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Supreme Court sets the bar high for liability in application review

Thursday, July 02, 2015 @ 8:00 PM | By Cristin Schmitz

Ottawa faces potential civil liability if the federal justice minister reviews Criminal Code applications for mercy in an “irrational,” “bad faith” or “seriously reckless” way, the Supreme Court has held.

On June 19, the top court ruled 8-0 in Hinse v. Canada (Attorney General) [2015] S.C.J. No. 35 to dismiss the appeal of Réjean Hinse, a Laval, Que., man who spent decades trying to prove his innocence after being wrongfully convicted of robbery in 1964.

Hinse was appealing a 2013 Quebec Court of Appeal decision dismissing his lawsuit against the federal government for what he alleges were the failures of several justice ministers, from Liberal Pierre Trudeau to Conservative Kim Campbell, to properly investigate his claims of wrongful conviction and consider his four applications for mercy made between 1967 and 1990.

The Supreme Court affirmed the Court of Appeal’s decision to set aside an almost $5.8-million damages award against Ottawa by the Quebec Superior Court, which found that the justice ministers were not duly diligent in handling Hinse’s requests to rectify the miscarriage of justice. Finally, after more than 30 years of multi-pronged efforts by Hinse, including a petition to the governor general, Hinse persuaded the Supreme Court to reopen his case and acquit him unanimously in 1997.

In his lawsuit, Hinse alleged the federal justice minister helped perpetuate and exacerbate the damages he suffered from the miscarriage of justice.

But in jointly written reasons for the court, Justices Richard Wagner and Clément Gascon held that Hinse “cannot reasonably argue that a minister failed to conduct a meaningful review in respect of any of those applications. The relevant correspondence shows the opposite to be true. Nor has the requisite element of bad faith or serious recklessness been proven.”

However, the top court did affirm for the first time that Ottawa faces exposure to civil damages if the justice minister fails to “meaningfully review” applications for mercy, under what is now s. 696.2 of the Criminal Code.

The judgment of Justices Wagner and Gascon breaks new ground by delineating the standard of care applicable to the exercise of the federal justice minister’s historic power to help rectify miscarriages of justice first codified by the Criminal Code, 1892.

Guy Pratte of Ottawa’s Borden Ladner Gervais, who with Alexander de Zordo and Marc-Andre Grou has fought Hinse’s case pro bono for years, said he expects the standard articulated by the Supreme Court will apply nationally and to current applications for mercy, notwithstanding that the Hinse events occurred in Quebec and before 2002, when the federal government enacted regulations which provided a new process and criteria for handling applications for mercy.

“The qualified immunity the minister has is under the [Criminal] Code, which applies in all provinces,” Pratte said by e-mail. “The qualification that good faith cannot include irrational decisions, those in bad faith or that are seriously reckless would seem to me to apply regardless of the civil law or common law. Furthermore, I don’t see any reason why this standard of good faith — and how one measures whether it was met — would be modified by the guidelines, save and except that it should be easier to establish lack of good faith if explicit guidelines were not followed. But the legal test remains the same.”

Pratte told The Lawyers Weekly he and his client were disappointed that the court was not persuaded by the evidence accepted at trial that “the federal government over decades had really done nothing to help a person who everyone acknowledges was wrongfully convicted in the early 1960s. The court effectively, as the Court of Appeal had, put a heavy burden on Mr. Hinse to show that no one had done anything.

“While [the Department of Justice] said in a couple of very cursory letters that they were doing something…there was no paper trail of anything being done,” Pratte said. “At the same time they were telling him or his wife in the sixties and seventies that they were studying his case closely, there were internal memos that said: ‘We lost his file.’ So it’s difficult to understand why that wasn’t sufficient to show that nothing was really being done and, more important perhaps, why both the…Supreme Court and the Court of Appeal felt that they should redo the exercise that the trial judge had undergone, given the very high threshold to reverse findings of fact.”

Pratte added “at least I think we were mildly successful in showing that though the government is the beneficiary, when exercising this…review power under the Criminal Code, of a qualified immunity, we don’t have to show intentional bad faith, but gross negligence will do.”

Department of Justice spokesperson Andrew Gowing said the government was pleased with the decision and “takes the issue of wrongful convictions very seriously.”

He noted by e-mail “a number of changes have been made to the process since the Hinse review took place nearly 40 years ago to ensure that applications continue to be reviewed in a fair and conscientious manner.”

Brian Greenspan of Toronto’s Greenspan Partners, who with Naomi Lutes represented the intervener Association in Defence of the Wrongly Convicted (AIDWYC), said he was disappointed the court declined to make a distinction between the actions of DOJ officials in carrying out the review — to which the appellant and AIDWYC argued a negligence standard should apply — and the minister’s exercise of discretion, to which a higher standard could apply.

“The complaint in the Hinse matter and the delays that led to the extraordinarily lengthy period in which his exoneration was delayed was more a function of the administrative failings of the DOJ as opposed to any bad faith resulting from the ministers’ decision or any policy of the DOJ,” Greenspan noted.

When the justice minister receives an application for mercy under the code, he or she must review the alleged wrongful conviction. The code empowers the minister to dismiss the application or, if “satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred,” order a new trial or refer the case to be dealt with by an appeal court as if it were a conviction appeal.

(From Apr. 1, 2013 to Mar. 31, 2014 — the latest report available — the justice minister granted no applications for mercy.)

The Supreme Court held that at the time the justice ministers exercised their power of mercy, they were making true policy decisions which therefore attracted qualified immunity. So when 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,” Justices Wagner and Gascon said.

The Supreme Court rejected the Quebec Superior Court’s holding that, under the rules of Quebec civil liability, a low standard of fault applied: “simple fault.” The top court also rejected the very high standard proposed by the Quebec Court of Appeal: bad faith encompassing malice.

The Supreme Court said, for the purpose of establishing liability under the Quebec rules of extra-contractual liability, the minister’s duty can be defined in terms of a “meaningful review” of an application for mercy. This does not entail the extensive and thorough review contemplated by the trial judge, nor equivalence to a new level of appeal, a police investigation, or the work of a commission of inquiry. “On the other hand, a slapdash investigation could hardly be described as a meaningful one either.”

Hinse lived under a cloud for decades, including serving five years in prison and 10 years on parole after the wrongful conviction. He also sued Quebec and the town of Mont-Laurier, where the robbery occurred, garnering out-of-court settlements totaling $5.55 million. He sued the federal government for an additional $1.1 million in pecuniary loses, and $1.9 million for non-pecuniary losses (pain and suffering), plus $10 million in punitive damages.