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Rights of the wrongfully convicted

Region: Ontario Answer # 1870

A wrongfully convicted person is someone who is found guilty of a crime they did not commit.

Several factors can contribute to a wrongful conviction, such as:

  • missing information
  • misidentifying eyewitnesses
  • false confessions
  • false accusations
  • perjury
  • a guilty plea from an innocent person
  • false testimony of informers
  • faulty or unreliable forensic evidence or expert testimony

If a wrongful conviction occurs, the convicted person has the right to apply to a higher court for a review of their conviction, and based on its findings, the right to appeal the conviction or make an application to the federal Minister of Justice for a review. Generally, to be eligible for a criminal conviction review, a wrongfully convicted person must present new and significant information in their case.

Right to review a conviction by higher court

After being wrongfully convicted, the first review the person may ask for is by the Court of Appeal. To grant an appeal of the conviction, the Court of Appeal must find that:

  • the verdict was unreasonable;
  • there was an error of law; or
  • there was a miscarriage of justice. (A miscarriage of justice occurs whenever new, credible evidence surfaces that could have affected the verdict)

After it’s review, the Court of Appeal can either:

  • Dismiss the appeal, OR
  • Allow the appeal and quash the conviction, in which case the Court of Appeal will either enter an acquittal or order a new trial

If the conviction is upheld by the Court of Appeal, the convicted person can then:

  • make an application to the Minister of Justice on the basis that the case represents a miscarriage of justice; or, in exceptional cases,
  • appeal to the Supreme Court of Canada

Right to appeal – Supreme Court of Canada

There is no “automatic right” to appeal to the Supreme Court of Canada. This only takes place if the decision of the Court of Appeal is not unanimous. If the decision is unanimous, the convicted must seek “leave to appeal” – meaning they must ask for permission – to have the matter heard by the Supreme court. For more information on “leave to appeal” view the Supreme Court’s Guide to Appeals.

Application to the Minister of Justice

If a convicted person applies for a review of the case with the Minister of Justice, the Minister must assess all relevant information, such as new evidence that was not available at the original trial.

How are reviews by the Minister of Justice done?

The Criminal Conviction Review Group (CCRG) is a separate unit of the Department of Justice which, in most cases, conducts the preliminary assessment and investigation and prepares the investigation report. They also provide legal advice to the Minister.

Applications are reviewed at various stages of the process by a Special Advisor on Wrongful Convictions who also provides the minister with independent legal advice.

Upon completion of the review, if the Minister of Justice finds that a miscarriage of justice likely occurred, they have the following options:

  • Order that a new trial take place in any court the Minister deems proper, resulting in a “new” case where the decision takes precedence over the verdict in the original case

 Or

  • Refer the matter to the Court of Appeal, overturning the original conviction

The Court of Appeal can then:

  • Order a new trial;
  • Enter an acquittal; and/or
    • Withdraw the charges
    • Put forward no evidence, resulting in a verdict of not guilty, or
    • Bring of stay of proceedings

If the charges are not re-laid within a one-year period after the Court of Appeal’s decision to stay the charges, or they are withdrawn, this means there is no charge on record, and the proceedings are ended.

Is there compensation available for a wrongful conviction?

According to Canada’s Federal-Provincial Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons, wrongfully convicted persons may receive compensation but only if they meet certain conditions. These include:

  • The individual was wrongfully convicted or imprisoned as the result of a Criminal Code or other federal penal offence;
  • All or part of the imprisonment has been served;
  • There is a finding that they did not commit the offence; and
  • Compensation should only be available to the actual person who has been wrongfully convicted and imprisoned

For help

To erase your criminal record, call toll-free 1-888-808-3628 or learn more at Pardon Partners. It’s easier than you think.

If you have been wrongfully convicted of a crime, contact our preferred criminal law experts:

Calvin Barry Criminal Lawyers

Daniel Brown Law


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