Réjean Hinse Appellant v. Attorney General of Canada, 2015 SCC 35

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 harmanother. Bad faith can be established by proving that the Minister acted deliberately with the specific intent to harm another person, or byproof of serious recklessness that reveals a breakdown of the orderly exercise of authority so fundamental that absence of good faith canbe deduced and bad faith presumed.

In light of the applicable provisions of the Criminal Code and of the fact that there was, at therelevant time, no established procedure to guide the exercise of the power of mercy, the Minister was required to conduct a meaningfulreview of any application that was neither frivolous nor vexatious. However, this review was not equivalent to the one that would beexpected from a police investigation or a commission of inquiry. The duty to conduct a meaningful review entails a duty to make adecision 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 ofinstitutional inertia or indifference. The analysis should instead have focused on the individual conduct of each Minister acting in his orher capacity as a servant of the federal Crown.

The trial judge also erred in considering the powers of a commissioner under the InquiriesAct as a basis for determining whether the review conducted by the Minister was a meaningful one, given that those powers were notconferred on the Minister until 2002, when Parliament reformed the procedure in respect of applications for mercy. Moreover, there is nolegislation establishing an obligation for the federal government or the provinces to compensate victims of miscarriages of justice, nor isthere any legislation establishing a right to such compensation.

Nor did the Guidelines: Compensation for Wrongfully Convicted andImprisoned 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 seriousrecklessness in reviewing his applications for mercy. The documentary evidence negates the trial judge’s inference that there was noreview whatsoever of H’s initial application for mercy.

Although there are only a few documents in the record, they attest to the fact thata certain review was conducted and that certain actions were taken in this regard. By way of admissions, the parties acknowledged thatcertain government employees would have confirmed that, as they had understood the facts, an extensive and careful review of the casewas under way at the time in question. A delay in reviewing the initial application was raised, but despite this, an analysis of thecircumstances does not support the conclusion that the Minister acted in bad faith or with serious recklessness.

As for H’s threesubsequent applications, it cannot reasonably be argued that no meaningful review was conducted in respect of them. The relevantcorrespondence shows the opposite to be true. Regarding the second application, which was very brief and contained no new evidence orlegal 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 didnot go into much detail, the allegations based on vague irregularities could have struck the Minister as being of little consequence.

In thecase of the fourth application, it was reasonable for the Minister to justify her decision by noting that the Court of Appeal could considerthe 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 toconduct a meaningful review of the first application, the evidence does not establish that he would probably have discovered at that timethe key evidence uncovered by the investigator of the Commission de police 20 years later.

To conclude otherwise would be to rely onmere conjecture or remote hypotheticals. H has failed to establish a causal connection between the Minister’s fault and the allegeddamage. On the issue of damages, the trial judge failed to take into account the requirement that the liability be apportionedsolidarily, and to establish the amounts being awarded on the basis of the actual liability of each of the solidary debtors.

To the extentthat 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 hehad released (arts. 1526 and 1690 C.C.Q.). In addition to this overriding error, the grounds for each of the heads of damages were alsoflawed.

Where the question of pecuniary damage is concerned, there is no direct connection between the Minister’s conduct and H’sdecision to retire at age 60, the fees and costs incurred in respect of the proceedings brought in the Court of Appeal and the SupremeCourt between 1990 and 1997 did not result from the alleged faults, and wasted time and efforts expended to obtain justice areinconveniences that are inherent in the efforts of anyone who is involved in legal proceedings.

As for non-pecuniary damage, an orderthat 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 bodiesand were based on considerations that are different from those on which damages are based in principle. Moreover, those cases weredifferent in that they involved the much more serious crime of murder and in that the period of incarceration was longer in almost all ofthem.

On the issue of punitive damages, even though the reference in the Crown Liability and Proceedings Act to the Quebec rules ofextracontractual civil liability encompasses the remedy of punitive damages provided for in the Charter of human rights and freedoms, itwas not appropriate to award such damages in this case. Given that the Minister’s conduct cannot be equated with bad faith or seriousrecklessness, it cannot be concluded that there was intentional interference with a right protected by the Charter.

The evidence does notsupport a finding that the Minister’s state of mind was such that he intended to harm H or had knowledge of the adverse consequenceshis 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 opposingparty, and such compensation must be consistent with the general rules of civil liability. Only an abuse of process can justify awardingextrajudicial fees as damages.

However, by virtue of art. 1608 C.C.Q., the obligation to pay damages to the other party is neither reducednor 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 amountto 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 ofmercy 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 thedefence that he did.

The trial judge committed a palpable and overriding error in finding that there had been an abuse of process in thecontext 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 SCC42, [2011] 3 S.C.R. 45; Entreprises Sibeca Inc. v. Frelighsburg (Municipality), 2004 SCC 61, [2004] 3 S.C.R. 304; Viel v. EntreprisesImmobilières du Terroir ltée, (QC CA), [2002] R.J.Q. 1262; distinguished: Miazga v. Kvello Estate, 2009 SCC 51,[2009] 3 S.C.R. 339; Proulx v.

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[1989] 2 S.C.R. 170; 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), (ON CA), 82 O.R. (3d) 757; approved:Thatcher v. Canada (Attorney General), (FC), [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), 1894 CanLII 12 (SCC), 23S.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.

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Teno, (SCC), [1978] 2 S.C.R. 287; Proulx v. Québec(Procureur général), (QC CS), [1997] R.J.Q. 2509; Proulx v. Québec (Procureur général), (QCCS), [1997] R.J.Q. 2516; Chaput v. Romain, (SCC), [1955] S.C.R. 834; de Montigny v. Brossard (Succession), 2010SCC 51, [2010] 3 S.C.R. 64; Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., (SCC), [1996] 2 S.C.R. 345; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine deMontréal, 2004 SCC 30, [2004] 1 S.C.R. 789; Quebec (Public Curator) v.

Syndicat national des employés de l’hôpital St-Ferdinand, (SCC), [1996] 3 S.C.R. 211; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3S.C.R. 371; Young v. Young, (SCC), [1993] 4 S.C.R. 3; Human Rights Commission (Ont.) v. Brillinger (2004), (ON CA), 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.

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Québec: Publications du Québec, 1993. Royer, Jean-Claude, et Sophie Lavallée. La preuve civile , 4 e 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. n o 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 theMinister’s conduct. The trial judge concluded that a fault of [translation] “institutional inertia” or “institutional indifference” on thefederal 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 appliesto a Crown prosecutor in a case of malicious prosecution. Given that there was no intentional or gross fault, or even a simple fault, on theMinister’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 policydecision. The Minister was therefore protected by a qualified (or “relative”) immunity.

On being presented with an application for mercythat was neither frivolous nor vexatious, the Minister had a duty to conduct a meaningful review of the application, and a breach of thatduty 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 trialjudge’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 anyevent, Mr.

Hinse failed to discharge his burden of proving the requisite causal connection between the Ministers’ actions and the allegeddamage. Finally, we agree with the Court of Appeal that the damages awarded to the appellant in excess of the $5,550,000 he hadalready 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. Hewas 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 thebeginning 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 Generalin 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 complaintwas [translation] “sufficiently troubling” and the facts gathered were “sufficiently probative” to warrant submitting a report, which itforwarded to the AGQ and the Quebec Minister of Public Security: A.R., vol. XI, at p. 36. In its report, the Commission de police saidthat 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 pointthat 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 ofAppeal allowed his appeal: (1994), 64 Q.A.C. 53. But instead of entering an acquittal or ordering a new trial, the court exercised itsinherent 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 ofproceedings. The Court denied him leave to appeal to it: [1995] 1 S.C.R. viii. Mr. Hinse refused to give up, filing an application forreconsideration. On November 30, 1995, the Court allowed his application and granted him leave to appeal: (SCC),[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 thatthe evidence could not allow a reasonable jury properly instructed to find the appellant guilty beyond a reasonable doubt”: (SCC), [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 orderfor solidary payment against three defendants: the AGQ, the AGC and Mont-Laurier. On November 15, 2002, Mont-Laurier signed atransaction 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 theaction, 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 allegedthat the federal government had helped to perpetuate and exacerbate the damage he had suffered by failing to act diligently toacknowledge and rectify the miscarriage of justice of which he had been the victim. He submitted that the conduct of the federalgovernment [translation] “was indicative of reprehensible carelessness, recklessness and total denial, which must be denounced andcondemned [by the award of] exemplary damages”: A.R., vol. IV, at p. 31.

After the settlement with the AGQ was reached, he continuedto 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 withthe AGQ constituted an express release from the debt. Mr. Hinse therefore did not have to prove any fault on their parts.

However, thefederal 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 ofQuébec (“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 anyimmunity: 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 errorsto 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 payhim more than $850,000 for pecuniary damage and $1,900,000 for non-pecuniary damage. She also found that the AGC was guilty ofunlawful 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 forfees 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 secondeven 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 ofimmunity.

In its view, the exercise of the Minister’s power of mercy is protected by a qualified immunity: para. 141. As a result, theCrown 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 courtacknowledged that it was difficult [translation] “to accurately gauge what kind of study was conducted, because of the

summary natureof the evidence adduced”, but inferred nothing negative from the brevity of the Minister’s decision: para. 170 . At the time inquestion, the Minister was under no obligation to give reasons for his or her decisions, and good faith on his or her part had to bepresumed.

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 beenascertained 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 andintentional interference with Mr. Hinse’s fundamental rights: paras. 228-32. Finally, it rejected Poulin J.’s findings with respect to abuseof 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 whetherthe 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 inart. 1457 C.C.Q.: Canadian Food Inspection Agency v. Professional Institute of the Public Service of Canada, 2010 SCC 66, [2010] 3S.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” and3(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 itsbodies, and to all other legal persons established in the public interest, subject to any other rules of law which may be applicable tothem”. This Court has found, for example, that general principles or rules of public law may either prevent the general rules of civilliability from applying or substantially alter how they are applied: Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17, atpara. 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. ImperialTobacco 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. InImperial Tobacco, the Court noted that the prevailing view in Canada is that only “true” policy decisions are protected by Crownimmunity.

The Court explained that it is not helpful to posit a stark dichotomy between policy decisions and operational decisions, or todefine policy decisions negatively as decisions that are not “operational” decisions: paras. 84-86. Although it refrained from establishinga black-and-white test, the Court concluded that core policy government decisions that are protected from suit are “decisions as to acourse or principle of action that are based on public policy considerations, such as economic, social and political factors, provided theyare 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 existence of a simple fault. He argues that there is a distinction between the processing of applications for mercy and the Minister’s final decision. In his view, the processing of applications falls within the operational sphere and should not be protected by any immunity . As for the respondent, he supports the Court of Appeal’s analysis and its conclusion . [ 27 ] Applications for mercy are governed by the Cr. C.

Four successive provisions applied during the material period. They are reproduced in the Appendix. It can be seen from these provisions that the discretionary nature of the Minister’s power (“[t]he Minister of Justice may”) and the requirement that the Minister conduct an inquiry (“if after inquiry he is satisfied that in the circumstances”) were constants throughout this period. [ 28 ] We agree with the Court of Appeal that the power of mercy codified in the Cr. C. derives from the royal prerogative of mercy. Most academic commentators are also in agreement with this.

Historically, the royal prerogative of mercy has had two strands and two objectives: to show compassion by relieving an individual of the full weight of his or her sentence, and to correct miscarriages of justice such as wrongful convictions (G. T. Trotter, “Justice, Politics and the Royal Prerogative of Mercy: Examining the Self-Defence Review” (2001), 26 Queen’s L.J. 339, at p. 344, citing A. T. H. Smith, “The Prerogative of Mercy, the Power of Pardon and Criminal Justice”, [1983] P.L. 398).

The prerogative was incorporated into Canadian law and conferred on the Governor General by letters patent: Attorney General for Canada v. Attorney General of the Province of Ontario (1894), 1894 CanLII 12 (SCC) , 23 S.C.R. 458, at pp. 468- 69; Letters Patent Constituting the Office of Governor General of Canada (1947), Canada Gazette ,

Part I, vol. 81, p. 3014 (reproduced in R.S.C. 1985, App. II, No. 31). [ 29 ] Until 2002, the second strand of the royal prerogative of mercy, that of the rectification of miscarriages of justice, was codified primarily in s. 690 Cr. C. Originally, in 1892, the forerunner of this provision read as follows: 748.

If upon any application for the mercy of the Crown on behalf of any person convicted of an indictable offence, the Minister of Justice entertains a doubt whether such person ought to have been convicted, he may, instead of advising Her Majesty to remit or commute the sentence, after such inquiry as he thinks proper, by an order in writing direct a new trial at such time and before such court as he may think proper. ( Criminal Code, 1892 , S.C. 1892, c. 29) [ 30 ] The provision has evolved over time, but the link between the referral procedure and the concept of mercy has always remained, as can be seen from the words “upon an application for the mercy of the Crown” ( Criminal Code , S.C. 1953-54, c. 51, s. 596).

In Therrien (Re) , 2001 SCC 35 , [2001] 2 S.C.R. 3, at para. 113 , Gonthier J. considered the effect of a pardon, which he defined as “an expression of the sovereignty of the monarch, the result of the unilateral and discretionary exercise of the Royal prerogative of mercy or clemency”. He explained that in Canada, statutory provisions merely set out various ways to exercise this prerogative but do not limit its scope.

The types of pardons include “the pardon granted after a referral for hearing or referral to a court of appeal in accordance with s. 690 of the Code . . . which results in a new trial or a new hearing”: Therrien , at para. 114 . [ 31 ] The fact that the Minister’s power derives from the royal prerogative of mercy attests to the broad discretion that is conferred on him or her. Although the fact that a decision is discretionary is not on its own sufficient to justify finding that a public law immunity applies, it is nonetheless a helpful criterion. [ 32 ] Moreover, the various relevant provisions of the Cr.

C. over the years were all drafted in broad and general language. They offered little guidance for the exercise of this discretion and accordingly gave the Minister a great deal of latitude. They gave the Minister the power to, inter alia , direct a new trial or refer the matter to the court of appeal, and left it up to the Minister to determine in what circumstances he or she should intervene: 596. The Minister of Justice may . . . (

a) direct . . . 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 ; ( Criminal Code , S.C. 1953-54)

[33] In making this discretionary decision, the Minister necessarily had to assess and weigh public policy considerationson the basis of social, political and economic factors. This power, which derived from the royal prerogative, fell outside the traditionalsphere of criminal law in that it came into play after all judicial remedies had been exhausted. In exercising it, the Minister had to becareful to avoid usurping the role of the courts and short-circuiting the usual judicial process. It clearly did not constitute a new level ofappeal.

As the Court of Appeal noted in the case at bar, the Minister’s duties required [translation] . . . diverse (and often diverging) legal and social interests, ranging from the specific interest of the particular individual anda concern for justice to the preservation of the independence and integrity of the judicial system and of the stability of judgments — eachof them being no less important than the others — to be weighed [in relation to] facts that are seldom clear. [para. 141] [34] Furthermore,

Part XXI.1 of the Cr. C., which was introduced in 2002 by the Criminal Law Amendment Act, 2001,S.C. 2002, c. 13, s. 71, has as its purposes to provide greater guidance for the exercise of this power and to enhance the transparency ofthe process: Library of Parliament, “Bill C-15A:

An Act to amend the Criminal Code and to amend other Acts”, Legislative

SummaryLS-410E, October 12, 2001 (“Legislative

Summary”). Under the current s. 696.3(3)(

a) Cr. C., the Minister may now direct a new trial orrefer the matter to the court of appeal “if the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justicelikely occurred”. Unlike when Mr. Hinse made his applications, s. 696.4 Cr. C. now sets out specific criteria on which the Minister’sdecision must be based.

Public policy considerations, such as certainty of judgments and judicial independence, were taken into accountwhen the new provisions were enacted, and their importance in the Minister’s decision-making process has been reduced. [35] Finally, because the decision maker’s role may also be a relevant factor in characterizing the power in question, itshould be borne in mind that the Minister, in making such policy decisions, does not act as a mere public servant working in anadministrative or operational capacity.

In this regard, the appellant’s argument that a distinction should be drawn between the processingof applications for mercy by government employees and the Minister’s decision is wrong. Such a distinction is both difficult to justifyand difficult to make in practice. This power is a single power — to review a conviction — that cannot be split into two unconnectedsteps. Although the ministerial review process does of course require administrative support, this fact alone does not, in the case beforeus, justify dividing the process into distinct compartments of policy decisions and operational decisions.

The decision to consider a casefurther or to deny an application is an integral part of the evaluation process. [36] The history and the nature of the Minister’s power of mercy lead us to find that the exercise of that power was a truecore policy act at the relevant time. In light of the principles from Imperial Tobacco, the exercise of such a power could not thereforeexpose the Crown to liability unless the Minister acted irrationally or in bad faith. In the instant case, it is not necessary to consider indetail what might constitute an irrational decision by the Minister. That is not the issue Mr.

Hinse raises here. He merely complains ofthe failure to conduct adequate reviews of his applications. What is really at issue in this case is whether the Minister conducted ameaningful review. This means that it is important to define what constitutes bad faith in Quebec civil law in the context of the case atbar.

(3) Characterization of the Fault [37] Mr. Hinse maintains that the Minister’s conduct when exercising his power of mercy must be assessed against astandard of simple fault. In the alternative, he argues that the fault threshold required to lift the Crown’s qualified immunity includescarelessness or serious recklessness. The AGC counters that the Crown cannot be held liable in respect of the Minister’s conduct absent“bad faith or other similar conduct”: R.F., at paras. 43 and 51.

At the hearing in this Court, the AGC conceded that bad faith can beproven indirectly by showing conduct so blameworthy and inexplicable that it cannot be concluded that the person in question acted ingood faith, since the only possible explanation is that he or she did so in bad faith. In the AGC’s opinion, this is a very high threshold. Atotal failure by the Minister to review an application for mercy would be one example of such conduct: transcript, at pp. 77-78. [38] The Superior Court, having found that the Minister was not protected by any immunity, decided on and applied astandard of simple fault.

The Court of Appeal, being of the opinion that the Minister’s actions were protected by an immunity, preferredto apply the malice standard developed in the context of the liability of Crown prosecutors for malicious prosecution. It pointed to thesimilarities between the Minister’s duties and those of prosecutors. It did not rule definitively on the issue, however, as in its view, theappellant had not proven that a fault of any kind had been committed: paras. 150-57. (

a) Applicable Standard of Fault Is Not Malice [39] In our opinion, it would be inappropriate to import the malice standard applicable to the liability of Crownprosecutors for malicious prosecution into a case concerning an application for mercy.

Although there is a certain similarity between theduties discharged by the Minister in exercising his or her power of mercy and those discharged by Crown prosecutors in exercising theirdiscretion in criminal prosecutions, there are significant differences between the two roles. [40] First, although it is possible, in rare cases, to hold Crown prosecutors liable for malicious prosecution, there arepolicy reasons that justify an extremely high threshold for success in such an action: Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3S.C.R. 339, at para. 43; Proulx v.

Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9, at para. 4; Nelles v. Ontario, (SCC), [1989] 2 S.C.R. 170. As a result, an action for malicious prosecution must be based on malice or on an improperpurpose: Miazga, at paras. 56 and 81. The decision to initiate or continue criminal proceedings lies at the core of the Crown prosecutor’spowers, and the principle of independence of the prosecutor’s office shields prosecutors from the influence of improper political factors:Miazga, at para. 45; see also Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372.

Prosecutors must be able to actindependently of any political pressure from the government and must be beyond the reach of judicial review, except in cases of abuse ofprocess.

This independence is so fundamental to the integrity and efficiency of the criminal justice system that it is constitutionallyentrenched: Miazga, at para. 46; Krieger, at paras. 30-32. [41] The imposition of a high fault threshold thus flows from an intentional choice made to preserve a balance “betweenthe right of individual citizens to be free from groundless criminal prosecutions and the public interest in the effective and uninhibitedprosecution of criminal wrongdoing”: Miazga, at para. 52.

[42] These policy reasons do not apply to the Minister’s power of mercy, however. Although this power is a highlydiscretionary one, the Minister’s latitude in deciding whether to exercise it is not fundamental to the integrity and efficiency of thecriminal justice system per se. Indeed, the mercy process [translation] “begins where the law ends”: Bilodeau v. Canada (Ministre de laJustice), 2009 QCCA 746, [2009] R.J.Q. 1003, at para. 14; see also Thatcher v. Canada (Attorney General), (FC),[1997] 1 F.C. 289 (T.D.), at para. 9.

Furthermore, although prosecutorial authority must be shielded from political influence, the Ministermust weigh social, political and economic factors in making his or her decision. As well, the Minister’s independence in the context ofthis decision-making process is not entrenched in the Constitution. [43] Second, it must be borne in mind that the exercise of the royal prerogative, like the exercise of any other statutorypower, can be reviewed by the courts. Ministerial decisions on applications for mercy are therefore subject to judicial review: OperationDismantle Inc. v.

The Queen, (SCC), [1985] 1 S.C.R. 441; P. W. Hogg, P. J. Monahan and W. K. Wright, Liability of theCrown (4th ed. 2011), at p. 26; see also 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; Bilodeau (QCCA); Timm v. Canada (Attorney General), 2012 FC 505, 409 F.T.R. 8,aff’d 2012 FCA 282, 451 N.R. 250; Thatcher.

This is generally not the case for Crown prosecutors’ decisions on whether to prosecute. [44] A comparison between the prosecutorial prerogative of Crown prosecutors and the evolution of the Minister’s powerof mercy under the Cr. C. reveals significant differences between the contents of the two prerogatives. This means that these prerogativesmust be analyzed from different perspectives. [45] Third, what is at issue in the instant case is whether the general Quebec rules of extracontractual civil liability applyto the federal Crown, as provided for in the C.L.P.A.

Intent is not usually a prerequisite for establishing such liability. Even where grossfault is alleged, intent is not required, unlike in the case of the tort of malicious prosecution, for which intent must be proven. [46] Finally, we note that the AGC did not insist on this very high standard at the hearing in this Court. [47] It is therefore our opinion that to assess the Minister’s conduct in the exercise of his power of mercy, it would beinappropriate to apply a standard of fault that limits bad faith to malice.

The bad faith referred to in Imperial Tobacco to circumscribe thequalified immunity of the Crown for acts of political authority does not require such a result. (

b) Applicable Standard of Fault in This Case [48] In Quebec civil law, the concept of bad faith is flexible, and its content varies from one area of the law to another:Entreprises Sibeca Inc. v. Frelighsburg (Municipality), 2004 SCC 61, [2004] 3 S.C.R. 304, at para. 25. In Finney, this Court defined thescope of a statutory immunity according to which the Barreau du Québec could not be prosecuted for acts carried out in good faith. TheCourt held that bad faith is broader than just intentional fault or a demonstrated intent to harm another: para. 37. It also encompassesserious recklessness.

LeBel J. wrote the following: . . . recklessness implies a fundamental breakdown of the orderly exercise of authority, to the point that absence of good faith can bededuced and bad faith presumed.

The act, in terms of how it is performed, is then inexplicable and incomprehensible, to the point that itcan be regarded as an actual abuse of power, having regard to the purposes for which it is meant to be exercised. [Emphasis added; para.39.] [49] In Sibeca, this Court applied the definition of bad faith from Finney in the context of the qualified immunity thatprotects a municipality when exercising its regulatory discretion.

Deschamps J.’s comments on the nature of that discretion can betransposed to the instant case: Municipalities perform functions that require them to take multiple and sometimes conflicting interests into consideration. To ensure thatpolitical disputes are resolved democratically to the extent possible, elected public bodies must have considerable latitude. Where noconstitutional issues are in play, it would be inconceivable for the courts to interfere in this process and set themselves up as arbitrators todictate that any particular interest be taken into consideration.

They may intervene only if there is evidence of bad faith. The onerous andcomplex nature of the functions that are inherent in the exercise of a regulatory power justifies incorporating a form of protection both incivil law and at common law. [para. 24] [50] In Deschamps J.’s view, the

interpretation of bad faith proposed in Finney is applicable both to cases in which actswere committed deliberately with intent to harm and to those in which circumstantial evidence of bad faith must be relied on: Sibeca, atpara. 26. [51] In our opinion, a standard of bad faith that encompasses serious recklessness as defined in Finney and applied inSibeca is consistent with the logic of Quebec’s principles of civil liability. Moreover, this standard is akin to the concept of gross fault,which includes gross recklessness: see art. 1474 C.C.Q.; J.-L. Baudouin, P. Deslauriers and B.

Moore, La responsabilité civile (8th ed.2014), at No. 1-190. [52] This standard is of course higher than the standard of simple fault that the trial judge incorrectly applied in the caseat bar. A simple fault such as a mistake or a careless act does not correspond to the concept of bad faith that defines the limits of theCrown’s qualified immunity.

Moreover, it would be paradoxical if the exercise of the Minister’s power of mercy were subject to areasonableness standard on judicial review while being considered from the standpoint of a simple fault in extracontractual liability. [53] In sum, decisions of the Minister that are made in bad faith, including those demonstrating serious recklessness — asdefined in Finney and Sibeca — on the Minister’s part, fall outside the Crown’s qualified immunity. Bad faith can be established byproving that the Minister acted deliberately with the specific intent to harm another person.

It can also be established by proof of seriousrecklessness that reveals a breakdown of the orderly exercise of authority so fundamental that absence of good faith can be deduced andbad faith presumed. It is with this in mind that the duty owed by the Minister when exercising his or her power of mercy must beanalyzed.

(4) Minister’s Duty [ 54 ] The trial judge held that the Crown’s extracontractual liability under art. 1457 C.C.Q. is based on [ translation] “the breach of a duty flowing from the conduct required of a reasonable person in society”: para. 32. She found that when the Minister exercises the power of mercy, he or she has a duty to react as quickly as possible when evidence of a miscarriage of justice arises: para. 68. At a minimum, this duty requires the Minister to conduct a meaningful review of applications for mercy, since he or she has the powers of a commissioner under

Part I of the Inquiries Act , R.S.C. 1985, c. I-11 : para. 71. The trial judge described the meaningful review as a “ thorough” investigation (para. 95) or a “sustained, concerted [and] extensive . . . review” (para. 75). [ 55 ] The Court of Appeal concluded that the trial judge had erred in law in defining the scope of the Minister’s duty at the time of Mr. Hinse’s initial application for mercy on the basis of current standards and practices: para. 165. It instead found that the scope of that duty had been correctly defined in Thatcher : paras. 166-68 .

When presented with an application for mercy that was neither frivolous nor vexatious, the Minister was required to conduct a meaningful review of it, although not a review equivalent to the one that would be expected from a police investigation or a commission of inquiry. [ 56 ] In our opinion, the Court of Appeal was right, in defining the scope of the Minister’s duty at the relevant time, to endorse the conclusions reached by the Federal Court in Thatcher , to mention that the Minister was under no obligation to give reasons for his or her decisions, and to point out that good faith on the Minister’s part had to be presumed: para. 170. [ 57 ] Mr.

Hinse’s applications for mercy were made to the Minister between 1967 and 1990, and the response to his final application was sent to him in April 1991, that is, before the C.C.Q. came into force in 1994.

It will therefore be necessary to refer to the standard that was provided for in art. 1053 of the Civil Code of Lower Canada (“ C.C.L.C. ”) (now art. 1457 C.C.Q. ), which was in force at the time of the facts alleged against the A GC: Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill. [ 58 ] Under the C.L.P.A. , the federal Crown can be held liable not on its own account, but solely for the fault of its servants (in this case, the Minister): s. 3( a )(i).

In Quebec civil law, it was art. 1054 C.C.L.C. — now art. 1463 C.C.Q. — that provided for this type of liability. However, this liability scheme was based on the same concept of fault as the one described in the general provisions on extracontractual liability, or, in this case, art. 1053 C.C.L.C. [ 59 ] To define the duty owed by the Minister when exercising his or her power of mercy, we must take the Cr. C. and the procedure that applied at the material time into account.

These factors will make it possible to establish a general definition of the scope of that duty. [ 60 ] In finding that the Minister is protected by a qualified immunity, we noted that the Cr. C. ’s successive provisions on mercy that applied during the relevant period (from 1967 to 1990) granted the Minister a broad discretion. Regardless of the amendments Parliament made over the years to the

section of the Cr. C. that conferred this power on the Minister, the wording remained essentially the same: “The Minister of Justice may , upon an application for the mercy of the Crown . . . .” These various sections did not include the verb “shall” in relation to the Minister’s powers, and nowhere in them was any specific duty imposed on the Minister. [ 61 ] We also mentioned that Parliament left it up to the Minister to decide on the circumstances in which it would be appropriate to direct a new trial or refer the matter to the court of appeal.

Ideally, Parliament could have defined the types of circumstances that were relevant and given better guidance on the procedure the Minister was to follow. But it did not do so. This reflects Parliament’s choice to give the Minister considerable latitude and must be taken into account when defining the scope of the Minister’s duty. [ 62 ] As we mentioned above, Parliament modified the power of mercy significantly in 2002, choosing to provide greater guidance for the exercise of the power.

Since then, the Minister has been required to review applications for mercy in accordance with the Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice , SOR/2002-416: s. 696.2 Cr. C. The Minister is also required to submit an annual report to Parliament in relation to such applications: s. 696.5 Cr. C. This change underlines the fact that there was no applicable procedural framework when Mr. Hinse made his applications for mercy. Moreover, the following appears in the Legislative

Summary: Prior to 1994, the Department of Justice took a more or less ad hoc approach to

section 690 applications. There was no set procedure or designated personnel to deal with them. . . . . . . In 1994, the Department of Justice instituted a number of measures to address complaints about the

section 690 application process. [Emphasis added; pp. 17-18.] [ 63 ] While the procedure to be followed is now more detailed, it does not actually require the Minister to conduct an investigation in every case.

Section 3 of the Regulations provides that the Minister must conduct a preliminary assessment of the application. After that, the Minister is in principle required to conduct an investigation only “if [he or she] determines that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred” : s. 4 of the Regulations . Finally, unlike with the powers the Minister had at the material time in this case, he or she now has and may exercise the powers of a commissioner under

Part I of the Inquiries Act and the powers that may be conferred on a commissioner under s. 11 of that Act: s. 696.2(2) Cr. C. [ 64 ] In light of the applicable provisions of the Cr. C. and of the fact that there was, at the relevant time, no established procedure to guide the Minister in exercising his or her power of mercy, we, like the Court of Appeal, agree with the conclusions of Rothstein J. (then a judge of the Federal Court — Trial Division) in Thatcher regarding the scope of the Minister’s duty. Thatcher concerned an application for judicial review of a decision to deny an application for mercy made under s. 690 Cr. C. and, therefore, the

scope of the duty of fairness the Minister owed when exercising the power. Although that is not the issue in the instant case, Rothstein J.’s analysis of the Minister’s power was nonetheless correct, and his conclusions will be helpful in determining the scope of the Minister’s duty in the context of the Crown’s civil liability. [ 65 ] Rothstein J. began by indicating that the mercy procedure is not the subject of legal rights, as it is initiated only after a convicted person has exhausted his or her rights: Thatcher , at para. 9 . He then made the following observation: That the function of the Minister of Justice under

section 690 is an “exemplar of a purely discretionary act” is reflected in the wide allowance given to the Minister to exercise his discretion. There are no statutory provisions directing the Minister as to the manner in which he should exercise his discretion. There are no requirements as to the type of investigation the Minister must carry out under

section 690. [para. 10] [ 66 ] Rothstein J. pointed out that no procedure had been established and that the Minister’s decision was not subject to appeal: Thatcher , at para. 11 . He concluded that “the Minister must act in good faith and conduct a meaningful review, provided that the application is not frivolous or vexatious”: para. 13. An application usually had to introduce some new matter “indicating it is likely that there has been a miscarriage of justice”: para. 14.

Rothstein J. stated that the applicant had no general right to disclosure of what the Minister or his officials had considered in their review: para. 13. However, the applicant was entitled to disclosure of any new information uncovered by the Minister’s investigation: para. 14. [ 67 ] Finally, Rothstein J. wrote: Exceptionally , as a result of new information that is substantial and would provide a reasonable basis for a finding of miscarriage of justice, the Minister may find it necessary to consider material in police or prosecution files.

In such a case, the material, or at least the gist of the material the Minister or his officials review, if not already known by the applicant, would have to be disclosed to him. But there is no general obligation on the Minister to review police and prosecution files or to disclose those files merely because of a request by a convicted person. [Emphasis added.] ( Thatcher , at para. 15 ) [ 68 ] It is our opinion that, for the purpose of establishing liability under the Quebec rules of extracontractual liability, the Minister’s duty can be defined in terms of a meaningful review of an application for mercy.

What a meaningful review entails must be understood in light of Rothstein J.’s comments. It is not the extensive and thorough review referred to by Poulin J. As well, this review is clearly not intended to be equivalent to a new level of appeal. And it is inappropriate to compare the Minister’s review to a police investigation or to the work of a commission of inquiry. On the other hand, a slapdash investigation could hardly be described as a meaningful one either.

It goes without saying that, as the AGC agreed at the hearing, a total failure to conduct a meaningful review of an application that is neither frivolous nor vexatious would constitute a breach of the Minister’s duty. In addition, as we concluded above that it is inappropriate to draw a distinction between the processing of an application for mercy and the Minister’s decision with respect to that application, these two aspects of the power of mercy are intrinsically linked.

The duty to conduct a meaningful review therefore entails a duty to make a decision in good faith on the basis of the evidence uncovered by that review. Finally, we would add that at the time, the Minister did not have to document his or her investigation or give any reasons whatsoever for his or her discretionary decision.

This fact will be important for our assessment of the evidence that has been submitted. [ 69 ] Since we have concluded that the Minister is protected by a qualified immunity when exercising his or her power of mercy, only a breach of the Minister’s duty that amounts to bad faith or serious recklessness could expose the Crown to liability. In short, the evidence had to show that the Minister had acted in bad faith or with serious recklessness in conducting the required review of Mr. Hinse’s applications for mercy. B.

Evidence of Fault in This Case [ 70 ] Although the basis for the Crown’s extracontractual liability in respect of the Minister’s conduct is governed by the C.C.L.C. , it is the C.C.Q. that governs the rules of evidence and procedure in this case: ss. 2 and 3 of the Act respecting the implementation of the reform of the Civil Code (see also the second para. of s. 9).

Article 2803 C.C.Q. provides that “[a] person seeking to assert a right shall prove the facts on which his claim is based.” The onus was therefore on Mr. Hinse to prove fault on the AGC’s part, damage he himself had suffered, and a causal connection between the two: see J.-C. Royer and S. Lavallée, La preuve civile (4th ed. 2008), at No. 158. [ 71 ] In this case, there is no direct evidence regarding the quality of the Minister’s review. The appellant’s argument was based on proof by presumption of fact, and the trial judge relied on this argument to conclude that the Minister had not conducted a meaningful review.

Article 2846 C.C.Q. provides that “[a] presumption is an inference drawn by the law or the court from a known fact to an unknown fact.” Regarding presumptions of fact, art. 2849 C.C.Q. provides that courts may, at their discretion, take such presumptions into account, but only if they are “serious, precise and concordant”. These modifiers can be defined as follows: [ translation] Presumptions are serious when the connection between the known fact and the unknown fact is such that the existence of one establishes the existence of the other in a clear and obvious manner. . . .

Presumptions are precise when the conclusions that flow from the known fact tend to establish the contested unknown fact in a direct and specific manner. If it were also possible to draw different and even contrary results, to infer the existence of various and contradictory facts, the presumptions would not be precise in nature and would give rise only to doubt and uncertainty. Finally, they are concordant , whether or not they each spring from a common or different source, when they tend[, as a whole and in how they accord with one another,] to establish the fact to be proven. . . .

If, on the contrary, they contradict each other . . . and cancel each other out, they are no longer concordant, and create only doubt in the magistrate’s mind. [Emphasis added.] (M. L. Larombière, Théorie et pratique des obligations (new ed. 1885), vol. 7, at p. 216, reproduced in Barrette v. Union canadienne,

compagnie d’assurances, 2013 QCCA 1687, [2013] R.J.Q. 1577, at para. 33; France Animation s.a. v. Robinson, 2011 QCCA 1361, atpara. 120 , quoting Longpré v. Thériault, [1979] C.A. 258, at p. 262.) [72] Thus, [translation] “[a] presumption of fact cannot be deduced from a pure hypothesis, from speculation, from vaguesuspicions or from mere conjecture”: Royer and Lavallée, at No. 842, citing Crispino v. General Accident Insurance Company, 2007QCCA 1293, [2007] R.R.A. 847.

An unknown fact will not be proven if the known facts cause another fact that is inconsistent with thefact the plaintiff wants to prove to be more or less likely, or if they do not reasonably rule out another possible cause of the damage he orshe suffered: see, e.g., Crispino. However, it is not necessary to rule out every other possibility: Royer and Lavallée, at No. 842; see alsoSt-Yves v. Laurentienne générale, compagnie d’assurance inc., (Que. C.A.). [73] After reviewing the steps taken by Mr.

Hinse and the authorities’ responses, Poulin J. concluded that [translation]“the federal government’s conduct was marked by institutional indifference”: para. 55. She made the following points, inter alia, in thisregard: - despite the multiple and urgent distress calls Mr.

Hinse sent out, no one really listened to him, no one helped him, no one looked intohis allegations, no one tried to validate them; - even though he was acquitted by this Court in 1997, and despite the Quebec government’s proposal, the federal government refused tocompensate him in accordance with the Guidelines: Compensation for Wrongfully Convicted and Imprisoned Persons (1988)(“Guidelines”); and - the AGC contested Mr.

Hinse’s action firmly and vigorously for more than 13 years, thereby perpetuating the miscarriage of justice(paras. 57 and 59-60). [74] Poulin J. then expressed the opinion that [translation] “the federal government is liable for the faults committed byits servants and agents, manifested primarily in their indifference toward him”: para. 61.

In this regard, she notably criticized the federalgovernment for a number of actions: - it let more than a year and a half go by and did not respond to the appellant’s first application for review until it had received the thirdletter from the appellant or his spouse; - it created confusion in the instructions it gave them; - it misled the appellant by referring him to the provincial authorities on several occasions; - it deliberately caused the appellant to lose precious time; - it repeatedly asked the appellant to tell his story; and - it forwarded documents the appellant had sent to it to third parties who were not involved in his case (para. 63). [75] Moreover, Poulin J. expressed the opinion that the AGC had had a duty to react as quickly as possible to Mr.

Hinse’sapplication for mercy, as a wrongful conviction is a flagrant example of a miscarriage of justice: para. 68. In her view, the Minister[translation] “had at the very least a duty to conduct a meaningful review of Hinse’s review applications simply because he ‘has and mayexercise the powers of a commissioner under

Part I of the Inquiries Act’”: para. 71, quoting s. 696.2(2) Cr. C. She added that theMinister should, in exercising his power, have taken into account certain concerns raised in an

article published in 1992, in which PhilipRosen describes the procedure followed when an application for mercy is sent to the Minister: para. 72, citing Library of Parliament,“Wrongful Convictions in the Criminal Justice System”, Background Paper BP-285E, January 1992, at pp. 10-11.

Poulin J. observed thatthis exercise had “clearly” not been undertaken in this case, which amounts to a fault of omission: para. 73. [76] She concluded her remarks regarding fault as follows: [translation] The evidence that Hinse adduced by presumption of fact satisfies the Court that the AGC’s wrongful inaction compoundedhis suffering. . . . Institutional inertia exacerbated and extended it by perpetuating the impact of the criminal past that the whole ofsociety had attached to Hinse for a robbery he had not committed, whereas the AGC was the only one in a position to remedy theinjustice.

That, it should be repeated, is where his fault lies. [paras. 75-76] [77] The Court of Appeal found that the Minister had had a duty to conduct a meaningful review of Mr. Hinse’s case,because the affidavits submitted by Mr. Hinse had indicated that a miscarriage of justice may have occurred. The court acknowledgedthat it was difficult [translation] “to accurately gauge what kind of study was conducted, because of the

summary nature of the evidenceadduced”, but nevertheless inferred nothing negative from that: para. 170. At the time in question, the Minister had not been under anobligation to give reasons for his or her decisions, and good faith on his or her part was presumed. In the court’s view, the evidence inthe record did not justify the trial judge’s inferring from the refusals Mr. Hinse had met with that the Ministers had not conducted ameaningful review or had acted maliciously: para. 177. The Court of Appeal pointed out that when Mr.

Hinse had made his applications,he had not yet exhausted his legal remedies, and that at his trial, Judge Côté had made some very harsh comments regarding hiscredibility: paras. 168-69. Finally, the court stated that, even if it considered the handling of all Mr. Hinse’s applications globally, itcould not identify any wrongful conduct: para. 183. [78] The appellant submits that the trial judge did not err in law in defining the meaningful review standard. In his view,it can be seen from Thatcher and from Wilson v.

Minister of Justice, (FC), [1983] 2 F.C. 379 (T.D.), aff’d (FCA), [1985] 1 F.C. 586 (C.A.), that in those cases, Department of Justice officials had conducted exhaustiveinvestigations and reviews, and [translation] “[t]he contrast between the work carried out in those cases and the total absence of any

documentation and/or any information showing any enquiry whatsoever carried out by the AGC in this case is striking”: A.F., at para. 58 (emphasis deleted). The respondent contends that the trial judge erred in law by reviewing the Minister’s conduct on the basis of the provisions of the Cr. C. that came into force in 2002 and the practices followed in the 1990s. She should have conducted this review on the basis of the standards that applied at the time of the acts in question.

The respondent relies on the conclusions reached in Thatcher to himself conclude that the Minister’s conduct in the case at bar was not wrongful. [ 79 ] We are of the opinion that the trial judge not only erred in finding that no immunity whatsoever applied to the Minister’s exercise of his power, but also made several errors regarding the scope of the Minister’s duty, and that those errors led her to conclude, incorrectly, that the Minister had committed a fault.

We will discuss the errors in question first, before turning to the determinative issue of the allegation that the Minister failed to conduct a meaningful review.

(1) Anachronism in the Scope of the Minister’s Duty [ 80 ] The Court of Appeal was right to find that Poulin J. had 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. Those powers were not conferred on the Minister until 2002, when Parliament reformed the procedure in respect of applications for mercy. As the Court of Appeal pointed out, this anachronism had distorted Poulin J.’s analysis of the nature of the meaningful review the Minister was required to conduct, as she had found that the Minister had

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