2013 QCCA 1513, 2013 QCCA 1513

Unofficial English Translation Canada (Procureur général) c. Hinse 2013 QCCA 1513 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC MONTRÉAL REGISTRY No. 500-09-021656-111 (500-05-032707-976) DATE: September 11, 2013 CORAM: THE HONOURABLE FRANÇOIS PELLETIER J.A. MARIE-FRANCE BICH J.A. JEAN BOUCHARD J.A. ATTORNEY GENERAL OF CANADA APPELLANT – defendant v.

RÉJEAN HINSE RESPONDENT – plaintiff JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on April 13, 2011 and corrected on April 27, 2011 by the Superior Court, District of Montréal (the Honourable Hélène Poulin J.), condemning the Attorney General of Canada to pay the respondent $5 795 229.61 in damages and exemplary damages, and ordering the provisional execution of the judgment notwithstanding appeal. [1] Introduction [ 2 ] Before being paroled, the respondent, Mr.

Hinse, spent behind bars 5 of the 15 years of imprisonment to which he was sentenced in September 1964 by the Court of the Sessions of the Peace. The conviction that prompted that sentence was shown to have been the result of a miscarriage of justice. [ 3 ] Mr. Hinse had always claimed his innocence. At the end of a difficult process that did not yield results for a long time, he was acquitted in 1997.

He then turned to the Superior Court to seek redress from the parties he held responsible for the injury he had suffered, namely, Ville de Mont-Laurier, the Gouvernement du Québec and the Government of Canada. [ 4 ] In 2002, Ville de Mont-Laurier struck a deal with him, then, just before the start of the trial, in December 2010, the Attorney General of Québec offered him compensation. Mr. Hinse obtained a total of $4 750 000 from those out-of-court settlements. [ 5 ] The Attorney General of Canada, however, stood firm and went to trial.

At the end of the trial, which lasted over two weeks, the Superior Court found the defendant liable and condemned it to pay compensatory and punitive damages of $5 795 228. [ 6 ] The Attorney General appeals from that judgment, contending that the action against the Government of Canada must fail and, subsidiarily, that the compensation awarded should at the very least be substantially reduced. [ 7 ] The case raises many questions of law. Deciding them must necessarily start with an overview of the facts. The facts [ 8 ] In 1961, Mr. Hinse was 24 years old.

He was dating Janine Hamel, whom he married in February 1962 and with whom he had two children. He was an unemployed plumber/pipefitter. To supplement his income, he bought used cars, which he repaired and resold. [ 9 ] On December 4, 1961, he sold a 1954 Cadillac to Laurent Beausoleil. That transaction would lead to the miscarriage of justice against him. Unbeknownst to Mr.

Hinse, Beausoleil belonged to a group that was preparing to commit armed robbery. [ 10 ] On December 6, as part of a reconnaissance mission in preparation for the robbery, Beausoleil and his accomplices travelled to Mont-Laurier in the vehicle that had been bought from Mr. Hinse. The car broke down, however, and the criminals had to abandon it in a garage at Lac-des-Écorces, near Mont-Laurier.

[ 11 ] The group went through with the planned robbery on December 14, at gunpoint, at the home of Mr. and Mrs. Grenier in Mont- Laurier. [ 12 ] On December 15 or 16, Mr. Hinse met with Beausoleil, who told him about his misadventure with the car. On December 18, he and Beausoleil went to Lac-des-Écorces to retrieve the Cadillac. The owner of the garage told him that he had to go to the station of the provincial police force, on the second floor of the Mont-Laurier courthouse, before he could retake possession of the car. [ 13 ] While Mr.

Hinse waited at the station, Henriot Grenier, who had stopped in for a visit, as he had been doing regularly since the day of the robbery, took him for one of the burglars at his home. Mr. Grenier left without saying a word but, on arriving at work, he told Officer Bourgeois, of the provincial police force. [ 14 ] A short while later, the police asked Mr. Hinse, who was still waiting at the station, to take

part in a police line-up. It was later acknowledged that there were irregularities in the conduct of the line-up. Seven or eight people took

part in it, half of whom were inmates wearing beige pants and greyish shirts, while the others were police officers in suits and ties. Mr. Hinse, who had been placed in the middle, was wearing blue jeans, a black leather jacket and a hat that Officer Bourgeois had put on his head. In reality, he was the only one dressed in clothes similar to those worn by the criminals. [ 15 ] The victims, Mr. and Mrs. Grenier, were asked to witness the line-up; they identified Mr. Hinse as one of the perpetrators of the crime committed on December 14. [ 16 ] As of his first meeting with Mtre.

Courtemanche, his attorney at the time of his arrest, Mr. Hinse complained about the conduct of the line-up. [ 17 ] Mr. Hinse was charged with armed robbery and elected to be tried by judge alone, by means of an appearance before the Court of the Sessions of the Peace. [ 18 ] The trial began on November 27, 1963 before Judge Omer Côté, of the Court of the Sessions of the Peace. The Crown adduced identification evidence in the form of the victims' testimony, plus the deposition by Officer Scott, of the Mont-Laurier municipal police force. According to Officer Scott, Mr.

Hinse was in Mont-Laurier in September 1961, in the company of various people, including Laurent Beausoleil. That testimony contradicted the version given to the police by Mr. Hinse, who affirmed he had never set foot in the town prior to December 18, 1961. [ 19 ] Mr. Hinse testified at his trial, contending that he was in Montréal all day on the day of the crime. He stated, in particular, that he went to a pool hall and a tavern.

He said he met up with his girlfriend, Janine Hamel, had supper at the Roi du Smoked Meat restaurant and spent the evening at the Café Can Can until about 11 p.m. [ 20 ] Unfortunately, he could not recall the names of most of the people he saw at the pool hall or tavern, or the addresses of the people he was able to name. Three witnesses corroborated his testimony in part: Mr. Sigouin, a waiter at the tavern; Mr. Legault, a customer; and, lastly, Ms. Hamel, who stated that she had spent the evening with him. [ 21 ] No other suspect in the case was called to testify at the trial, for which Mr.

Hinse later reproached his attorney. [ 22 ] In fall 1964, Judge Côté did not accept Mr. Hinse's defence of alibi. In his view, that defence, presented for the first time at the trial, was not credible because of the witnesses' reticence, the contradictions in their versions and the unlikelihood of some of the elements. In particular, Judge Côté noted the inconsistency between Officer Scott's deposition, according to which Mr. Hinse was in Mont-Laurier in September 1961, and the version of Mr. Hinse, who affirmed that he had never set foot in the town prior to December of that year.

On November 3, 1964, Judge Côté sentenced him to 15 years in prison. [ 23 ] Since he had no financial means and had been denied legal aid, Mr.

Hinse did not appeal from the verdict or the sentence. [ 24 ] In 1966, while in prison, he began taking steps to have the miscarriage of justice against him recognized; the process would take more than 30 years. [ 25 ] In spring 1966, he succeeded in convincing two of the five perpetrators of the holdup, Yvon Savard and Laurent Beausoleil, to sign sworn statements attesting his innocence, worded as follows: [ TRANSLATION ] ST-VINCENT DE PAUL PENITENTIARY March 30, 1966 AFFIDAVIT I, Yvon Savard, hereby admit that I was one of the perpetrators of the armed robbery committed on December 14, 1961 at the residence of Mr. and Mrs.

Henriot Grenier, of Mont-Laurier. Consequently, I solicit the attention of the appropriate person so that I may be called to testify in the case of Réjean Hinse and exonerate him of that crime, of which I know, beyond a doubt, he is innocent. Signature of declarant (

s) Yvon Savard Sworn before me,

at St-Vincent de Paul, this 30th day of March 1966 CANADA PROV. QUÉBEC DIST. MONTRÉAL 942 JEAN-PAUL LÉVESQUE (

s) Jean-Paul Lévesque [ 26 ] On September 2, 1966, Mr. Hinse began his crusade by writing to the Québec Minister of Justice, Jean-Jacques Bertrand. Declaring himself to be [ TRANSLATION ] "undeniably innocent", he said he was conducting his own investigation. To that end, he requested that the Minister send him all the notes and photocopies of the exhibits relative to his appearance, his trial and the police investigations concerning him. [ 27 ] He wrote again, on November 2.

After acknowledging receipt of the executive secretary's reply informing him that his request had been forwarded to the ministère de la Justice du Québec's criminal legal team, he asked that the proceedings instituted against Hugues Duval, Jacques Massé, Robert Massé and their brother be expedited and that he himself be summoned to their preliminary inquiry, with a view to shedding light on the conspiracy behind the armed robbery.

He also asked that Georges Leduc; Laurent Beausoleil; Gérard Leclair, former lessee of the Lac-des-Écorces Esso service station; Officer Arthur Scott, of the municipal police; Officer Barbier; Mr. and Mrs. Henriot Grenier; and a certain Louis de Carlo, of the St-Vincent-de-Paul penitentiary, be summoned. [ 28 ] Mr. Hinse's requests were initially denied. On November 21, 1966, Hector Pelletier, representing the Associate Deputy Minister of Justice, replied. In his opinion, Mr. Hinse had had a fair trial. He was represented by counsel and he did not lodge an appeal.

The case was therefore closed. [ 29 ] However, the day after that letter was sent, Mr. Hinse obtained a third sworn statement, from Claude Levasseur. Contrary to the first two accomplices, Mr. Levasseur did not admit his guilt in the robbery, but he nevertheless exonerated Mr. Hinse, declaring himself to be aware of the facts: [ TRANSLATION ] ST-VINCENT DE PAUL PENITENTIARY AFFIDAVIT I, Claude Levasseur, hereby admit that I know the facts of what happened during the robbery committed on December 14, 1961 at the residence of Mr. and Mrs. Henriot Grenier, of Mont-Laurier.

Consequently, I solicit the attention of the appropriate person so that I may be called to testify in the case of Réjean Hinse and exonerate him of that crime, of which I know, beyond a doubt, he is innocent. Signature of declarant (

s) Claude Levasseur Sworn before me at Ville de Laval, this 22nd day of November 1966 (

s) Jean-Paul Lévesque CANADA MONTRÉAL, PROV. QUÉBEC JEAN-PAUL LÉVESQUE [ 30 ] On December 2, Mr. Hinse continued his efforts with the Deputy Minister. He mentioned the challenges he intended to bring before the Court of Queen's Bench. He argued that he been tried jointly with a co-accused, who was acquitted without presenting a defence, yet he was convicted despite a defence of alibi. He mentioned that he had three sworn statements exonerating him, which were attached to his letter, and added that one of the signees was even willing to testify, as long as he was granted Court protection. [ 31 ] In early 1967, Mr.

Pelletier, representing the Associate Deputy Minister, replied to Mr. Hinse. He told him that, in his opinion, the ministère de la Justice du Québec had no jurisdiction to appeal his case and suggested that he approach the federal department, saying that it had jurisdiction under

section 596 of the Criminal Code : [ TRANSLATION ] Dear Sir: We have received your long letter dated January 10.

In all your letters, you primarily allege that you were wrongfully convicted of the crime in question. We regret to inform you that the ministère de la Justice du Québec, in the city of Québec, has absolutely no jurisdiction to appeal your case or grant you a second trial. We suggest that you submit all of your grievances to the Department of Justice in Ottawa, which, per

section 596 of the Criminal Code , has jurisdiction in such circumstances. Yours truly, Associate Deputy Minister by: (

s) H. Pelletier [ 32 ] That is how Mr. Hinse came to contact the federal authorities for the first time, in April 1967. He did so again, in July, in a more specific manner, in a letter addressed to then Minister of Justice, Pierre Elliott Trudeau: [ TRANSLATION ] Leclerc Institution 400, rue Saint-François St-Vincent de Paul, P.Q. Federal Department of Justice c/o Pierre E. Trudeau Parliament Hill Ottawa, Ontario July 19, 1967 Re: Réjean Hinse #115 Dear Minister: Further to a letter dated April 24, 1967, which I sent to you under

section 596 of the Criminal Code , whereby you have the power to intervene in this case, and in which I informed you of my intention to present my case to you in a few months' time—a case in which I was sentenced to 15 years' imprisonment on November 3, 1964 at the Mont-Laurier courthouse—below is my presentation, which I have restricted to the new facts obtained that could prove my innocence and leave no doubt that a miscarriage of justice did indeed occur in this case.

Extremely important facts : To date, I have been able to obtain affidavits—sworn and signed—from three of the five individuals who perpetrated the crime in question. You will find enclosed three photocopies of the affidavits. The other two alleged perpetrators (Georges Beaulieu, currently at the Leclerc facility, and Léopold Véronneau, currently at the Valleyfield facility) refused to sign affidavits for me, regardless of the content. Furthermore, they would refuse to testify even if court

protection were granted, because, as they explained, they would have to tell the truth, the whole truth and nothing but the truth under the law, with the result that, being required to answer all questions in their deposition, they would be compelled to reveal the names of their accomplices, and vice versa. That would subsequently give the Crown the right to bring charges against each of them and to use the testimony of their accomplices to incriminate them. Allow me, by the way, to cite an example that occasionally arises before our courts.

He who commits a crime alone Say that, following a police investigation, mistaken identification occurs in a line-up. As a result, an innocent person is charged instead of the perpetrator of the crime. However, the latter can testify on the behalf of the accused, if so informed and provided court protection is granted to him, without having to worry that the Crown will turn around and incriminate him by using his own prior testimony against him. In addition, there is no accomplice in the case, so it is impossible for the Crown to charge the perpetrator.

Moreover, the perpetrator of the theft or, rather, the crime, knowing that he has the full protection of the law, will readily testify on behalf of an innocent person. Whereas, in the case in question, if two or more individuals were involved in the same crime, they could not, under the law, testify on behalf of one or more innocent persons without fear for their safety. Thus, the defendant, innocent of the crime with which he was charged, although able to prove his innocence beyond a doubt, could not present a full answer and defence in the circumstances.

He was reduced to presenting only alibi evidence, often dismissed compared to formal identification evidence (false, submitted by witnesses presumed to be honest and in good faith, but close-minded), which was neverthess accepted by the jury, or by a judge alone, because the mind is sensitive to it. Is there not something lacking in the law as demonstrated in the above presentation that would constitute a grave injustice toward the individual who did not commit the crime he was charged with?

In that event, is there not reason to propose that the law be amended and the Criminal Code modified accordingly, or that any other possible solution be implemented in such a case, so that the perpetrators of the crime I did not commit can testify, without fearing for their safety, as they themselves demand? I request the services of a legal counsellor. Yours truly, (

s) Réjean Hinse [ 33 ] As can be seen, there is nothing in this letter on the basis of which the police investigation of Mr. Hinse or the judicial process he was subjected to may be believed to have been botched. The letter nonetheless appears to have been handled immediately by the federal Department of Justice. On July 28, an official with the department, Mr. Bélisle, wrote to the Deputy Commissioner of the Canadian Penitentiary Service: MEMORANDUM FOR MR. J.R. STONE, DEPUTY COMMISSIONER OF PENITENTIARIES FROM: J.A.

Bélisle RE: Réjean Hinse No. 115 Would you please notify the above-mentioned inmate that his letter dated July 19, 1967 addressed to the Minister of Justice has been received and that his request will be reviewed. J.A.B. [ 34 ] The same day, Mr. Bélisle wrote the following to the Québec Deputy Minister of Justice:

[ TRANSLATION ] OTTAWA 4, July 28, 1967 210377 Subject: Réjean Hinse Dear Sir: On November 3, 1964, a certain Réjean Hinse was sentenced to prison for a period of 15 years following a trial under

section 288 (

c) of the Criminal Code . On July 9, 1967, Hinse wrote to the Minister of Justice, alleging that he was not guilty of the said crime, which was committed in Mont- Laurier on December 14, 1961, at the home of Mr. and Mrs. Henriot Grenier. In addition, Hinse included affidavits to that effect from other people, who today claim to have committed the crime.

Since it seems that the police report in this case would be very useful with respect to both Hinse and the entire investigation, and even with respect to the fate of the accomplices who may have been arrested and identified, and even those who may have been suspected of being Hinse's accomplices, we would therefore appreciate receiving a copy of these reports, if possible. Thank you for your cooperation. Yours truly, J.A. Bélisle for the Director Criminal Law

Section [ 35 ] The reply from the ministère de la Justice du Québec was ambivalent, to say the least. Rather than sending the police report requested, the Associate Deputy Minister asked for the sworn statements. These, however, would normally already have been in his file, since Mr. Hinse had attached them to his letter of December 2, 1966. In fact, it was in response to that same letter that Mr. Pelletier, representing the Associate Deputy Minister, asked Mr. Hinse to contact the federal minister. This is what Associate Deputy Minister Dionne had to say to his federal interlocutor: [ TRANSLATION ] Québec, August 16, 1967 Mr. A. Bélisle For the Director Criminal Law

Section Department of Justice Ottawa 4

Re: Your file: 210377 Réjean Hinse Our files: 44204-64 & 48-370-61 Dear Mr. Bélisle: This is in reply to your letter of July 28, 1967 to Mtre. Julien Chouinard, Deputy Minister of Justice. Regarding your request for a copy of the police reports in this case, I believe it would be appropriate instead for you to send us the affidavits you apparently received from Mr. Hinse, which he obtained from other people you say now claim to be the perpetrators of the crime for which he was convicted. On receipt and after examination of them, we will move quickly to cooperate with you, if necessary , in the interest of the sound administration of justice. Yours truly, (

s) Denys Dionne DENYS DIONNE Associate Deputy Minister Criminal Matters [Emphasis added.] [ 36 ] That letter marked the start of a difficult period in the efforts of Mr. Hinse and his spouse. [ 37 ] At the federal level, an administrative error caused the case to go nowhere for approximately a year, the file having been lost between the Canadian Penitentiary Service and the federal Department of Justice. For their part, the Québec authorities chose not to cooperate immediately in moving the case forward, pending receipt of documents that, in fact, they already had in their possession. [ 38 ] On June 16, 1968, Mr.

Hinse filled out an application for parole. He briefly pled his [ TRANSLATION ] "complete innocence", and complained of the effects his conviction and the circumstances surrounding it were having on him. [ 39 ] Worried about the silence of the federal government, Mr. Hinse's spouse wrote to the federal justice minister on September 10, 1968. As a result of the letter, Mr. Bélisle realized the administrative error that had been made in the handling of the file. [ 40 ] In all likelihood, Mr. Bélisle still did not know at that time that Mr.

Hinse had already sent the sworn statements to the Québec justice minister. [ 41 ] Be that as it may, Janine Hamel-Hinse's letter gave rise to reactions reflected in the following short exchange of letters. [ 42 ] On September 23, 1968, Georges C. Koz, of the Solicitor General's office, acknowledged receipt of Mrs. Hamel-Hinse's letter. He indicated that her husband's application was still being examined at the Department of Justice and that he had asked that the process be accelerated. He said that she should receive a reply soon. [ 43 ] On September 26, T.D.

MacDonald, assistant to the Solicitor General, wrote to John Scollin, of the Department of Justice, forwarding to him a copy of the correspondence between Ms. Hamel-Hinse and the special assistant to the Solicitor General, as well as of Mr. Bélisle's memo of July 28, 1967 to J.R. Stone. He inquired about the status of the application for review and asked what the reply should be. [ 44 ] Ms. Hamel-Hinse answered Mr. Koz in early October. She was surprised that the file was in his hands. It pretty much told her the case was bogged down in administrative red tape. [ 45 ] For his part, Mr.

Bélisle brought pressure to bear, aware that the process had dragged on. On October 18, he wrote to J.R. Cameron, of the Solicitor General's office:

OTTAWA 4, October 18, 1968 210377 RE: No. 115 Hinse, Réjean Leclerc Institution_____ Attention: J.R. Cameron, Esq. Dear Sir: Reference is made to your letter dated September 26, 1968, concerning the above-mentioned. It appears that this matter was overlooked because the inmate’s penitentiary file was in the possession of the undersigned but that, at one time, it was requested by the Canadian Penitentiary Service and at the same time the basic material originally sent to the Department of Justice was put on said file and never returned. I would appreciate being informed whether Mr.

Hinse wishes to forward photocopies of the affidavits and his letter to the Attorney General of the Province of Quebec since it appears that it would be mandatory to do so for the time being. If the answer is negative, would you please inform him that his request for a new trial cannot be entertained unless we proceed through the office of the Attorney General of the Province of Quebec. Yours truly, (

s) J.A. Bélisle J.A. Bélisle for Director Criminal Law Section. Deputy Solicitor General Department of the Solicitor General Sir Wilfrid Laurier Building Ottawa 4, Ontario [ 46 ] Believing she was at the end of her resources, Ms. Hamel-Hinse wrote directly to the Queen at Buckingham Palace in November 1968. In December, she received a polite reply declining her request and referring her to the Canadian authorities. It can be inferred from the fallout of that attempt by Ms.

Hinse that both the Governor General of Canada and the Lieutenant-Governor of Québec were informed of the letter to the Queen. [ 47 ] In early 1969, alerted by the Office of the Governor General, the Prime Minister's Office directed Ms. Hamel-Hinse to the legal aid office of the Barreau de Montréal. [ 48 ] During the same period, the ministère de la Justice du Québec replied to Ms. Hamel-Hinse, invoking the jurisdiction of the federal minister under

section 596 of the Criminal Code , just as it had done in early 1967. [ 49 ] In the view of the Canadian Penitentiary Service and the federal Department of Justice, the possible cooperation of the Attorney General of Québec in the wake of Deputy Minister Dionne's response in August 1967 still seemed to be the crux of the matter. Thus it

was that, on February 7, 1969, the Commissioner of the Canadian Penitentiary Service wrote the following to the Warden of the Leclerc Institution: The Warden, Leclerc Institution February 7, 1969 115 Hinse, Rejean 1. In July 1967 inmate Hinse forwarded a letter and affidavits to the Minister of Justice. 2.

The case has been under study and is referred to us at this time in order to ascertain whether inmate Hinse wishes to forward photocopies of the affidavits and his letter to the Attorney General of the Province of Quebec since, in the opinion of the Department of Justice, it would be mandatory for him to do so for the time being. 3.

Please inquire of Hinse in regard to his wishes in the matter and, if his answer is in the negative, the Director, Criminal Law Section, Department of Justice, has advised that the inmate should be informed as follows: "His request for a new trial cannot be entertained unless we proceed through the office of the Attorney General of the Province of Quebec." 4. We would be pleased to have your reply commenting on the position taken by Hinse so that we can advise the Department of Justice accordingly.

D.I.T. for Comimssioner [ sic ] [ 50 ] The replies from the two levels of government elicited a negative reaction from Mr. Hinse, which was readily understandable in the circumstances. On February 17, he sent two letters—one to Hector Pelletier, of the ministère de la Justice du Québec, and the other to the Commissioner of the Canadian Penitentiary Service. He reiterated all the steps he had taken, noted that the respective governments had him going around in circles and repeated his previous requests. [ 51 ] The letters in question highlight the inefficiency with which Mr. Hinse's repeated requests were handled.

Yet Mr. Hinse did not receive a clear answer to his requests before he was paroled some seven months later, on September 2, 1969. [ 52 ] The file appears to have remained inactive until Mr. Hinse tried another tack—sending an application for a pardon to the Governor General in Council, in March 1971.

He wrote: [ TRANSLATION ] So that you can see the merits of my application, I urge you to consult all of the case files in the filing cabinets at the federal Department of Justice or the provincial justice department, the requests made to the legal aid bar, or, as a last resort, the letter sent to Her Majesty Queen Elizabeth II of England (which was forwarded to you), or my recent request for an inquiry sent to the Québec ombudsman. I have copies of all these files, which span several years. It would be too long to summarize them here.

In closing, I wish to repeat that I have never accepted my conviction for this crime, which, undeniably, I had nothing to do with. I have always vehemently pled my innocence and I continue to do so, even after being paroled, every day, on this day March 12, 1971. It is my hope that this most recent recourse will be heard by the authorities in place. [ 53 ] The Special Committee of the Privy Council studied Mr. Hinse's application. The recommendation was negative, but shows that the essential grounds invoked were taken into consideration. On behalf of the committee, Mr.

Cross wrote the following on March 30, 1971: While at the Penitentiary and on parole Mr. Hinse consistantly proved [illegible handwritten correction] his innocence and said [illegible handwritten correction] that he was mistakenly accused and found guilty. He bases his innocence on the fact that: 1. The police identification parade was made in such a way to instigate [illegible handwritten correction] the victims to identify him as being one of the members of the robbery. 2.

The whole inquiry made by the police in this [illegible handwritten correction] case was full of irregularities and there was inadequate illegal evidence introduced by a Q.P.P. constable during the trial. 3. The Q.P.P. was caught in trying to find accomplices for this robbery. Mr. Hinse said the Q.P.P. connected him with this robbery because he used to be associated with some of the real accomplices in Montreal, as being one who was taking

part in a stolen car ring. Mr. Hinse based these facts and irregularities by providing us with a press statement relating to the case of Andre Lavoie who was also named as a member of the robbery but who was later acquitted. In this case the admission of some illegal evidence in this robbery is mentioned. Mr. Hinse also provided us with some literature which could be helpful to clear up some facts. Also included are affidavits of some of

the accomplices who took

part in the robbery. They are confirming that Mr. Hinse is innocent and that they would be ready to testify in the case of a new trial. It is presumed that the facts that Mr. Hinse alleges could be verified through the court transcript of the specific trials involved. It is our opinion that subject did not provide us with sufficient fresh facts that were not available at the time of the trial and that could have been a basis to prove his innocence under the royal prerogative of mercy.

However, it is suggested that the case be referred to your department for further study in this matter based on our above inquiry, and for the Minister’s approval as to whether Mr. Hinse should be given a new trial. Yours truly [ sic ] [ 54 ] In the wake of that recommendation, Mr. Lacasse answered Mr. Hinse, on behalf of the Parole Board, informing him of the policy regarding applications for a pardon based on the innocence of a convicted person: [ TRANSLATION ] Ottawa, April 19, 1971 Mr. Réjean Hinse . . . Montréal Nord, P.Q. Dear Mr.

Hinse: Re: Application for a free pardon – ESV-115 Your letter of March 12, 1971 to the Governor General in Council was forwarded to us because the Board is charged with conducting investigations in conjunction with applications for pardon. I wish to inform you that an application for a pardon based on the innocence of the convicted person may be considered only if the applicant proves the existence of real facts that have not been submitted to the court. The new facts must be likely to result in a finding that, had the court known of them, you would have been acquitted .

Included with this letter is a pardon application form. Please complete the form in duplicate and return it to us. In addition, you need to submit to the Board a list of the facts you consider to be new. Once you have established the possibility that these facts exist, as thorough an investigation as possible will be conducted. The decision will be duly communicated to you once it has been made. Yours truly, Y.

Lacasse Clemency and Legal Affairs Division [Emphasis added.] [ 55 ] In October 1971, Jean-Claude Pressé and Laurent Beausoleil each signed a sworn statement attesting not only that they were present in the car that was searched by Officer Arthur Scott in Mont-Laurier on September 10, 1961, but also that Messrs. Lavoie and Hinse were not in the car. The statements therefore contradicted Officer Scott's deposition at Mr. Hinse's trial. They were also consistent with the version Mr.

Hinse gave to the police, according to which he had never been to Mont-Laurier prior to December 1961. [ 56 ] In November of the same year (1971), Ms. Lauzon, of the Parole Board, forwarded additional information from Mr. Hinse to the federal Department of Justice. The evidence does not disclose the exact nature of that information but, given the chronology of events, it may well have been the new sworn statements that had recently been provided by Messrs.

Pressé and Beausoleil. [ 57 ] Examination of the application for a pardon therefore continued in tandem with the Department of Justice's examination of the appropriateness of initiating the holding of a new trial. The outcome of both examinations was negative, which Ms. Lauzon communicated to Mr. Hinse in early 1972, as follows: [ TRANSLATION ] Ottawa, K1A 0R1 February 10, 1972 Mr. Réjean Hinse . . .

Montréal Nord, P.Q. Dear Mr. Hinse: Further to our letter of November 22, 1971, and since we previously informed you that your file had been forwarded to the Department of Justice for the purpose of examining the possibility of a new trial in your case, I was asked to inform you that, after a thorough and careful study of your file, your application has been denied. We also wish to hereby reiterate our decision concerning your application for a free pardon and remind you that it cannot take place either. I am sorry that I cannot give you a more favourable reply. Yours truly, M.

Lauzon Clemency and Legal Affairs Division [ 58 ] The evidence reveals that the file remained inactive for an extended period of some seven years, from February 1972 to April 1979, the date on which Mr. Hinse reactivated things and tried to access his file at the Parole Board. [ 59 ] The following summer, in July 1980, Mr. Hinse contacted then Minister of Justice, Jean Chrétien: [ TRANSLATION ] Danville, July 23, 1980 Mr.

Jean Chrétien Minister of Justice Dear Minister: Having been the victim of a miscarriage of justice further to mistaken identification and having subsequently been sentenced, on November 3, 1964, to 15 years' imprisonment, I hereby request, Mr. Minister, that you order my court record to be reopened. Never have I been able to accept being the victim of such flagrant injustice, of which I am still experiencing the consequences today in my own workplace and my social environment. Mr.

Minister, could you not appoint someone who would be specially mandated to study the record and who could subsequently meet with me personally on an agreed date? Yours truly, Réjean Hinse . . . Montréal (Québec) . . . [ 60 ] The above request was re-examined, but the outcome was the same as for the previous request. In December, Mr. Demers, special advisor to the Minister of Justice, sent the following reply on behalf of the Minister: [ TRANSLATION ] Ottawa K1A 0H8 December 30, 1980 Mr. Réjean Hinse . . . Montréal (Québec)

. . . Dear Mr. Hinse: The Minister of Justice, the Honourable Jean Chrétien, asked me to inform you of his decision concerning the request in your letter of July 23, 1980. Your letter contains vague allegations of mistaken identification that occurred during your trial. You will agree that it takes more that vague allegations to establish the existence of a fact. We consulted the judgment rendered by Judge Omer Côté in your case and found nothing to support your affirmation. I therefore regret to inform you that your request for intervention by the Department of Justice cannot be granted. Yours truly, Jaques A.

Demers Special Advisor [ 61 ] That did not stop Mr. Hinse. He was so insistent that he was asked to specify in writing the new facts likely to justify the reopening of his case. He did so on March 9, in a long, 15-page letter with which he enclosed the file indicating all the steps he had taken with judicial and political authorities. The account contained a number of tirades, which deflected the reader's attention from the main story in several places. For example, he spoke of his union involvement over several pages, to explain that a union leader had revealed his criminal history at a meeting of 1500 members.

Over and above the readily understandable strong emotions that come through in the letter, it contains full details of all of the elements argued by Mr. Hinse in support of his applications for a pardon and a new trial. [ 62 ] However, the explanations provided were not enough. In September, the special advisor to the Minister replied as follows: [ TRANSLATION ] September 23, 1981 Mr. Réjean Hinse . . . Montréal (Québec) . . . Dear Mr. Hinse: The Honourable Jean Chrétien, Minister of Justice, asked me to reply to your letters of March 9 and July 7, 1981, in which you requested that he intervene in your case.

I regret to inform you that, despite the additional explanations you gave to the Minister, your case is not one that justifies his intervention. Indeed, the Minister of Justice exercises his power of intervention in exceptional circumstances only, and no such circumstances were revealed in the thorough examination of your file. Yours truly, Jaques A. Demers Special Advisor [ 63 ] The file remained inactive for another extended period, this time for four years. On April 24, 1985, Mr. Hinse wrote to John Crosbie, Minister of Justice, to request that his file not be destroyed.

He received the reply below: [ TRANSLATION ] . . . please note that the Court record is kept indefinitely. The prosecution's file, however, is kept for only five years; hence your file was destroyed. The file of the police authorities concerned, namely, the Sûreté du Québec, is under the jurisdiction of the Québec Minister of Justice; you must therefore send your request to Pierre-Marc Johnson. Lastly, the file of the federal Department of Justice will be kept for another 26 years. [ 64 ] On November 6, 1988, in connection with his requests to the various levels of government, Mr.

Hinse decided to enlist the aid of the Commission de police du Québec. That turned out to be a decisive act. He wrote:

[ TRANSLATION ] COMMISSION DE POLICE DU QUÉBEC 10, rue Saint-Antoine Est Montréal (Québec) H2Y 1A2 SUBJECT: Réjean HINSE Dear Madam: Dear Sir: In 1961, I was the victim of mistaken identification, then the victim of a serious miscarriage of justice. Convicted, despite alibi evidence, I was sentenced to fifteen (15) years' imprisonment.

Marked for life psychologically, I am still living in prison even though I was granted parole in 1969 and have not had any more run-ins with the vindictiveness of the legal system, because, even though this is no longer the era of Hugo's Les Misérables , they still fear innocence and error like Camus' The Plague . I have affirmed my innocence over and over again to the judicial authorities, requesting a new trial, but the authorities have always denied me that new trial, for fear the justice of man would end up looking pretty bad.

Innocent, the victim of a complete frame up, and unaware of the facts, actions and train of events in the crime alleged against me, I was unable to properly defend myself at my trial. That is why I am asking to be heard by the police commission in order to show how the skewed scenario of the police line-up, which resulted in my being wrongfully charged with two counts of the alleged crime, and the reprehensible police pressure, played out. I dare to believe that your Commission will consider this nebulous file in all fairness. Yours truly, (

s) Réjean Hinse RÉJEAN HINSE . . . Laval (Québec) . . . Tel. (514) . . . [Underlining in the original text.] [ 65 ] He tried again on January 28 and March 23, 1989, submitting for the first time crucial details that would direct the work of Commissioner Fourcaudot, mandated by the commission to investigate in accordance with the law. [2] On January 3, 1990, Commissioner Fourcaudot filed a detailed report.

Given the revelations in it, the commission drafted a brief, forwarding it to both the Attorney General of Québec and the Minister of Public Security of Québec, who, in turn, sent it to the Solicitor General of Canada. [ 66 ] For his part, Mtre. Longtin, the attorney hired by Mr. Hinse, turned for the same purpose to the Minister of Justice, Ms.

Campbell, urging her to use the powers conferred on her under the Criminal Code . He wrote to her at the end of November 1990: [ TRANSLATION ] We are convinced that both the police investigation and the judicial proceedings are tainted by defects and irregularities serious enough, Madam Minister, to warrant your intervention in accordance with

section 690 of the Criminal Code . The police commission's brief is sufficiently detailed in this respect. [ 67 ] The Minister replied as follows on April 24, 1991: [ TRANSLATION ] In the letter, you asked me to exercise the discretionary powers entrusted to me under

section 690 of the Criminal Code . However, you did not indicate the particular remedy sought by your client. Be that as it may, officials at my department took cognizance of the report of the Commission de police du Québec and told me that it describes fresh evidence highly deserving of consideration. Nevertheless, I am of the opinion that the questions raised by the police commission, while highly relevant to the exercise of my discretion, could just as well be brought directly before the Court of Appeal of Québec, which can agree to be seized of the matter without my having to impose that task on it pursuant to

section 690 of the Criminal Code . Should the Court of Appeal of Québec refuse to act on the steps taken by your client, I would be most grateful if you would bring Mr. Hinse's case to my attention again. [Emphasis added.] [ 68 ] A few days later, she made the same remarks to the Québec Minister of Justice: [ TRANSLATION ] Like you, I believe that, in light of the allegations in the Québec police commission's brief, there is reason to look at Mr. Hinse's case. However, I believe that, at this stage, he should be encouraged to seize the Court of Appeal of Québec of the case himself.

I presume that you will want to facilitate things for him if he chooses to embark on that path . I would greatly appreciate being informed of the outcome of any steps Mr. Hinse takes with the Court of Appeal of Québec. Should the Court refuse to act on the steps taken by Mr. Hinse, I would be most grateful if you would bring Mr. Hinse's case to my attention again . [Emphasis added.] [ 69 ] Mr. Hinse acted on the invitation, turning to the Court in 1991.

Apart from leave to appeal from the guilty verdict, he sought the following conclusions: [ TRANSLATION ] THAT the Court quash the conviction; AND THAT the Court direct a judgment of acquittal to be entered; or THAT IT make any other order it considers is warranted. [ 70 ] Thirty years after the expiry of the time period for filing an appeal, the Court made an exception, granting him leave to appeal and tender fresh evidence. [ 71 ] Judgment was rendered in 1994 . [3] In the opinion of the Court, the irregularities having tainted the process, along with the fresh evidence, clearly justified allowing the appeal.

However, considering the whole of the new evidence and that adduced at trial, the Court believed that Mr. Hinse's innocence was not sufficiently clear and conclusive to justify a verdict of acquittal. The Court emphasized that, in such a situation, a new trial could be ordered. However, in the eyes of the Court, the exceptional circumstances of the case ruled out that option, so that only a stay of proceedings was likely to resolve the dilemma. It therefore rendered an order to that end. [ 72 ] Dissatisfied, at least in part, Mr. Hinse applied to the Supreme Court.

In the application for leave he sent to the Court, he proposed that the two questions below be examined:

[ TRANSLATION ] A- First question 1- Having allowed the appeal and set aside the conviction of the applicant for the reason that: "The fresh evidence as well as the various irregularities which occurred are more than sufficient to justify allowing the appeal under [s.] 686(1)(

a) of the Criminal Code ", and having ruled to the effect that "Special circumstances militate against proceeding with a new trial in this case", did the Court of Appeal err in law by ordering a stay of proceedings instead of entering a judgment of acquittal in accordance with s. 686(2) (

a) Cr.C.? 2- In the circumstances of this case, did the stay of proceedings as opposed to an acquittal constitute a violation of the applicant’s fundamental rights guaranteed under s. 7 of the Canadian Charter of Rights and Freedoms ? B- Second question Having admitted the body of fresh evidence presented under the aegis of s. 683 Cr.C . and having concluded that this fresh evidence was more than sufficient to allow the appeal under s. 686(1) (

a) Cr.C., did the Court of Appeal err in law by failing to acquit the applicant pursuant to s. 686(2) (

a) Cr.C. on the basis of the test respecting the application of s. 686(1)( a )(

i) Cr.C., namely, that, in light of the evidence as a whole , the trier of fact, properly instructed, could not have reasonably found the accused guilty beyond a reasonable doubt? [ 73 ] On January 26, 1995, the Supreme Court denied leave to appeal. [4] [ 74 ] Mr. Hinse's attorney did not give up, though, and requested that the Supreme Court reconsider its decision.

He raised the importance of ascertaining whether an appellate court, acting under the authority of subsection 686(8) Cr.C ., has the power to enter an order for a stay of proceedings when it sets aside a conviction. [ 75 ] That time, per Chief Justice Lamer, a majority of the Supreme Court granted Mr.

Hinse leave to appeal from the judgment of our Court with respect to the conclusion ordering the stay of proceedings. [5] The Chief Justice's reasons could not be summarized better than they were by the Supreme Court reporter: Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The Court does not normally reconsider its decisions regarding leave to appeal. This judicial policy is well enshrined in Rule 51(12) of the Supreme Court Rules, which provides that "[t]here shall be no re-hearing on an application for leave or a motion".

Given the large number of leave applications processed annually, it is simply not feasible for this Court to second-guess its initial determinations of leave regularly without significantly undermining its indispensable role as a general court of appeal for the better administration of the laws of Canada. Notwithstanding the strict language of Rule 51(12), however, this Court may, in exceptional cases, direct a hearing to reconsider a decision made on an application for leave by virtue of its residual authority under Rule 7 . Circumstances warranting reconsideration will be exceedingly rare.

Given the exceptional and unique question of jurisdiction which came to light in the course of this application, this Court should exercise its discretion under Rule 7 to hear the present application. The question of jurisdiction arises in this case because the Court of Appeal allowed the applicant's appeal and set aside his conviction for an indictable offence. Under the Criminal Code , an accused's right to appeal a conviction to this Court for an indictable offence is limited to cases where the accused's conviction at trial is affirmed by the court of appeal rather than set aside.

The applicant has thus no right to appeal the order of a stay of proceedings under the procedural regime set out in the Code . He may, however, seek leave to appeal this particular order under s. 40(1) of the Supreme Court Act . Such an appeal is not prohibited by the language of either s. 674 of the Code or s. 40(3) of the Act . A trial court has the power to suspend a course of abusive proceedings which offend the community's sense of fair play, and an appellate court also possesses an analogous power to direct a stay of proceedings.

Although a court of appeal's power to order a stay of proceedings for abuse of process traces its origins to the common law, when the court of appeal imposes such a stay it is necessarily engaged in an exercise of its residual order power under s. 686(8) of the Criminal Code to "make any order . . . that justice requires". The statutory form of this judicial power does not alter the substantive constraints imposed on the exercise of the power by the common law.

Unlike orders for an acquittal or for a new trial under s. 686(2) of the Code , which are inextricably linked to the resolution of the merits of an appeal, an order under s. 686(8) is by nature ancillary to the underlying judgment rendered by the court. The court's s. 686(8) power is often exercised with regard to considerations that are well removed from the issue of the accused's innocence or culpability and may even be exercised independently of a prior order under s. 686(2).

Given the inherently supplementary and remedial nature of an order imposed under s. 686(8) , such an order does not represent a functionally integral part of a "judgment . . . setting aside or affirming a conviction" within a purposive

interpretation of s. 40(3) and the definition of "judgment" in s. 2 of the Supreme Court Act . Rather, an order rendered under s. 686(8) represents a separate, divisible judicial act from which the accused or the Crown may independently seek leave to appeal under s. 40(1) . Such an

interpretation is in accordance with sound judicial policy. When a court of appeal allows an accused's appeal and enters an order for an acquittal or for a new trial under s. 686(2) of the Code , it is necessarily entering an order in furtherance of its underlying judgment. But when a court of appeal enters an order under s. 686(8) , there is a risk that it may enter an order which is at direct variance with its underlying judgment. Given this troubling concern, a more generous

interpretation of s. 40(1) (and a correspondingly more narrow

interpretation of s. 40(3)) should be adopted, thereby facilitating this Court's supervisory role in ensuring the underlying consistency of appellate court orders rendered under the procedural regime of the Criminal Code . An accused or the Crown ought to be permitted to seek leave to appeal the legality of an order rendered under s. 686(8) independently as a "final or other judgment . . . of the highest court of final resort in a province" under this Court’s general jurisdiction under s. 40(1) of the Supreme Court Act .

Accordingly, the applicant may seek leave to appeal the legality of the stay of proceedings for abuse of process entered by the Court of Appeal notwithstanding the fact that the court allowed his original appeal and set aside his conviction. Since the application for reconsideration raises a genuine and serious question of law of sufficient public importance to warrant review by this Court, this application should be allowed and leave to appeal granted. It is unnecessary to offer any further comment on the legality and constitutionality of the stay of proceedings.

Consistent with the Court's established practice of refusing to elaborate justifications for

granting or denying leave to appeal, any potential discussion of substantive issues raised by this case should be postponed until the Court is seized with the merits of the appeal . [ 76 ] About one year later, in a short judgment rendered from the bench in January 1997, the Supreme Court ruled that a verdict of acquittal would be substituted for the order for a stay of proceedings: [6] January 21, 1997 Le 21 janvier 1997 JUDGMENT JUGEMENT RÉJEAN HINSE – v. – HER MAJESTY THE QUEEN (Crim.)(Que.)

(24320) CORAM: Lamer C.J. and La Forest, Sopinka Gonthier, Cory, McLachlin and Iacobucci JJ. THE CHIEF JUSTICE (orally for the Court): It is not necessary to hear you Mtre. Sauvé. The Court is ready to render judgment from the bench, and I invite our colleague, Mr. Justice Gonthier, to deliver the judgment of the Court.

GONTHIER J.: The appellant is appealing a stay of proceedings order rendered by the Court of Appeal proprio motu without an application having been made to it, in particular by the appellant, the appellant being thus deprived of the possibility of obtaining an acquittal, if not from the Court of Appeal, at least by a jury of his peers . In the circumstances, being of the view that the evidence could not allow a reasonable jury properly instructed to find the appellant guilty beyond a reasonable doubt, we are all of the view that the appropriate remedy is an acquittal .

Accordingly, the appeal is allowed, the stay of proceedings order is set aside and the acquittal of the appellant is entered . [ 77 ] In June 1997, Mr. Hinse brought his action against Ville de Mont-Laurier and the Attorneys General of Québec and Canada. [ 78 ] Regarding the Attorney General of Canada, he alleged the following in particular: [ TRANSLATION ] 318. From 1966 to 1991, the plaintiff was punted from the ministère de la Justice du Québec to the Department of Justice of Canada, and vice versa, neither of which took even a second to look at the eloquent content of his file; 319.

Yet, as it appears from the foregoing, his file contained everything pointing to his innocence and, in particular, the affidavits of the actual perpetrators of the robbery committed in Mont-Laurier on December 14, 1961, which beyond a doubt exonerate the plaintiff; 320. The above facts reveal an unqualifiable institutional indifference that in itself constitutes a gross fault amounting to fraud attracting the liability of the co-defendants, the Attorney General of Québec and the Attorney General of Canada, with respect to the plaintiff; 321.

Moreover, the obstinate, repeated and systematic refusal of the Department of Justice of Canada to intervene in the plaintiff's case with a view to his securing justice—despite his obvious innocence on the very face of the file—constitutes, furthermore, institutional indifference attracting the liability of the co-defendant Attorney General of Canada with respect to the plaintiff, that chronic and recurring institutional indifference constituting a gross fault amounting in and of itself to fraud; [ 79 ] Instituting proceedings did not prevent Mr.

Hinse from continuing to request public redress in the form of a Royal Commission. That request was denied many times. [ 80 ] On November 15, 2002, Mr. Hinse reached an out-of-court settlement with Ville de Mont-Laurier, whereby the latter undertook to pay him $250 000. [ 81 ] Eight years later, on December 2, 2010, he entered into another transaction, this time with the Attorney General of Québec. The latter paid him compensation of $4 500 000. [ 82 ] Following that transaction entered into with the Attorney General of Québec, Mr. Hinse amended the conclusions of his action.

The Superior Court judgment was rendered on the basis of the amended conclusions, which read as follows: [ TRANSLATION ] 1- ALLOW this re-re-re-amended declaration against the Attorney General of Canada; 2- DECLARE that: (

a) the plaintiff was the victim of miscarriages of justice and that he should never have been charged, convicted or imprisoned for the armed robbery committed in Mont-Laurier on December 14, 1961 in the record bearing court number CSP 6345; (

b) the Attorney General of Canada played a role in the perpetuation and exacerbation of the injuries stemming from these miscarriages

of justice involving the plaintiff; (

c) the Attorney General of Canada committed systemic contributory faults in omitting to take action to acknowledge and correct the miscarriages of justice; (

d) the conduct of the Attorney General of Canada was indicative of reprehensible carelessness, recklessness and total denial, which must be denounced and condemned with a view to awarding exemplary damages; 3- CONDEMN the Attorney General of Canada to pay the plaintiff $1 079 871 in pecuniary damages respecting the Attorney General's share of the remainder of the following amounts: (a) $127 214 , for the financial injury sustained in the first five (5) years of the plaintiff's retirement, that is, from 1997 to 2002 ; (b) $418 303.31 , for legal fees and court costs incurred in conjunction with the plaintiff's criminal case and civil claim (Exhibit P-157), with interest and the additional indemnity provided for in

article 1619 of the Civil Code of Québec since June 6, 1997; (c) $500 000 , for investigation expenses, loss of time, effort, photocopies, transcriptions, travel, stamps and other expenses stemming from over 30 years of steps taken, the whole with interest and the additional indemnity provided for in

article 1619 of the Civil Code of Québec since June 6, 1997; (d) $3720 , for expenses incurred for psychotherapy with clinical psychologist Charles Roy (Exhibit P-181 b)), the whole with interest and the additional indemnity provided for in

article 1619 of the Civil Code of Québec since June 6, 1997; (e) $30 634.73 , for extrajudicial disbursements (Exhibit P-184), the whole with interest and the additional indemnity provided for in

article 1619 of the Civil Code of Québec as of: i. September 22, 2008, regarding the amount of $2690.49; ii. April 23, 2009, regarding the amount of $9501.34; iii. November 25, 2010, regarding the amount of $18 442.90. 4- CONDEMN the Attorney General of Canada to pay the plaintiff the sum of $1 900 000 in non-monetary (moral) damages, the whole with interest and the additional indemnity provided for in

article 1619 of the Civil Code of Québec as of June 6, 1997, in particular with regard to: (

a) the level of permanent psychiatric impairment, at 15%; (

b) various periods of total disability due to the severity of the psychiatric symptoms; (

c) damage to his reputation as a result of the stigma attached to having a criminal record for a serious crime; (

d) interference with his dignity; (

e) ongoing, exacerbated psychological pain and suffering as a result of interference with his psychological security due to the institutional indifference the plaintiff has run up against since at least 1966; 5- CONDEMN the Attorney General of Canada to pay the plaintiff $10 million ($10 000 000) in exemplary damages, including $1 million ($1 000 000) to be paid to Pro Bono Québec, $1 million ($1 000 000) to be paid to AIDWYC and/or to any other organization to be identified by the plaintiff, Réjean Hinse ; 6- ORDER the provisional execution, notwithstanding appeal, of the forthcoming judgment; 7- THE WHOLE with full costs, including the costs of experts, in addition to extrajudicial costs and fees on an attorney-client basis, given the circumstances. [ 83 ] On April 27, 2011, the trial judge awarded Mr.

Hinse $5 795 229.61. The judgment appealed from [ 84 ] After summarizing the context and the steps taken by Mr. Hinse relative to the miscarriage of justice in his case, the trial judge explained that, because of the transactions accepted by Mr. Hinse, the Attorney General of Canada could be held liable only for the [ TRANSLATION ] "share of the injury that the Attorney General had allegedly caused him", in accordance with

article 1690 of the Civil Code of Québec . [ 85 ] Examining the question of whether the federal government committed a fault by dismissing the four applications for review and the application for an absolute pardon filed by Mr. Hinse, the judge dismissed the Attorney General of Canada's argument that the first step should have been to contest the validity of the administrative decisions before the Federal Court. She emphasized that such an approach had been set aside by the Supreme Court of Canada in Canada (Attorney General) v. TeleZone Inc. [7] and Canadian Food Inspection Agency v.

Professional Institute of the Public Service of Canada . [8] She found that [TRANSLATION] "the federal government's conduct was marked by institutional indifference", said to have continued even after the acquittal, as borne out by the refusal to indemnify in accordance with Guidelines: Compensation for Wrongfully Convicted and Imprisoned Persons , and by the contestation of his claim. In her view, while the powers of review and pardon are discretionary, the Crown does not have relative immunity in exercising them. The institutional indifference was alleged to have manifested itself as follows:

[TRANSLATION] [63] Consequently, the Court is of the opinion that Hinse is not challenging the policy underpinning the decisions, but in fact how they were applied.

Further to a brief review of the facts, here are examples of some of the characteristics of the attitude adopted in his regard by the federal government, which: - let more than a year and a half go by and did not respond to Hinse's first application for review until it had received the third letter from Hinse or his spouse; - created confusion around his instructions; - misled him by referring him to the provincial authorities on several occasions; - deliberately caused him to lose precious time; - repeatedly asked him to tell his story; - forwarded documents that Hinse had sent to it, to third parties uninvolved in his case. [References omitted.] [ 86 ] Essentially, the judge criticized the various justice ministers that succeeded one another for not seriously examining Mr.

Hinse's applications for review, thereby committing a fault of omission. She referred to the procedure currently in effect for handling such requests. [ 87 ] In the judge's view, the position of the Attorney General of Canada, who affirmed, on the one hand, that he was not calling into question Mr. Hinse's innocence and, on the other, that he did not have evidence beyond a reasonable doubt of that innocence, was ambiguous.

She endorsed the theory of innocence and a miscarriage of justice: [TRANSLATION] [65] There is no mechanism in Canada for obtaining a declaration of innocence, "guilty" and "not guilty" being the only two verdicts possible. Would requiring Hinse to demonstrate his innocence thus be tantamount to forcing him to prove the impossible?

Regarding the burden in civil matters, and given the AGC's statement at the start of the hearing—he did not commit the armed robbery and he was the victim of a miscarriage of justice—the Court is of the opinion that Hinse established his innocence on a balance of probabilities, evidence that the AGC in fact did not try to overturn. [References omitted.] [ 88 ] On the basis of that finding, the judge seemed to criticize the Attorney General of Canada for not offering Mr.

Hinse financial compensation, contrary to the outcome in Truscott . [9] [ 89 ] On the issue of prescription, the judge concluded that acquittal was a prerequisite for the right of action. [ 90 ] On the issues related to compensation, the judge believed that Mr. Hinse could have been acquitted around 1976, were it not for the federal government's [TRANSLATION] "carelessness".

Nine years elapsed between his first application for review to the Minister of Justice of Canada, with a similar period of time elapsing between his complaint to the Commission de police du Québec and his acquittal by the Supreme Court of Canada. [ 91 ] With respect to pecuniary damages, the judge noted that Mr. Hinse chose to retire at age 60 rather than 65, in order to devote the bulk of his time to his civil claim. She accepted the opinion of the plaintiff's experts, who assessed the income losses at $127 214, including interest and the additional indemnity. Similarly, she felt that Mr.

Hinse was entitled to the reimbursement of fees and costs incurred before the Court of Appeal and the Supreme Court, in the amount of $193 660.88. [ 92 ] Mr. Hinse was also compensated for the costs incurred to have his innocence established (investigation costs, loss of time, effort, photocopies, transcriptions, travel, stamps, etc.): $500 000 was appropriate in the judge's eyes. In addition, there was $3720 in psychotherapy expenses and $30 634.73 in extrajudicial costs. [ 93 ] As for non-pecuniary damages, the judge opined that the cap did not apply, because the damages were not relative to bodily injury.

She summarized the testimony and reports prepared by Lionel Béliveau, the psychiatrist mandated by Mr. Hinse; Gilles Chamberland, the psychiatrist mandated by the Attorney General of Canada; and Charles Roy, Mr. Hinse's attending psychologist. She rejected expert Chamberland's approach, believing that certain exaggerated affirmations denoted a lack of objectivity. Instead, she accepted expert Béliveau's explanation, with which expert Roy also concurred. She had this to say: [TRANSLATION] [149] Not only did the miscarriage of justice mark Hinse, but, worse than that, the institutional indifference caused him to

subsequently [TRANSLATION] "lose his life, his quality of life, the direction of his life". Although he knew himself to be innocent, he was still branded a criminal by society—an intolerable label—after his release from prison. He [TRANSLATION] "was still in prison in his head". He was in search of his freedom and dignity. Hinse was shattered, broken, torn apart, ripped to shreds, shaken, downtrodden and destroyed: his mind could not focus. [ 94 ] After emphasizing the difficulty of translating Mr.

Hinse's injury into monetary terms and examining the compensation awarded to other victims of miscarriages of justice, the judge concluded [TRANSLATION] "that the amount of $ 1 900 000 to which Hinse affirms he is entitled as non-pecuniary damages is not exaggerated". [ 95 ] In the judge's view, the federal government's institutional indifference to Mr. Hinse constituted intentional interference with his "right to the safeguard of his dignity, honour and reputation"—a right guaranteed in

section 4 of the Charter of rights and freedoms . [10] In that regard, she stressed that the indifference was perpetuated at trial by the refusal to pay compensation, even after the Attorney General of Canada acknowledged that a miscarriage of justice had occurred. In her opinion, the federal authorities [TRANSLATION] "had to know the impact their conduct would have on him". She believed it to be an intentional fault, to the extent that the intent was linked to the consequences of the fault rather than to the fault itself.

She added that such exemplary damages could also be awarded under subsection 24(1) of the Canadian Charter of Rights and Freedoms [11] respecting fault subsequent to 1982. The judge therefore ordered the Attorney General of Canada to pay Mr.

Hinse punitive damages of $2 500 000. [ 96 ] On the question of extrajudicial fees, the judge opined that the Attorney General of Canada abused his right to be a party to legal proceedings, for the reasons she gave in paragraphs 225 and 226 of that judgment: [TRANSLATION] [225] In studying the AGC's conduct at trial, can the Court find that the AGC abused his right to be a party to legal proceedings?

For example, did he unduly prolong the hearing, did he complicate things more than was necessary, did he adopt an attitude of systematic obstruction, or did he retreat into his malice in order to continue the suit for no reason? The Court believes that he did.

Here is why. [226] In particular, the AGC adopted an attitude of total denial from the start of the legal proceedings, in that he: - insisted that Hinse go into minute detail in order to demonstrate elements that the AGC could easily have acknowledged; the refusal to admit the death of certain witnesses is a prime example of this; - refused to give him certain documents; - alleged that he did not call before the Court the decision-makers who had played a role in his case, with a view to having them explain the reasons for their conclusions, whereas these had been abundantly highlighted in the proof by presumption of facts; - repeated that it was up to the latter to meet his burden of proof, without making any admissions whatsoever, regardless of what they might be; - blindly endorsed the theory of his experts, taking their side and not distancing himself when it would have been more than appropriate to do so, more specifically: - when expert Chamberland, psychiatrist : ● affirmed, during his testimony, that five years of wrongful imprisonment had turned out to be beneficial to Hinse, who had acquired structure and culture in prison! ● so surprised him that he acknowledged in his arguments that [TRANSLATION] "he fell off his chair" when he first read the report; ● committed material errors of fact, in particular when he said that events that occurred after the robbery Hinse was charged with took place prior to the robbery; - when expert Allard, chartered accountant : ● asserted, both in his report and during his testimony, that Hinse had saved money (lodging, food, etc.) because of his five years in prison.

Thus, in Mr. Allard's view, Hinse's lost income during that period would have to be reduced by over 50% for the purpose of determining pecuniary damages; ● tried to convince the Court that it had to use an employment insurance rate of 22% to determine the amount of Hinse's lost income, whereas the evidence instead showed that the rate in line with the analysis of economic activity at the time, by sector of specialization, was 7%.

A hard worker, Hinse was in fact always willing to go outside his region, even outside the country, to hold gainful employment; - did not acknowledge until November 2, 2010, the first day of the trial, that Hinse was the victim of a miscarriage of justice. Most unreasonably, this forced Hinse to needlessly prepare his case accordingly, down to the last detail; - refused the filing of record of the report by the investigation commissioner of the Commission de police du Québec and of the CPQ's brief, thereby putting up a road block that Hinse had to find a way of getting around.

However, he stated that, when the time came to present his arguments on the matter, he would accept the decision of the Court;

- contended that the witnesses who provided the "new evidence" he adduced before the Court of Appeal, which led to the stay of proceedings in June 1994, should be heard in conjunction with this proceeding. [References omitted.] [ 97 ] According to the judge, the Attorney General of Canada's inflexibility unduly complicated the conduct of the proceeding and the presentation of the evidence. Consequently, the judge condemned him to reimburse $100 000 to Mr. Hinse for the extrajudicial fees of his previous attorneys in the case.

The matter was more delicate in regard to the extrajudicial fees of his then attorneys, who were representing him under a pro bono agreement. Nevertheless, the judge felt [TRANSLATION] "that, since it would be unfair for a person at fault to have the benefit of an agreement for the purpose of helping out a victim, [she] could not release the Attorney General of Canada from payment of the costs occasioned by the proceeding, given the consensus arrived at by Hinse and his attorneys in that regard". She therefore condemned it to pay Mr.

Hinse $440 000 relative to the extrajudicial fees and acknowledged the latter's pledge to remit that amount to his attorneys. [ 98 ] Lastly, the judge ordered the provisional execution of the judgment notwithstanding appeal, which Mr. Hinse waived in conjunction with the appeal.

However, she refused to issue declaratory conclusions specifying that he was a victim of a miscarriage of justice, adding that they [TRANSLATION] "permeate the judgment". [12] Analysis [ 99 ] Below are the main grounds for the appellant's appeal: [TRANSLATION] - The exercise by the Minister of Justice of Canada of the powers conferred on him until 2002 by the provisions dealing with mercy in the Criminal Code is

an act of administrative authority likely to attract the civil liability of the Crown only in the event of bad faith. - In the present case, the evidence does not show that the various ministers who determined whether Mr.

Hinse's applications for mercy would be allowed or denied acted in bad faith, with the intent to harm or in a manner precluding good faith; it does not even reveal the existence of an ordinary fault. - Supposing that a fault attracting the liability of the Crown occurred, the damages awarded by the trial judge have nothing to do with that fault and represent compensation unrelated to the injury suffered by Mr. Hinse because of the denial of his applications for mercy.

Moreover, they are excessive, and redundant in light of the amounts already paid to him by the Gouvernement du Québec and Ville de Mont-Laurier. - The Superior Court could not condemn the appellant to pay exemplary damages under the Charter of human rights and freedoms , as the Charter is not applicable to the federal Crown and, at any rate, the conditions in

section 49 thereof are not met here. - The Superior Court erred in condemning the appellant to pay extrajudicial fees, since the prerequisites for such a condemnation were not satisfied: The appellant did not abuse his rights or resort to an improper use of procedure, Mr. Hinse having, moreover, been represented pro bono during the proceeding.

Conditions for the Crown's civil liability regarding wrongful exercise or non-exercise of the prerogative of mercy [ 100 ] First, it is worth reproducing the legislative provisions that, over the years, have conferred on the Minister of Justice of Canada the powers of which the exercise—or the non-exercise—gave rise to the action instituted by Mr. Hinse against the federal Crown. Below are those that govern what used to be called an "application for the mercy of the Crown": S. 596 Cr.C . (S.C. 1953-54, c. 51, s. 596) 596.

The Minister of Justice may, upon an application for the mercy of the Crown by or on behalf of a person who has been convicted in proceedings by indictment, (

a) direct, by order in writing, a new trial before any court that he thinks proper, if after inquiry he is satisfied that in the circumstances a new trial should be directed; (

b) refer the matter at any time to the court of appeal for hearing and determination by that court as if it were an appeal by the convicted person; or (

c) refer to the court of appeal at any time, for its opinion, any question upon which he desires the assistance of that court, and the court shall furnish its opinion accordingly. 596. Sur une demande de clémence de la Couronne, faite par ou pour une personne qui a été condamnée à la suite de procédures sur un acte d'accusation, le ministre de la Justice peut

a) prescrire, au moyen d'une ordonnance écrite, un nouveau procès devant une cour qu'il juge appropriée, si après enquête, il est convaincu que, dans les circonstances, un nouveau procès devrait être prescrit;

b) à toute époque, déférer la cause à la cour d'appel pour audition et décision par cette cour comme s'il s'agissait d'un appel interjeté par la personne condamnée; ou

c) à toute époque, soumettre à la cour d'appel, pour connaître son opinion, toute question sur laquelle il désire l'assistance de cette cour, et la cour doit donner son opinion en conséquence.

S. 596 Cr.C . (S.C. 1968-69, c. 38, s. 62) 596. The Minister of Justice may, upon an application for the mercy of the Crown by or on behalf of a person who has been convicted in proceedings by indictment or who has been sentenced to preventive detention under

Part XXI, (

a) direct, by order in writing, a new trial or, in the case of a person under sentence of preventive detention, a new hearing, before any court that he thinks proper, if after inquiry he is satisfied that in the circumstances a new trial or hearing, as the case may be, should be directed; (

b) refer the matter at any time to the court of appeal for hearing and determination by that court as if it were an appeal by the convicted person or the person under sentence of preventive detention, as the case may be; or (

c) refer to the court of appeal at any time, for its opinion, any question upon which he desires the assistance of that court, and the court shall furnish its opinion accordingly. 596. Sur une demande de clémence de la Couronne, faite par ou pour une personne qui a été condamnée à la suite de procédures sur un acte d'accusation ou qui a été condamnée à la détention préventive en vertu de la

Partie XXI, le ministre de la Justice peut

a) prescrire, au moyen d'une ordonnance écrite, un nouveau procès ou, dans le cas d'une personne condamnée à la détention préventive, une nouvelle audition devant toute cour qu'il juge appropriée si, après enquête, il est convaincu que, dans les circonstances, un nouveau procès ou une nouvelle audition, selon le cas, devraient être prescrits;

b) à toute époque, renvoyer la cause devant la cour d'appel pour audition et décision par cette cour comme s'il s'agissait d'un appel interjeté par la personne déclarée coupable ou par la personne condamnée à la détention préventive, selon le cas; ou

c) à toute époque, renvoyer devant la cour d'appel, pour connaître son opinion, toute question sur laquelle il désire l'assistance de cette cour, et la cour doit donner son opinion en conséquence. S. 617 Cr.C . (R.S.C. 1970, c. C-34, s. 617) 617. The Minister of Justice may, upon an application for the mercy of the Crown by or on behalf of a person who has been convicted in proceedings by indictment or who has been sentenced to preventive detention under

Part XXI, (

a) direct, by order in writing, a new trial or, in the case of a person under sentence of preventive detention, a new hearing, before any court that he thinks proper, if after inquiry he is satisfied that in the circumstances a new trial or hearing, as the case may be, should be directed; (

b) refer the matter at any time to the court of appeal for hearing and determination by that court as if it were an appeal by the convicted person or the person under sentence of preventive detention, as the case may be; or (

c) refer to the court of appeal at any time, for its opinion, any question upon which he desires the assistance of that court, and the court shall furnish its opinion accordingly. 617. Sur une demande de clémence de la Couronne, faite par ou pour une personne qui a été condamnée à la suite de procédures sur un acte d'accusation ou qui a été condamnée à la détention préventive en vertu de la

Partie XXI, le ministre de la Justice peut

a) prescrire, au moyen d'une ordonnance écrite, un nouveau procès ou, dans le cas d'une personne condamnée à la détention préventive, une nouvelle audition devant toute cour qu'il juge appropriée si, après enquête, il est convaincu que, dans les circonstances, un nouveau procès ou une nouvelle audition, selon le cas, devraient être prescrits;

b) à toute époque, renvoyer la cause devant la cour d'appel pour audition et décision par cette cour comme s'il s'agissait d'un appel interjeté par la personne déclarée coupable ou par la personne condamnée à la détention préventive, selon le cas; ou

c) à toute époque, renvoyer devant la cour d'appel, pour connaître son opinion, toute question sur laquelle il désire l'assistance de cette cour, et la cour doit donner son opinion en conséquence. S. 690 Cr.C . (R.S.C. 1985, c. C-46, s. 690)

690. The Minister of Justice may, on an application for the mercy of the Crown by or on behalf of a person who has been convicted in proceedings by indictment or who has been sentenced to preventive detention under

Part XXIV, (

a) direct, by order in writing, a new trial or, in the case of a person under sentence of preventive detention, a new hearing, before any court that he thinks proper, if after inquiry he is satisfied that in the circumstances a new trial or hearing, as the case may be, should be directed; (

b) refer the matter at any time to the court of appeal for hearing and determination by that court as if it were an appeal by the convicted person or the person under sentence of preventive detention, as the case may be; or (

c) refer to the court of appeal at any time, for its opinion, any que

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