Canadian Commission delivers report to establish MoJ Commission

Far reaching recommendations that go well beyond anything so far established in other countries are contained in the report by the Canadian Commission advising the government on the establishment of a Criminal Cases Review Commission, including that the new body work actively in partnership with existing and new Innocence Projects, as recommended by Australian legal academics Bob Moles and Bibi Sangha. 

“This is an important recommendation of the Commission,” says Moles, “which states that it should be able to provide funding to such Innocence Projects to assist them in their important work. I am hopeful that this might provoke some discussion about establishing a similar body in Australia.” (the reports)

Starting on June 9, 2021, the Commission conducted 45 roundtables involving 215 people. The first sessions heard from 17 exonerees who have suffered miscarriages of justice. “We also spoke to representatives of all five foreign commissions who perform similar functions in England, Scotland, Norway, North Carolina and New Zealand. And we spoke with crime victims and representatives of police, prosecutors, defence lawyers, legal aid officials, judges and forensic scientists. Forty-five domestic and international individuals and organizations provided written submissions to us.”

One of the most publicly visible differences to similar bodies elsewhere is the proposed name: “We started these consultations with an assumption, as reflected in the Minister of Justice’s mandate letter to us, that the new commission would be called the Canadian Criminal Cases Review Commission. Our consultations have led us to question and abandon this assumption. Exonerees reminded us that they are not “criminal cases” or “criminals”. They are people. They expect their cases to be investigated and not simply subjected to a cursory review. These are legitimate expectations. Hence, we recommend that the commission be called the “Miscarriages of Justice Commission”.

Some of the key recommendations in summary (edited) that have universal relevance:

• • the commission must be proactive and systemic and not simply react as in the current system to the applications that it receives, often from people who must rely on free legal services from lawyers and Innocence Projects. This is the first fundamental policy choice that animates our report.
  • the commission should be as independent and arms-length from government as possible and adequately funded.In taking over the Minister of Justice’s power to direct new trials and appeals, the independent commission will exercise unique powers. If it is to have the power to require the independent judiciary to re-hear cases, it should be treated by government as far as possible in the same manner as the independent judiciary. The commission should not be the “poor cousin” as compared to the judiciary because to do so would be to treat applicants to the commission as second class.
  • The commission should have jurisdiction to hear applications relating to dangerous and long-term offenders, those held not criminally responsible because of mental disorder, and continuing sentences where there is a new matter of significance.The underlying rationale for all of these inclusions is the harm caused by miscarriages of justice. The commission should not be precluded from hearing applications on behalf of the deceased,

Retention and Investigative Powers
The commission will not succeed in uncovering miscarriages of justice unless it has the strongest possible powers to order that relevant material be retained and produced. Regrettably, there are no standard periods for police, prosecutors, lawyers, courts and forensic scientists to retain information. Retention periods can be quite short in less serious cases. This is an example of a neglected systemic issue that the commission should address. We note that Innocence Projects and the CCRG (Criminal Cases Review Group) agree that varying and short retention periods of relevant material is a serious barrier to their work.

The commission should have the power to require all persons to retain, catalogue and where possible copy material that it deems relevant to its investigation. This power should be exercisable at any time by the commission. The commission, unlike the CCRG, should not be hindered by arguments that it does not have investigative powers until it moves towards a formal investigation stage.

The commission should also have the power, as the Minister and delegates currently do, to compel people with relevant information to answer questions under oath. As we heard from representatives of the North Carolina commission, this is a valuable power that, while routine in civil litigation, is not generally available to those accused or convicted of criminal offences.

Like the English Commission, the Canadian commission should be able to obtain relevant material regardless of any claim of legal privilege whether under the common law or statute. This applies to any privilege claimed by any person including police, prosecutors, former lawyers for the applicant or applicants. The commission should be deemed an investigative body for purposes of various privacy laws. Privacy law claims should not defeat the ability of the commission to obtain and examine relevant information in a confidential manner.

Referral Grounds and Remedies
We recommend that the new commission may refer a case back to the courts where it concludes that a miscarriage of justice may have occurred. This is a lower standard that is more generous to the applicant than the present standard that the Minister may refer if a miscarriage of justice likely occurred. Our recommended standard is, however, consistent with foreign best practices that do not require a probability of a miscarriage of justice before referral. The lower standard should help ensure that the commission, unlike the Minister, does not have a risk averse practice of only referring cases that are almost always overturned by appellate courts or not prosecuted. We view it as healthy that the term miscarriage of justice is capable of growth as our knowledge about the frequency and causes of miscarriages of justice grows.

The commission, like the Minister, should retain discretion to order a new trial or a new appeal as well as to refer matters for assistance from the Court of Appeal. Our consultations have convinced us that the order of a new trial is a valuable and necessary remedy especially in cases where the applicant may be in ill health.

We recommend amendments that would allow appeal courts to quash convictions on the basis that the conviction is unsafe in addition to the existing grounds for appeal under s. 686 of the Criminal Code. We also recommend that courts be required to consider new evidence that the commission considers to be reliable and probative to its decision to refer a case back to the courts on the basis that a miscarriage of justice may have occurred.

We recognize that this latter recommendation is innovative. But we are concerned that confidence in the commission could be undermined by decisions of courts to refuse to admit fresh evidence that has played a role in the commission’s decision to refer the case back to the courts. Based on our experience, we think requiring courts to admit the evidence that influenced the commission should be manageable. Courts often hear evidence before deciding whether to admit it on the existing law as it relates to fresh evidence. At the same time, the independent courts would retain the ability to assign whatever weight, including no weight, to the evidence considered by the commission.”

NOTE
Canada doesn’t need such a body for each Province as it operates under one criminal code.

COMMENT
Successive Federal Attorneys-General (who could provide the necessary leadership for the states & territories) have been urged to consider a specially drafted proposition that takes into consideration Australia’s multi-jurisdictional status. None have responded. In Australia, this justice imperative has been suffocated by political inertia. And here’s the irony: given the separation of powers, the one thing politics can do to improve the fair administration of justice … it will not do. – Andrew L. Urban