New Minister Virani’s Rees decision victory for justice | John L. Hill

By John L. Hill

Law360 Canada (August 11, 2023, 9:53 AM EDT) --
John L. Hill
John L. Hill
In the foreword to my upcoming book, journalist and author Justin Ling looks at the failure of our criminal and correctional systems in facing up to the inadequacies inherent in their structures and operations. He writes, “Much the same way we warehouse the people we don’t want to deal with in the darkness, we keep in the darkness the entire issue of our prison system. We would rather believe the machine is running smoothly.”

With the publication of Isabel LeBourdais’ book in 1966, The Trial of Steven Truscott, the public began to understand that our criminal and correctional systems were flawed and that sometimes mistakes are made resulting in wrongful convictions.

With the excellent work done by Innocence Canada (formerly known as the Association in Defence of the Wrongly Convicted), we were shocked to find the number of people who have been exonerated because the systems that put these wrongly convicted individuals behind bars is far greater than we may have expected. The Innocence Canada website lists the names of the wrongly convicted and the time they spent in prison. Eleven of those named served in excess of 10 years including Romeo Phillion, who spent 31 years before his innocence was acknowledged.

The first federal commission looking into wrongful convictions met in late 2021, headed by Harry LaForme, Canada’s first Indigenous appeal court judge, and Juanita Westmoreland-Traoré, who became the country’s first Black law dean at the University of Windsor. Law professor Kent Roach acted as the commission’s director of research. The commission’s findings were presented to the minister of justice in November 2021. This led to the introduction of Bill C-40, which proposed the establishment of the Miscarriages of Justice Commission, an independent body and the first of its kind in Canada, that would review applications alleging wrongful convictions and broader miscarriages of justice.

Then came two widely publicized events that caused concern that such ministerial reviews might be put on hold. There was intense criticism and a call to get tough on crime following the transfer of Paul Bernardo from maximum-security Millhaven Institution to a Quebec medium-security penitentiary. Secondly, there was the July 26 cabinet shuffle in which Minister David Lametti was dropped from cabinet and replaced by Toronto Liberal MP Arif Virani. Would the new minister of justice continue the initiative of his predecessor and review questionable convictions referring them back to the courts if there was reason to believe a miscarriage of justice had occurred? The fear was that political pressures and an electorate often swayed by tough-on-crime attitudes might prevail.

But on Aug. 9, the federal Department of Justice announced that Virani has referred the case of Timothy Rees to the Court of Appeal for Ontario for a new appeal pursuant to the newly enacted s. 696.1 conviction review provisions of the Criminal Code.

Law360 Canada reported that the Justice Department has examined the Rees file and concluded “that there is a reasonable basis to conclude that a miscarriage of justice likely occurred. Minister Virani has reviewed the file and is supportive of this decision.”

When Timothy Rees went before the Ontario Court of Appeal in 1994, his appeal based on a violation of his section 10(b) Charter rights was dismissed (R. v. Rees [1994] O.J. No. 1325]. The Supreme Court of Canada denied his application for leave to appeal on Sept. 14, 1995.

“All people in Canada must have confidence that the justice system is there to protect them and that it can be trusted,” Virani said in a statement. “A fair justice system must also be compassionate and balance the needs of victims while guarding against potential miscarriages of justice, which is why we have a process in place to review such cases. This case is particularly tragic in that it involves the death of a child. However, after a review of Mr. Rees’s case, there is a reasonable basis to conclude that a miscarriage of justice likely occurred and that a new appeal from conviction is warranted.”

Rees had served 19 years in custody; he was released on day parole in 2009 and is currently out of custody on full parole.

The newly announced decision will give confidence to those of us who feared that politics may interfere with justice. Arif Virani has made the right call. We will continue moving from the darkness and no longer need to pretend, as Justin Ling feared, that the machine is running smoothly. 

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

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