Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Appeal by Attorney General

• 693 (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 675 or dismisses an appeal taken pursuant to paragraph 676(1)(a), (b) or (c) or subsection 676(3), the Attorney General may appeal to the Supreme Court of Canada

  • (a) on any question of law on which a judge of the court of appeal dissents; or

  • (b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.

• Marginal note:Terms

  (2) Where leave to appeal is granted under paragraph (1)(b), the Supreme Court of Canada may impose such terms as it sees fit.

Marginal note:Notice of appeal

694 No appeal lies to the Supreme Court of Canada unless notice of appeal in writing is served by the appellant on the respondent in accordance with the Supreme Court Act.

Marginal note:Legal assistance for accused

• 694.1 (1) The Supreme Court of Canada or a judge thereof may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal to the Court or to proceedings preliminary or incidental to an appeal to the Court where, in the opinion of the Court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.

• Marginal note:Counsel fees and disbursements

  (2) Where counsel is assigned pursuant to subsection (1) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the case may be, in the appeal.

• Marginal note:Taxation of fees and disbursements

  (3) Where subsection (2) applies and counsel and the Attorney General cannot agree on fees or disbursements of counsel, the Attorney General or the counsel may apply to the Registrar of the Supreme Court of Canada, and the Registrar may tax the disputed fees and disbursements.

Marginal note:Right of appellant to attend

• 694.2 (1) Subject to subsection (2), an appellant who is in custody and who desires to be present at the hearing of the appeal before the Supreme Court of Canada is entitled to be present at it.

• Marginal note:Appellant represented by counsel

  (2) An appellant who is in custody and who is represented by counsel is not entitled to be present before the Supreme Court of Canada

  • (a) on an application for leave to appeal,

  • (b) on any proceedings that are preliminary or incidental to an appeal, or

  • (c) at the hearing of the appeal,

  unless rules of court provide that entitlement or the Supreme Court of Canada or a judge thereof gives the appellant leave to be present.

Marginal note:Order of Supreme Court of Canada

• 695 (1) The Supreme Court of Canada may, on an appeal under this Part, make any order that the court of appeal might have made and may make any rule or order that is necessary to give effect to its judgment.

• Marginal note:Election if new trial

  (2) Subject to subsection (3), if a new trial ordered by the Supreme Court of Canada is to be held before a court composed of a judge and jury, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury or a provincial court judge. The election is deemed to be a re-election within the meaning of subsection 561(5) and subsections 561(5) to (7) apply to it with any modifications that the circumstances require.

• Marginal note:Nunavut

  (3) If a new trial ordered by the Supreme Court of Canada is to be held before a court composed of a judge and jury in Nunavut, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury. The election is deemed to be a re-election within the meaning of subsection 561.1(6) and subsections 561.1(6) to (9) apply to it with any modifications that the circumstances require.

Appeals by Attorney General of Canada

Marginal note:Right of Attorney General of Canada to appeal

696 The Attorney General of Canada has the same rights of appeal in proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government as the Attorney General of a province has under this Part.

PART XXI.1Applications for Ministerial Review — Miscarriages of Justice

Marginal note:Application

• 696.1 (1) An application for ministerial review on the grounds of miscarriage of justice may be made to the Minister of Justice by or on behalf of a person who has been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament or has been found to be a dangerous offender or a long-term offender under Part XXIV and whose rights of judicial review or appeal with respect to the conviction or finding have been exhausted.

• Marginal note:Form of application

  (2) The application must be in the form, contain the information and be accompanied by any documents prescribed by the regulations.

Marginal note:Review of applications

• 696.2 (1) On receipt of an application under this Part, the Minister of Justice shall review it in accordance with the regulations.

• Marginal note:Powers of investigation

  (2) For the purpose of any investigation in relation to an application under this Part, the Minister of Justice has and may exercise the powers of a commissioner under Part I of the Inquiries Act and the powers that may be conferred on a commissioner under section 11 of that Act.

• Marginal note:Delegation

  (3) Despite subsection 11(3) of the Inquiries Act, the Minister of Justice may delegate in writing to any member in good standing of the bar of a province, retired judge or any other individual who, in the opinion of the Minister, has similar background or experience the powers of the Minister to take evidence, issue subpoenas, enforce the attendance of witnesses, compel them to give evidence and otherwise conduct an investigation under subsection (2).

Marginal note:Definition of court of appeal

• 696.3 (1) In this section, the court of appeal means the court of appeal, as defined by the definition court of appeal in section 2, for the province in which the person to whom an application under this Part relates was tried.

• Marginal note:Power to refer

  (2) The Minister of Justice may, at any time, refer to the court of appeal, for its opinion, any question in relation to an application under this Part on which the Minister desires the assistance of that court, and the court shall furnish its opinion accordingly.

• Marginal note:Powers of Minister of Justice

  (3) On an application under this Part, the Minister of Justice may

  • (a) if the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred,

    • (i) direct, by order in writing, a new trial before any court that the Minister thinks proper or, in the case of a person found to be a dangerous offender or a long-term offender under Part XXIV, a new hearing under that Part, or

    • (ii) 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 found to be a dangerous offender or a long-term offender under Part XXIV, as the case may be; or

  • (b) dismiss the application.

• Marginal note:No appeal

  (4) A decision of the Minister of Justice made under subsection (3) is final and is not subject to appeal.

Marginal note:Considerations

696.4 In making a decision under subsection 696.3(3), the Minister of Justice shall take into account all matters that the Minister considers relevant, including

• (a) whether the application is supported by new matters of significance that were not considered by the courts or previously considered by the Minister in an application in relation to the same conviction or finding under Part XXIV;

• (b) the relevance and reliability of information that is presented in connection with the application; and

• (c) the fact that an application under this Part is not intended to serve as a further appeal and any remedy available on such an application is an extraordinary remedy.

Marginal note:Annual report

696.5 The Minister of Justice shall within six months after the end of each financial year submit an annual report to Parliament in relation to applications under this Part.

Marginal note:Regulations

696.6 The Governor in Council may make regulations

• (a) prescribing the form of, the information required to be contained in and any documents that must accompany an application under this Part;

• (b) prescribing the process of review in relation to applications under this Part, which may include the following stages, namely, preliminary assessment, investigation, reporting on investigation and decision; and

• (c) respecting the form and content of the annual report under section 696.5.

PART XXI.2Miscarriage of Justice Review Commission

Definitions

Marginal note:Definitions

696.7 The following definitions apply in this Part.

applicant

applicant in relation to a miscarriage of justice review application made to the Commission, means the person who is the subject of the finding or verdict in question. (demandeur)

Commission

Commission means the Miscarriage of Justice Review Commission established under subsection 696.71(1). (Commission)

Minister

Minister means the Minister of Justice. (ministre)

Establishment and Mandate

Marginal note:Commission established

• 696.71 (1) The Miscarriage of Justice Review Commission is established.

• Marginal note:Composition

  (2) The Commission consists of a Chief Commissioner and four to eight other commissioners, all of whom are appointed to hold office during good behaviour by the Governor in Council on the recommendation of the Minister.

• Marginal note:Head office

  (3) The head office of the Commission must be in a place in Canada that is designated by the Governor in Council.

Marginal note:Mandate

696.72 The Commission’s mandate is to

• (a) review applications made under Part XXI.1 on the grounds of miscarriage of justice after section 3 of the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law) comes into force;

• (b) make recommendations to address systemic issues that may lead to miscarriages of justice to relevant public authorities and bodies, including the Law Commission of Canada, federal-provincial-territorial committees and working groups, federal departments and agencies and parliamentary committees.

Commissioners

Marginal note:Diversity

696.73 In making recommendations for commissioner appointments, the Minister must seek to reflect the diversity of Canadian society and must take into account considerations such as gender equality and the overrepresentation of certain groups in the criminal justice system, including Indigenous peoples and Black persons.

Marginal note:Full- or part-time commissioners

696.74 The Chief Commissioner is a full-time commissioner. The other commissioners may be appointed as full-time or part-time commissioners.

Marginal note:Knowledge and experience

• 696.75 (1) The commissioners must have, in the opinion of the Governor in Council, knowledge and experience that is related to the Commission’s mandate.

• Marginal note:Legal qualifications

  (2) At least one third of the commissioners, including the Chief Commissioner, must be members in good standing of the bar of a province and have at least ten years’ experience in the practice of criminal law at the time of their appointment.

• Marginal note:Diversity of qualifications

  (3) At least one half of the commissioners must not, if possible, be persons described in subsection (2).

Marginal note:Role of Chief Commissioner

• 696.76 (1) The Chief Commissioner is the chief executive officer of the Commission and has supervision over and direction of the work and employees of the Commission.

• Marginal note:Absence, incapacity or vacancy

  (2) If the Chief Commissioner is absent or incapacitated or if their office is vacant, the Commission may authorize another commissioner who is a person described in subsection 696.75(2) to act as Chief Commissioner. The authorized commissioner is not, however, authorized to act as Chief Commissioner for more than 90 days without the Governor in Council’s approval.

Marginal note:Term of office

• 696.77 (1) A commissioner is to be appointed to hold office for a term not exceeding seven years such that, to the extent possible, the terms of office of more than one half of the commissioners do not end in any one calendar year.

• Marginal note:Reappointment

  (2) A commissioner may be reappointed.

• Marginal note:Removal

  (3) A commissioner may be removed for cause by the Governor in Council.