I have been asked to provide a short commentary on the role a Commission of Inquiry may play following a No doubt the request was made because I am thought to have some experience in this area, having chaired the Royal Commission of Inquiry into the Prosecution of Donald Marshall, Jr. However, before discussing the role a Commission of Inquiry may play, it is useful to consider what is meant by the term conviction. Only if a is thought to be wrongful is there an appropriate role for an inquiry. The phrase conviction is now in general parlance; it carries with it the notion that the justice system has failed and that a has been achieved wholly or partly because of influences that have no place in a democratic society governed by the rule of law and, in Canada, the Charter of Rights and Freedoms. It is important that those who use this term do so carefully and thoughtfully. To do otherwise risks irreparable harm to the foundation of respect and confidence upon which our legal system rests; to freely and frequently call for public inquiries when they are not warranted likewise endangers the stability of the justice system. If, indeed, the system may have failed, an inquiry may be required; but not every that is set aside is and those seeking an inquiry and those responsible for establishing an inquiry must exercise care, restraint, and sound judgement before choosing to so characterize a The justice system as a whole contains checks and balances. Police investigations are reviewed internally; guidelines are established for obtaining statements and for dealing with vulnerable potential witnesses; serious cases are discussed with prosecutors before charges are laid; within the prosecutorial service, decisions to prosecute serious cases require further review. An accused is entitled to full and timely disclosure of the Crown's case, and, depending on the election of the accused, a provincial court judge will conduct a preliminary inquiry to determine whether or not the evidence warrants proceeding to trial. Within the judicial system itself, two levels of appellate court may in turn review the trial and its conduct, including, in particular, all rulings made by the trial judge on the admissibility of evidence. Indeed, an appellate court may, to ensure that justice is done, consider issues that were not raised at trial. The presence of these checks and balances--the above is an illustrative list only--is a recognition of the reality that decisions are made by human beings, individuals who, although superbly trained and admirably conscientious and careful, are fallible and liable to err. We all know from the fundamental principles of tort law that an error in judgment does not equate to negligence. Similarly, a that results from human error is not necessarily wrongful as the term is now being used. In particular, a that is set aside by an appellate court because of an erroneous decision by the trial judge not to exclude certain evidence cannot and should not, in my view, be described as wrongful. In such a case, the justice system, as a whole, has functioned as it should; an error at one level has been corrected by a review at a higher level. To label such a as wrongful, it seems to me, is to do a disservice to a legal process that has functioned exactly as intended. In my view, the term conviction should be reserved for those situations in which there is a suspected failure or breakdown of the checks and balances or in which one or more decisions made throughout the process may have been influenced by factors not properly brought to bear in a criminal prosecution. Obviously it is neither possible nor desirable to compile a complete list of all the circumstances in which the term conviction is appropriate, but they would include convictions following, for example, perjured testimony or wilful non-disclosure of evidence pointing to the innocence of the accused. …