(Continued from Part 1)
There are no statutory formalities for the creation of a Part XXI.1 application. The Minister may 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”.3 Or, the application can be dismissed or there may be an order by the Minister for a new trial.4 The Minister does not have to undertake the investigation of the case personally, or even with the assistance of his or her government staff.
Subsection 696.2(3) authorizes ministerial delegation of the investigative functions to any member in good standing of the provincial bar, a retired Judge or anyone with similar background or experience. The delegation must be in writing and may include the powers of the Minister to take evidence, issue subpoenas, force witnesses’ attendance, compel witnesses to give evidence, and otherwise conduct an investigation.
In making a decision as to a ministerial review the Minister of Justice shall take into account all matters that the Minister considers relevant, including whether the application is supported by new matters of significance that were not considered by the courts or previously considered by the Minister and the relevance and the reliability of information that is presented in connection with the application.
The Minister of Justice has a duty to determine if the applicant has exhausted her rights of judicial review or appeal as a precondition to conducting a ministerial review. The Minister may still review a conviction despite the fact that the applicant has not applied for leave to appeal to the Supreme Court of Canada.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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