Reviewing wrongful convictions

Criminal convictions can have long-lasting impacts, that can affect employment, housing and family law proceedings. And that’s not counting the social stigma attached to them. That’s why it’s important to have an independent process in place to review them.

The proposed creation of an independent Criminal Case Review Commission, or CCRC, is a historic opportunity for Canada to create a new system to guard against the conviction of the innocent, say the Child and Youth Law, Criminal Justice, and Sexual Orientation and Gender Identity Community Sections of the Canadian Bar Association in a recent letter to the Honourable Harry LaForme and the Honourable Juanita Westmoreland-Traoré. Justice LaForme and Justice Westmoreland-Traoré are undertaking consultations on the potential structure and mandate of the new commission.

“For more than 20 years, the CBA has argued that it is essential to create a new, robust and independent CCRC as an additional tool in the fight against miscarriages of justice,” the Sections write. Below is a summary of their recommendations.

Independence

The first requirement is that the CCRC must be completely independent of government and be governed by stand-alone legislation. It should be designated as an independent agency with dedicated funding “untethered to the budgets of other government departments,” the letter reads.

Composition

Commissioners should have fixed but renewable mandates. They should possess considerable legal experience but not necessarily in criminal law. Rather, the Sections say, a generalist commissioner is preferred, someone with knowledge of “the overall justice system, including issues such as systemic discrimination, inadequate resource allocation, police investigative practices, Crown policies, the interaction between mental health and law, and civil remedies, to name but a few areas.”

Non-legal expert support is also needed, including in forensic psychiatry and youth justice. But the Sections caution against the formal involvement of victims of crime advocates. Correcting miscarriages of justice, they say, “is difficult work that requires a dispassionate and objective environment, focused on science, evidence at trial, and our best understanding of the issues that may lead to a wrongful conviction.” However, victims of crime advocates would have a role in sentencing reviews, should the CCRC embrace this mandate.

Accessibility

The Sections do not object to the central office being located in Ottawa, but they are of the view that having offices across the country can help determine how local conditions or attitudes affect a particular case, especially in the North. “Bringing people to justice should enable access to justice and this can be better achieved by CCRC offices that are available and seen to be available to Canadians.”

In addition, the CCRC should make efforts to reach out to potential applicants, especially young offenders, and use plain language in its multilingual communications. “Marginalized and vulnerable groups will benefit most from proactive efforts,” the Sections write. “Individuals belonging to these groups are more likely to misunderstand the CCRC and its role, and as a result, are less likely to take advantage of its remedy of last resort, even though they are disproportionately more likely to be the victim of a miscarriage of justice.”

Given that most wrongful convictions in Canada were uncovered from information that was already in the police or Crown files, the Sections call for “a robust and accessible investigatory regime” for the CCRC to fulfil its role.

Standards and procedure

For material that might be privileged, the CCRC should be governed by existing rules of procedure and evidence, the Sections say, with appropriate safeguards in place for access to information covered by police or Crown privilege. “This should be permitted so that the CCRC can access relevant information that may speak to the validity of a conviction without meaningfully interfering with the privilege except in exceptional circumstances,” they write.

The predictive test should require the CCRC to believe that a “miscarriage of justice may have occurred,” to refer a case for review. This standard respects the appropriate roles of the CCRC and the courts: it raises a real concern that a miscarriage of justice has occurred, while permitting the court to evaluate that concern without the CCRC expressing an opinion on the likelihood of a wrongful conviction.

The current powers in the Criminal Code offer a sufficiently flexible framework to address CCRC cases with the exception of conviction referrals. In those cases, more explicit guidance should be offered to appellate courts to exercise their discretion to order an acquittal or judicial stay of proceedings. The Criminal Code ought to be amended according to listed criteria.

The CBA Sections support a hybrid model of review, whereby the CCRC gives applicants provisional reasons for rejection and those should be made public. “This will add greater efficiency and fairness and will avoid the cumbersome trappings of a full appellate process.” In cases where a conviction is upheld, efforts should be made to protect the privacy of the individuals concerned to minimize the possibility of revictimizing them.

Given its unique position, the CCRC should be required to produce annual reports, “of both its work and data collection,” the Sections say. Data that can be used for policy and legislative reform to improve the system, especially when it comes to the over-representation of Indigenous and people of colour in the carceral system.