Miscarriages of Justice in Canada by Kathryn M. Campbell

Author:Kathryn M. Campbell
Language: eng
Format: epub
Publisher: University of Toronto Press

Other Criticisms

As noted above, the guidelines that established the parameters for the minister of justice in making decisions around conviction review underlined that, above all, such review is considered to be an extraordinary measure. Such language establishes precedent not only for how this process is used but also how it is interpreted. Referring to conviction review, and by extension the spectre of miscarriage of justice, as extraordinary, exceptional, and infrequent likely serves to perpetuate myths about the infallibility of the judicial process and creates an unrealistic portrait of the reality. As discussed in chapter 1, the accepted estimate of convictions in error in the United States is .5 to 1 per cent, with a similar projected figure for Canada. To continue to provide an “extraordinary” response to a problem that is increasingly considered to be ordinary obfuscates reality and allows miscarriages of justice to remain unaddressed.

The guidelines also establish that, in order for a case to be eligible for conviction review, it must be “based on new matters of significance that either was not considered by the courts or that occurred or arose after the conventional avenues of appeal had been exhausted.” Information considered by the CCRG is “new” if the courts had not examined it during the original trial or appeal, or if the applicant became aware of it following court proceedings. According to the Department of Justice (2003, 2), information is deemed to be significant if it is reasonably capable of belief, relevant to the issue of guilt, and could have affected the verdict if it had been presented at trial. Furthermore, information that would qualify as both new and significant would do one or more of the following:

1. establish or confirm an alibi;

2. include another person’s confession;

3. identify another person at the scene of the crime;

4. provide scientific evidence that points to innocence or another’s guilt;

5. prove that important evidence was not disclosed;

6. show that a witness gave false testimony; and

7. substantially contradict testimony at trial.

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