated. Some of the common criticisms of Canada’s current ministerial review process will also be highlighted.
In Canada, the first opportunity to remedy a wrongful conviction is through the Court of Appeal, as those convicted of a criminal offence have thirty days to make an appeal based on an interpretation of law, fact, or mixed law and fact. (1) Court of Appeal judges have the power to either set aside the original verdict and enter an acquittal or order a new trial. (2) Should the appeal be upheld, the convicted person also has the option to go to the Supreme Court of Canada. (3) However, a convicted person only has the automatic right to make an appeal the Supreme Court of Canada if a unanimous decision was not reached at the Court of Appeal. (4) In the case that a unanimous decision was reached, the individual must seek leave to appeal to have the matter heard by the Supreme Court of Canada. (5)
Individuals in Canada who have been convicted under the Criminal Code of Canada or the Controlled Drugs and Substances Act, or for that matter have been designated a dangerous or long-term offender, also have the opportunity for a conviction review as outlined by sections 696.1–696.6 of the Criminal Code of Canada. (6) Section 696.1 (1) states,
696.1 (1) An application for ministerial review on the grounds of miscarriage of justice may be made to the Minister of Justice by or on behalf of a person who has been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament or has been found to be a dangerous offender or a long-term offender under Part XXIV and whose rights of judicial review or appeal with respect to the conviction or finding have been exhausted. (7)
It is worth noting that the case of McArthur v Ontario concluded that, “… it is the duty of the Minister of Justice to determine whether or not the applicant has exhausted his or her rights of judicial review or appeal with respect to the conviction as a pre-condition to conducting a ministerial review.” (8) The first step of the conviction review process is a preliminary assessment by the Criminal Conviction Review Group (CCRG) legal counsel, which assess the case and its merits and obtain any necessary information. (9) It must be emphasized that new and significant information that could have affected the outcome of the case must be presented in order for an application to be accepted for review. (10) The second step is investigation where lawyers must examine any new information that has been produced, and then determine the extent to which this information is reliable or reasonably capable of belief and relevant or related to the guilt or innocence of the applicant. (11) This stage may involve interviewing witnesses, scientific of forensic analysis, consultation with police, prosecutors, and defence lawyers, and obtaining relevant and personal information and documents. (12) The third step is an investigation report, which is made available to the individual making the application, who then can review it and make any necessary comments, however the applicant is not privy to advice the CCRG makes to the minister due to solicitor-client privilege. (13) The fourth step is the decision being made by the Minister of Justice, and here, the minister reviews the information and then determines whether to dismiss or allow the application. (14) Section 696.3 (3) highlights that the Minister of Justice can either direct a new trial before any court or refer the matter at any time to the court of appeal if they are satisfied that a miscarriage of justice has likely occurred. (15) Should a new trial be granted, the decision reached at the new trial takes precedence over that reached previously. (16) If the matter is referred to the Court of Appeal, the court can either order a new trial, enter an acquittal, and/or make any other order as seen fit, such as a stay of proceedings. (17)
Considerable discussion exists relating to the inadequacies of Canada’s current model for those who have been wrongfully convicted. Kerry Scullion notes that common criticisms of Canada’s current ministerial review process include that the onus is on the applicant to demonstrate a miscarriage in justice has occurred, the costs associated with the process, a lack of transparency throughout the process, and a lack of independence and conflicts of interest between the parties involved in the review process. (18) Others such as Kent Roach point out that the burden imposed on applicants is certainly of concern. (19) Narissa Somji adds that the application process is unduly onerous on applicants as they have the responsibility of obtaining and forwarding documents in support of an application, which is logistically challenging for those being held in custody and who may be limited financially. (20) Andrea Anderson highlights that reviews and investigations conducted by the CCRG are characterized by delays, and decisions can take up to five years to be made on a single application. (21)
While there are many criticisms of the current ministerial review process, there is hope for the future. In a recent mandate letter from Prime Minister Justin Trudeau to the Minister of Justice, Mr. David Lametti, the prime minister called for the establishment of an independent Criminal Case Review Commission to make it easier and faster for potentially wrongfully convicted individuals to have their applications reviewed and processed. (22) While it remains to be seen what will come from this call to action, and how long it will take for an independent review body to be developed, this demonstrates that the current government acknowledges the flaws with the current ministerial review process and is taking steps in the right direction. That being said, there is no doubt that it will continue to be a long and winding road to justice for individuals in Canada who have been wrongfully convicted.
Kathryn M. Campbell, Miscarriages of Justice in Canada: Causes, Responses, Remedies (Toronto: University of Toronto Press, 2018) at 191.
Innocence Canada, “The Legal Path to Exoneration” (2020), online: Innocence Canada < https:// www.innocencecanada.com/the-legal-path-to-exoneration/> [perma.cc/AG3T-Z77H].
Campbell, supra note 1 at 196.
Criminal Code of Canada, RSC 1985, c C-46, s 696.1(1) [Criminal Code].
McArthur v Ontario (Attorney General), 2013 ONCA 668 at para 4; Campbell, supra note 1 at 196.
Campbell, supra note 1 at 196.
Ibid at 197.
Criminal Code, supra note 7 at s 696.3(3).
Innocence Canada, supra note 3.
Kerry Scullion, “Wrongful Convictions and the Criminal Conviction Review Process Pursuant to Section 696.1 of the Criminal Code of Canada” (2004) 46:2 Can J Corr 189 at 192-194.
Kent Roach, “An Independent Commission to Review Claims of Wrongful Convictions: Lessons from North Carolina” (2012) 58:2 Crim LQ 283 at 291.
Narissa Somji, “A Comparative Study of the Post-Conviction Review Process in Canada and the United Kingdom” (2012) 58:2 Crim LQ 137 at 166.
Andrea S Anderson, “Wrongful Convictions and the Avenues of Redress: The Post-Conviction Review Process in Canada” (2015) 20 Appeal 5 at 14.
Letter from The Honourable Justin Trudeau to David Lametti (13 December 2019), online: Justin Trudeau, Prime Minister of Canada <https://pm.gc.ca/en/mandate-letters/2019/12/13/minister-justice-and-attorney-general-canada-mandate-letter> [perma.cc/AE6R-AD7G].