CRIMINAL JUSTICE SYSTEM
WITH PRESENT LAW AND PRACTICE
CRIMINAL JUSTICE SYSTEM
The legitimacy of the criminal
justice system is based largely upon both its effectiveness and its fairness.
Its effectiveness is judged by its ability to investigate and detect crime,
identify offenders and mete out the appropriate sanctions to those who
have been convicted of offences. Its fairness is judged by its thoroughness
and the efforts it makes to redress the resource imbalance between the
accused and the state at the investigatory, pre-trial, trial and appellate
stages. The system does this by providing evidentiary protection and effective
legal representation at all points.
Wrongful convictions undermine
the two prongs of the criminal justice systems legitimacy. If someone
is wrongfully convicted, that person is punished for an offence he or
she did not commit and the actual perpetrator of the crime goes free.
As well, public confidence in the system declines when wrongful convictions
The criminal justice system
is based on the fundamental legal value that an accused is legally presumed
to be innocent, until adjudication after a trial. This is in contradiction
with the public expectation that most of those charged with criminal offences
are, and will be found to be, guilty. Wrongful convictions undermine both
this fundamental legal value and this public expectation since they show
that the presumption of innocence may be honoured in its breach and that
the criminal justice system does not only deal with the guilty.
Public attention has in
recent years been brought to the issue of wrongful convictions by the
Donald Marshall case in Canada(1)
and the Rubin "Hurricane" Carter case in the United States.(2)
There are probably fewer truly wrongful convictions than claimed, but
there may still be a surprising number. It has been claimed that in Great
Britain, the wrongful conviction rate may be as high as .1% or
one out of every thousand people. Another estimate is that there may be
15 cases of wrongful convictions each year in Great Britain. Academic
studies in the United States indicate that between one-half and 1% of
persons convicted of serious offences did not commit the crime. It has
also been suggested by the Criminal Justice Research Centre that as many
as 6,000 persons a year are wrongfully convicted of felonies in the United
States. There are no similar estimates of the number of wrongful convictions
in Canada. An official with the Department of Justice recently estimated
that the Department receives about 30 applications a year for the review
of criminal convictions.(3)
The causes of wrongful convictions
are easy to identify: irregularities and incompetence at the investigatory,
pre-trial, trial and appellate stages of the criminal justice system.
More particularly, Kaiser identifies the following contributory factors,
among others: false accusations, misleading police investigative work,
inept defence counsel, misperceptions by Crown prosecutors of their role,
factual assumption of an accuseds guilt by actors in the criminal
justice system, community pressure for a conviction, inadequate identification
evidence, perjury, false confessions, inadequate or misinterpreted forensic
evidence, judicial bias, poor presentation of an appellate case, and difficulty
in having fresh evidence admitted at the appellate stage.(4)
Each instance of determined wrongful conviction illustrates a different
combination of failures in the criminal justice system that have prevented
it from functioning effectively and fairly.
Because findings of wrongful
conviction represent a basic undermining of the integrity of the criminal
justice system, the procedures established for the review of such cases
are extraordinary in nature and are rarely invoked successfully. For it
to be otherwise would be to put in question the criminal justice systems
legitimacy and, by bringing attention to its fallibility, to weaken public
confidence in it.
This paper has a relatively
modest purpose it will examine only one of the extraordinary recourses
available in this country for the review of criminal convictions: applications
under s. 690 Criminal Code (Cr.C.)(5)
to the Minister of Justice for mercy. This recourse is being examined
because in recent years it has been the object of considerable controversy
in relation to a number of particular cases of alleged wrongful conviction.
The paper will outline the law and practice as they now are and identify
some of the problems. Recent reform proposals will be described and a
proposal for change will be set out.
Perhaps the oldest form
of relief from a punishment is the exercise of a pardoning power by a
sovereign authority.(6) There
are three means of exercising the pardoning authority in Canada: the Governor-in-Council
(federal Cabinet) may grant a person convicted of an offence a free pardon
or a conditional pardon under s. 749 Cr.C.; application may be made to
the Solicitor General of Canada for a pardon under the Criminal Records
Act;(7) and application for
mercy to the Minister of Justice may be made under s. 690 Cr.C. It is
this last provision that is the focus of this paper. As well, s. 751 Cr.C.
provides that the Criminal Code provisions do not limit the Crowns
royal prerogative of mercy, thus preserving a traditional historical source
of pardoning authority in Canada.
Section 690 Cr.C. reads
The Minister of Justice
may, upon an application for the mercy of the Crown by or on behalf
of a person who has been convicted in proceedings by indictment or who
has been sentenced to preventive detention under Part XXIV,
(a) direct, by order in writing, a new trial or, in the case of a person
under sentence of preventive detention, a new hearing, before any court
that he thinks proper, if after inquiry he is satisfied that in the
circumstances a new trial or hearing, as the case may be, should be
(b) 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 under sentence of preventive detention, as the
case may be; or
(c) refer to the court of appeal at any time, for its opinion, any question
on which he desires the assistance of that court, and the court shall
furnish its opinion accordingly.
This type of recourse has
been in Canadian criminal law since at least 1886(8)
and was part of Canadas first Criminal Code in 1892.(9)
It was amended by Parliament in 1923,(10)
1953(11) and 1969,(12)
since when it has been unchanged, although it was consolidated in the
1970 and 1985 Revised Statutes of Canada. The 1892 version only allowed
the Minister of Justice to order a new trial. The 1923 amendment added
what are now subsections (b) and (c) allowing the Minister of Justice
to refer a case to a court of appeal as if it were an appeal by the accused
or to seek that courts opinion on a particular question. The 1953-54
amendment made some technical, drafting changes in the section as it then
was. Finally, the 1969 amendment extended the provision to cover not only
those convicted of indictable offences, as it had done since 1892, but
also those who had been sentenced to preventive detention (dangerous offenders).
Section 690 Cr.C. thus provides
the Minister of Justice with discretion to deal with applications for
mercy. Such applications are available only to those convicted of indictable
offences and those sentenced to preventive detention. If the Minister
of Justice chooses to exercise this discretion, he or she may do so in
one of three ways:
(a) if the Minister is satisfied that
a new trial or hearing is required by the circumstances, such a new
trial or hearing may be ordered;
(b) the Minister may at any time refer the matter to a court of appeal
for hearing and determination as if it were an appeal by the convicted
person or the person in preventive detention; or
(c) if the Minister requires the court of appeals opinion on any
question, the matter may be referred to that court for its opinion,
which it is required to furnish.
Each method for the exercise
of ministerial discretion is separate and has different procedural, evidentiary
and redress implications.
Under s. 690(a) Cr.C., the
Minister of Justice must be satisfied in the circumstances that a new
trial or hearing should be directed. No criteria or principles of interpretation
are set out by which an applicant can determine what evidence must be
provided to satisfy the Minister of this. The fact that a new trial or
hearing is ordered means that the Crown has the evidentiary burden of
proving all constituent elements of the offence beyond a reasonable doubt
to secure a conviction. Similarly, the accused has all the procedural
and evidentiary benefits of being a defendant in a trial before a court
of first instance. Additionally, both the crown and the accused have full
rights to appeal procedural and evidentiary rulings as well as any acquittal/conviction
or any sentence to the court of appeal and ultimately, with the courts
leave, to the Supreme Court of Canada.
Under option (b), the Minister
of Justice refers the matter to the court of appeal, which deals with
it as if it were an appeal by the convicted person or the person under
sentence of preventive detention. This means that the convicted or detained
person has the procedural and evidentiary burden of convincing the court
of appeal of the wrongful nature of the original conviction or sentence
of preventive detention. This may be done by arguing that there were errors
of identification or inadequacies in the forensic evidence, or that since
the original conviction new evidence has come to light or there has been
a recantation of key evidence. Because of the strict nature of the rules
of evidence, the court of appeal will only admit fresh evidence that did
not exist or that could not have been discovered with reasonably diligent
efforts at the time of the original conviction. These rules are, because
of the extraordinary nature of the recourse under s. 690 Cr.C., to be
applied with a degree of flexibility.(13)
The powers of a court of
appeal on hearing an appeal are set out at s. 686 Cr.C. An appeal may
be allowed if the verdict is unreasonable or cannot be supported by the
evidence, if the trial court judgment should be set aside because of a
wrong decision on a question of law or on any ground that there was a
miscarriage of justice. In any such case, the conviction is to be quashed
and an acquittal is to be entered or a new trial is to be ordered. An
appeal may be dismissed where the court believes the accused has been
properly convicted on one count of the indictment, where the court believes
no substantial wrong or miscarriage of justice has occurred or where any
procedural irregularities caused the accused no prejudice. In any such
case, the court order the verdict that should have applied and affirms
the sentence, imposes the appropriate sentence or directs the trial court
to impose the sentence warranted in law. Any decision by a court of appeal
is, with leave, appealable to the Supreme Court of Canada.
Under s. 690(c) Cr.C., the
Minister of Justice asks the court of appeal for its opinion on any question
on which its assistance is required and the court of appeal must do as
requested. The Minister, of course, is not bound by the opinion received
from the court of appeal. Because this is a reference for a judicial opinion,
the procedures and rules of evidence usually applicable before court of
appeal will be interpreted with greater flexibility than in regular appellate
proceedings. Because of the nature of ministerial option (c), it is unclear
if it would appealable to the Supreme Court of Canada.
There has not been a great
quantity of caselaw under s. 690 Cr.C.. Cole and Manson have made the
following capsule summary of these cases:
It is not uncommon for
prisoners who have exhausted all statutory routes of appeal to seek
the intervention of the Minister of Justice. The past few decades reveal
a small number of cases which have been returned either to a trial court
or to an appellate court. This often arises when there is reason to
believe that the convicted person was the wrong person.
been examples of section 617 [not s. 690] being used in respect
of the fitness of sentences imposed in light of new psychiatric evidence
and whether, in light of psychiatric evidence not adduced at trial,
a prisoner was insane within the meaning of section 16 of the Criminal
Code. In these kinds of cases, the reference resulted in each being
treated as if it was a new appeal, albeit in light of new and fresh
evidence. Other references have sought the opinion of the court on specific
legal or evidentiary issues such as, for example, whether new evidence
indicated that an accused was incompetent at the time of his trial to
instruct counsel and whether new evidence would be admissible at a new
trial in light of concerns about its probative value and its nature
as, potentially, hearsay.(14)
As indicated by Cole and
Manson, applications to the Minister of Justice under s. 690 Cr.C. for
mercy is available to and resorted to only by offenders who have exhausted
all other statutory routes of appeal. Only a small number of s. 690 Cr.C.
applications to the Minister are successful in obtaining intervention.
This is reflected in the following table.
Mercy (s. 690 Cr.C.)(15)
Number of Applications
Number of Interventions
Figures for fiscal year
1990-1991 were not available at the time this paper was in preparation.
The Minister of Justice did intervene in the Nepoose case (involving recantations
of trial testimony) under s. 690(b) Cr.C. when, on 15 June 1991,
she referred this case for review to the Alberta Court of Appeal.(16)
This case will undoubtedly figure in the 1991-92 Annual Report of the
Department of Justice.(17)
Although these statistics
are of some assistance, taken alone, they may be misleading. They do not
reflect the nature and complexity of applications to the Minister for
mercy. Some applications are accompanied by a minimum of supporting information
and documentation. Investigations may be lengthy and involve difficult
evidentiary and forensic issues that have to be fully canvassed. In some
cases, it may take considerable time to locate witnesses and documents.
Not all applications are received and investigated to a conclusion in
the same fiscal year.
The Department of Justice
does not have rules of procedure, guidelines or an application form for
dealing with applications to the Minister for mercy.(18)
The Department starts from the premise that a s. 690 Cr.C. application
is a request to the executive of government for a remedy after all other
remedies have failed and does not regard it as either an appellate
review or a re-trial of the case.
The Department of Justice
applies as a threshold or a criterion to the following question: "Is
there a reasonable basis to conclude that there was a likely miscarriage
of justice?" Two major issues are brought forward by most applications
to the Minister for mercy. These are the presentation of new evidence
not available at the time of the original conviction and consideration
of current developments in forensic sciences that may lead to a different
appreciation of evidence tendered at the time of the original conviction.
Applications to the Minister
come in many forms, from a one or two-page letter from an inmate to an
exhaustive legal brief with supporting documentation from counsel to an
offender. As a standard requirement, the Department of Justice requests
that applicants provide it with the following documents:
(a) the trial transcript;
(b) the appellate factums;
(c) the appeal case reasons for judgment; and
(d) a brief setting forth the evidentiary and legal basis upon which
the application to the Minister of Justice is based.
If an issue of forensic
evidence is raised in an application, such as a new DNA analysis, an applicant
will be requested to provide the Department with a report on its expertise.
Applicants will also be asked to provide the Department with the names
and addresses of witnesses to be interviewed, and a synopsis of what they
can be expected to tell an investigator.
The investigation of an
application is carried out by the Department of Justice, Criminal Law
Branch, counsel, who may be assisted in their investigations by the RCMP,
local police forces and forensic scientists or other experts. One counsel
acts as full-time co-ordinator of s. 690 Cr.C. investigations who can
draw on seven other counsel on an as-needed, part-time basis.
Because the Department of
Justice does not see s. 690 Cr.C. applications as adversarial in nature
it deals with them in a flexible manner. If an application is incomplete
or if a witness says something other than indicated by the applicant,
the Departments investigating counsel will ask the applicant for
more information or even meet with the applicant or counsel. Such meetings
are informal they are not a hearing and the applicant or counsel
is not given access to documents or reports prepared by the Department.
Finally, the applicant is not given formal notice of adverse findings
or an opportunity to adduce evidence before a report goes to the Minister
for consideration. As already mentioned, a s. 690 Cr.C. application is
neither an appellate procedure nor a re-trail of the issues.
Once an investigation has
been completed by the investigating counsel, a repor5t is prepared. It
sets out the facts, describes the investigation, outlines the issues,
discusses the law, sets out conclusions based on the facts and makes a
recommendation. This "preliminary report" then goes up the departmental
organizational ladder to the Senior General counsel, Criminal Law, the
Assistant Deputy Attorney General, the Associate Deputy Minister of Justice
and, finally, the Deputy Minister of Justice. At each of these levels,
the report can be accepted, rejected or sent back for more work on the
law, the evidence or the investigation. Once it has gone through all these
levels of approval, the departmental report and supporting documents go
to the Minister of Justice with a recommendation that can be accepted,
rejected or sent back for further work.
Once an application has
been dealt with by the Minister of Justice, a letter signed by the Minister
is sent to the applicant setting out the response and addressing each
issue raised by the application. The length and nature of the Ministers
response may depend on the nature and length of the application for mercy.
WITH PRESENT LAW AND PRACTICE
This part of the paper will
set out some of the difficulties raised both by s. 690 Cr.C. as it is
now and by the manner in which it is administered by the Department of
Justice. These problems are faced by both applicants to the Minister of
Justice for mercy and by legal counsel who act on their behalf.(19)
As indicated earlier in
this paper, the Minister of Justice can exercise the s. 690 Cr.C. discretion
by ordering a new trial, by referring a case to the court of appeal as
if it were an appeal by the convicted person or the person sentenced to
preventive detention, or by asking the court of appeal for its opinion
on any question on which its assistance is required. The route chosen
will determine the burden of proof, the nature of evidence that can be
adduced, the breadth of the investigation and the appellate rights of
the parties. This was an issue in the Donald Marshall case where the Minister
of Justice ordered an appeal (s. 690(b) Cr.C.) rather than a reference
for an opinion (s. 690 (c) Cr.C.) to the Nova Scotia Court of Appeal.
This meant that the wrongfully convicted Donald Marshall had the burden
of proof as an appellant and the Court of Appeal had a narrower mandate
than if its opinion had been sought on a series of related questions.(20)
The lack of established
rules of procedures has been a source of frustration for some legal counsel.
As a consequence, they have, at the start of a s.690 Cr.C. application,
been uncertain of what documents and what types of evidence have to be
submitted to the Department of Justice. This difficulty has been resolved
by informal discussions with Department of Justice counsel, by experience
in related matters or by conversations with counsel for other S. 690 Cr.C.
There is also an uncertainty
as to the evidentiary burden of proof counsel for applicants have to discharge
to convince the Minister of Justice to intervene under s. 690 Cr.C.. Do
they have to raise a reasonable doubt about the original conviction or
is the burden a balance of probabilities? As indicated earlier in this
paper, the burden of proof applied by Department of Justice investigating
counsel is "Is there a reasonable basis to conclude there was a likely
miscarriage of justice?" One counsel interviewed for this paper believed
that this burden of proof was too high and that it should be focused on
the issue of whether "serious questions about the conviction or the
sentence of preventive detention had been raised."
The types of evidence and
documents collected by the Department and nature of report to the Minister
of Justice were issues raised by some counsel for applicants. They were
also concerned that they were not advised of adverse findings and allowed
to make further legal or evidentiary responses before the investigation
report was submitted to the Minister of Justice. Although departmental
investigating counsel do contact applicants counsel for clarifications
and more investigatory leads, this is as far as it goes.
Some applicants have
observed that the letter containing the Minister of Justices response
to an application for mercy may not provide the reasons for rejecting
the application in sufficient detail. This, and the fact that applicants
counsel do not know what documents and what type of report have gone to
the Minister of Justice, make it difficult for applicants counsel
to determine whether there are sufficient grounds to consider seeking
judicial review of this exercise of ministerial discretion.
A final issue of concern
to applicants counsel is the lack of financial assistance to convicted
people who may wish to submit a s. 690 Cr.C. application for mercy to
the Minister of Justice. In several instances, provincial legal aid plans
have refused to assist s. 690 Cr. C. applicants with their legal fees
and disbursements. In some cases, counsel have done this work on a pro
bono basis and assumed thousands of dollars in disbursements, while
in others, non-governmental organizations have financially supported the
There have not been an overwhelming
number of proposals for reform of s. 690 Cr.C.. Two of them will be briefly
described in this part of the paper. One was proposed in the December
1989 Report of the Marshall inquiry and the other, in two variations on
a theme, was contained in Private Members Bills C-230 and C-239,
which received First Reading in the House of Commons in June 1991.
The Commission of Inquiry
into the Marshall prosecution proposed that the federal Minister of Justice
and provincial Attorneys General begin discussions on the establishment
of an independent body to deal with the re-investigation of instances
of alleged wrongful conviction. The Commission further recommended that
this body have full investigative powers so as to have access to any necessary
witnesses or evidence. A final element in the recommendations was the
development of measures to provide adequate compensation for those found
to have been wrongfully convicted.(21)
These recommendations were accepted by the government of Nova Scotia,
which had set up this inquiry, on 7 February 1990,(22)
and were discussed at a 15 June 1990 federal-provincial meeting of ministers
responsible for justice.(23)
Bill C-230 received first
reading in the House of commons on 10 June 1991, while Bill C-239 received
first reading on 18 June 1991. Both Private Members Bills propose
amendments to s. 690 Cr. C.. Bill C-230 would add ss. (2) to (18) to s.
690 Cr. C. to enable the Minister of Justice to refer any application
for mercy to a Special Counsel for investigation and recommendation. Bill
C-239 would add ss. 690.1 to 690.3 to s. 690 Cr. C. to enable the Minister
of Justice to refer any application for mercy to a Conviction Review Commission
for investigation and recommendation.
In both bills, those who
investigated an application would have to have had no prior connection
with a case being examined and would be directed not to restrict their
review to the evidence adduced at trial. In both bills, the Special Counsel
or Commission might recommend and the Minister would have to grant whatever
financial assistance the applicant was deemed to require. Finally, both
bills would require the applicant to be provided with a copy of the report
of and documents considered by the Special Counsel or Commission by the
Minister of Justice so that the applicant might make further submissions
before the Minister made a decision under ss. 690 or 749 Cr. C.
Both the Inquiry recommendations
and the Private Members Bills deal with the receipt and investigation
of s. 690 Cr. C. applications. None of the reform proposals deals
with s. 690 Cr.C. itself, the three forms of discretion available to the
Minister of Justice, or the evidentiary and appellate implications of
Applications to the Minister
of Justice under s. 690 Cr. C. differ fundamentally from applications
for the exercise of the prerogative of mercy, or for free or conditional
pardons. Section 690 applications for review usually involve cases where
there may be some doubt as to the validity of a criminal conviction. The
applicant contends that the conviction is wrongful and should be reconsidered
through a new trial or by recourse to a court of appeal. An application
for the exercise of other forms of pardoning authority implies an acceptance
of the validity of a criminal conviction and requests some relief from
At the present time, an
application for s. 690 Cr. C. relief is made to the Minister of Justice.
Department of Justice counsel investigate the applications and make recommendations
to the Minister, who makes the final determination. The present law and
practice place the Minister and Department of Justice in a difficult position.
The Minister of Justice
and the Attorney General of Canada are one and the same person, though
performing different and potentially contradictory functions. The Minister
of Justice provides policy advice, while the Attorney General provides
legal advice to government. Both the criminal policy component advising
the Minister of Justice and the criminal prosecution component of the
Attorney General of Canada may be involved in the development of criminal
law. The Minister of Justice appoints judges before whom the Attorney
General of Canada or her agents may appear. The Minister of Justice ensures
that legislation complies with the Canadian Charter of Rights and Freedoms,
while the inadequacies of this legislation may be defended by the Attorney
General of Canada. Theses are just a few of the potential conflicts in
having the two roles performed by one Minister.(24)
This conflict in roles has
an impact on the perception, at least, of the fairness and thoroughness
with which s. 690 Cr. C. applications are investigated and considered
by the Department of Justice. It can be argued that the Departments
prosecutorial bias may lead to an undue deference to judicial determinations
of guilt and an insufficiently rigorous questioning of the foundations
of criminal convictions. Any such perception, whether well-founded or
not, undermines the s. 690 Cr. C. review process in the eyes of those
who matter most, the applicants. Proposals for change must put an end
to such concerns about unfairness.
This could be done by providing
that applications for s. 690 Cr.C review be received and investigated
by a commission or agency independent of the Department of Justice, or
of government, but accountable to Parliament. This commission or agency
could be given independent statutory existence and provided with adequate
investigative resources. It could be required to develop rules of procedure
and evidence so as to ensure applicants were provided with ample disclosures
of evidence and opportunities to make representations. Provision could
also be made to furnish financial and legal assistance to applicants where
such assistance was not available from other sources.
This commission or agency
could also be empowered either itself to dispose of applications for review
of criminal convictions or to recommend to Cabinet or the Minister of
Justice how the applications should be resolved. Whether the commission
or agency, or Cabinet or the Minister of Justice, made the final determination,
all three of the present recourses available under s. 690 Cr.C could be
retained, or one or more of them could be eliminated. As well, an entirely
new recourse could be developed.
Whatever the form of any
proposal for change, it would have to ensure that the means by which applications
for review of criminal convictions were received and investigated was
fair and thorough, and was perceived as such.
In its consideration of
the review of criminal convictions, this paper has described present experience
and some of the issues to be addressed by the proposals for change. The
reconsideration of convictions will always be an exceptional event, no
matter what reforms are put into place; an effective means of carrying
out this task will strengthen the effectiveness of fairness of the criminal
Royal Commission on the Donald Marshall Jr. Prosecution, Report,
Province of Nova Scotia, December 1989.
Sam Chaiton and Terry Swinton, Lazarus and the Hurricane: The Untold
Story of the Freeing of Rubin "Hurricane" Carter, Viking,
Jim Middlemiss, "Guilty Until Proven Innocent," Canadian
Lawyer, November 1991, p. 20-25.
H. Archibal Kaiser, "When Justice is a Mirage: A Primer on Wrongful
Conviction," Paper presented at the Conference on Wrongful Conviction,
Human Rights Centre, University College of Cape Breton, 24 June 1991;
see also: James McCloskey, "Convicting the Innocent," Criminal
Justice Ethics, Winter/Spring 1989, pp.2 and 54-59, where many of
the same points are made. Mr. McCloskey is Head of the Centurion Ministries
this organization has investigated the David Milgaard case.
R.S.C. 1985, c. C-46.
See: David P. Cole and Allan Manson, Release from Imprisonment: The
Law of Sentencing, Parole and Judicial Review, Carswell, Toronto,
1990, p. 399-409.
R.S.C. 1985, c. C-47.
R.S.C. 1886, c.181. ss. 38 and 39.
S.C. 1892, c. 29, s. 748.
S.C. 1923, c.41, s.9.
S.C. 1953-54, c. 51, s.596.
S.C. 1968-69, c.38, s. 62.
Reference Re: Regina v. Gorecki (No. 2) 32 C.C.C. (2d) 135 and
R. v. Marshall (1983) 57 N.S.R. (2d) 286.
Cole and Manson (1990), p. 409-410; references to case citations have
been removed from the quotation by the author of this paper.
This information is drawn from the Department of Justice, Annual Reports,
for the fiscal years 1985-86 to 1989-90.
Letter of 17 June 1991 from Minister of Justice to counsel for Nepoose
and Department of Justice, Press Release, 19 June 1991.
On 29 November 1991, the case of David Milgaard, a s. 690 Cr.C. application,
was referred by Order in Council to the Supreme Court Act, R.S.C.
1985, c. S-26.
This description of the process within the Department of Justice for dealing
with s. 690 Cr.C. applications is drawn from an interview with a departmental
official conducted by the author of this paper on 10 July 1991.
This part of the paper is based in part upon interviews conducted by the
author with legal counsel for four different s. 690 Cr.C. applicants on
9, 10, 17 and 18 July 1991.
Royal Commission on the Donald Marshall Jr. Prosecution, Report,
Ibid., p. 143-148.
Government of Nova Scotia Response to the Recommendations of the Royal
Commission on the Donald Marshall Jr. Prosecution, p. 1-2.
Department of Justice, Press Release, p. 2. A committee of officials
was set up to consider the recommendations and report to their Ministers.
There is no mention of this issue in the Press Release distributed following
the 5 September 1991 federal-provincial-territorial meeting at Yellowknife,
Northwest Territories of Ministers Responsible for Justice.
They are dealt with more completely in: Law Reform Commission of Canada,
Controlling Criminal Prosecutions: The Attorney General and the Crown
Prosecutor, Working Paper 62, Supply and Services Canada, Ottawa, 1990,