In Bill C‑40's current form, proposed subsection 696.5(1) states, “If the Commission has reasonable grounds to believe that a miscarriage of justice may have occurred or considers that it is in the interests of justice to do so, it may conduct an investigation in relation to an application.” We're not yet at the stage here where it has to be determined if remedies are appropriate or not. The point is rather to determine if, from the way it was processed, the file needs to get to the investigation stage and if the commission should look into it further.
What the Barreau du Québec is proposing is to make the investigation mandatory if the commission has already concluded that it “has reasonable grounds to believe that a miscarriage of justice may have occurred or considers that it is in the interests of justice to do so”. At this stage, the commission already has to do some kind of assessment and it still has the discretionary power to determine if an investigation is warranted. In our opinion, the commission shouldn't also have the discretionary power to determine if an investigation should be conducted or not.
Furthermore, having read several of the Criminal Conviction Review Group's investigation reports, I can tell you that some investigations are more detailed than others. So in our opinion, making investigations mandatory shouldn't be a significant burden on the commission. Some investigations will be more straightforward, and others will be more involved, but when there are reasonable grounds to believe that a miscarriage of justice may have occurred, we need to go forward.