Moving to an Independent Wrongful Conviction Review Process - Curtis Webster

On December 13, 2019, Canadian Prime Minister Justin Trudeau sent an official mandate letter to the Minister of Justice and Attorney General, David Lametti. In this letter, the establishment of an independent Criminal Case Review Commission was listed as a top priority of Canada’s current federal government. [1] The stated purpose of this commission is to create a more efficient process for wrongfully convicted persons to have their applications reviewed. This letter occurs following the Liberal Party’s pledge during Canada’s 2019 federal election to implement an independent tribunal to review alleged wrongful convictions. This pledge was also supported by the New Democratic Party and the Green Party. [2]

Under the current system of review, a wrongfully convicted person who has exhausted all their appeals can apply for ministerial review pursuant to sections 696.1 to 696.6 of the Criminal Code. [3] Following such an application, the Minister of Justice may refer the matter to a court if they are satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred. [4] It is important to note that the Minister’s power is strictly limited to that of a court referral and that they cannot impose their own opinion on a court. [5] Before the Minister may even consider an application, however, the current regulations require an applicant to provide copies of all documents and transcripts related to the pre-trial, trial, and appellate proceedings. [6] Once provided, the application is then subjected to a preliminary assessment, followed by an investigation and investigation report, which is then subsequently modified based on any submissions from the parties involved before a final report is rendered and a decision is made by the Minister. [7]

Since its adoption, the current system has overturned the convictions of 23 wrongfully convicted people, in large part due to the hard work of volunteer lawyers. [8] The system is nevertheless problematic since the fact that the review process is overseen by the Department of Justice creates a conflict of interest and a reasonable perception of unfair decision making. [9] Notably, the Minister of Justice arguably has a vested interest in ensuring that the criminal justice system is viewed as a reliable system which produces correct decisions. In other words, there is a risk that wrongful convictions could be ignored by the Minister so that the administration of justice is not called into question. Criminal defence lawyer James Lockyer, who is the founding director of Innocence Canada, has said that the current system “is rather like the hen having to go to the fox.” Lockyer notes that “[the Minister] views a wrongful conviction as an embarrassment to the justice system; of course, the Minister’s personality and the Minister’s politics – especially law-and-order ministers – will play a tremendous role in the likelihood of an application being successful.” [10] Lockyer is also critical of the numerous inefficiencies of the current system and claims that ministerial review of a case takes an average of roughly four and a half years. [11] Indeed, the current system has attracted academic criticism for its associated delays, lack of transparency, and various barriers to access. Due to the onerous time and resource commitments required to obtain ministerial review, the system is often said to be mostly inaccessible and ineffective. [12]

Since 1989, a total of six different public inquiries have recommended establishing an independent Canadian commission to review alleged wrongful convictions. [13] This began with the Royal Commission on the Donald Marshal, Jr, Prosecution, which also recommended that any such body have broad investigative powers to allow it to be sufficiently effective. [14] Some time later in 2001, the Inquiry Regarding Thomas Sophonow specifically recommended that Canada adopt an independent review process similar to the model currently used by the United Kingdom. [15] In the United Kingdom, the Criminal Case Review Commission acts as an independent body that considers any suspected miscarriages of justice, investigates them where appropriate to do so, and then ultimately refers cases back to the courts if the investigation reveals any matters that ought to be further considered. Importantly, the Commission exists outside of the court system and does not act as a servant or agent of the Crown. [16] The Commission is not perfect, however, and often takes up to three years to complete an investigation, although some investigations are completed in several months. [17] Furthermore, some critics worry that inadequate funding and resources limits the effectiveness of the Commission. [18] Nevertheless, the Commission has overturned over 600 convictions since its inception. [19] While the United Kingdom’s Criminal Case Review Commission has referred 807 cases to the courts since 1997, Canada’s Minister of Justice has referred only 27 cases since 1991. [20]

Ultimately, the creation of an independent Criminal Case Review Commission in Canada has many clear benefits to the proper administration of justice. First, it would remove any conflicts of interest and perceptions of bias that result from the Minister of Justice overseeing the wrongful conviction review process. This could even have the further benefit of deterring the participants of the criminal justice system from committing misconduct in the future. Second, provided that any such commission is adequately funded and resourced, it could substantially increase the accessibility and effectiveness of the wrongful conviction review process. Both the financial barriers to accessing the review process and the delays inherent in the process could potentially be reduced. To achieve that, however, it will be necessary for the Canadian government to establish and maintain the proposed commission in good faith. “There’s two ways to make sure this new office achieves nothing,” says lawyer and Order of Canada Member Clayton Ruby, “One is to relabel it, but not change the personnel so they don’t have such close ties to the police; the second one is to starve it, underfund it, and that’s maybe the biggest danger.” [21] Despite these concerns that the commission could be underfunded, Innocence Canada suggests that an independent wrongful conviction commission may only marginally increase the federal government’s expenditures. [22]

The Canadian government’s movement towards creating an independent Criminal Case Review Commission is certainly a step in the right direction. If the government ensures that the Commission is truly independent, properly resourced, and has the broad investigative powers it requires to be effective, Canada’s wrongful conviction review process may soon be significantly more accessible and efficient. For Innocence Canada, this step signals the end of a nearly thirty-year campaign to establish an independent wrongful conviction commission. But that is very good news for the proper administration of justice. “I see no reason why we can’t get everyone onside on this issue,” says Lockyer, “It’s a justice issue, it’s an issue that everyone should be concerned about.” [23]

Endnotes..............................

[1] Letter from Prime Minister Justin Trudeau to Minister of Justice and Attorney General of Canada David Lametti (13 December 2019), online: <https://pm.gc.ca/en/mandate-letters/2019/12/13/minister-justice-and-attorney-general-canada-mandate-letter> [https://perma.cc/D74R-VRF6].

[2] Colin Perkel, “Three parties back setting up wrongful-conviction tribunal; Tories silent”, Canadian Press (9 October 2019), online: <https://nationalpost.com/pmn/news-pmn/canada-news-pmn/two-major-parties-committed-to-creating-wrongful-conviction-tribunal-innocence-canada> [https://perma.cc/X49G-WSA3].

[3] Criminal Code, RSC 1985, c C-46, ss 696.1-696.6.

[4] Ibid, s 696.3(3).

[5] Paul J Saguil, “Improving Wrongful Conviction Review: Lessons from a Comparative Analysis of Continental Criminal Procedure” (2007) 45:1 Alta L Rev 117 at 127.

[6] James G Bell & Kimberley A Clow, “Student Attitudes Toward the Post-Conviction Review Process in Canada” (2007) 7 J Inst Just Int’l Stud 90 at 91.

[7] Andrea S Anderson, “Wrongful Convictions and the Avenues of Redress: The Post-Conviction Review Process in Canada” (2015) 20 Appeal 5 at 10-11.

[8] Anita Balakrishnan, “Clayton Ruby: Independent commission must fix Canada’s ‘humiliating’ record of wrongful conviction”, Law Times (20 January 2020), online: <https://www.lawtimesnews.com/practice-areas/criminal/clayton-ruby-independent-commission-must-fix-canadas-humiliating-record-of-wrongful-conviction/325211> [https://perma.cc/L966-DVNU].

[9] Saguil, supra note 5 at 129, 132.

[10] Perkel, supra note 2.

[11] Olivia Chandler, “Will the government overhaul the way wrongful convictions are reviewed?”, CBC (8 February 2020), online: <https://www.cbc.ca/radio/thehouse/chris-hall-was-ottawa-right-to-quarantine-canadians-evacuated-from-wuhan-1.5454763/will-the-government-overhaul-the-way-wrongful-convictions-are-reviewed-1.5454775> [https://perma.cc/TR4V-HB5T].

[12] Anderson, supra note 7 at 11-15.

[13] Perkel, supra note 2.

[14] Nova Scotia, Report of the Royal Commission on the Donald Marshall, Jr, Prosecution: Digest of Findings and Recommendations (Nova Scotia: Royal Commission on the Donald Marshall, Jr, Prosecution, 1989) at 9.

[15] Manitoba, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Attorney General, 2001) at 101.

[16] Anderson, supra note 7 at 18-19.

[17] Robert C Schehr & Lynne Weathered, “Should the United States establish a Criminal Cases Review Commission?” (2004) 88:3 Judicature 123 at 125.

[18] Anderson, supra note 7 at 21.

[19] Perkel, supra note 2.

[20] Chandler, supra note 11.

[21] Balakrishnan, supra note 8.

[22] Perkel, supra note 2.

[23] Chandler, supra note 11.