Compensation for Wrongfully Convicted and Imprisoned Persons

A person may sometimes be wrongfully convicted of a crime, although this is not a frequent occurrence. The question is important for all Canadian jurisdictions.

Canada is a party to the United Nations International Covenant on Civil and Political Rights Article 14(6) of the Covenant provides for compensation for the victim of a miscarriage of justice. 

Québec’s Ministère de la Justice supports the compensation of wrongfully convicted persons and administers the process

In what situations is compensation awarded?

According to Article 14 (6) of the Covenant:

When a person has, by a final decision, been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”

How is compensation awarded?

The Federal/Provincial Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons, adopted by the Federal, Provincial and Territorial Justice Ministers in 1988 and referred to here as the “Guidelines”, are intended mainly to implement Canada’s international obligations. 

An applicant is considered to have been wrongfully convicted when:

  1. the applicant has served some or all of a prison term;
  2. following a final conviction;
  3. the conviction has been reversed, outside the normal appeal process, on the basis of a new or newly discovered fact (following a review ordered by the Minister of Justice of Canada under section 696.1 and following of the Criminal Code, as part of an appeal concerning an extension of time or after a free pardon is granted under section 748(2) of the Criminal Code);
  4. the new fact shows that the applicant is factually innocent, in other words that the applicant did not commit the crime. 

When an application for compensation is received by the Ministère de la Justice, a preliminary analysis of the case is conducted to determine whether the application meets the three main objective criteria set out in the Guidelines: 

At this stage, if the application does not qualify, the applicant is informed. 

If the application qualifies, a full administrative analysis of the case is conducted to determine factual innocence, since compensation can only be granted to a person who did not commit the crime for which he or she was convicted. In other words, the Attorney General must be convinced of the applicant’s “factual” or “actual” innocence; a person who has been acquitted of the crime because the evidence did not provide proof beyond a reasonable doubt is not eligible for compensation.

A person acquitted at trial or during the normal appeal procedures is therefore not eligible.

If the application is granted, a lawyer in private practice is given instructions to determine the amount of the compensation.

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