Hinse v. Canada (Attorney General), (2015) 472 N.R. 200 (SCC)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Supreme Court (Canada)
• Judge: McLachlin, C.J.C., LeBel [see footnote 1], Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon, JJ.
• Citation: (2015), 472 N.R. 200 (SCC),2015 SCC 35,[2015] SCJ No 35 (QL),AZ-51186223,[2015] EXP 1931,[2015] 2 SCR 621,JE 2015-1060
• Date: 10 November 2014

Hinse v. Can. (A.G.) (2015), 472 N.R. 200 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2015] N.R. TBEd. JN.017

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)

(35613; 2015 SCC 35; 2015 CSC 35)

Indexed As: Hinse v. Canada (Attorney General)

Supreme Court of Canada

McLachlin, C.J.C., LeBel [see footnote 1], Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon, JJ.

June 19, 2015.

Summary:

In 1964, Hinse was wrongly convicted of armed robbery. In 1997, the Supreme Court of Canada unanimously acquitted Hinse. Hinse instituted an action for an order for solidary payment against the Attorney General of Quebec (AGQ), the Attorney General of Canada (AGC) and the town of Mont-Laurier. Under out-of-court settlements, the town of Mont-Laurier and the AGQ paid Hinse a total of $5,550,000 in compensation for this miscarriage of justice. According to Hinse, that compensation was incomplete 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.

The Quebec Superior Court (2011 QCCS 1780) allowed Hinse's action against the AGC. The trial judge found that a simple fault was sufficient for the Crown to be liable in respect of the Minister's conduct. The trial judge concluded that a fault of "institutional inertia" or "institutional indifference" on the federal government's part had caused Hinse damage equivalent to nearly $5.8 million.

The Quebec Court of Appeal (2013 QCCA 1513) reversed that judgment, expressing the opinion that the person who exercised the power of mercy was protected by an immunity analogous to the one that applied 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, the court dismissed Hinse's action against the AGC. Hinse appealed.

The Supreme Court of Canada dismissed the appeal. 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 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 encompassed serious recklessness, could expose the Crown to liability. The court agreed with the Court of Appeal that, on a balance of probabilities, the evidence did not support the trial judge's inference that the Ministers violated the rules of civil liability in this case. The court also agreed with the Court of Appeal that, in any event, Hinse failed to discharge his burden of proving the requisite causal connection between the Ministers' actions and the alleged damage. Finally, the court agreed with the Court of Appeal that the damages awarded to Hinse in excess of the $5,550,000 he had already received were inappropriate.

Criminal Law - Topic 5071

Appeals - Indictable offences - Review by Minister of Justice - General - In 1964, Hinse was wrongly convicted of armed robbery - In 1997, the Supreme Court of Canada unanimously acquitted Hinse - Hinse instituted an action against the Attorney General of Canada (AGC) among others - Hinse alleged that the Ministers who had decided on his applications for mercy over the years had committed a fault against him by failing to diligently exercise their power in his favour - The Quebec Superior Court ordered the AGC to pay Hinse a total of almost $5.8 million - The Quebec Court of Appeal reversed that decision - Hinse appealed - At issue was the standard of conduct that applied to the exercise of the discretionary power of mercy provided for in the Criminal Code and the circumstances in which the federal Crown might be exposed to liability - The Supreme Court of Canada stated that it would be inappropriate to import the malice standard applicable to the liability of Crown prosecutors for malicious prosecution into a case concerning an application for mercy - The court concluded 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 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 encompassed serious recklessness, could expose the Crown to liability - See paragraphs 4 and 21 to 69.

Criminal Law - Topic 5071

Appeals - Indictable offences - Review by Minister of Justice - General - In 1964, Hinse was wrongly convicted of armed robbery - In 1997, the Supreme Court of Canada unanimously acquitted Hinse - Hinse instituted an action against the Attorney General of Canada (AGC) among others - Hinse alleged that the Ministers who had decided on his applications for mercy (made in 1967, 1980, 1981 and 1990) had committed a fault against him by failing to diligently exercise their power in his favour - The Quebec Superior Court (Poulin, J.) ordered the AGC to pay Hinse a total of almost $5.8 million - The Quebec Court of Appeal reversed that judgment - Hinse appealed - The Supreme Court of Canada stated, inter alia, "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 [Translation] 'extremely broad' latitude in this regard and could seek assistance from the RCMP, from local police forces and from forensic scientists or other experts" - See paragraph 80.

Criminal Law - Topic 5071

Appeals - Indictable offences - Review by Minister of Justice - General - In 1964, Hinse was wrongly convicted of armed robbery - In 1997, the Supreme Court of Canada unanimously acquitted Hinse - Hinse instituted an action against the Attorney General of Canada (AGC) among others - Hinse alleged that the Ministers who had decided on his applications for mercy over the years had committed a fault against him by failing to diligently exercise their power in his favour - The Quebec Superior Court (Poulin, J.) ordered the AGC to pay Hinse a total of almost $5.8 million - The Quebec Court of Appeal reversed that judgment - Hinse appealed - The Supreme Court of Canada stated, inter alia, "Poulin J. sometimes confused the Minister's actions with those of the AGC. Thus, she faulted the AGC for vigorously contesting Mr. Hinse's action and for asserting in his oral argument that there was no evidence showing beyond a reasonable doubt that Mr. Hinse had not committed the crime ... Although the AGC is the Minister's representative for the purposes of this proceeding, it is important to distinguish the conduct of the former from that of the latter. It is the Minister's conduct that must be reviewed to determine whether the federal Crown is civilly liable. In the part of her judgment dealing with fault, the judge should have confined her analysis to the Minister's conduct. If the criticisms levelled against the AGC regarding the conduct of the litigation are at all relevant, it is only for the purpose of determining whether there was an abuse of process, which is an issue that must be considered separately" - See paragraph 83.

Criminal Law - Topic 5086

Appeals - Indictable offences - Review by Minister of Justice - Dismissal of application for - In 1964, Hinse was wrongly convicted of armed robbery - In 1997, the Supreme Court of Canada unanimously acquitted Hinse - Hinse instituted an action against the Attorney General of Canada (AGC) among others - Hinse had made applications for mercy under the Criminal Code in 1967, 1980, 1981 and 1990 - He alleged that the Ministers who had decided on his applications for mercy over the years had committed a fault against him by failing to diligently exercise their power in his favour - The Quebec Superior Court ordered the AGC to pay Hinse a total of almost $5.8 million - The Quebec Court of Appeal reversed that judgment - Hinse appealed - The Supreme Court of Canada dismissed the appeal - After a proper analysis of the Ministers' conduct based on the duty they owed and the applicable standard of fault, the court could not conclude that Hinse had discharged his burden of proving that the Ministers acted in bad faith or with serious recklessness in dealing with his applications for mercy - See paragraphs 93 to 121.

Crown - Topic 601

Attorney General - General - [See third Criminal Law - Topic 5071 ].

Crown - Topic 1526

Torts by and against Crown - Liability of Crown for acts of servants - General principles - In 1964, Hinse was wrongly convicted of armed robbery - In 1997, the Supreme Court of Canada unanimously acquitted Hinse - Hinse instituted an action against the Attorney General of Canada (AGC) among others - Hinse alleged that the Ministers who had decided on his applications for mercy over the years had committed a fault against him by failing to diligently exercise their power in his favour - The Quebec Superior Court (Poulin, J.) concluded that a fault of "institutional inertia" or "institutional indifference" on the federal government's part had caused Hinse damage equivalent to nearly $5.8 million - The Supreme Court of Canada stated that "Although Poulin J. referred to specific, time-limited wrongful actions, she ultimately characterized the AGC's fault as one of 'institutional inertia' ... or 'institutional indifference' ... as if there were one continuous fault that subsumed the individual actions of the successive Ministers. In her view, this 'institutional inertia' had exacerbated and extended the duration of the miscarriage of justice of which Mr. Hinse was the victim, and that was the essence of the AGC's fault ... To thus characterize the fault as one of 'institutional inertia' or 'institutional indifference' amounted to accusing the federal Crown itself of a fault. But under the C.L.P.A. [Crown Liability and Proceedings Act], 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" - See paragraphs 91 to 92.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Policies or "policy" decisions - [See first Criminal Law - Topic 5071 ].

Crown - Topic 2804

Crown immunity - General - Immunity under federal legislation - [See first Criminal Law - Topic 5071 ].

Crown - Topic 2895

Crown immunity - Exceptions - Flagrant impropriety or bad faith - [See first Criminal Law - Topic 5071 ].

Crown - Topic 3206

Prerogative remedies - Mercy - [See first Criminal Law - Topic 5071 and Criminal Law - Topic 5086 ].

Damage Awards - Topic 630.1

Torts - Injury to the person - Wrongful conviction - In 1964, Hinse was wrongly convicted of armed robbery - In 1997, the Supreme Court of Canada unanimously acquitted Hinse - Hinse instituted an action against the Attorney General of Canada (AGC) among others - Hinse alleged that the Ministers who had decided on his applications for mercy over the years had committed a fault against him by failing to diligently exercise their power in his favour - The Quebec Superior Court (Poulin, J.) ordered the AGC to pay Hinse a total of almost $5.8 million - The Quebec Court of Appeal reversed that judgment - Hinse appealed - The Supreme Court of Canada stated, inter alia, "Canada has recognized that it is desirable to compensate victims of miscarriages of justice. In particular, it acceded to the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 ('ICCPR'), ... However, Canada has not enacted legislation to incorporate the ICCPR into Canadian domestic law. There is no legislation establishing an obligation for the federal government or the provinces to compensate victims of miscarriages of justice, nor is there any legislation establishing a right to such compensation. The federal and provincial governments did adopt the Guidelines in 1988. The Guidelines establish a set of criteria that a wrongfully convicted person must meet to be entitled to compensation. In addition to fixing the maximum amount of such compensation, they require, inter alia, that the person first receive a statement to the effect that he or she is innocent: a free pardon or the quashing of a guilty verdict is not, on its own, sufficient. The Guidelines are not binding legislation, however, and have never been regarded as such: ... As a result, the Guidelines did not require the federal government to compensate Mr. Hinse, particularly given that his 'factual innocence' had not been proven" - See paragraphs 84 to 86.

Damage Awards - Topic 630.1

Torts - Injury to the person - Wrongful conviction - In 1964, Hinse was wrongly convicted of armed robbery - In 1997, the Supreme Court of Canada unanimously acquitted Hinse - Hinse instituted an action for an order for solidary payment against the Attorney General of Quebec (AGQ), the Attorney General of Canada (AGC) and the town of Mont-Laurier - Under out-of-court settlements, the town of Mont-Laurier and the AGQ paid him a total of $5,550,000 in compensation for this miscarriage of justice - According to Hinse, that compensation was incomplete 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 - The Quebec Superior Court ordered the AGC to pay Hinse a total of almost $5.8 million - The Quebec Court of Appeal reversed that judgment - Hinse appealed - The Supreme Court of Canada dismissed the appeal - The court also held that the Court of Appeal was right to intervene on the issue of damages - The court stated, inter alia, that "Poulin J. ordered the AGC to pay a total of $855,229.61 in respect of pecuniary damage. This amount seems excessive, given that the AGQ had already paid $1,100,000 under this head pursuant to the transaction entered into with Mr. Hinse. At the very least, the onus was on Mr. Hinse to show that the payments concerned distinct heads of compensation. He did not do so. Moreover, when the amounts awarded are broken down, it is clear that there was no justification for the amounts being claimed" - See paragraphs 142 to 145.

Damage Awards - Topic 630.1

Torts - Injury to the person - Wrongful conviction - In 1964, Hinse was wrongly convicted of armed robbery - In 1997, the Supreme Court of Canada unanimously acquitted Hinse - Hinse instituted an action for an order for solidary payment against the Attorney General of Quebec (AGQ), the Attorney General of Canada (AGC) and the town of Mont-Laurier - Under out-of-court settlements, the town of Mont-Laurier and the AGQ paid him a total of $5,550,000 in compensation for this miscarriage of justice - According to Hinse, that compensation was incomplete 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 - The Quebec Superior Court (Poulin, J.) ordered the AGC to pay Hinse a total of almost $5.8 million - The Quebec Court of Appeal reversed that judgment - Hinse appealed - The Supreme Court of Canada dismissed the appeal - With respect to the issue of nonpecuniary damages, the court stated that "Poulin J.A, after comparing the amount - $1,900,000 - claimed by Mr. Hinse for non-pecuniary damage with the amounts granted in the Marshall, Proulx, Sophonow, Milgaard and Truscott cases, ordered the AGC to pay him the exact amount he sought, expressing the opinion that it was [Translation] 'not excessive' ... the comparisons made were shaky and did not justify a quantum of that magnitude" - Moreover, in the transaction between the AGQ and Hinse, Hinse was paid only $1,100,000 under this head of damages, whereas he had been claiming $3,000,000 in this regard from the AGQ and the AGC, for which they were to be solidarily liable - The court had difficulty seeing why the federal government should be ordered to pay more in respect of non-pecuniary damage than the amount paid by the province - Even if the Minister had committed a fault, at the very most, such a fault would have prolonged the damage already caused by the town and the AGQ - See paragraphs 146 to 155.

Quebec Responsibility - Topic 1641

Causal link - Establishing link - General - In 1964, Hinse was wrongly convicted of armed robbery - In 1997, the Supreme Court of Canada unanimously acquitted Hinse - Hinse instituted an action against the Attorney General of Canada (AGC) among others - Hinse alleged that the Ministers who had decided on his applications for mercy over the years had committed a fault against him by failing to diligently exercise their power in his favour - The Quebec Superior Court (Poulin, J.) ordered the AGC to pay Hinse a total of almost $5.8 million - The Quebec Court of Appeal reversed that judgment - Hinse appealed - The Supreme Court of Canada dismissed the appeal - With respect to the issue of causation, the court concluded that "Poulin J. did not really explain her reasoning on the issue of causation, but merely stated that the facts set out in her reasons, which Mr. Hinse had proven by means of presumptions of fact, established a causal connection: ... However, it is clear from her reasons that her finding that the miscarriage of justice would have been ascertained quickly if the AGC had acted promptly and competently ... is based on the erroneous premise that the Minister, like the investigator of the Commission de police, had a duty to conduct a thorough investigation. Because Poulin J., in so doing, drew inferences and made findings of fact that were not supported by the evidence, the Court of Appeal was justified in intervening: ... It has therefore not been proven that the alleged failure, namely the failure to conduct a meaningful review or to conduct one more expeditiously, was the probable cause of the failure to discover the miscarriage of justice in Mr. Hinse's case. To conclude otherwise would be to rely on mere conjecture or remote hypotheticals. A court's conclusion with respect to civil liability cannot be based on speculation such as this" - See paragraph 137.

Quebec Responsibility - Topic 1870

Causal link - Contributing faults - Joint and several liability - In 1964, Hinse was wrongly convicted of armed robbery - In 1997, the Supreme Court of Canada unanimously acquitted Hinse - Hinse instituted an action for an order for solidary payment against the Attorney General of Quebec (AGQ), the Attorney General of Canada (AGC) and the town of Mont-Laurier - Under out-of-court settlements, the town of Mont-Laurier and the AGQ paid him a total of $5,550,000 in compensation for this miscarriage of justice - According to Hinse, that compensation was incomplete 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 - The Quebec Superior Court ordered the AGC to pay Hinse a total of almost $5.8 million - The Quebec Court of Appeal reversed that judgment - Hinse appealed - The Supreme Court of Canada dismissed the appeal - The court stated, inter alia, that "the Court of Appeal was also right to intervene on the issue of damages. There was an overriding error in the trial judge's analysis. She failed to take into account the requirement that the liability be apportioned solidarily, and to establish the amounts being awarded on the basis of the actual liability of each of the solidary debtors. As the Court of Appeal noted, [Translation] 'to every extent that more than one solidary debtor could be liable for the heads of claim, Mr. Hinse's releases made it necessary to examine the causal faults and apportion liability' ... Mr. Hinse should have borne the shares of the solidary debtors he had released: arts. 1526 and 1690 C.C.Q. [Civil Code of Quebec] ... the apportionment of the liability of Mr. Hinse's various co-debtors had to be determined on the basis of the seriousness of each one's fault: art. 1478 C.C.Q. The trial judge could not simply rely on the apportionment suggested by Mr. Hinse; her role as the arbiter of damages required that she herself fix each debtor's share of the liability. In addition to this overriding error, which skews the amounts awarded under all the heads of damages, the grounds for each of those amounts were also flawed" - See paragraphs 138 to 141.

Quebec Responsibility - Topic 2123

Damages - Wrongs giving rise to compensation - Violation of Charter Rights (Que.) - [See second Quebec Responsibility - Topic 3415 ].

Quebec Responsibility - Topic 2126

Damages - Wrongs giving rise to compensation - Direct damage - Extra-judicial costs - In 1964, Hinse was wrongly convicted of armed robbery - In 1997, the Supreme Court of Canada unanimously acquitted Hinse - Hinse instituted an action against the Attorney General of Canada (AGC) and others - Hinse alleged that the Ministers who had decided on his applications for mercy over the years had committed a fault against him by failing to diligently exercise their power in his favour - The Quebec Superior Court ordered the AGC to pay Hinse a total of almost $5.8 million - The Quebec Court of Appeal reversed that judgment - Hinse appealed - The Supreme Court of Canada dismissed the appeal - The court stated, inter alia, that "the trial judge concluded that the AGC's conduct had amounted to an abuse of process, and she ordered the AGC to pay Mr. Hinse $100,000 for the fees paid to the first law firm he had retained: ... She also awarded $440,000 for services rendered by the firm that had replaced the first and with which Mr. Hinse had entered into a pro bono agreement: ... The trial judge did not refer to any Quebec cases in which extrajudicial fees had been awarded in respect of pro bono representation. Rather, she turned to the case law of the Ontario Court of Appeal, which has stated on various occasions that a pro bono representation agreement is no bar to an award of costs: ... Since costs at common law are different in nature from extrajudicial fees in Quebec law, the comparison was inappropriate. ... By virtue of art. 1608 C.C.Q. [Civil Code of Quebec], the litigant's obligation to pay damages to the other party is neither reduced nor altered by the fact that the latter received a gratuitous benefit from his or her counsel. The rationale for art. 1608 C.C.Q., which is explained in the Minister of Justice's commentary, applies with equal force in a case of abuse of process: damages must be allowed to fully perform their preventive function, and a person who causes an 'injury' must not be exempted from liability. ... Like the Court of Appeal, however, we can see no abuse of process in the AGC's conduct. ... The appellant was not entitled to the extrajudicial fees that were awarded" - See paragraphs 166 to 180.

Quebec Responsibility - Topic 3415

Damages - Punitive or exemplary damages - Entitlement - Unlawful and intentional interference with Charter rights (Que.) - In 1964, Hinse was wrongly convicted of armed robbery - In 1997, the Supreme Court of Canada unanimously acquitted Hinse - Hinse instituted an action against the Attorney General of Canada (AGC) among others - Hinse alleged that the Ministers who had decided on his applications for mercy over the years had committed a fault against him by failing to diligently exercise their power in his favour - The Quebec Superior Court (Poulin, J.) ordered the AGC to pay Hinse a total of almost $5.8 million - The Quebec Court of Appeal reversed that judgment - Hinse appealed - The Supreme Court of Canada stated, inter alia, "Poulin J. ordered the AGC to pay Mr. Hinse $2,500,000 in punitive damages under s. 49 of the Charter of human rights and freedoms, C.Q.L.R., c. C-12 ('Charter'). Section 3 C.L.P.A. [Crown Liability and Proceedings Act], provides that the federal Crown is liable for damages for which, if it were a person, it would be liable for the purpose of assessing damage caused by the fault of a servant of the Crown. According to s. 2 C.L.P.A., 'liability' means 'extracontractual civil liability' in the Quebec context. It must therefore be determined whether this reference in the C.L.P.A. encompasses the remedy of punitive damages provided for in the Charter. ... We are of the opinion that it must be answered in the affirmative ... we conclude that the reference in the C.L.P.A. to provincial law encompasses the remedy of punitive damages provided for in the Charter" - See paragraphs 156 to 163.

Quebec Responsibility - Topic 3415

Damages - Punitive or exemplary damages - Entitlement - Unlawful and intentional interference with Charter rights (Que.) - In 1964, Hinse was wrongly convicted of armed robbery - In 1997, the Supreme Court of Canada unanimously acquitted Hinse - Hinse instituted an action against the Attorney General of Canada (AGC) among others - Hinse alleged that the Ministers who had decided on his applications for mercy over the years had committed a fault against him by failing to diligently exercise their power in his favour - The Quebec Superior Court (Poulin, J.) ordered the AGC to pay Hinse a total of almost $5.8 million - The Quebec Court of Appeal reversed that judgment - Hinse appealed - The Supreme Court of Canada dismissed the appeal - Poulin, J., had ordered the AGC to pay Hinse $2,500,000 in punitive damages under s. 49 of the Charter of human rights and freedoms, C.Q.L.R., c. C-12 - The court stated that "Section 49 of the Charter provides that, '[i]n case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.' ... In the instant case, given that the Ministers' conduct cannot be equated with bad faith or serious recklessness, we cannot conclude that there was intentional interference. The evidence does not support a finding that the Ministers' state of mind was such that they intended to harm Mr. Hinse or had knowledge of the adverse consequences their conduct would have for him. This stringent test was not met, and punitive damages should not have been awarded" - See paragraphs 164 to 165.

Cases Noticed:

Canadian Food Inspection Agency v. Professional Institute of the Public Service of Canada et al., [2010] 3 S.C.R. 657; 410 N.R. 94; 2010 SCC 66, refd to. [para. 21].

McCullock-Finney v. Barreau du Québec, [2004] 2 S.C.R. 17; 321 N.R. 361; 2004 SCC 36, appld. [para. 22].

Finney v. Barreau du Québec - see McCullock-Finney v. Barreau du Québec.

Prud'homme v. Prud'homme, [2002] 4 S.C.R. 663; 297 N.R. 331; 2002 SCC 85, refd to. [para. 22].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, appld. [para. 23].

Attorney General for Canada v. Attorney General of the Province of Ontario (1894), 23 S.C.R. 458, refd to. [para. 28].

Québec (Ministre de la Justice) v. Therrien, J., [2001] 2 S.C.R. 3; 270 N.R. 1; 2001 SCC 35, refd to. [para. 30].

Therrien, Re - see Québec (Ministre de la Justice) v. Therrien, J.

Kvello et al. v. Miazga et al., [2009] 3 S.C.R. 339; 395 N.R. 115; 337 Sask.R. 260; 464 W.A.C. 260; 2009 SCC 51, dist. [para. 40].

Proulx v. Québec (Procureur général), [2001] 3 S.C.R. 9; 276 N.R. 201; 2001 SCC 66, dist. [para. 40].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, dist. [para. 170].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 SCC 65, refd to. [para. 40].

Bilodeau v. Canada (Ministre de la Justice), 2009 QCCA 746, refd to. [para. 42].

Thatcher v. Canada (Attorney General), [1997] 1 F.C. 289; 120 F.T.R. 116 (T.D.), apprvd. [para. 42].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 43].

Bilodeau v. Canada (Minister of Justice) et al. (2011), 394 F.T.R. 235; 2011 FC 886, refd to. [para. 43].

Daoulov v. Canada (Attorney General) et al. (2009), 388 N.R. 54; 2009 FCA 12, refd to. [para. 43].

Timm v. Canada (Attorney General) (2012), 409 F.T.R. 8; 2012 FC 505, affd. (2012), 451 N.R. 250; 2012 FCA 282, refd to. [para. 43].

Entreprises Sibeca Inc. v. Frelighsburg (Municipalité), [2004] 3 S.C.R. 304; 325 N.R. 345; 2004 SCC 61, appld. [para. 48].

Barrette v. Union canadienne, compagnie d'assurances, 2013 QCCA 1687, refd to. [para. 71].

France Animation s.a. v. Robinson, 2011 QCCA 1361, refd to. [para. 71].

Longpré v. Thériault, [1979] C.A. 258, refd to. [para. 71].

Crispino v. General Accident Insurance Company, 2007 QCCA 1293, refd to. [para. 72].

St-Yves v. Laurentienne générale, compagnie d'assurance inc., 1997 CanLII 10732 (Que. C.A.), refd to. [para. 72].

Wilson v. Minister of Justice, [1983] 2 F.C. 379 (T.D.), affd. [1985] 1 F.C. 586; 60 N.R. 194 (F.C.A.), refd to. [para. 78].

Parrot v. Thompson and Monty, [1984] 1 S.C.R. 57; 51 N.R. 161, refd to. [para. 132].

Dallaire v. Paul-Émile Martel Inc., [1989] 2 S.C.R. 419, refd to. [para. 132].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 137].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 137].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 146].

Thornton v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 146].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 146].

Cinar Corp. et al. v. Robinson et al., [2013] 3 S.C.R. 1168; 452 N.R. 123; 2013 SCC 73, refd to. [para. 146].

Proulx v. Québec (Procureur général), [1997] R.J.Q. 2509 (Sup. Ct.), refd to. [para. 149].

Proulx v. Québec (Procureur général), [1997] R.J.Q. 2516 (Sup. Ct.), refd to. [para. 149].

Chaput v. Romain, [1955] S.C.R. 834, refd to. [para. 159].

de Montigny v. Brossard (Succession), [2010] 3 S.C.R. 64; 408 N.R. 80; 2010 SCC 51, refd to. [para. 159].

St. Jacques v. Fédération des employés et employés de services public inc. (C.S.N.) et al., [1996] 2 S.C.R. 345; 198 N.R. 1, refd to. [para. 159].

Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Montréal (Communauté urbaine), [2004] 1 S.C.R. 789; 319 N.R. 379; 2004 SCC 30, refd to. [para. 161].

Québec (Curateur public) v. Syndicat national des employés de l'Hôpital St-Ferdinand et autres, [1996] 3 S.C.R. 211; 202 N.R. 321, refd to. [para. 164].

1465778 Ontario Inc. et al. v. 1122077 Ontario Ltd. et al. (2006), 216 O.A.C. 339; 82 O.R.(3d) 757 (C.A.), dist. [para. 166].

Viel v. Entreprises Immobilières du Terroir ltée, [2002] R.J.Q. 1262 (C.A.), appld. [para. 168].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 170].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 170].

Human Rights Commission (Ont.) v. Brillinger et al. (2004), 185 O.A.C. 366 (C.A.), refd to. [para. 171].

Reynolds v. Kingston Police Services Board et al. (2007), 225 O.A.C. 112; 86 O.R.(3d) 43; 2007 ONCA 375, refd to. [para. 171].

Statutes Noticed:

Charter of Human Rights and Freedoms, C.Q.L.R., c. C-12, sect. 49 [para. 156].

Civil Code of Lower Canada, art. 1053 [para. 57]; art. 1054 [para. 58].

Civil Code of Québec, art. 1376 [para. 22]; art. 1440 [para. 176]; art. 1457 [para. 21]; art. 1463 [para. 58]; art. 1474 [para. 51]; art. 1478 [para. 140]; art. 1526 [para. 138]; art. 1607 [para. 143]; art. 1608 [para. 172]; art. 1621 [para. 159]; art. 1690 [para. 14]; art. 2803 [para. 70]; art. 2846, art. 2849 [para. 71].

Code of Civil Procedure, C.Q.L.R., c. C-25, art. 54.1, art. 54.2, art. 54.3, art. 54.4, art. 54.5, art. 54.6. [para. 169].

Criminal Code, S.C. 1892, c. 29, sect. 748 [para. 29].

Criminal Code, S.C. 1953-54, c. 51, sect. 596 [Appendix].

Criminal Code, R.S.C. 1970, c. C-34, sect. 617 [Appendix].

Criminal Code, R.S.C. 1985, c. C-46, sect. 690 [Appendix]; sect. 696.2 [para. 62]; sect. 696.4 [para. 34]; sect. 696.5 [para. 62].

Criminal Code Regulations (Can.), Regulations Respecting Applications for Ministerial Review - Miscarriages of Justice, SOR/2002-416, sect. 3, sect. 4 [para. 63].

Criminal Law Amendment Act, S.C. 1968-69, c. 38. sect. 62 [Appendix].

Crown Liability Act, S.C. 1952-53, c. 30, [para. 21].

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, sect. 2 [para. 21]; sect. 2.1 [para. 157]; sect. 3(a)(i) [para. 21].

International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 [para. 84].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 8.1 [para. 158].

Regulations Respecting Applications for Ministerial Review - Miscarriages of Justice - see Criminal Code Regulations (Can.).

Authors and Works Noticed:

Baudouin, Jean-Louis, Deslauriers, Patrice, and Moore, Benoît, La responsabilité civile (8th Ed. 2014), Nos. 1-373 [para. 159]; 1-683 [para. 132]; 1-190 [para. 51].

Canada, Department of Justice, Guidelines: Compensation for Wrongfully Convicted and Imprisoned Persons (1988), generally [para. 73].

Canada, Hansard, House of Commons Debates, vol. IV, 7th Sess., 21st Parliament (March 26, 1953), p. 3330 [para. 157].

Canada, Hansard, House of Commons Debates, vol. 137, No. 054, 1st Sess., 37th Parliament (May 3, 2001), p. 3583 [para. 135].

Canada, Library of Parliament, Parliamentary Research Branch, Bill C-15A: An Act to amend the Criminal Code and to amend other Acts, Legislative Summary LS-410E (October 12, 2001, revised September 30, 2002), generally [para. 34].

Canada, Library of Parliament, Research Branch, Wrongful Convictions in the Criminal Justice System, Background Paper BP-285E (January 1992), pp. 10-11 [para. 75]; 13-14 [para. 82].

Canada, Senate, Debates of the Senate, vol. 139, No. 66, 1st Sess., 37th Parliament (November 1, 2001), p. 1612 [para. 135].

Garant, Patrice, with Garant, Philippe, and Garant, Jérôme, Droit administratif (6th Ed. 2010), p. 913 [para. 158].

Hansard - see Canada, Hansard, House of Commons Debates.

Hogg, Peter W., Monahan, Patrick J., and Wright, Wade K., Liability of the Crown (4th Ed. 2011), pp. 26 [para. 43]; 436 [para. 158].

Larombière, M.L., Théorie et pratique des obligations (New Ed. 1885), vol. 7, p. 216 [para. 71].

LeBel, Louis, La protection des droits fondamentaux et la responsabilité civile (2004), 49 McGill L.J. 231, p. 235 [para. 162].

Manitoba, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001), generally [para. 150].

Nova Scotia, Commission of Inquiry Concerning the Adequacy of Compensation Paid to Donald Marshall, Jr. Report of the Commissioner, Halifax: The Commissioner, 1990, generally [para. 148].

Ontario, Ministry of the Attorney General, In the Matter of Steven Truscott: Advisory Opinion on the Issue of Compensation, by Sydney L. Robins, March 28, 2008 (online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/truscott/), pp. 18 to 23 [para. 85].

Perret, Louis, De l'impact de la Charte des droits et libertés de la personne sur le droit civil des contrats et de la responsabilité au Québec (1981), 12 R.G.D. 121, pp. 124 [para. 162]; 170 [para. 160].

Quebec, Minister of Justice, Commentaires du ministre de la Justice, vol. 1, Le Code civil du Québec - Un mouvement de société (1993), p. 994 [para. 175].

Royer, Jean-Claude, et Sophie Lavallée, La preuve civile (4th Ed. 2008), No. 158 [para. 70]; 842 [para. 72].

Smith, A.T.H., The Prerogative of Mercy, the Power of Pardon and Criminal Justice, [1983] P.L. 398, generally [para. 28].

Trotter, Gary T., Justice, Politics and the Royal Prerogative of Mercy: Examining the Self-Defence Review (2001), 26 Queen's L.J. 339, p. 344 [para. 28].

Counsel:

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.

Solicitors of Record:

Borden Ladner Gervais, Montreal, Quebec, for the appellant;

Attorney General of Canada, Ottawa, Ontario, for the respondent;

Greenspan Humphrey Lavine, Toronto, Ontario, for the intervener, the Association in Defence of the Wrongly Convicted;

Lavery, de Billy, Montreal, Quebec, for the intervener, Centre Pro Bono Québec;

Bennett Jones, Toronto, Ontario, for the intervener, Pro Bono Law Ontario.

This appeal was heard on November 10, 2014, before McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered by Wagner and Gascon, JJ., in both official languages, on June 19, 2015. LeBel, J., took no part in the judgment.