Hinse v. Canada (Attorney General)

Hinse v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
2015-06-19
Neutral citation
2015 SCC 35
Report
[2015] 2 SCR 621
Case number
35613
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément
On appeal from
Quebec
Subjects
Torts
Notes
SCC Case Information: 35613
Decision Content
SUPREME COURT OF CANADA
Citation: Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621
Date: 20150619
Docket: 35613
Between:
Réjean Hinse
Appellant
and
Attorney General of Canada
Respondent
- and -
Association in Defence of the Wrongly Convicted,
Centre Pro Bono Québec and Pro Bono Law Ontario
Interveners
Official English Translation
Coram: McLachlin C.J. and LeBel,* Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.
Joint Reasons for Judgment:
(paras. 1 to 181)
Wagner and Gascon JJ. (McLachlin C.J. and Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. concurring)
* LeBel J. took no part in the judgment.
Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621
Réjean Hinse Appellant
v.
Attorney General of Canada Respondent
and
Association in Defence of the Wrongly Convicted,
Centre Pro Bono Québec and Pro Bono Law Ontario Interveners
Indexed as: Hinse v. Canada (Attorney General)
2015 SCC 35
File No.: 35613.
2014: November 10; 2015: June 19.
Present: McLachlin C.J. and LeBel,[*] Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.
on appeal from the court of appeal for quebec
Crown law — Crown liability — Prerogatives — Public law immunity — Crown’s power of mercy vested in federal Minister of Justice under Criminal Code, R.S.C. 1985, c. C-46 — Characterization of nature of Minister’s power — Circumstances in which exercise of power of mercy can expose Crown to liability — Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, ss. 2 “liability”, 3(a)(i) — Civil Code of Québec, arts. 1376, 1457.
Civil liability — Crown liability — Fault — Qualified immunity — Individual wrongly convicted of armed robbery — Federal Minister of Justice refusing to exercise Crown’s power of mercy, which is vested in him under Criminal Code — Standard of fault applicable to Minister’s conduct — Whether individual has proven on balance of probabilities that Minister acted in bad faith or with serious recklessness in reviewing applications for mercy — Civil Code of Lower Canada, art. 1053 — Civil Code of Québec, art. 1457.
Damages — Punitive damages — Extrajudicial fees — Pro bono representation — Whether individual entitled to compensatory or punitive damages — Whether, in case of abuse of process and where there is pro bono agreement, damages can be awarded in Quebec in respect of extrajudicial fees in order to compensate party who has suffered damage resulting from fault of other party — Civil Code of Québec, art. 1608.
In 1964, H was unjustly sentenced to 15 years’ imprisonment for armed robbery. He was granted parole after serving a third of his sentence. In 1966, he had persuaded three of the five perpetrators of the robbery to sign affidavits to clear his name. Between 1967 and 1981, H submitted three applications for mercy to the federal Minister of Justice (“Minister”) under the Criminal Code and an application for a pardon to the Governor General in Council. They were all denied. In 1988, he applied to the Commission de police du Québec, which, following an investigation, said that it hoped the Attorney General of Quebec (“AGQ”) would intervene with the Solicitor General of Canada so that justice would be done. In 1990, H submitted a fourth application for mercy, but the Minister replied that he should seek relief in the Quebec Court of Appeal, which he did. The Court of Appeal allowed the appeal, but instead of entering an acquittal or ordering a new trial, it directed a stay of proceedings. On January 21, 1997, the Supreme Court of Canada unanimously acquitted H in a judgment delivered from the bench, as it was of the view that the evidence could not allow a reasonable and properly instructed jury to find H guilty beyond a reasonable doubt. H then instituted an action in civil liability for an order for solidary payment against the AGQ, the Attorney General of Canada (“AGC”) and the town of Mont-Laurier. Under out-of-court settlements, the town and the AGQ paid him a total of $5,550,000 in compensation. After these settlements, H continued to claim $1,079,871 for his pecuniary losses and $1,900,000 for his non-pecuniary losses, as well as $10,000,000 in punitive damages, from the AGC.
The Superior Court allowed the action and ordered the AGC to pay H a total of almost $5.8 million. It found, pursuant to the Crown Liability and Proceedings Act , that the Minister was subject to Quebec’s rules of civil liability, that he was not protected by any immunity, that he had committed a fault of “institutional inertia” or “institutional indifference”, and that a sustained, concerted and extensive review would have uncovered the errors. It ordered the AGC to pay H more than $850,000 for pecuniary damage and $1,900,000 for non-pecuniary damage, as well as $2,500,000 in punitive damages. It also found that the AGC’s conduct at trial had amounted to an abuse of process and ordered him to pay $100,000 for fees H had paid to the first law firm that had represented him, as well as $440,000 for the value of the services rendered by the second even though that firm had never billed him for fees, as they had entered into a pro bono agreement.
The Court of Appeal reversed the judgment. It found that the exercise of the Minister’s power of mercy is protected by a qualified immunity and that the Crown can be held liable only if the decision was made in bad faith, and with malice. In this case, the court found that it had not been proven that the Minister had committed a fault and that, even if it were assumed that a fault had been committed, there was nothing to suggest that the miscarriage of justice would have been ascertained quickly if the Minister had acted promptly.
Held: The appeal should be dismissed.
The power of mercy codified in the Criminal Code derives from the royal prerogative of mercy. At the material time, the applicable provisions of the Criminal Code left it up to the Minister to determine in what circumstances he or she should intervene. In making this discretionary decision, the Minister had to assess and weigh public policy considerations on the basis of social, political and economic factors. This power came into play after all judicial remedies had been exhausted, and the Minister, in exercising it, had to be careful to avoid usurping the role of the courts and short-circuiting the usual judicial process. The history and the nature of the power of mercy show that the exercise of that power was a true core policy act. The exercise of such a power could not therefore expose the Crown to liability unless the Minister acted irrationally or in bad faith.
To assess the Minister’s conduct in the exercise of his power of mercy, it would be inappropriate to apply a standard of fault that limits bad faith to malice. In Quebec civil law, bad faith is broader than just intentional fault or a demonstrated intent to harm another. Bad faith can be established by proving that the Minister acted deliberately with the specific intent to harm another person, or by proof of serious recklessness that reveals a breakdown of the orderly exercise of authority so fundamental that absence of good faith can be deduced and bad faith presumed. In light of the applicable provisions of the Criminal Code and of the fact that there was, at the relevant time, no established procedure to guide the exercise of the power of mercy, the Minister was required to conduct a meaningful review of any application that was neither frivolous nor vexatious. However, this review was not equivalent to the one that would be expected from a police investigation or a commission of inquiry. The duty to conduct a meaningful review entails a duty to make a decision in good faith on the basis of the evidence uncovered by that review.
The trial judge erred in approaching the issue of the federal Crown’s civil liability from the perspective of a fault of institutional inertia or indifference. The analysis should instead have focused on the individual conduct of each Minister acting in his or her capacity as a servant of the federal Crown. The trial judge also erred in considering the powers of a commissioner under the Inquiries Act as a basis for determining whether the review conducted by the Minister was a meaningful one, given that those powers were not conferred on the Minister until 2002, when Parliament reformed the procedure in respect of applications for mercy. Moreover, there is no legislation establishing an obligation for the federal government or the provinces to compensate victims of miscarriages of justice, nor is there any legislation establishing a right to such compensation. Nor did the Guidelines: Compensation for Wrongfully Convicted and Imprisoned Persons require the federal government to compensate H, as they do not constitute binding legislation.
In this case, H has failed to prove, on a balance of probabilities, that the Minister acted in bad faith or with serious recklessness in reviewing his applications for mercy. The documentary evidence negates the trial judge’s inference that there was no review whatsoever of H’s initial application for mercy. Although there are only a few documents in the record, they attest to the fact that a certain review was conducted and that certain actions were taken in this regard. By way of admissions, the parties acknowledged that certain government employees would have confirmed that, as they had understood the facts, an extensive and careful review of the case was under way at the time in question. A delay in reviewing the initial application was raised, but despite this, an analysis of the circumstances does not support the conclusion that the Minister acted in bad faith or with serious recklessness. As for H’s three subsequent applications, it cannot reasonably be argued that no meaningful review was conducted in respect of them. The relevant correspondence shows the opposite to be true. Regarding the second application, which was very brief and contained no new evidence or legal arguments, it was open to the Minister to find it frivolous and to reject it on that basis. As for the third application, given that it did not go into much detail, the allegations based on vague irregularities could have struck the Minister as being of little consequence. In the case of the fourth application, it was reasonable for the Minister to justify her decision by noting that the Court of Appeal could consider the case on its own without her having to intervene, particularly given that the Minister did not reject the application outright.
Some additional comments on causation and damages are in order. Even if it were assumed that the Minister failed to conduct a meaningful review of the first application, the evidence does not establish that he would probably have discovered at that time the key evidence uncovered by the investigator of the Commission de police 20 years later. To conclude otherwise would be to rely on mere conjecture or remote hypotheticals. H has failed to establish a causal connection between the Minister’s fault and the alleged damage.
On the issue of damages, the trial judge failed to take into account the requirement that the liability be apportioned solidarily, and to establish the amounts being awarded on the basis of the actual liability of each of the solidary debtors. To the extent that more than one solidary debtor could be liable for heads of claim, the releases granted by H to the AGQ and the town of Mont-Laurier made it necessary to examine the causal faults and apportion liability. H should have borne the shares of the solidary debtors he had released (arts. 1526 and 1690 C.C.Q.). In addition to this overriding error, the grounds for each of the heads of damages were also flawed. Where the question of pecuniary damage is concerned, there is no direct connection between the Minister’s conduct and H’s decision to retire at age 60, the fees and costs incurred in respect of the proceedings brought in the Court of Appeal and the Supreme Court between 1990 and 1997 did not result from the alleged faults, and wasted time and efforts expended to obtain justice are inconveniences that are inherent in the efforts of anyone who is involved in legal proceedings. As for non-pecuniary damage, an order that the AGC pay $1,900,000 after the AGQ had paid $1,100,000 under the same head of damages would seem to be disproportionate, and the amounts granted in other cases of miscarriages of justice were mostly made further to the recommendations of advisory bodies and were based on considerations that are different from those on which damages are based in principle. Moreover, those cases were different in that they involved the much more serious crime of murder and in that the period of incarceration was longer in almost all of them. On the issue of punitive damages, even though the reference in the Crown Liability and Proceedings Act to the Quebec rules of extracontractual civil liability encompasses the remedy of punitive damages provided for in the Charter of human rights and freedoms, it was not appropriate to award such damages in this case. Given that the Minister’s conduct cannot be equated with bad faith or serious recklessness, it cannot be concluded that there was intentional interference with a right protected by the Charter. The evidence does not support a finding that the Minister’s state of mind was such that he intended to harm H or had knowledge of the adverse consequences his conduct would have for H.
In Quebec law, it is only in exceptional cases that a party can be required to pay the fees of lawyers retained by the opposing party, and such compensation must be consistent with the general rules of civil liability. Only an abuse of process can justify awarding extrajudicial fees as damages. However, by virtue of art. 1608 C.C.Q., the obligation to pay damages to the other party is neither reduced nor altered by the fact that the latter received a gratuitous benefit from his or her counsel. In this case, the AGC’s conduct did not amount to an abuse of process. The law on the federal Crown’s liability for a fault committed by the Minister in exercising his or her power of mercy was far from clear at the time of the dispute, and it was reasonable and appropriate for the AGC to contest H’s action and raise the defence that he did. The trial judge committed a palpable and overriding error in finding that there had been an abuse of process in the context of this case. H was not entitled to the extrajudicial fees that were awarded.
Cases Cited
Applied: Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Entreprises Sibeca Inc. v. Frelighsburg (Municipality), 2004 SCC 61, [2004] 3 S.C.R. 304; Viel v. Entreprises Immobilières du Terroir ltée, [2002] R.J.Q. 1262; distinguished: Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339; Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9; Nelles v. Ontario, [1989] 2 S.C.R. 170; 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 82 O.R. (3d) 757; approved: Thatcher v. Canada (Attorney General), [1997] 1 F.C. 289; referred to: Canadian Food Inspection Agency v. Professional Institute of the Public Service of Canada, 2010 SCC 66, [2010] 3 S.C.R. 657; Prud’homme v. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R. 663; Attorney General for Canada v. Attorney General of the Province of Ontario (1894), 23 S.C.R. 458; Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3; Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372; Bilodeau v. Canada (Ministre de la Justice), 2009 QCCA 746, [2009] R.J.Q. 1003; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Bilodeau v. Canada (Minister of Justice), 2011 FC 886, 394 F.T.R. 235; Daoulov v. Canada (Attorney General), 2009 FCA 12, 388 N.R. 54; Timm v. Canada (Attorney General), 2012 FC 505, 409 F.T.R. 8, aff’d 2012 FCA 282, 451 N.R. 250; Barrette v. Union canadienne, compagnie d’assurances, 2013 QCCA 1687, [2013] R.J.Q. 1577; France Animation s.a. v. Robinson, 2011 QCCA 1361, aff’d 2013 SCC 73, [2013] 3 S.C.R. 1168; Longpré v. Thériault, [1979] C.A. 258; Crispino v. General Accident Insurance Company, 2007 QCCA 1293, [2007] R.R.A. 847; St-Yves v. Laurentienne générale, compagnie d’assurance inc., 1997 CanLII 10732; Wilson v. Minister of Justice, [1983] 2 F.C. 379, aff’d [1985] 1 F.C. 586; Parrot v. Thompson, [1984] 1 S.C.R. 57; Dallaire v. Paul-Émile Martel Inc., [1989] 2 S.C.R. 419; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Thornton v. School District No. 57 (Prince George), [1978] 2 S.C.R. 267; Arnold v. Teno, [1978] 2 S.C.R. 287; Proulx v. Québec (Procureur général), [1997] R.J.Q. 2509; Proulx v. Québec (Procureur général), [1997] R.J.Q. 2516; Chaput v. Romain, [1955] S.C.R. 834; de Montigny v. Brossard (Succession), 2010 SCC 51, [2010] 3 S.C.R. 64; Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789; Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 S.C.R. 211; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; Young v. Young, [1993] 4 S.C.R. 3; Human Rights Commission (Ont.) v. Brillinger (2004), 185 O.A.C. 366; Reynolds v. Kingston (Police Services Board), 2007 ONCA 375, 86 O.R. (3d) 43.
Statutes and Regulations Cited
Act respecting police organization, R.S.Q., c. O-8.1 [repl. 2000, c. 12, s. 353], ss. 64 to 88, 71, 84, 85.
Act respecting the implementation of the reform of the Civil Code, ss. 2, 3, 9.
Charter of human rights and freedoms, CQLR, c. C-12, s. 49.
Civil Code of Lower Canada, arts. 1053, 1054.
Civil Code of Québec, preliminary provision, arts. 1376, 1440, 1457, 1463, 1474, 1478, 1526, 1607, 1608, 1621, 1690, 2803, 2846, 2849.
Code of Civil Procedure, CQLR, c. C-25, arts. 54.1 to 54.6, 54.4.
Criminal Code, R.S.C. 1970, c. C-34, s. 617.
Criminal Code, R.S.C. 1985, c. C-46, ss. 690 , Part XXI.1, 696.2, 696.3, 696.4, 696.5, 748.
Criminal Code, S.C. 1953-54, c. 51, ss. 596, 655.
Criminal Code, 1892, S.C. 1892, c. 29, s. 748.
Criminal Law Amendment Act, 1968-69, S.C. 1968-69, c. 38, s. 62.
Criminal Law Amendment Act, 2001, S.C. 2002, c. 13, ss. 70 , 71 .
Crown Liability Act, S.C. 1952-53, c. 30, s. 3(1).
Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, ss. 2 “liability”, 2.1 “person”, 3, 8.
Inquiries Act, R.S.C. 1985, c. I-11 , Part I, ss. 4, 5, 11.
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 14(6).
Interpretation Act, R.S.C. 1985, c. I-21, s. 8.1 .
Letters Patent Constituting the Office of Governor General of Canada (1947). In Canada Gazette, Part I, vol. 81, p. 3014 [reproduced in R.S.C. 1985, App. II, No. 31].
Police Act, CQLR, c. P-13.1.
Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice, SOR/2002-416, ss. 3, 4.
Tree Protection Act, CQLR, c. P-37.
Authors Cited
Baudouin, Jean-Louis, Patrice Deslauriers et Benoît Moore. La responsabilité civile, 8e éd. Cowansville, Qué.: Yvon Blais, 2014.
Canada. Department of Justice. Guidelines: Compensation for Wrongfully Convicted and Imprisoned Persons, 1988.
Canada. House of Commons. House of Commons Debates, vol. IV, 7th Sess., 21st Parl., March 26, 1953, p. 3330.
Canada. House of Commons. House of Commons Debates, vol. 137, No. 054, 1st Sess., 37th Parl., May 3, 2001, p. 3583.
Canada. Library of Parliament. Parliamentary Research Branch. “Bill C-15A: An Act to amend the Criminal Code and to amend other Acts”, Legislative Summary LS-410E, by David Goetz and Gérald Lafrenière, Law and Government Division, October 12, 2001, revised September 30, 2002.
Canada. Library of Parliament. Research Branch. “Wrongful Convictions in the Criminal Justice System”, Background Paper BP-285E, by Philip Rosen, January 1992.
Canada. Senate. Debates of the Senate, vol. 139, No. 66, 1st Sess., 37th Parl., November 1, 2001, p. 1612.
Garant, Patrice, avec la collaboration de Philippe Garant et Jérôme Garant. Droit administratif, 6e éd. Cowansville, Qué.: Yvon Blais, 2010.
Hogg, Peter W., Patrick J. Monahan and Wade K. Wright. Liability of the Crown, 4th ed. Toronto: Carswell, 2011.
Larombière, M. L. Théorie et pratique des obligations, nouv. éd., t. 7. Paris: A. Durand et Pedone-Lauriel, 1885.
LeBel, Louis. “La protection des droits fondamentaux et la responsabilité civile” (2004), 49 McGill L.J. 231.
Manitoba. The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation. Winnipeg: Manitoba Justice, 2001 (Commissioner: Peter deC. Cory).
Nova Scotia. Commission of Inquiry Concerning the Adequacy of Compensation Paid to Donald Marshall, Jr. Report of the Commissioner. Halifax: The Commissioner, 1990 (Commissioner: Gregory T. Evans).
Ontario. Ministry of the Attorney General. In the Matter of Steven Truscott: Advisory Opinion on the Issue of Compensation, by Sydney L. Robins, March 28, 2008 (online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/truscott).
Perret, Louis. “De l’impact de la Charte des droits et libertés de la personne sur le droit civil des contrats et de la responsabilité au Québec” (1981), 12 R.G.D. 121.
Quebec. Ministère de la Justice. Commentaires du ministre de la Justice, t. I, Le Code civil du Québec — Un mouvement de société. Québec: Publications du Québec, 1993.
Royer, Jean-Claude, et Sophie Lavallée. La preuve civile, 4e éd. Cowansville, Qué.: Yvon Blais, 2008.
Smith, A. T. H. “The Prerogative of Mercy, the Power of Pardon and Criminal Justice”, [1983] P.L. 398.
Trotter, Gary T. “Justice, Politics and the Royal Prerogative of Mercy: Examining the Self-Defence Review” (2001), 26 Queen’s L.J. 339.
APPEAL from a judgment of the Quebec Court of Appeal (Pelletier, Bich and Bouchard JJ.A.), 2013 QCCA 1513, [2013] R.J.Q. 1451, [2013] AZ-51000894, [2013] Q.J. No. 7562 (QL), 2013 CarswellQue 13456 (WL Can.), setting aside a decision of Poulin J., 2011 QCCS 1780, [2011] R.J.Q. 794, [2011] AZ-50742270, [2013] J.Q. no 3760 (QL), 2011 CarswellQue 3905 (WL Can.). Appeal dismissed.
Guy J. Pratte, Alexander De Zordo and Marc-André Grou, for the appellant.
Bernard Letarte and Vincent Veilleux, for the respondent.
Brian H. Greenspan and Naomi M. Lutes, for the intervener the Association in Defence of the Wrongly Convicted.
Bernard Larocque and Jonathan Lacoste-Jobin, for the intervener Centre Pro Bono Québec.
Ranjan K. Agarwal and Nathan J. Shaheen, for the intervener Pro Bono Law Ontario.
English version of the judgment of the Court delivered by
Wagner and Gascon JJ. —
I. Introduction
[1] Although it receives praise from around the world, the Canadian criminal justice system is not free from the risk of miscarriages of justice. Where such situations arise — although fortunately very rare, they have serious consequences — certain remedies are available to the victims. One such remedy is the discretionary power of mercy provided for in the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”), which enables the federal Minister of Justice (“Minister” or “Ministers”) to help rectify miscarriages of justice in certain cases. In this appeal, the Court is being asked for the first time to rule on the standard of conduct that applies to the exercise of this power and on the circumstances in which the federal Crown might be exposed to liability.
[2] The appellant, Réjean Hinse, was wrongly convicted of armed robbery. Under out-of-court settlements, the town of Mont-Laurier (“Mont-Laurier”) and the Attorney General of Quebec (“AGQ”) paid him a total of $5,550,000 in compensation for this miscarriage of justice. According to Mr. Hinse, this compensation was incomplete, however, since the Ministers who had decided on his applications for mercy over the years had also committed a fault against him by failing to diligently exercise their power in his favour.
[3] The Quebec Superior Court found that a simple fault was sufficient for the Crown to be liable in respect of the Minister’s conduct. The trial judge concluded that a fault of [translation] “institutional inertia” or “institutional indifference” on the federal government’s part had caused Mr. Hinse damage equivalent to nearly $5.8 million. The Court of Appeal reversed that judgment, expressing the opinion that the person who exercises this power of mercy is protected by an immunity analogous to the one that applies to a Crown prosecutor in a case of malicious prosecution. Given that there was no intentional or gross fault, or even a simple fault, on the Minister’s part, it dismissed Mr. Hinse’s action against the Attorney General of Canada (“AGC”).
[4] We are of the opinion that, at the material time, the exercise of the Minister’s power of mercy was a true policy decision. The Minister was therefore protected by a qualified (or “relative”) immunity. On being presented with an application for mercy that was neither frivolous nor vexatious, the Minister had a duty to conduct a meaningful review of the application, and a breach of that duty amounting to bad faith, which encompasses serious recklessness, could expose the Crown to liability.
[5] We agree with the Court of Appeal that, on a balance of probabilities, the evidence does not support the trial judge’s inference that the Ministers violated the rules of civil liability in this case. We also agree with the judges of that court that, in any event, Mr. Hinse failed to discharge his burden of proving the requisite causal connection between the Ministers’ actions and the alleged damage. Finally, we agree with the Court of Appeal that the damages awarded to the appellant in excess of the $5,550,000 he had already received were inappropriate. The appeal should therefore be dismissed.
II. Background and Judicial History
[6] In September 1964, Mr. Hinse was found guilty of an armed robbery that he claimed not to have committed. He was sentenced to 15 years’ imprisonment. Because a request he made for legal aid was denied, he did not appeal his conviction. However, he began to take steps to have his conviction recognized as a miscarriage of justice.
[7] In 1966, he persuaded three of the five perpetrators of the robbery to sign affidavits to clear his name. On April 24, 1967, he wrote to the Minister, seeking recognition of the miscarriage of justice of which he claimed to be a victim. This was the beginning of a correspondence that would span more than three decades. Although he was in prison at the time of the initial exchanges, Mr. Hinse was granted parole in 1969 after serving a third of his sentence.
[8] Mr. Hinse submitted three applications for mercy between 1967 and 1981. He also applied to the Governor General in Council for a pardon in 1971. All these applications were denied. In 1988, he applied to the Commission de police du Québec (“Commission de police”). Following an investigation into Mr. Hinse’s allegations, the Commission de police found that his complaint was [translation] “sufficiently troubling” and the facts gathered were “sufficiently probative” to warrant submitting a report, which it forwarded to the AGQ and the Quebec Minister of Public Security: A.R., vol. XI, at p. 36. In its report, the Commission de police said that it hoped the AGQ would intervene with the Solicitor General of Canada so that “justice will be done” to Mr. Hinse: ibid., at p. 68. The Quebec Minister of Public Security sent the report to the Solicitor General of Canada on November 20, 1990. It was at this point that Mr. Hinse submitted a fourth application for mercy. The Minister replied that he should seek relief in the Quebec Court of Appeal, which he did.
[9] On June 8, 1994, after granting Mr. Hinse leave to file a notice of appeal and introduce fresh evidence, the Court of Appeal allowed his appeal: (1994), 64 Q.A.C. 53. But instead of entering an acquittal or ordering a new trial, the court exercised its inherent jurisdiction and directed a stay of proceedings for abuse of process, although that was not the result Mr. Hinse had requested.
[10] Mr. Hinse then appealed the case to this Court, challenging the legality and the constitutionality of the stay of proceedings. The Court denied him leave to appeal to it: [1995] 1 S.C.R. viii. Mr. Hinse refused to give up, filing an application for reconsideration. On November 30, 1995, the Court allowed his application and granted him leave to appeal: [1995] 4 S.C.R. 597. On January 21, 1997, it unanimously acquitted him in a judgment delivered from the bench, “being of the view that the evidence could not allow a reasonable jury properly instructed to find the appellant guilty beyond a reasonable doubt”: [1997] 1 S.C.R. 3, at para. 2.
[11] On February 4, 1997, Mr. Hinse sent the AGC a formal notice. On June 5, 1997, he instituted an action for an order for solidary payment against three defendants: the AGQ, the AGC and Mont-Laurier. On November 15, 2002, Mont-Laurier signed a transaction with him for a total of $250,000. On December 2, 2010, the AGQ, too, entered into a transaction, this one for a total of $5,300,000 in principal, interest and costs. This out-of-court settlement came more than four weeks into the hearing on the merits of the action, after the parties had presented their evidence but before they had made their oral arguments.
[12] The hearing on the merits thus ended with the AGC as the sole defendant. In respect of the AGC, Mr. Hinse alleged that the federal government had helped to perpetuate and exacerbate the damage he had suffered by failing to act diligently to acknowledge and rectify the miscarriage of justice of which he had been the victim. He submitted that the conduct of the federal government [translation] “was indicative of reprehensible carelessness, recklessness and total denial, which must be denounced and condemned [by the award of] exemplary damages”: A.R., vol. IV, at p. 31. After the settlement with the AGQ was reached, he continued to claim $1,079,871 for his pecuniary losses and $1,900,000 for his non-pecuniary losses, as well as $10,000,000 in punitive damages, from the AGC.
A. Quebec Superior Court, 2011 QCCS 1780, [2011] R.J.Q. 794
[13] The Superior Court allowed Mr. Hinse’s action and ordered the AGC to pay him a total of almost $5.8 million.
[14] Poulin J. began by determining that the out-of-court settlements Mr. Hinse had reached with Mont-Laurier and with the AGQ constituted an express release from the debt. Mr. Hinse therefore did not have to prove any fault on their parts. However, the federal Crown could be held liable only for the share of the damage caused by its servants: paras. 17-22; art. 1690 of the Civil Code of Québec (“C.C.Q.”).
[15] Poulin J. then found that the Minister was subject to Quebec’s rules of civil liability and was not protected by any immunity: paras. 62-63. She concluded that he had committed a fault of [translation] “institutional inertia” or “institutional indifference”: paras. 33, 55 and 75-76. The Minister had had a duty to conduct a meaningful review of Mr. Hinse’s applications, but had failed to do so: paras. 71 and 73.
[16] Poulin J. was of the opinion that Mr. Hinse had proved causation by means of presumptions of fact, given that [translation] “[a] sustained, concerted, extensive, competent and timely review of his initial efforts would surely have brought the errors to the AGC’s attention”: paras. 75 and 98. In her view, Mr. Hinse had proved the damage he had suffered. She ordered the AGC to pay him more than $850,000 for pecuniary damage and $1,900,000 for non-pecuniary damage. She also found that the AGC was guilty of unlawful and intentional interference with Mr. Hinse’s right to dignity and awarded Mr. Hinse $2,500,000 in exemplary damages. Finally, she found that the AGC’s conduct at trial had amounted to an abuse of process. She ordered him to pay Mr. Hinse $100,000 for fees he had paid to the first law firm that had represented him, as well as $440,000 for the value of the services rendered by the second even though it had never billed him for fees, as they had entered into a pro bono agreement.
B. Quebec Court of Appeal, 2013 QCCA 1513
[17] The Court of Appeal reversed Poulin J.’s judgment. It expressed disagreement with her finding on the issue of immunity. In its view, the exercise of the Minister’s power of mercy is protected by a qualified immunity: para. 141. As a result, the Crown can be held liable only if the Minister’s decision was made in bad faith, and with malice: paras. 144 and 150.
[18] The Court of Appeal found that it had not been proven that the Minister had committed a fault: para. 157. The court acknowledged that it was difficult [translation] “to accurately gauge what kind of study was conducted, because of the summary nature of the evidence adduced”, but inferred nothing negative from the brevity of the Minister’s decision: para. 170 (CanLII). At the time in question, the Minister was under no obligation to give reasons for his or her decisions, and good faith on his or her part had to be presumed. The Court of Appeal also rejected the view that the time it had taken the Minister to reach a decision had caused the damage: even if it were assumed that a fault had been committed, there was nothing to suggest that the miscarriage of justice would have been ascertained quickly if the Minister had acted promptly (paras. 171-72).
[19] The Court of Appeal went on to say that even if it were assumed that there had been some fault on the AGC’s part, Poulin J. had failed to apportion liability among the AGC, the AGQ and Mont-Laurier for the purpose of calculating the damages: paras. 193 et seq. On the issue of punitive damages, the court found that even if a fault had been proven, there had been no unlawful and intentional interference with Mr. Hinse’s fundamental rights: paras. 228-32. Finally, it rejected Poulin J.’s findings with respect to abuse of process: para. 242.
III. Issues
[20] The appeal raises several issues, which can be summarized as follows:
1. What rules of civil liability apply to the Minister’s power of mercy?
2. Has the appellant shown that the Minister’s conduct constituted a fault in this case?
3. If so, has the appellant proven a causal connection between the Minister’s fault and the alleged damage?
4. If so, is the appellant entitled to compensatory or punitive damages and to compensation for his counsel’s extrajudicial fees?
IV. Analysis
A. Rules of Civil Liability That Apply to the Minister’s Power of Mercy
(1) Extracontractual Liability of the Crown
[21] The original legislation respecting civil liability of the federal Crown was the Crown Liability Act, S.C. 1952-53, c. 30, which later became the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (“C.L.P.A. ”). The C.L.P.A. provides that whether the federal Crown is liable for damages is governed by the law of the jurisdiction where the acts in question were committed. In Quebec, the combined effect of the C.L.P.A. and the C.C.Q. is that the federal Crown is generally subject to the rules of civil liability set out in art. 1457 C.C.Q.: Canadian Food Inspection Agency v. Professional Institute of the Public Service of Canada, 2010 SCC 66, [2010] 3 S.C.R. 657, at paras. 25-26. In the instant case, the Crown is alleged to be liable in respect of the fault of its servants: ss. 2 “liability” and 3(a)(i) C.L.P.A.
[22] However, art. 1376 C.C.Q. provides that the rules respecting liability set out in the C.C.Q. apply “to the State and its bodies, and to all other legal persons established in the public interest, subject to any other rules of law which may be applicable to them”. This Court has found, for example, that general principles or rules of public law may either prevent the general rules of civil liability from applying or substantially alter how they are applied: Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17, at para. 27; Prud’homme v. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R. 663, at para. 31; Canadian Food Inspection Agency, at para. 26.
[23] The principles in question include those relating to Crown immunity, which the Court considered in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; see also Canadian Food Inspection Agency, at para. 27; s. 8 C.L.P.A. In Imperial Tobacco, the Court noted that the prevailing view in Canada is that only “true” policy decisions are protected by Crown immunity. The Court explained that it is not helpful to posit a stark dichotomy between policy decisions and operational decisions, or to define policy decisions negatively as decisions that are not “operational” decisions: paras. 84-86. Although it refrained from establishing a black-and-white test, the Court concluded that core policy government decisions that are protected from suit are “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith”: para. 90. Policy decisions form a narrow subset of discretionary decisions. Such a decision is a considered decision that represents “a ‘policy’ in the sense of a general rule or approach, applied to a particular situation”: para. 87. To determine whether a decision is a policy decision, the role of the person who makes it may be of assistance, given that employees working at the operational level are not usually involved in making policy choices: paras. 87-90.
[24] In Imperial Tobacco, the Court did not lay down a strict rule that only “true” core policy decisions can be protected by a qualified immunity. On the contrary, it stated that “[a] black and white test that will provide a ready and irrefutable answer for every decision in the infinite variety of decisions that government actors may produce is likely chimerical”: para. 90. Although that case concerned the federal Crown’s liability for negligence at common law, its conclusions on the issue of immunity for acts of the Crown pertained to public law, which means that they are applicable to Quebec’s rules relating to Crown liability.
[25] With these principles in mind, we must begin by characterizing the nature of the ministerial power at issue so as to determine whether it is a true core policy act to which a qualified immunity applies. Having done this, we must identify the standard of fault that applies to this power and then, after defining the nature of the duties owed by the Minister during the material period, apply this standard to the facts.
(2) Nature of the Ministerial Power at Issue
[26] In the case at bar, Poulin J. found that the Minister is subject to the rules of civil liability and is not protected by any immunity when he or she exercises the power of mercy. But the Court of Appeal held that the Minister is in fact protected by a qualified immunity, given that the power in question stems from a royal prerogative and is exercised in a policy rather than an operational capacity. In this Court, the appellant submits that the Minister acts in the context of a statutory process, not of a royal prerogative, and that the standard is the exis