A report into establishing a new miscarriage of justice watchdog in Canada has highlighted ‘serious concerns’ over inadequate funding and political interference of the Criminal Cases Review Commission. The government of Canada has committed to create ‘an independent commission at arm’s-length from the government’ drawing on the model of similar bodies in Scotland, Norway, New Zealand and North Carolina as well as our own CCRC which was the first independent miscarriage watchdog in the world.
However the new report by a former justice of the Ontario Court of Appeal, Harry LaForme and Juanita Westmoreland-Traoré, a former judge of the Court of Québec, identifies ‘serious complaints’ directed at the CCRC and flags up the ‘absence’ of other criminal justice reforms recommended by the 1993 Royal commission that led to the creation of the watchdog body notably ‘expanded powers to overturn convictions or admit fresh evidence’.
The reports’ authors rejected the ‘real possibility’ statutory test which limits our CCRC’s power referral to only those cases that it believes that the Court of Appeal would overturn. ‘We have been persuaded by all of the experienced English lawyers we consulted that it would be a huge step backward should the new commission’s test or practice for referrals be based on a predictive judgment about whether the Court of Appeal will overturn a conviction,’ they said.
‘It was important for us to examine the adequacy of existing appeal grounds because of the concerns that the effectiveness of the English Commission has been impaired by its Court of Appeal taking a restrictive approach to appeals,’ the authors noted.
One of the drivers for change in Canada is concerns over the massive over-representation of Indigenous and Black people among the wrongfully convicted. The report quotes the Ontario Court of Appeal saying that the existence of anti-Black racism in Canadian society is ‘beyond reasonable dispute and is properly the subject matter of judicial notice’.
Since 2002, the Canadian Minister of Justice had referred just 20 cases back to the courts and only one concerned someone who was indigenous and another black. ‘This does not begin to reflect the overrepresentation of Indigenous and Black people in our prisons,’ the report noted. It quotes 2019-2020 analysis from the Office of the Correctional Investigator that indigenous over-representation in federal custody had reached ‘a new historic high’ at around 30% of Canada’s prison population despite indigenous people make up only around 5% of the population.
‘It is impossible to know how many undiscovered, and thus uncorrected, miscarriages of justice exist,’ noted LaForme and Juanita Westmoreland-Traoré. ‘But we are confident that there are many and that Indigenous, Black and other disadvantaged groups are overrepresented among the wrongfully convicted and other victims of miscarriages of justice.’
The new report into a Canadian watchdog heard from 17 exonerees who had suffered miscarriages of justice as well as conducting 45 roundtables involving 215 people and as well as speaking to representatives from five CCRC-style bodies.
‘Our concerns about true independence and adequate funding were increased as we researched and heard about the struggles of the first such independent commission (i.e., the CCRC),’ the report states. LaForme and Juanita Westmoreland-Traoré flagged up last year’s report of the Westminster commission, set up as part of the All-Party Parliamentary Group on Miscarriages of Justice. ‘We heard many concerns that the commission may be vulnerable to under-funding. This could be because of future across the board governmental austerity measures and/or cuts that reflect a lack of political support for the commission or simply a lack of understanding of the importance of its role.’
They noted a 30% funding cut between 2009/2010 and 2014/2015 at a time of increasing applications and increasing backlogs. The report quoted the chair of the commission told the committee that for every £10 his predecessor had to spend on an application, he had £4 and that the commission had suffered ‘the biggest cut that has taken place anywhere in the criminal justice system’.
The Canadian report said: ‘Due to underfunding, case review managers who had a caseload of 12.5 cases in 2010/2011 had in 2017 a caseload of 27 cases. Moreover, their salaries were no longer competitive.’
It also highlighted concerns over the undermining of the role of the commissioner at the CCRC and that there had been ‘30% cuts to the number of days worked by the English commissioners and a reduction from 8.8 full time equivalents in 2014 to 2.5 full time equivalents in 2019’. ‘There has also been controversy and litigation over the government’s refusal to reappoint a commissioner who had been critical of the government’s cost saving and efficiency related measures,’ it said.
It quoted Professor Carolyn Hoyle of Oxford University stating that the CCRC was ‘massively under-resourced’ and ‘decisions about how thoroughly, or how to investigate a case are made with a mind to budget’.
The authors of the report noted that problems of underfunding were not limited to the English commission. A representative of the Scottish Commission noted that £930,000 of its £1.05 million budget is spent on salaries and accommodation so that ‘doesn’t leave much for an investigative budget, a budget for legal actions and the like’.