Ministerial Review: Difference between revisions
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Section 696.3(2) permits an appellate judge to direct an acquittal on review where it is "more probable than not" that the accused would be acquitted on re-trial.<Ref> | Section 696.3(2) permits an appellate judge to direct an acquittal on review where it is "more probable than not" that the accused would be acquitted on re-trial.<Ref> | ||
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Revision as of 19:11, 27 January 2021
General Principles
Part XXI.1 concerns applications for Ministerial Reviews.
- Application
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 [Pt. XXIV – Dangerous Offenders and Long-Term Offenders (ss. 752 to 761)] and whose rights of judicial review or appeal with respect to the conviction or finding have been exhausted.
- Form of application
(2) The application must be in the form, contain the information and be accompanied by any documents prescribed by the regulations.
2002, c. 13, s. 71.
[annotation(s) added]
- Review of applications
696.2 (1) On receipt of an application under this Part [Pt. XXI.1 – Applications for Ministerial Review – Miscarriages of Justice (ss. 696.1 to 696.6)], the Minister of Justice shall review it in accordance with the regulations.
- Powers of investigation
(2) For the purpose of any investigation in relation to an application under this Part [Pt. XXI.1 – Applications for Ministerial Review – Miscarriages of Justice (ss. 696.1 to 696.6)], the Minister of Justice has and may exercise the powers of a commissioner under Part I of the Inquiries Act and the powers that may be conferred on a commissioner under section 11 of that Act.
- Delegation
(3) Despite subsection 11(3) of the Inquiries Act, the Minister of Justice may delegate in writing to any member in good standing of the bar of a province, retired judge or any other individual who, in the opinion of the Minister, has similar background or experience the powers of the Minister to take evidence, issue subpoenas, enforce the attendance of witnesses, compel them to give evidence and otherwise conduct an investigation under subsection (2) [power of court to investigate for a review].
2002, c. 13, s. 71.
[annotation(s) added]
- Definition of “court of appeal”
696.3 (1) In this section, “the court of appeal” means the court of appeal, as defined by the definition “court of appeal” in section 2, for the province in which the person to whom an application under this Part [Pt. XXI.1 – Applications for Ministerial Review – Miscarriages of Justice (ss. 696.1 to 696.6)] relates was tried.
- Power to refer
(2) The Minister of Justice may, at any time, refer to the court of appeal, for its opinion, any question in relation to an application under this Part [Pt. XXI.1 – Applications for Ministerial Review – Miscarriages of Justice (ss. 696.1 to 696.6)] on which the Minister desires the assistance of that court, and the court shall furnish its opinion accordingly.
- Powers of Minister of Justice
(3) On an application under this Part [Pt. XXI.1 – Applications for Ministerial Review – Miscarriages of Justice (ss. 696.1 to 696.6)], the Minister of Justice may
- (a) if the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred,
- (i) direct, by order in writing, a new trial before any court that the Minister thinks proper or, in the case of a person found to be a dangerous offender or a long-term offender under Part XXIV [Pt. XXIV – Dangerous Offenders and Long-Term Offenders (ss. 752 to 761)], a new hearing under that Part, or
- (ii) refer the matter at any time to the court of appeal for hearing and determination by that court as if it were an appeal by the convicted person or the person found to be a dangerous offender or a long-term offender under Part XXIV [Pt. XXIV – Dangerous Offenders and Long-Term Offenders (ss. 752 to 761)], as the case may be; or
- (b) dismiss the application.
- No appeal
(4) A decision of the Minister of Justice made under subsection (3) [power of minister to order remedy on review] is final and is not subject to appeal.
2002, c. 13, s. 71.
[annotation(s) added]
Section 696.3(2) permits an appellate judge to direct an acquittal on review where it is "more probable than not" that the accused would be acquitted on re-trial.[1]
- Considerations
696.4 In making a decision under subsection 696.3(3) [power of minister to order remedy on review], the Minister of Justice shall take into account all matters that the Minister considers relevant, including
- (a) whether the application is supported by new matters of significance that were not considered by the courts or previously considered by the Minister in an application in relation to the same conviction or finding under Part XXIV [Pt. XXIV – Dangerous Offenders and Long-Term Offenders (ss. 752 to 761)];
- (b) the relevance and reliability of information that is presented in connection with the application; and
- (c) the fact that an application under this Part [Pt. XXI.1 – Applications for Ministerial Review – Miscarriages of Justice (ss. 696.1 to 696.6)] is not intended to serve as a further appeal and any remedy available on such an application is an extraordinary remedy.
2002, c. 13, s. 71.
[annotation(s) added]
- Annual report
696.5 The Minister of Justice shall within six months after the end of each financial year submit an annual report to Parliament in relation to applications under this Part [Pt. XXI.1 – Applications for Ministerial Review – Miscarriages of Justice (ss. 696.1 to 696.6)].
2002, c. 13, s. 71.
[annotation(s) added]
Regulations
- Regulations
696.6 The Governor in Council may make regulations
- (a) prescribing the form of, the information required to be contained in and any documents that must accompany an application under this Part [Pt. XXI.1 – Applications for Ministerial Review – Miscarriages of Justice (ss. 696.1 to 696.6)];
- (b) prescribing the process of review in relation to applications under this Part [Pt. XXI.1 – Applications for Ministerial Review – Miscarriages of Justice (ss. 696.1 to 696.6)], which may include the following stages, namely, preliminary assessment, investigation, reporting on investigation and decision; and
- (c) respecting the form and content of the annual report under section 696.5 .
2002, c. 13, s. 71.
[annotation(s) added]
In 2002, the government enacted "Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice", SOR/2002-416.
- ↑ R v DRS, 2013 ABCA 18 (CanLII) (CanLII)], per curiam