Annual Report 2008 - Minister of Justice

Appendix 2

REGULATIONS RESPECTING APPLICATIONS FOR MINISTERIAL REVIEW – MISCARRIAGES OF JUSTICE

Interpretation

1. The following definitions apply in these Regulations.
“Code” means the Criminal Code. (Code)
“Minister” means the Minister of Justice. (ministre)

Application

• 2. (1) For the purposes of subsection 696.1(2) of the Code, an application for ministerial review under Part XXI.1 of the Code shall be in the form set out in the schedule and contain the following information:
  • (a) with respect to the applicant,
    • (i) the applicant’s name, including any alias or former name,
    • (ii) the applicant’s address, date of birth and, if any, the number assigned to the applicant under the Royal Canadian Mounted Police Automated Fingerprint Identification System,
    • (iii) the name, address and telephone number of the person making the application on the applicant’s behalf, if any,
    • (iv) whether the alleged miscarriage of justice relates to a conviction on an offence punishable on summary conviction or on an indictable offence, or, in the case of a finding of dangerous offender or long-term offender under Part XXIV of the Code, particulars of the finding, and
    • (v) whether the applicant is in custody;
  • (b) with respect to any pre-trial hearings,
    • (i) the date of the preliminary inquiry, if any,
    • (ii) the court and its address, and
    • (iii) the number, type and date of any pre-trial motions, as well as the court decision on those motions;
  • (c) with respect to the trial,
    • (i) the date on which it started,
    • (ii) the court and its address, the plea entered at trial, the mode of trial and the date of the conviction and that of sentencing,
    • (iii) the names and addresses of all counsel involved in the trial, and
    • (iv) the number, type and date of any motions made, as well as the date of the court decision on those motions;
  • (d) particulars regarding any subsequent appeals to the court of appeal or the Supreme Court of Canada;
  • (e) the grounds for the application; and
  • (f) a description of the new matters of significance that support the application.
• (2) The application must be accompanied by the following documents:
  • (a) the applicant’s signed consent authorizing the Minister
    • (i) to have access to the applicant’s personal information that is required for reviewing the application, and
    • (ii) to disclose to any person or body the applicant’s personal information obtained in the course of reviewing the application in order for the Minister to obtain from that person or body any information that is required for reviewing the application;
  • (b) a true copy of the information or indictment;
  • (c) a true copy of the trial transcript, including any preliminary hearings;
  • (d) a true copy of all material filed by the defence counsel and Crown counsel in support of any pre-trial and trial motions;
  • (e) a true copy of all factums filed on appeal;
  • (f) a true copy of all court decisions; and
  • (g) any other documents necessary for the review of the application.

Review of the Application

• 3. On receipt of an application completed in accordance with section 2, the Minister shall
  • (a) send an acknowledgment letter to the applicant and the person acting on the applicant’s behalf, if any; and
  • (b) conduct a preliminary assessment of the application.
• 4. (1) After the preliminary assessment has been completed, the Minister
  • (a) shall conduct an investigation in respect of the application if the Minister determines that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred; or
  • (b) shall not conduct an investigation if the Minister
    • (i) is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred and that there is an urgent need for a decision to be made under paragraph 696.3(3)(a) of the Code for humanitarian reasons or to avoid a blatant continued prejudice to the applicant, or
    • (ii) is satisfied that there is no reasonable basis to conclude that a miscarriage of justice likely occurred.
• (2) The Minister shall send a notice to the applicant and to the person acting on the applicant’s behalf, if any, indicating whether or not an investigation will be conducted under subsection (1).
• (3) If the Minister does not conduct an investigation for the reason described in subparagraph (1)(b)(ii), the notice under subsection (2) shall indicate that the applicant may provide further information in support of the application within one year after the date on which the notice was sent.
• (4) If the applicant fails, within the period prescribed in subsection (3), to provide further information, the Minister shall inform the applicant in writing that no investigation will be conducted.
• (5) If further information in support of the application is provided after the period prescribed in subsection (3) has expired, the Minister shall conduct a new preliminary assessment of the application under section 3.

• 5. (1) After completing an investigation under paragraph 4(1)(a), the Minister shall prepare an investigation report and provide a copy of it to the applicant and to the person acting on the applicant’s behalf, if any. The Minister shall indicate in writing that the applicant may provide further information in support of the application within one year after the date on which the investigation report is sent.
• (2) If the applicant fails, within the period prescribed in subsection (1), to provide any further information, or if the applicant indicates in writing that no further information will be provided in support of the application, the Minister may proceed to make a decision under subsection 696.3(3) of the Code.

• 6. The Minister shall provide a copy of the Minister’s decision made under subsection 696.3(3) of the Code to the applicant and to the person acting on the applicant’s behalf, if any.

Annual Report

7. An annual report submitted under section 696.5 of the Code shall contain the following information in respect of the financial year under review in the report:

• (a) the number of applications made to the Minister;
• (b) the number of applications that have been abandoned or that are incomplete;
• (c) the number of applications that are at the preliminary assessment stage;
• (d) the number of applications that are at the investigation stage;
• (e) the number of decisions that the Minister has made under subsection 696.3(3) of the Code; and
• (f)  any other information that the Minister considers appropriate.

Coming into Force

8. These Regulations come into force on the day on which section 71 of |the Criminal Law Amendment Act, 2001, chapter 13 of the Statutes of Canada, 2002, comes into force.

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