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Supreme Court of Canada rules "mercy" power doesn't expose Crown to liability, unless there is bad faith

bad faith
"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."

The S.C.C. dismissed the appeal.

In joint reasons, Justices Wagner and Gascon wrote as follows (at paras. 3-5, 181):

" ...The Court of Appeal [expressed] the opinion that the person who exercises this power of mercy is protected by an immunity analogous to the one that applies to a Crown prosecutor in a case of malicious prosecution. Given that there was no intentional or gross fault, or even a simple fault, on the Minister’s part, it dismissed Mr. Hinse’s action against the Attorney General of Canada.

We are of the opinion that, at the material time, the exercise of the Minister’s power of mercy was a true policy decision. The Minister was therefore protected by a qualified (or “relative”) immunity. On being presented with an application for mercy that was neither frivolous nor vexatious, the Minister had a duty to conduct a meaningful review of the application, and a breach of that duty amounting to bad faith, which encompasses serious recklessness, could expose the Crown to liability.

We agree with the Court of Appeal that, on a balance of probabilities, the evidence does not support the trial judge’s inference that the Ministers violated the rules of civil liability in this case. We also agree with the judges of that court that, in any event, Mr. Hinse failed to discharge his burden of proving the requisite causal connection between the Ministers’ actions and the alleged damage. Finally, we agree with the Court of Appeal that the damages awarded to the appellant in excess of the $5,550,000 he had already received were inappropriate. The appeal should therefore be dismissed.



There is no denying that the miscarriage of justice of which Mr. Hinse was a victim is most regrettable. However, in the absence of bad faith or serious recklessness on the Minister’s part, and of a causal connection between his actions and the alleged damage, Mr. Hinse’s action against the AGC must fail."

Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.


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