The King is Dead, Long Live the King: Hinse v. Canada (Attorney General), 2015 SCC 35

Hinse v. Canada (Attorney General), 2015 SCC 35 features some familiar fixtures, one drawn from daytime television — the innocent man wrongly imprisoned for a crime he did not commit — and one drawn from the common law — the officer(s) of the Crown exercising prerogative powers. Here, the Supreme Court of Canada’s sympathy for common-law fundamentals outweighed its sympathy for poor Mr. Hinse, and gave its reasoning a distinctly traditionalist tone.

Hinse was jailed in the 1960s, but should not have been. Thirty years later, he was finally acquitted of the crime, at which point he sued the municipal, provincial and federal governments. The first two settled but the federal government did not. At issue was whether Hinse could recover damages for the mishandling of his three applications for mercy.

Most of Gascon and Wagner JJ.’s reasons for rejecting Hinse’s claim are based on the intricacies of Quebec civil law and civil procedure, but there are several points of general interest because as far as public law is concerned the same principles apply across Canada (see para. 21). Indeed, this reads much more like a public law case than a torts case: such state liability staples as foreseeability and proximity do not feature.

First, the historical basis of the prerogative of mercy, now codified in Canada’s Criminal Code, played an important part in the analysis: “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” (at para. 31).

Even though the days of absolute monarchy are long since over, the vestiges of prerogative power continue to influence modern administrative law, generally making it more difficult for individuals to seek relief from the courts. Yet, it is surely not necessarily the case that all decisions pertaining to the prerogative are intrinsically more likely to be policy decisions protected from liability than other discretionary decisions. Moreover, the statutory power to correct miscarriages of justice was cast in extremely broad terms at the relevant times, so there was little need to mention the prerogative at all. Given that it matters little in practical terms to the individual whether a power is ultimately derived from statute or the prerogative, one could question the wisdom of according special weight to the historical provenance of the power.

Second, the exercise of the power was said to be a policy decision deserving of a qualified immunity from suit:

The history and the nature of the Minister’s power of mercy lead us to find that the exercise of that power was a true core policy act at the relevant time. In light of the principles from Imperial Tobacco, the exercise of such a power could not therefore expose the Crown to liability unless the Minister acted irrationally or in bad faith. In the instant case, it is not necessary to consider in detail what might constitute an irrational decision by the Minister. That is not the issue Mr. Hinse raises here. He merely complains of the failure to conduct adequate reviews of his applications. What is really at issue in this case is whether the Minister conducted a meaningful review (at para. 36).

Quite what “irrationally” means for the purposes of the distinction between policy and operational decisions remains difficult to discern. Throughout, Wagner and Gascon JJ. use the term ‘qualified’ or ‘relative’ to describe the immunity that attaches to policy decisions, but this sheds little light on what irrationality might mean. Generally speaking, qualified or relative immunities in tort are defeasible by showing bad faith or malice. Irrationality fits uneasily into this framework.

Indeed, Wagner and Gascon JJ. held that it would be inappropriate to require a showing of malice in this context because malice would set the bar for recovery too high (see paras. 39-47). Instead, they relied on administrative law principles to define the scope of the minister’s duty to conduct a meaningful review (see paras. 54-69). But suggesting that administrative law unlawfulness might be the basis for liability is difficult to reconcile with the references to bad faith and irrationality and sits uneasily with recent Supreme Court cases insisting that tort liability and administrative law unlawfulness are distinct concepts.

Wagner and Gascon JJ.’s proposed standard for liability was the following:

In sum, decisions of the Minister that are made in bad faith, including those demonstrating serious recklessness — as defined in Finney and Sibeca — on the Minister’s part, fall outside the Crown’s qualified immunity. Bad faith can be established by proving that the Minister acted deliberately with the specific intent to harm another person. It can also be established by proof of serious recklessness that reveals a breakdown of the orderly exercise of authority so fundamental that absence of good faith can be deduced and bad faith presumed. It is with this in mind that the duty owed by the Minister when exercising his or her power of mercy must be analyzed (at para. 53).

And this serious recklessness?

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…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…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 (at para. 68).

Note, however, that the explanation of serious recklessness is specific to Quebec law. Technically speaking, in a case arising at common law a different standard should apply, but future courts will doubtless be influenced by Wagner and Gascon JJ.’s analysis (although they may come to different conclusions once they have wrestled with the relationship between “policy”, bad faith, irrationality and administrative law unlawfulness).

Third, Wagner and Gascon JJ. also commented on the nature of the policy/operational distinction. Discussing Imperial Tobacco, they stated that there, “the Court did not lay down a strict rule that only ‘true’ core policy decisions can be protected by a qualified immunity” (at para. 24). I think this means that the government must only demonstrate that a decision is a “core policy decision” to benefit from a qualified immunity. As a reading of Imperial Tobacco, I think this is correct (see para. 95 of that decision), though unfortunate.

Interestingly, Wagner and Gascon JJ. rejected the argument that a distinction could be drawn between decisions of the minister and errors or oversights by the minister’s staff: “Such a distinction is both difficult to justify and difficult to make in practice. This power is a single power — to review a conviction — that cannot be split into two unconnected steps. Although the ministerial review process does of course require administrative support, this fact alone does not, in the case before us, justify dividing the process into distinct compartments of policy decisions and operational decisions” (at para. 35). It is difficult to see how this distinction is any more difficult to justify or apply than any other attempts to simplify the policy/operational distinction, but I appreciate the desire to simplify the law as much as possible.

Fourth, the principle that the Crown is liable only vicariously but not directly made an appearance in obiter, as a response to Hinse’s argument that Canada’s “institutional inertia” or “indifference” was a basis for liability:

To thus characterize the fault…amounted to accusing the federal Crown itself of a fault. But under the C.L.P.A., the federal Crown cannot be held liable for its own actions, but is only liable in respect of the fault of its servants (in this case, the Minister): s. 3(a)(i). The trial judge erred in approaching the issue of the federal Crown’s civil liability from the perspective of a fault of institutional inertia or indifference. She should instead have analyzed the individual conduct of each of the successive Ministers acting in his or her capacity as a servant of the federal Crown (at para. 92).

The crown proceedings legislation is quite clear that liability of the Crown is vicarious, but Wagner and Gascon JJ. seem to suggest that the institutional slate is wiped clean every time a ministry changes hands. Can this really be so? The Crown is a going concern (and if one sees it as a corporation aggregate, each ministry is a going concern) and, as such, the identity of the individual ministers should not matter. For instance, if institutional inertia leads a corporation to negligently fail to take action to, say, clean up contaminated land, it would hardly be able to defend itself on the basis that the vice-presidency for decontamination had changed hands on several occasions during the relevant period. It seems to me that the institutional inertia would be attributed to the corporation in my example and should have been attributed to the ministry or the Crown in Hinse. Wagner and Gascon JJ.’s obiter remark places a serious restriction on an individual’s ability to sue the state and will doubtless come in for close scrutiny in the future.

On the whole, Hinse is further evidence that Canada’s constitutional history and structure continue to influence its substantive law.

This content has been updated on June 29, 2015 at 13:57.