Respondent Procureur-général-du

Transcription

File no 35613
SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL OF QUEBEC)
BETWEEN :
RÉJEAN HINSE
- and -
APPELLANT
(Respondent at the Court of Appeal)
ATTORNEY GENERAL OF CANADA
- and -
RESPONDENT
(Appellant at the Court of Appeal)
ASSOCIATION IN DEFENCE OF THE
WRONGLY CONVICTED
et
CENTRE PRO BONO QUÉBEC
et
PRO BONO LAW ONTARIO
INTERVENERS
RESPONDENT’S FACTUM (ENGLISH VERSION)
(Rule 42 of the Rules of the Supreme Court of Canada)
William F. Pentney
Deputy Attorney General of Canada
Per : Bernard Letarte
Vincent Veilleux
Department of Justice Canada
284 rue Wellington, SAT-6060
Ottawa, Ontario K1A 0H8
Christopher M. Rupar
50 O’Connor St., SUN-557
Ottawa, Ontario K1A 0H8
Telephone : 613 946-2776 (B. Letarte)
Telephone : 613 946-2774 (V. Veilleux)
Facsimile : 613 952-6006
[email protected]
[email protected]
Telephone : 613 670-6290
Facsimile : 613 954-1920
[email protected]
Counsel for the RESPONDENT,
Attorney General of Canada
Agent for the RESPONDENT,
-2ORIGINAL: REGISTRAR
COPY:
Guy J. Pratte, A.d. E.
Alexander L. De Zordo
Marc-André Grou
BORDEN LADNER GERVAIS, s.e.n.c.r.l., s.r.l.
1000 De la Gauchetière West St.
Suite 900
Montreal, Quebec H3B 5H4
Telephone: 514 879-1212
Facsimile: 514 954-1905
E-mail: [email protected]
Counsel for the Appellant
Réjean Hinse
Brian H. Greenspan
Naomi M. Lutes
Greenspan Humphrey Lavine
15, Bedford Road
Toronto, Ontario M5R 2J7
Telephone: 416 868-1755, #222 and 226
Facsimile: 416 868-1990
[email protected]
[email protected]
Attorney of the Intervener,
Association in Defence of the
Wrongly Convicted
Nadia Effendi
World Exchange Plaza
100 Queen Street, Suite 1100
Ottawa, Ontario K1P 1J9
Telephone: 613 237-5160
Facsimile: 613 230-8842
Agent for the Appellant
Réjean Hinse
Nadia Effendi
100 Queen Street, Suite 1100
Ottawa, Ontario K1P 1J9
Telephone: 613 237-5160
Facsimile: 613 230-8842
Association in Defence of the
Wrongly Convicted
-3-
Bernard Larocque
Jonathan Lacoste Jobin
Lavery, De Billy s.e.n.c.r.l.
1 Place Ville-Marie, Suite 4000
Montréal, Québec H3B 4M4
Pierre Landry
Noël et Associés s.e.n.c.r.l.
111 Champlain St.
Gatineau, Québec J8X 3R1
Telelephone : 514 871-1522 (B. Larocque)
Telephone :
514 877-3042 (J. Lacoste Jobin)
Facsimile :
514 871-8977
[email protected]
[email protected]
Telephone : 819 771-7393
Facsimile : 819 771-5397
[email protected]
Centre Pro Bono Québec
Agent of the Intervener
Centre Pro Bono Québec
Jeffrey S. Leon
Ranjan K. Agarwal
Nathan J. Shaheen
Bennett Jones LLP
3400, One First Canadian Place
Toronto, Ontario M5X 1A4
Sheridan Scott
Bennett Jones LLP
45 O’Connor St., Suite 1900
Ottawa, Ontario K1P 1A4
Telephone : 416 863-1200
Facsimile : 416 863-1716
[email protected]
[email protected]
[email protected]
Telephone: 613 683-2302
Telephone: 613 683-2323
[email protected]
Attorney of the Intervener
Pro Bono Law Ontario
Agent of the Intervener
Pro Bono Law Ontario
i
TABLE OF CONTENTS
Page
RESPONDENT’S FACTUM
PART I – THE FACTS ............................................................................................................................. 1
I. Overview .......................................................................................................................................... 1
II. Statement of facts ........................................................................................................................... 2
a. Appellant's arrest, trial, conviction and incarceration ................................................................... 2
b. Applications for mercy and pardon .............................................................................................. 3
c. Proceedings before the Court of Appeal of Québec and the Supreme Court .............................. 6
d. Action for damages ..................................................................................................................... 7
e. The Superior Court judgment ...................................................................................................... 8
f.
The Court of Appeal ruling .......................................................................................................... 8
PART II – ISSUES .................................................................................................................................... 9
PART III: ARGUMENTS......................................................................................................................... 10
A. STANDARD OF REVIEW ON APPEAL ................................................................................ 10
B. THE CIVIL LIABILITY REGIME APPLICABLE TO THE FEDERAL CROWN IN QUEBEC.......... 11
i.
General principles ............................................................................................... 11
ii.
Liability for acts of public authority ...................................................................... 12
C. THE MINISTERS HAVE NOT COMMITTED ANY FAULT....................................................... 16
i.
Principles governing the exercise of the power of mercy .................................... 16
ii.
The 1967 application for mercy ........................................................................... 21
- The hypothetical acquittal in the mid-1970s .................................................. 26
iii.
The 1980 and 1981 applications for mercy ......................................................... 27
iv.
The 1990 application for mercy ........................................................................... 28
D. COMPENSATORY DAMAGES AND CAUSALITY ................................................................. 29
i.
Loss of income from 1997 to 2002 ...................................................................... 30
ii
ii.
Fees and legal costs incurred in the Court of Appeal and the Supreme
Court ................................................................................................................... 31
iii.
Investigation costs, loss of time, effort, photocopies, transcripts, travel, etc. ...... 31
iv.
Non-pecuniary damages ..................................................................................... 32
E. THE EXEMPLARY DAMAGES ISSUE.................................................................................. 34
F. EXTRAJUDICIAL FEES ...................................................................................................... 37
PART IV – SUBMISSIONS CONCERNING COSTS .............................................................................. 38
PART V – ORDER SOUGHT ................................................................................................................. 39
PART VI – TABLE OF AUTHORITIES ................................................................................................... 40
PART VII – ACTS / REGULATIONS / RULES ....................................................................................... 46
Respondent’s Factum
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Arguments
PART I – THE FACTS
I. OVERVIEW
1.
The Appellant brought a civil action in damages against the Federal Crown because the Minister of
Justice refused to exercise his conviction review power in the Appellant’s favour, following
applications he submitted between 1967 and 1990. The extraordinary and highly discretionary nature
of this power (also called power of mercy) is recognized in the case law. As an exception to the
principle of finality, the power of mercy is only exercised when the Minister is convinced that a judicial
error likely occurred, based upon presentation of new and significant elements he deems credible.
When exercising this power, the Minister does not substitute himself for police, Crown prosecutors or
the judge that handed down the conviction; this would undermine the criminal justice system.
2.
As the Court of Appeal concluded, the Appellant's claim must be dismissed because the test for
liability in this case is bad faith, given the particular nature of the Minister’s power, and the Appellant
did not even prove a simple fault (une faute simple) tainting the conduct of the various Ministers of
Justice involved in this case.
3.
As he did before the lower courts, the Appellant is now asking the Court, nearly fifty years after his
first application, to infer that no serious review of his applications was conducted. However, as the
Court of Appeal concluded, such an inference can simply not be drawn from the record. The
documentary evidence from the time of the events, admitted by the Appellant, indicates that his
application was thoroughly reviewed and the Appellant, who had the burden of proving the fault, did
not present any witnesses, or contrary evidence, to support his allegations.
4.
Considering the standards of conduct that apply in this case, it is impossible to conclude that the
various Ministers committed a fault, let alone acted in bad faith. In fact, the scope of the Ministers’
review was entirely at their discretion. They had neither the duty nor the power to act as an
investigating commissioner. Moreover, at the time, they did not have to provide reasons for their
decisions and, given the information on record, it was within their discretion to find that the
circumstances did not give rise to a decision in favour of the Appellant. In addition, as noted by the
Court of Appeal, it was an error and highly speculative for the Superior Court to state that the
Appellant would definitely have been acquitted in the mid 1970s had the Minister exercised his power
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Arguments
of mercy in his favour. As such, there is a lack of causality between the Ministers' conduct and the
alleged prejudice.
5.
In any event, even if this Court were to find that the Ministers' conduct engaged the Crown's civil
liability, the Superior Court's assessment of damages was clearly excessive. According to the
Appellant’s own evidence, his damages were essentially caused by his arrest, conviction and
incarceration. Yet, no Federal Crown servants was involved in his arrest, prosecution or conviction.
Moreover, the Appellant has already received close to $5 million from the Government of Quebec
and the City of Mont-Laurier as compensation in this case.
II. STATEMENT OF FACTS
6.
The Respondent does not agree with the Appellant's statement of facts since it omits important facts,
contains arguments, and assumes responses to certain questions at issue.
a. Appellant's arrest, trial, conviction and incarceration
7.
During a police line-up held December 18, 1961, in Mont-Laurier, the Appellant was identified by the
victims of an armed robbery as being one of the perpetrators of the robbery. He was then arrested by
the Sûreté provinciale du Québec (SQ), and charged by a prosecutor for the Government of
Quebec. 1
8.
At his trial, the Appellant was again identified by the victims of the robbery. A police officer from the
municipal force of Mont-Laurier, Arthur Scott, also testified that he saw the Appellant in Mont-Laurier
in September 1961 with other individuals who committed this robbery. 2 This testimony is important
because the Appellant, in a defence of alibi, maintains that he never went to Mont-Laurier before
December 1961. Ruling that his defence was completely fabricated, Justice Côté of the Court of
Sessions of the Peace found the Appellant guilty 3 and sentenced him to 15 years in prison, to be
1
2
3
Judgment of the Court of Appeal, paras. 12 to 17, Appellant's record ("A.R."), vol. I, p.77; Judgment of the
Court of Appeal (8/6/94), pp. 2-3, A.R., vol. VII, pp. 10.4-10.5.
Testimony of Mr. and Mrs. Grenier, (27/11/63), Exhibit P-16; Respondent's record ("R.R."), vol. II, p. 19 and
sq.; Testimony of Arthur Scott at appellant's trial (27/11/63), Exhibit P-16, R.R., vol. II, p. 46 and sq.; see also
Testimony of Arthur Scott at preliminary inquiry of L. Véronneau (28/3/66), Exhibit P-28, p. 377, R.R., vol. II,
p. 62.
Judgment of Court of Sessions of the Peace, (23/9/64), A.R., vol. VI, p. 125.
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Arguments
served concurrently with sentences imposed for other offences not related to the robbery. 4 The
Appellant was incarcerated from September 1964 to September 1969 5 and then released on parole.
9.
In 1965, the Appellant informed his lawyer that he knew the true perpetrators of the crime 6. At his
lawyer's suggestion, the Appellant obtained three short affidavits from these individuals, two of which
acknowledged their participation in the robbery. The affiants affirmed that the Appellant did not
commit the robbery, but no other details were provided. 7 Despite these affidavits, the Appellant
decided not to appeal his case.
10.
In August 1966, the SQ continued its investigation of the case at the Appellant's request 8. Two
investigators met with the authors of the affidavits in question. They admitted having signed them, but
refused to provide any further details. As a result, the investigators concluded that continuing the
investigation was not warranted 9
b. Applications for mercy and pardon
11.
On July 19, 1967, the Appellant wrote to the federal Minister of Justice (the Minister) of the time, the
Honourable Pierre-Elliot Trudeau, asking him to intervene pursuant to section 596 of the Criminal
Code. He enclosed the affidavits obtained in 1966. 10 As noted by the Court of Appeal, there is
nothing in this letter that indicates that the Appellant's arrest or trial were marred by irregularities. 11
12.
A few days later, on July 28, 1967, the Director of the Criminal Law Section of the Department of
Justice (the Director) informed the Appellant that his application would be reviewed, and he wrote to
Quebec's Deputy Minister of Justice to obtain the police reports regarding the investigation into the
robbery. 12
4
5
6
7
8
9
10
11
12
Judgment of the Court of Sessions of the Peace, (3/11/64), A.R., Vol. VI, p. 150; record from RCMP forensic
identification service, Exhibit PG-8, R.R., vol. II, p. 141 and sq.
Judgment of the Court of Appeal, paras. 17 to 22 and 51, A.R., vol. I, 77-78, 88.
Correspondence between Réjean Hinse and Mr. Mayrand, Exhibits, P-32, P-33, P-35, P-36, P-39, R.R., vol. II, p.
67 and sq; Court of Appeal decision, paras. 25 and 30, A.R., vol. I, p. 78, 80.
Affidavits of Savard, Beausoleil and Levasseur, Exhibits P-37, P-38, P-40, A.R., vol. VI, p. 152, 153, 155.
SQ report (12/9/66), Exhibits P-141, P-158A, A.R., vol. X, p. 14, and vol. VIII, p.5.
SQ report (27/1/67), Exhibit P-141, P-158-A, A.R., vol. X, p. 31 and vol. VIII, p. 22.
Appellant's letter (19/7/67), Exhibit P-45, A.R., vol. X, p. 11; Court of Appeal decision, para. 32, A.R., vol. I, p.
81.
Judgment of the Court of Appeal, para. 33, A.R., vol. I, p. 83.
Letters from J.A. Belisle (28/7/67), Exhibits P-143 and P-146, A.R., vol. X, pp. 13 and 39.
13.
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Arguments
Rather than sending the requested reports, Quebec's Associate Deputy Minister of Justice responded
on August 16, 1967 by asking the Director to send him the affidavits enclosed with the Appellant's
letter. He concluded this letter by stating that [TRANSLATION] "on receipt and after examination of
them, we will move quickly to cooperate with you."13
14.
In September 1968, with no response to her husband's letters, Mrs. Hinse wrote to the Minister of
Justice. 14 An October 18, 1968, letter indicates that the Appellant's application had not progressed
because the documents comprising his physical file had been sent to the Correctional Service of
Canada and had not been returned to the Department of Justice. 15
15.
By way of this letter, the Director contacted the Solicitor General of Canada, in charge of the
Correctional Service, to ask for the Appellant's consent to have the affidavits he obtained forwarded
to the Attorney General of Quebec; this step was necessary in order to move forward given Quebec's
August 16, 1967, letter. 16 The evidence shows that the Appellant eventually consented to the
transmission of these affidavits. 17
16.
In January 1969, in response to a letter from Mrs. Hinse, the Director informed her that her husband's
file was the subject of a "thorough review". 18 In February 1969, the affidavits that the Appellant had
obtained were sent to the Quebec Department of Justice and in April of that year, the provincial and
federal authorities contacted each other and the federal authorities obtained documents from the
Government of Quebec. 19 As will be discussed later, the Appellant's application for mercy in order to
obtain a new trial would ultimately be dismissed in December 1971.
13
14
15
16
17
18
19
Letter from Denys Dionne (16/8/67), Exhibit P-144, A.R., vol. X, p. 40.
Letter from Jeannine Hinse (10/9/68), Exhibit P-46, A.R., vol. X, p. 50 and subsequent correspondence, Exhibits
P-47 to P-49, A.R., vol. X, pp. 51 to 54.
Letter from J.A. Belisle (18/10/68), Exhibit P-50, A.R., vol. X, p. 55.
Idem.
Penitentiary Service of Canada letter (7/2/69), Exhibit P-56, A.R., vol. X, p. 66; Letter from Réjean Hinse
(17/2/69), Exhibit P-57, A.R., vol. X, p. 67; Letter from Réjean Hinse (17/2/69), Exhibit P-58, A.R., vol X, p.
68; G.J.L Gosselin's letter (19/2/69), Exhibit P-59, A.R., vol. X, p. 71.
Letter from J.A. Belisle (10/01/69), Exhibit P-147, A.R., vol. X, p. 62.
Penitentiary Service of Canada letter (19/02/69), Exhibit P-59, A.R., vol. X, p.71; Letter from J.A. Belisle
(10/4/69), Exhibit P-62, A.R., vol. X, p. 75; Letter from H. Pelletier (30/4/69), Exhibit P-65, A.R., vol. X, p. 78;
SQ reports, Exhibit P-158A, A.R., vol. VIII, p. 1; Examination for discovery of Kerry Scullion, p. 24-27, Exhibit
P-158, A.R., vol. VII, p. 138.
17.
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Arguments
In the meantime, in March 1971, the Appellant filed an application for pardon to the Governor in
Council pursuant to section 655 Cr.C. 20 On March 30, 1971, this application was considered by a
special committee of the Privy Council, which came to the following conclusion:
It is our opinion that subject did not provide us with sufficient fresh facts that were not
available at the time of the trial and that could have been a basis to prove his innocence
under the royal prerogative of mercy. 21
18.
The committee did however suggest that the matter be returned to the Minister of Justice for further
review to determine whether the Appellant should be granted a new trial. 22
19.
On December 22, 1971, the Director wrote to the National Parole Board, to which the Appellant had
been reporting since 1969, and stated the following: [TRANSLATION] "We have carefully reviewed
Réjean Hinse's file and we have come to the conclusion that it is not warranted to grant a new trial in
this case."23 The Board communicated this decision to the Appellant on February 10, 1972. 24
20.
For more than 8 years following this decision, during which time the Appellant held well-paying jobs, 25
the Department did not hear from him. Then, on July 23, 1980, he reappeared and submitted a new
application to the Honourable Jean Chrétien, the Minister of Justice at that time. The application,
which was three paragraphs long, was dismissed because of its vagueness. 26
21.
In January 1981, the Appellant submitted a third application to the Minister. Following exchanges
whose primary purpose was to seek clarifications on the new facts that might justify exercising the
power of mercy in favour of the Appellant, 27 the Appellant was informed that, after a thorough review,
20
21
22
23
24
25
26
27
Letter from Réjean Hinse (12/3/71), Exhibit P-66, A.R., vol. X, p. 79; Court of Appeal decision, para. 52, A.R.,
vol. I, p. 88.
Letter from J.L. Cross and attachment (30/3/71), Exhibit P-67, A.R., vol. X, p. 81; Court of Appeal decision,
para. 53, A.R., vol. I, p. 89.
Idem.
Letter from S.F. Sommerfeld (22/12/71), Exhibits PGC-2 and P-180, A.R., vol. IX, p. 70 and vol. X, p. 102.
Letter from Monique Lauzon (10/2/72), Exhibit P-70, A.R., vol. X, p. 103; Court of Appeal decision, para. 57,
A.R., vol. I, p. 91.
Examination of expert Sylvain Caron, p. 54, R.R., vol. II, p. 18; Expert report by Dunwoody, appendices 1 to 3,
R.R., vol. II, p. 126 and sq.
Appellant's letter (23/7/80), Exhibit P-75, A.R., vol. X, p. 106; Letter from Jacques Demers (30/12/80), A.R.,
vol. X, p. 108.
Correspondence between the Appellant and the Department, Exhibits PGC-4, PGC-5, P-77, A.R., vol. X, pp.
109-111 and vol. XI, pp. 1-15.
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Arguments
his case did not reveal exceptional circumstances that would justify the Minister exercising his
exceptional power in his favor. His application was therefore denied on September 23, 1981. 28
22.
In 1989, the Appellant filed a complaint with the Commission de police du Québec [the CPQ] against
Officer Bourgeois of the SQ, whom he accused of falsifying the line-up during which he was identified
by the robbery victims in 1961. He also filed a complaint against Agent Scott of the Mont-Laurier
police force, whom he accused of committing perjury at his trial. 29 Following its investigation, the
CPQ produced a brief in which it found that the Appellant was likely the victim of a judicial error for
various reasons related to its review of the police investigation in light of new testimony. 30 In
particular, before the CPQ, Agent Scott raised doubts about the testimony he had given at the
Appellant's trial in 1963.
23.
With the support of this brief, the Appellant asked the Honourable Kim Campbell, Minister of Justice,
in November 1990, to exercise her power of mercy in his case. 31 In her response dated April 24,
1991, the Minister noted that she was informed that the CPQ report contained new facts that
warranted consideration and that the questions raised by the CPQ were serious and relevant to the
exercise of her discretion. However, she noted that these questions could also be addressed directly
to the Court of Appeal of Québec and that, as such, it was not necessary for her to impose the task
on the Court via section 690 C.C. The Minister concluded her letter by inviting counsel for the
Appellant to bring the Appellant’s case to her attention again, should the Court of Appeal deny his
appeal. 32
c. Proceedings before the Court of Appeal of Quebec and the Supreme Court
24.
In 1991, further to the Minister's suggestion, the Appellant obtained leave from the Court of Appeal to
appeal his conviction. After hearing the appeal and considering the Appellant's new evidence, the
Court of Appeal concluded that the trial judgment had to be set aside because of the many
irregularities tainting the case. However, the Court found that the new evidence was not sufficiently
clear and conclusive to justify an acquittal given, on one hand, that the testimony of the alleged
28
29
30
31
32
Letter from J. Demers (23/9/81), Exhibit P-78, A.R., vol. XI, p. 16.
Appellant's letters from January 28 and March 23, 1989, Exhibit P-83, A.R., vol. XI, pp. 24 to 29.
CPQ’s brief (30/8/90), Exhibit P-86, A.R., vol. XI, pp. 33-68.
Letter from Mr. Longtin (20/11/90), Exhibit PGC-6, A.R., vol. XI, p. 71.
Letter from Minister Campbell (29/5/91), Exhibit PGC-7, A.R., vol. XI, p. 76.
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Arguments
perpetrators of the crime could be considered suspect and, on the other, because of the Appellant’s
visual identification by the victims of the crime. While a new trial would normally have been the
appropriate remedy in this situation, the Court ordered a stay of proceedings instead, since it was of
the view that a new trial would have been an abuse of process in the circumstances. 33
25.
Dissatisfied, the Appellant applied for leave to appeal to this Court. His application for leave to appeal
was first dismissed, but it was eventually granted upon a request for reconsideration. 34 Ultimately, he
was acquitted in a short judgment rendered on January 21, 1997. 35
d. Action for damages
26.
In June 1997, the Appellant brought his claim in damages in the present case. This claim, which
alleges a conspiracy involving members of the SQ and the Mont-Laurier police, is largely directed at
the AGQ and the City of Mont-Laurier for faults allegedly committed by provincial and municipal
police officers in the 1960s. 36 In his Statement of Claim, the Appellant contends that the
circumstances surrounding his arrest, trial, conviction and the resulting deprivation of freedom are the
main causes of his material and moral damages. 37 Only a few heads of damages are related to the
Federal Crown's actions, and only partially. Moreover, as evidenced by the list of witnesses
questioned prior to and during the trial, the Appellant’s focus throughout the proceedings was on
Quebec's liability 38. In fact, the Appellant admitted at trial that [TRANSLATION] "the Government of
Quebec held the large majority of the liability."39
27.
After remaining dormant for years, the case was finally heard in the fall of 2010. Just before the oral
argument, the AGQ settled the case after agreeing to pay the Appellant $5.3 million, including
$800,000 to his counsel. 40 Since the Appellant had already reached a settlement with the City of
33
34
35
36
37
38
39
40
Judgment of the Court of Appeal (8/6/94), Exhibit 94-B, A.R., vol. VII, p. 10.1.
Hinse v. Her Majesty the Queen, (S.C. Can., 1995-01-26), 24320, Exhibit P-96, A.R., vol. VII, p. 16; Hinse v.
Her Majesty the Queen, [1995] 4 S.C.R. 597.
R. v. Hinse, [1997] 1 S.C.R. 3, Appelant’s Book of Authorities, Vol. II, tab. 40.
Statement of Claim (5/6/97), A.R., vol. II, p. 2; Re-amended Statement of Claim (24/9/08), A.R., vol. III, p. 9.
Statement of Claim (5/6/97), para. 337, A.R., vol. II, p. 43; Re-amended Statement of Claim (24/9/08),
paras. 337-387, A.R., vol. III, pp. 52 to 63.
Amended Statement of Complete Record, (31/03/2010), p. 4 R.R., vol. I, p. 20 and sq.; Plaintiff's amended
motion to examine after defence (26/09/2008), R.R., vol. I, p. 10 and sq.
Cross examination of Réjean Hinse (11/11/10), p. 27, R.R., vol. I, p. 179.
Receipt, release and transaction, (2/12/10) A.R., vol. IV, p. 27; Receipt for costs (17/2/11), R.R., vol. I, p. 36.
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Arguments
Mont-Laurier for $250,000, the Respondent was the only remaining Defendant at the time the matter
was taken under advisement.
e. The Superior Court judgment
28.
After a trial, in which the evidence presented with regards to the applications for mercy was basically
only documentary in nature, the Superior Court found that the applicable test for liability was that of
simple fault, and that the Federal Crown had committed such a faults in the handling of these
applications. Mixing up facts from various eras, and omitting to consider part of the evidence, the trial
judge found that the Crown showed institutional indifference toward the Appellant. In particular, it
found that no serious review of the first application for mercy was conducted and that, if such a
review had been conducted, the judicial error would certainly have been uncovered and the Appellant
would have been acquitted around 1976. 41
29.
Despite this last finding, which at the very least implies that the federal Crown cannot be held liable
for the damages caused by the arrest, the conviction and the incarceration of the Appellant, who was
released in 1969, the Court nonetheless ordered the Respondent to pay the Appellant $2.75 million in
pecuniary and moral damages [TRANSLATION] "for a life lost, for a dignity stolen and for an existence
void of daily contact with his wife and children."42 It also granted him $2.5 million in exemplary
damages pursuant to the Charter of Human Rights and Freedoms and $540,000 in extrajudicial fees.
f. The Court of Appeal ruling
30.
The Court of Appeal reversed this decision after noting the many errors of law and fact committed by
the trial judge, including reviewing the case in light of a legislative scheme that came into force after
the facts of the case. These errors, which undermine the entire judgment, meant that the Court of
Appeal had to carry out a full analysis of the record in light of the applicable legal principles. After a
thorough analysis of the nature of the specific powers at issue in this case, the Court found that the
Minister benefits from a qualified immunity when exercising the power of mercy 43, and the Crown
from an absolute immunity when exercising its power of pardon. 44 However, the Court concluded that
41
42
43
44
Trial judgment, paras. 63-77, 95 to 98, A.R., vol. I, pp. 30 to 34, 36-37.
Trial judgment, paras. 152-198, A.R., vol. I, pp. 48 to 58.
Judgment of the Court of Appeal, paras. 140 to 157, A.R., vol. I., pp. 135 to 142.
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Arguments
the Appellant had not succeeded in proving the existence of a simple fault in the review his
applications for mercy and pardon. 45
31.
Although its analysis could have ended there, the Court of Appeal noted in obiter that there is no
causal link between the Ministers' decisions and the damage suffered by the Appellant. 46 The Court
added that, if it had found there was such a link, the damages awarded by the Superior Court were
clearly excessive since the Federal Crown was not involved in any way in the Appellant's arrest,
conviction, and incarceration. According to the Court of Appeal, the Superior Court ordered the
Federal Government to pay for the damages sustained by Appellant as a result of the conduct of
other persons, i.e.representatives of the Government of Quebec and of the City of Mont-Laurier,
when they had already settled their case with the Appellant. 47 The Court then noted the Superior
Court's many errors with regards to the various heads of damages it granted. 48
32.
Continuing with its analysis, the Court held that, even supposing that the Charter of Human Rights
and Freedoms applied to the Federal Crown, there was no reason to grant exemplary damages since
the evidence did not show any fault, let alone an illicit and intentional fault that would justify granting
such damages. 49 Lastly, the Court of Appeal noted that the order to pay extrajudicial fees was illfounded even if liability could be attributed, since there was nothing in the evidence to suggest that
the Respondent abused the court process in any way. 50
PART II – ISSUES
33.
The Respondent submits that this case raises the following issues:
1. Did the Court of Appeal err in finding that the Minister of Justice benefits from a qualified
immunity in this case?
2. Did the Court of Appeal err in finding that, in any event, the Appellant had failed to prove that the
Minister committed a simple fault?
45
46
47
48
49
50
Judgment of the Court of Appeal, paras. 191 to 201, A.R., vol. I, pp. 154 to 157.
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Arguments
3. Did the Court of Appeal err in finding there was no causal link between the damage incurred by
the Appellant and the Minister of Justice's decisions ?
4. Did the Court of Appeal err in finding that the quantum of damages was excessive?
5. Did the Court of Appeal err in finding that the circumstances of the case did not justify an order to
pay exemplary damages?
6. Did the Court of Appeal err in finding that the order to pay extrajudicial fees was ill-founded?
34.
The answer to all these questions is no. The Court of Appeal did not commit any error.
PART III: ARGUMENTS
A.
STANDARD OF REVIEW ON APPEAL
35.
To intervene in the present case, this Court, as second appeal court, must be satisfied that the Court
of Appeal erred in law or that its judgment on the facts is clearly erroneous, either with regard to the
reason for its intervention or with respect to its assessment of the evidence on the record. 51
36.
The intervention of the Court of Appeal was entirely justified in this case given the many errors of law
and fact committed by the Superior Court. Specifically, the Superior Court erred in law by applying
the test of simple fault. Even it that test did apply, it erred by examining the conduct of the Ministers in
the 1960s based on current standards and practices. Since these errors of law affected the Superior
Court's entire analysis, the Court of Appeal was required to proceed with a review of the record and
form its own opinion based on the correct legal principles. 52
51
52
St-Jean v. Mercier, [2002] 1 S.C.R. 491, paras. 33-40, Respondent’s Book of Authorities, (R.B.A.), vol. I, tab.
12; Dorval v. Bouvier, [1968] S.C.R. 288, p. 294, R.B.A., vol. I, tab 13; Beaudouin-Daigneault v. Richard,
[1984] 1 S.C.R. 2, p. 8, R.B.A., vol. I, tab 14.
Hickman Motors Ltd. v. Canada, [1997] 2 S.C.R. 336, para. 27, R.B.A., vol. I, tab. 15; Rubis v. Gray Rocks Inn
Ltd., [1982] 1 S.C.R. 452, p. 470, R.B.A., vol. I, tab. 16; Dorval v. Bouvier, [1968] S.C.R. 288, pp. 293, 294,
R.B.A., vol. I, tab. 14; Canada Packers v. Canada, [1989] 1 F.C. 47 (C.A.), para. 24, R.B.A., vol. I, tab. 17.
37.
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Arguments
Moreover, the Superior Court neglected to consider relevant evidence 53 and it drew patently
erroneous conclusions, specifically that the Minister did not conduct a serious review of the
appellant's applications, when the uncontradicted evidence shows the contrary. These palpable and
overriding errors also justify the Court of Appeal's intervention. 54
38.
In this respect, it is important to note that the evidence on record regarding the way in which the
applications for mercy were dealt with is documentary in nature and was admitted by the Appellant.55
No federal public servant involved in the review of the Appellant's applications testified in this case.56
Therefore, the issue of whether the Appellant met his burden of proving a fault is first and foremost a
question of law that must be resolved on the basis of uncontested facts. 57 Since the Court of Appeal
was of the view that these facts could not lead to a finding of simple fault within the civil law meaning,
its intervention was entirely justified.
B.
THE CIVIL LIABILITY REGIME APPLICABLE TO THE FEDERAL CROWN IN QUEBEC
i. General principles
39.
The Crown Liability and Proceedings Act 58 (the CLPA) authorizes civil liability proceedings against
the Federal Crown. Without this federal act, no civil action in damages could be brought against the
Federal Crown given its immunity at common law. 59 The CLPA therefore defines the scope of the
Federal Crown civil liability. 60
53
54
55
56
57
58
59
60
Letter from J.A. Belisle (28/7/67), Exhibit P-143, A.R., vol. X, p. 13; Letter from Denys Dionne (16/8/67),
Exhibit P-144, A.R., vol. X, p. 40; Trial judgment, para. 40, A.R., vol. I, p. 14-15.
Concentrés scientifiques Bélisle inc. c. Bélisle Solution Nutrition inc., 2007 QCCA 676, para. 34, R.B.A., vol. I,
tab. 18.
Transcript (9/11/10), A.R., vol. IV, p. 56; and Documentary evidence in the AGC’s statement of defence, A.R.
vol. III, p. 133 and 174.
Examination for discovery of Kerry Scullion, Exhibit P-158, A.R., vol. VII, pp. 142, 144, 146, 153.
Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, para. 41, R.B.A., vol. I, tab. 19; St-Jean v. Mercier, [2002] 1
S.C.R. 491, para. 60, R.B.A., vol. I, tab. 12; L. Ducharme, Précis de la preuve, 6th edition (Wilson & Lafleur,
2005) para. 545, R.B.A., vol. III, tab. 90.
Crown Liability and Proceedings Act, R.S.C. (1985), c. C-50, R.B.A., vol. I, tab. 1.
Rudolph Wolfe & Co. v. Canada, [1990] 1 S.C.R. 695, R.B.A., vol. I, tab. 20; see also René Dussault and Louis
Borgeat, Administrative law a treatise, v. III, 2nd ed. (Toronto: Carswell, 1985-1989), R.B.A., vol. III, tab. 91.
J.L. Baudouin, P. Deslauriers & B. Moore, La responsabilité civile 8th ed., vol. I, Principes généraux.
(Cowansville, Qué.: Yvon Blais, 2014) 1-142, R.B.A., vol. III, tab. 92.
40.
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Arguments
Section 3 of the CLPA is the cornerstone of this act. It incorporates, in part, the Quebec civil liability
scheme regarding the Federal Crown's acts in Quebec. 61 However, the CLPA [TRANSLATION] "does
not reduce Her Majesty in Right of Canada to the rank of mere citizen for either substantive or
procedural purposes." 62
41.
In particular, the federal scheme does not impose on the Federal Crown a direct civil liability, except
with regards to the liability related to property. Indeed, sections 3 and 10 specify that the Crown is
only liable, in Quebec, if it can be shown that a servant of the Crown has committed a fault causing
damage. It is therefore a vicarious liability. 63
42.
In accepting the Appellant's theory based on the unknown concept of “institutional indifference”, the
trial judge applied a direct liability principle to the Federal Crown that has no legal foundation, thereby
committing another error of law. Before this Court, the Appellant seems to have abandoned this
theory.
ii. Liability for acts of public authority
43.
The type of fault necessary to engage the liability of the Federal Crown in Quebec will depend on the
nature of the acts committed or of the powers exercised. As recognized by the case law and by
numerous authors, a simple fault is not always sufficient to engage the liability of a Crown servant
and, in turn, that of the State. Indeed, if evidence of a simple fault is sufficient to engage the liability of
a Crown servant acting in the “operational” sphere (“managerial acts”), acts performed in the
“political” sphere - also called “acts of public authority” - will not give rise to liability unless bad faith or
other similar conduct is proven. We are then speaking of a qualified immunity enjoyed by the State.64
61
62
63
64
Canadian Food Inspection Agency v. PIPSC, [2010] 3 S.C.R. 657, para. 26, R.B.A., vol. I, tab. 21; Prud’homme
v. Prud’homme, [2002] 4 S.C.R. 663, R.B.A., vol. I, tab. 22; Quebec (Commission des droits de la personne et
des droits de la jeunesse) v. Communauté urbaine de Montréal, [2004] 1 S.C.R. 789, paras. 22-23, R.B.A., vol. I,
tab. 23; J.L. Baudouin, P. Deslauriers & B. Moore, La responsabilité civile, 8th ed., vol. I, Principes généraux.
(Cowansville, Qc.: Yvon Blais, 2014) pp. 109-112, R.B.A., vol. III, tab. 92.
J.L. Baudouin, P. Deslauriers & B. Moore, La responsabilité civile, 8th ed., vol. I, Principes généraux.
(Cowansville, Qc.: Yvon Blais, 2014) pp. 1-127, R.B.A., vol. I, tab. 92.
J.L. Baudouin, P. Deslauriers & B. Moore, La responsabilité civile 8th ed., vol. I, Principes généraux.
(Cowansville, Qc.: Yvon Blais, 2014) pp. 1-134, R.B.A., vol. III, tab. 92; Yves Ouellette “Actions for damages
against the government and public servants for administrative fault” (1992) 26 R.J.T. 169, pp. 174-175, R.B.A.,
vol. III, tab. 93; Sgayias, Kinnear, Rennie, Saunders, The annotated 1995 Crown Liability and Proceedings Act,
Carswell, pp. 56-57, R.B.A., vol. III, tab. 94.
Canadian Food Inspection Agency v. PIPSC, [2010] 3 S.C.R. 657, para. 27, R.B.A., vol. I, tab. 21; Quebec
(Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, [2004]
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Arguments
This immunity is sometimes codified, but in certain cases it is derived from the public common law
applicable in Quebec. 65
44.
According to the classical theory, [TRANSLATION] “acts of public authority are those performed in the
exercise of functions specific and exclusive to governments.”66 Included among these are functions of
a legislative 67 and quasi-judicial 68 nature, as well as administrative functions that carry a considerable
amount of discretion 69. It is now established that any decision involving discretion does not give rise
to qualified immunity. 70 However, the discretionary nature of a decision remains a relevant
consideration in the analysis, and it is recognized that a qualified immunity could apply in the context
of individualized discretionary decisions where public policy considerations come into play. 71 R. v.
Imperial Tobacco, rendered in a much different context than the present matter, has not altered this
reality. Indeed, in this ruling the Court 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. 72
65
66
67
68
69
70
71
72
1 S.C.R. 789, paras. 22-23, R.B.A., vol. I, tab. 23; Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, R.B.A.,
vol. I, tab. 19; Entreprises Sibeca Inc. v. Frelighsburg (Municipality), [2004] 3 S.C.R. 304, R.B.A., vol. I, tab.
24; Prud’homme v. Prud’Homme, [2002] 4 S.C.R. 663, R.B.A., vol. I, tab. 22; Brochu c. Canada, [2007] R.J.Q.
1505 (C.A.), R.B.A., vol. I, tab. 25; Ouimette c. Canada, [2002] R.J.Q. 1228 (C.A.), R.B.A., vol. I, tab. 26;
Proulx c. Québec, [1999] R.J.Q. 398 (C.A.), aff’d on this point by [2001] 3 S.C.R. 9, R.B.A., vol. I, tab. 27;
Québec c. Deniso Lebel Inc., [1996] R.J.Q. 1821 (C.A.), R.B.A., vol. I, tab. 28; See also: Garant, P., Droit
administratif, 6th edition (Cowansville, Qc.: Yvon Blais, 2010) p. 893 et seq, R.B.A., vol. III, tab. 95; Dussault,
René and Louis Borgeat. Administrative law: a treatise, v. III, 2nd ed. (Toronto: Carswell, 1985-1989) p. 959 et
seq, R.B.A., vol. III, tab. 91.
Proulx c. Québec, [1999] R.J.Q. 398 (C.A.), aff’d on this point by [2001] 3 S.C.R. 9, R.B.A., vol. I, tab. 27;
Brochu c. Canada, [2007] R.J.Q. 1505 (C.A.), R.B.A., vol. I, tab. 25; see also Prud’homme v. Prud’homme,
[2002] 4 S.C.R. 663, para. 48et seq, R.B.A., vol. I, tab. 22.
Garant, P., Droit administratif, 6th ed. (Cowansville, Qc.: Yvon Blais, 2010), p. 893et seq, R.B.A., vol. III, tab.
95; René Dussault and Louis Borgeat. Administrative law: a treatise, v. III, 2nd ed. (Toronto: Carswell, 19851989) p. 959 et seq, R.B.A., vol. III, tab. 91.
Welbridge Holdings v. Greater Winnipeg, [1971] S.C.R. 957, R.B.A., vol. I, tab. 29; Guimond v. Quebec
(Attorney General), [1996] 3 S.C.R. 347, R.B.A., vol. I, tab. 30.
Harris v. Law Society of Alberta, [1936] S.C.R. 88, R.B.A., vol. I, tab. 31; Montambault c. Hôpital
Maisonneuve-Rosemont, 2001 CanLII 11069 (QC CA), R.B.A., vol. I, tab. 32.
Garant, P., Droit administratif, 6th ed. (Cowansville, Qc.: Yvon Blais, 2010) p. 893 et seq, R.B.A., vol. III, tab.
95.
R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, R.B.A., vol. I, tab. 33.
Proulx c. Québec, [1999] R.J.Q. 398 (C.A.); aff’d on this point by [2001] 3 S.C.R. 9, R.B.A., vol. I, tab. 27;
Popovic c. Montréal (Ville de), 2008 QCCA 2371, R.B.A., vol. I, tab. 34; Brochu c. Canada, [2007] R.J.Q. 1505
(C.A.), R.B.A., vol. I, tab. 25; Comeau's Sea Foods v. Canada (Minister of Fisheries and Oceans), [1997] 1
S.C.R. 12, R.B.A., vol. I, tab. 35.
R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, para. 90, R.B.A., vol. I, tab. 33.
45.
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Arguments
In Finney v. Barreau du Québec, LeBel J., writing for the Court, explained the rationale for this
immunity provided to governments in the following terms:
[27] … Very often, the assessment of a public body's conduct and decisions that a court
might make based on the simple, straightforward application of the rules of the jus
commune would not provide it with the freedom it needs in order to perform its functions.
That is why this Court recognizes that general principles or specific rules of public law
may either prevent the general rules of civil liability from applying altogether or
substantially alter the rules by which they operate (Prud'homme v. Prud'homme, supra, at
para. 31; Québec (Commission des droits de la personne et des droits de la jeunesse) v.
Communauté urbaine de Montréal, supra, at para. 22). 73
46.
Given the particular nature and positioning of the power of mercy in Canada’s judicial order, the Court
of Appeal was correct in finding that the exercise of this power was an act of public authority that is
not governed by the rules of the jus commune . Such a power, integrated within the criminal justice
system, constitutes a perfect example of an act that only the State can carry out. It is quite clearly not
an operational act, as the Appellant mistakenly contends.
47.
As the Court of Appeal noted, the power of mercy also possesses the characteristics of a quasijudicial power since the Minister or his/her delegate is called upon to issue a decision, or even an
order, on the basis of his or her assessment of the evidence in much the same manner as a court.
The Appellant is therefore wrong when he compares the Minister’s role to that of a police officer, such
as those involved in Hill v. Hamilton-Wentworth Regional Police Services Board. 74
48.
This error results primarily from the fact that the Appellant would have the Court distinguish between
the review of an application made within the department and the ensuing decision on the merits. But
this distinction cannot hold because the process followed in this case is not divisible into two separate
and distinct phases. Indeed, one cannot isolate the review of an application from the decision made
in regard to such an application since the review of the application forms an integral part of the
exercise of the decision-making power on mercy matters.
49.
When he or she receives an application, the Minister or his or her delegate must, among other things,
assess the credibility of the evidence adduced in support of the application and the impact of this
73
74
Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, para. 27, R.B.A., vol. I, tab. 19; See also Proulx c. Québec,
[1999] R.J.Q. 398 (C.A.), aff’d by [2001] 3 S.C.R. 9, R.B.A., vol. I, tab. 27; Québec c. Deniso Lebel Inc., [1996]
R.J.Q. 1821 (C.A.), R.B.A., vol. I, tab. 28.
Hill v. Hamilton‑Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, R.B.A., vol. I, tab. 23.
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Arguments
evidence on the conviction. The weighing of this evidence will determine what happens next and will
either lead to a more in-depth review, or to a final decision dismissing or granting the application.
Thus, it is illusory to attempt the kind of compartmentalization proposed by the Appellant. Moreover,
with regard to the applications made in 1967, 1980 and 1981, the evidence on record does not allow
for such compartmentalization. Notably, nothing in the evidence makes it possible to conclude that a
different person conducted the review of the application and made the decision dismissing it on
behalf of the Minister.
50.
To return to the Court of Appeal’s analogy, the role of the Minister is much closer to that of a Crown
prosecutor who decides to proceed with a prosecution than that of a police officer. 75 While a Crown
prosecutor makes the decision to initiate legal proceedings against a person who is presumed
innocent, the role of the Minister, at the other end of the criminal justice process, is to determine
whether to send back to the justice system the case of someone who has been convicted and who no
longer benefits from the presumption of innocence.
51.
In this case, the Court of Appeal rightly considered the very particular nature of the power exercised.
The Court’s findings on the issue of immunity achieve the required balance to allow the Minister to
carry out his or her functions with the necessary freedom of action while safeguarding the right to
compensation in cases in which the power was exercised in bad faith. The Court of Appeal summed
up the situation best in the following excerpt:
[TRANSLATION]
[141] This solution halfway between the absence of liability and the absence of immunity
corresponds with both the special nature of the Minister's power of mercy and with the
requirement of fairness toward the victim of a miscarriage of justice. Absolute immunity
would perpetuate the injury resulting from the miscarriage of justice. On the other hand, the
absence of immunity would disregard the special nature of the Minister's power, which is in
the purview of the royal prerogative and which the Minister holds as agent of (and, in the
past, advisor to) the Crown. It would also ignore the fundamentally discretionary, but also
political, aspect of the Minister's action. In addition, it would risk undermining the
independence needed by the Minister to perform duties that are totally devoid of anything
mechanical or simply "operational", but that require diverse (and often diverging) legal and
social interests, ranging from the specific interest of the particular individual and a concern
for justice to the preservation of the independence and integrity of the judicial system and
of the stability of judgments -- each of them being no less important than the others -- to be
weighed against facts that are seldom clear. The power invested in the Minister is not
75
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Arguments
merely one of "execution"; rather, it is a power of appropriateness, the very exercise of
which defines a political course or principle of action. Moreover, it is a power that, being
intended to allow for the rectification of miscarriages of justice (in that sense, "postjudicial"), also possesses a quasi-judicial aspect in that it is supposed that evidence will be
taken into consideration and that a ruling, one that affects the individual's rights, will be
made on the validity of a conviction. [Citations omitted.]
52.
Furthermore, the recognition of a qualified immunity with regard to civil liability is not incompatible
with the objective that lies at the foundation of the Minister’s power of uncovering miscarriages of
justice. In this day and age, a convicted person who is unsatisfied with a Minister’s decision has an
easily accessible recourse in judicial review before the Federal Court. 76 It is through such judicial
review proceedings that the judicial branch is called upon to remedy a flawed ministerial action,
where appropriate.
53.
In this regard, as the Court of Appeal noted, it would be inconsistent for a judicial review of a
ministerial decision to be subject to a reasonableness standard, 77 when a simple fault would be
enough to engage the liability of the Crown. 78 Much like the reasonableness standard in
administrative law, the rationale for qualified immunity in respect of civil liability is based on the
tradition of judicial deference with regard to the exercise of discretionary powers and on the notion
that it is important to offer decision-makers enough leeway to carry out their functions. 79
54.
In any event, even in applying the test of simple fault, on the basis of the applicable standards of
conduct during the relevant period, the Appellant simply failed to demonstrate the existence of such a
fault, as is argued in greater detail below.
C. THE MINISTERS HAVE NOT COMMITTED ANY FAULT
i. Principles governing the exercise of the power of mercy
55.
Contrary to what the Appellant contends, the Minister’s conviction review power is one aspect of the
royal prerogative of mercy, which also includes the power to grant ordinary or partial pardons, or free
76
77
78
79
See for example Daoulov v. Canada, 2008 FC 544, aff’d by 2009 FCA 12, R.B.A., vol. I, tab. 36; Bilodeau v.
Canada, 2011 FC 886, R.B.A., vol. II, tab. 37; Timm v. Canada, 2012 FC 505, aff’d by 2012 FCA 282, R.B.A.,
vol. II, tab. 38; Walchuck v. Canada, 2013 FC 958, R.B.A., vol. II, tab. 39.
Ibid.
Judgment of the Court of Appeal, para. 143, A.R., Vol. I, p.136.
Proulx c. Québec, [1999] R.J.Q. 398 (C.A.), p. 420, R.B.A., vol. I, tab. 27; Entreprise Sibeca Inc. v.
Frelighsburg (Municipality), [2004] 3 S.C.R. 304, paras. 23-24, R.B.A., vol. I, tab. 24.
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Arguments
pardons. As the Court stated in Therrien, pardons draw their origin from the power of the Crown. The
provisions contained in Canadian statute law, including the Criminal Code, merely prescribe various
means by which it may be exercised, without limiting its scope. 80 In Thatcher, Rothstein J. (then a
judge of the Federal Court) held that section 690 of the Criminal Code codifies and delegates to the
Minister of Justice the discretion of the Sovereign in respect of one aspect of the royal prerogative of
mercy. 81
56.
Moreover, the case law recognizes the extraordinary nature of the power of mercy and characterizes
it as an exemplar of a purely discretionary act. Mercy is not the subject of legal rights. 82
57.
In addition, as the Minister of Justice noted in 1994, it is an extraordinary power that does not allow
the Minister to substitute his or her opinion to a court’s verdict. Its purpose is not to create a fourth
level of appeal. Applicants must do more than simply reargue their case on the basis of already
known evidence. They must present significant new evidence that was not before the court. The
Minister will then determine the credibility of the new evidence, having regard to the circumstances,
and its relevance to the conviction. 83 These principles are now codified in section 696.4 Cr.C.
58.
At the time the Appellant filed his first application for mercy in July 1967, the only provision that dealt
with the power of mercy was section 596 C.C.:
596. The Minister of Justice may, upon an
application for the mercy of the Crown by or
on behalf of a person who has been convicted
in proceedings by indictment,
80
81
82
83
596. Sur une demande de clémence de la
Couronne, faite par ou pour une personne
qui a été condamnée à la suite de
procédures sur un acte d’accusation, le
ministre de la Justice peut :
Re Therrien, [2001] 2 S.C.R. 3, para. 113-114, R.B.A., vol. II, tab. 40; Bilodeau c. Canada (ministre de la
Justice), [2009] R.J.Q. 1003 (C.A.), para. 19 to 23, R.B.A., vol. II, tab. 41.
Thatcher v. Canada (Minister of Justice), [1997] 1 F.C. 289, paras. 8-10, R.B.A., vol. II, tab. 42; see also
Bilodeau c. Canada (ministre de la Justice), [2009] R.J.Q. 1003 (C.A.), paras. 12 to 23, R.B.A., vol. II, tab. 42;
McArthur v. Ontario, 2012 ONSC 5773, para. 52, R.B.A., vol. II, tab. 43; Walchuk v. Canada (Justice), 2013 FC
958, para. 31, R.B.A., vol. II, tab. 39; Freitas v. Benny, [1976] A.C. 239, p. 247, R.B.A., vol. I, tab. 16; D. Cole
and P. Manson, The Release from Imprisonment (Carswell, 1990) pp. 409-412, R.B.A., vol. III, tab. 96; H.
Dumont, Pénologie (Montréal: Thémis, 1993) p. 551, R.B.A., vol. III, tab. 97; Gary Trotter “Justice, Politics and
the Prerogative of Mercy: Examining the Self-Defence Review” (2001), 26 Queens L.J. 339, p. 344, R.B.A., vol.
III, tab. 98.
Thatcher v. Canada (Minister of Justice), [1997] 1 F.C. 289, paras. 8-10, R.B.A., vol. II, tab. 42; Bilodeau c.
Canada (ministre de la Justice), [2009] R.J.Q. 1003 (C.A.), paras. 12 to 23, R.B.A., vol. II, tab. 41; McArthur v.
Ontario, 2012 ONSC 5773, para. 52, R.B.A., vol. II, tab. 43.
In the matter of an Application by W. Colin Thatcher to the Minister of Justice for Certain discretionary relief
under section 690 of the Criminal Code of Canada, decision of the Minister of Justice of April14, 1994; aff’d by
[1997] 1 F.C. 289, R.B.A., vol. II, tab. 44.
59.
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Arguments
a) direct, by order in writing, 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;
a) prescrire, au moyen d’une ordonnance
écrite, un nouveau procès devant une cour
qu’il juge appropriée, si, après enquête, il
est convaincu que, dans les circonstances,
un nouveau procès devrait être prescrit ;
b) refer the matter at any time to the court of
appeal for hearing and determination by that
court as if it were an appeal by convicted
person; or
b) à toute époque, déférer la cause à la cour
d’appel pour audition et décision par cette
cour comme s’il s’agissait d’un appel
interjeté par la personne condamnée ; ou
c) refer to the court of appeal at any time, for
its opinion, any question upon which he
desires the assistance of that court, and the
court shall furnish its opinion accordingly.
c) à toute époque, soumettre à la cour
d’appel, pour connaître son opinion, toute
question sur laquelle il désire l’assistance
de cette cour, et la cour doit donner son
opinion en conséquence 84.
That provision, which later became section 617 CC., 85 then section 690, 86 remained essentially
unchanged until the coming into force of sections 696.1 to 696.6 C.C87 and associated regulations in
2002. 88 These new provisions, without substantially altering the power of mercy, 89 do establish in a
precise manner the process to follow upon receipt of an application and limit the Minister’s discretion
in that regard. This process may or may not include an investigation. 90 In addition, the new provisions
confer upon the Minister all of the powers granted to a commissioner under the Inquiries Act,91
including, in particular, the power to summon witnesses and compel them to give evidence.
60.
If section 696.4 C.C., a substantive provision, essentially amounts to a codification of pre-existing
law, the amendments regarding the process for handling applications and the powers to compel and
84
85
86
87
88
89
90
91
Criminal Code, S.C. 1953-54, c. 51, s. 596, R.B.A., vol. I, tab. 2; Criminal Law Amendment Act, 1968-1969,
S.C. 1968-69, c. 38, s.62, R.B.A., vol. I, tab. 3.
Criminal Code, R.S.C. 1970, c. C-34, s. 617, R.B.A., vol. I, tab. 4.
Criminal Code, R.S.C. 1985, c. C-46, s. 690, R.B.A., vol. I, tab. 5.
Criminal Law Amendment Act, 2001, S.C. 2002, c. 13, s. 71. S. 690 has since been replaced by sections 696.1 to
696.6, R.B.A., vol. I, tab. 6.
.
Regulations Respecting Applications for Ministerial Review - Miscarriages of Justice, SOR/2002-416, R.B.A.,
vol. I, tab. 7.
Bilodeau c. Canada, [2009] R.J.Q. 1003 (C.A.), paras. 21-23, R.B.A., vol. II, tab. 41.
Regulations Respecting Applications for Ministerial Review - Miscarriages of Justice, SOR/2002-416, R.B.A.,
vol. I, tab. 7.
S. 696.2(2) Criminal Code (1985), R.B.A., vol. I, tab. 8; Inquiries Act, R.S.C., 1985, c. I-11, ss. 4-5, R.B.A., vol.
I, tab. 8.
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Arguments
summon witnesses are new law and reflect Parliament’s intent to give the Minister a more proactive
role than before in reviewing applications. 92
61.
In the present case, the Minister’s conduct in the 1960s cannot validly be assessed on the basis of
provisions enacted in 2002 and practices dating from 1990s, as the trial judge incorrectly did. 93 It is
well established that in civil liability matters, the defendant’s conduct must be assessed on the basis
of the standards of conduct applicable at the time of his actions. 94 It would indeed be unfair to judge
past actions in light of today’s standards. 95
62.
Notwithstanding the Appellant’s contrary view, the error of the Superior Court in that regard is
material because the trial judge reviewed the Minister’s conduct taking for granted that he should
have acted like a investigating commissioner when he did not possess such powers at the time; she
further blamed him for failing to follow practices dating from the 1990s. 96 The Court of Appeal was
therefore entirely correct in finding that [TRANSLATION] “the judge erred in law by determining, on the
basis of current standards and practices, what constituted a serious study at the time of the first
application for review.” 97 This fundamental error of law authorized the Court of Appeal to re-assess
the matter against the correct legal background.
63.
The decisions of the Federal Court in Thatcher and Henry, rendered in the 1990s, are instructive with
regard to the obligations that were imposed on the Minister upon receiving an application for mercy
under the regime that was in force prior to the 2002 reform 98 These decisions must nonetheless be
92
93
94
95
96
97
98
House of Commons Debates, 37th Parl., 1st Sess., No 54 (May 3rd, 2001) at p. 3583 (Anne McLellan), R.B.A.,
vol. III, tab. 101; Senate Debate, 37th Parl, 1st Sess, No 66 (November 1st, 2001), p. 1612 (Landon Pearson),
R.B.A., vol. III, tab. 102; Standing Senate Committee on Legal and Constitutional Affairs, Minutes of
Proceedings and Evidence, 37th Parl., 1st Sess., No 24 (February 7th, 2002) p. 24: 8, R.B.A., vol. III, tab. 103.
Trial judgment, para. 36, 71, A.R., Vol. I, p. 13, 32.
Jean-Louis Baudouin and Patrice Deslauriers. La responsabilité civile, 8th edition, Vol. I, Principes généraux
(Cowansville, Que.: Yvon Blais, 2014) 1-165, R.B.A., vol. III, tab. 92; Laliberté c. Gingues, [2009] R.R.A. 79
(C.A.), R.B.A., vol. II, tab. 42; L'Écuyer c. Quail, [1994] R.R.A. 482, R.B.A., vol. II, tab. 46; R. v. NordDeutsche Versicherungs-Gesellschaft, [1971] S.C.R. 849, p. 886, R.B.A., vol. II, tab. 47; Vincent Karim, Les
obligations, 3rd edition., Vol. 1 (Montreal: Wilson & Lafleur, 2009) p. 843, R.B.A., vol. III, tab. 99.
Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, para. 121, R.B.A., vol. II, tab. 48; Manitoba Metis
Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623, para. 189, R.B.A., vol. II, tab. 49.
Trial judgment, paras. 36, 71-73, A.R., vol. I, p. 13, 32-33.
Judgment of the Court of Appeal, para. 165, A.R., vol. I., p. 144.
Thatcher v. Canada (Minister of Justice), [1997] 1 F.C. 289, R.B.A., vol. II, tab. 42; Henry v. Canada (Minister
of Justice), [1992] F.C.J. No 451, R.B.A., vol. II, tab. 50.
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Arguments
read while keeping in mind the fact that administrative law has evolved considerably, in terms of
protecting citizens, between the mid-1960s – when the present case began – and the 1990s. 99
64.
The following principles emerge from these decisions and principally from the Thatcher judgment
rendered by Rothstein J. (then a judge of the Federal Court) in 1996:
i.
An application for mercy is made after a convicted person has exhausted his or her legal
rights;
ii.
The Minister has been given significant latitude in the exercise of his discretion with respect to
mercy. His function is an “exemplar of a purely discretionary act”;
iii.
There are no requirements as to the type of investigation the Minister should carry out in the
exercise of his power of mercy;
iv.
No rules of procedure have been laid down with regard to the handling of an application for
mercy;
v.
In exercising his or her discretion, the Minister must act in good faith and conduct a meaningful
review of the application, provided that the application is not frivolous or vexatious;
vi.
However, a meaningful review does not mean that the Minister has to research police files or
examine witnesses. Indeed, the Minister is under no obligation to review material that have not
been submitted by the applicant. There is no legal obligation on the Minister to review police or
prosecution files merely because a convicted person has filed an application for mercy.
Exceptionally, if there is a substantial amount of new evidence that is likely to 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. 100
65.
Given that the Appellant complains that the Minister committed faults at three different points in time
with respect to his applications for mercy, the most appropriate way to proceed is to conduct a threestep analysis, as did the Court of Appeal, and review the conduct of the Minister of Justice with
99
100
Compare Knight v. Indian Head Sch. Div. No. 19, [1990] 1 S.C.R. 653, R.B.A., vol. II, tab. 51 with Calgary
Power Ltd. v. Copithorne, [1959] S.C.R. 24, R.B.A., vol. II, tab 52, and Guay v. Lafleur, [1965] S.C.R. 12,
R.B.A., vol. II, tab. 53.
Thatcher v. Canada (Minister of Justice), [1997] 1 F.C. 289, paras. 8-15, R.B.A., vol. II, tab. 42; Henry v.
Canada (Minister of Justice), [1992] F.C.J. No 451, paras. 22-23; R.B.A., vol. II, tab. 50.
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Arguments
respect to (i) the 1967 application, (ii) the 1980-81 applications and (iii) the 1990 application. This
kind of systematic exercise was never conducted by the trial judge, whose analysis was spread
rather thinly over a period of many decades. 101
ii. The 1967 application for mercy
66.
In applying the principles drawn from the Thatcher and Henry judgments, there was only one possible
conclusion in this case: the Minister has committed no fault in the exercise of his power of mercy with
regard to the application dated July 19, 1967.
67.
The documentary evidence in the record – which was the only evidence before the Court regarding
the manner in which the application was handled – shows that the Minister took steps to follow up on
it upon reception and that he carefully reviewed it 102 before dismissing it.
68.
Indeed, less than 10 days after having received the application, the Director of the Criminal Law
Section of the Federal Department of Justice wrote to Quebec’s Deputy Minister of Justice to obtain
the police reports regarding the matter, 103 when he was under no obligation to take such measures
as set out in Thatcher and Henry. 104
69.
In her judgment, the trial judge disregarded the existence of this highly relevant letter, which shows
that swift and proactive steps were taken in favour of the Appellant. Similarly, she disregarded the
reply from Quebec’s Deputy Minister of Justice, which explains in large part the subsequent
exchange of correspondence between Quebec, the Federal government and the Appellant.105
Indeed, in response to the Director’s letter, Quebec’s Deputy Minister of Justice, rather than sending
the police reports, indicated that he wished to obtain the affidavits submitted by the Appellant. Only
upon their receipt would he offer his full cooperation. 106 In his table summarizing the facts, the
Appellant is also silent about these significant facts. 107
101
102
103
104
105
106
107
See for example, paras. 55 to 60 and 65 to 68 of trial judgment, A.R., vol. I, p. 27-28, 31.
See para. 19 of this Factum.
Letter from J.A. Belisle (28/7/67), Exhibits P-143, A.R., vol. X, p. 13.
Thatcher v. Canada (Minister of Justice), [1997] 1 F.C. 289, para. 15, R.B.A., vol. II, tab. 42; Henry v. Canada
(Minister of Justice), [1992] F.C.J. No 451, para. 22, R.B.A., vol. II, tab. 50.
Trial judgment, para. 40, A.R., vol. I, p. 14.
Letter from Denys Dionne (16/8/67), Exhibits P-144 and P-158A, A.R., vol. X, p. 40 and vol. VIII, p. 1.
Appellant’s Factum, pp. 4 to 7.
70.
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Arguments
Ignoring these letters led the trial judge to believe that the Minister was confused as to what his role
was, when he was simply trying to obtain documents from Quebec in order to make a decision with
respect to the Appellant’s application.
71.
It is true that progress on the file was stalled for about a year due to a combination of
circumstances, 108 but the file was reactivated in the fall of 1968 and measures were undertaken at
that time to obtain the Appellant’s consent to have the affidavits forwarded to the Quebec Department
of Justice. 109
72.
In January 1969, the Director informed Mrs. Hinse that a [TRANSLATION] “thorough review” of her
husband’s case was underway. 110 Once again, the trial judge disregarded this letter which indicates,
once again, that the Minister was looking into the Appellant’s case and was not indifferent to it.111
This letter, as with all of the others from the Federal government, is the subject of an admission
according to which, had its author testified, he would have confirmed the content of the letter.112
Given this important admission, in respect of which he is also silent, the Appellant cannot claim that
there exists no documentary evidence attesting to any review of his file.
73.
Notwithstanding this admission, the evidence further reveals that measures with regard to this review
were carried out over the ensuing months, that police reports were obtained from the provincial
authorities, 113 and that the Appellant’s application was ultimately dismissed in December 1971. In
that decision communicated to the Parole Board, to which the Appellant had been reporting to since
1969, the Director indicated: [TRANSLATION] “we have carefully reviewed Réjean Hinse’s file and we
108
109
110
111
112
113
See para. 15 of this Factum.
Letter from J.A. Belisle (18/10/68), Exhibit P-50, A.R., vol. X, p. 55; Letter from Correctional Service of
Canada (7/2/69) Exhibit P-56, A.R., vol. X, p. 66; Letter from Réjean Hinse (17/2/69), Exhibit P-57, A.R., vol.
X, p. 67; Letter from Réjean Hinse (17/2/69), Exhibit P-58, A.R., vol X, p. 68; Letter from G.J.L Gosselin
(19/2/69), Exhibit P-59, A.R., vol. X, p. 71.
Letter from J.A. Belisle (10/4/69), Exhibits P-147, A.R., vol. X, p. 62.
Transcript of hearing on November 9, 2010, A.R. vol. IV, p. 57; Documents entitled “Preuve documentaire en
demande” and “Preuve documentaire en défense”, A.R., vol. III, p. 133 and 174.
Letter from Correctional Service of Canada (19/02/69), Exhibit P-59, A.R., vol. X, p. 71; Letter from J.A. Belisle
(10/4/69), Exhibit P-62, A.R., vol. X, p. 75; Letter from H. Pelletier (30/4/69), Exhibit P-65, A.R., vol. X, p. 78;
Reports from the SQ, Exhibits P-141 and P-158A, A.R., vol. X and VIII, p. 14 and 1; Examination for
discovery of Kerry Scullion, p. 24-27, Exhibit P-158, A.B., vol. VII, p. 138.
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Arguments
have come to the conclusion that it is not warranted to grant a new trial in this case.“ 114 [Emphasis
added.]
74.
This decision followed a recommendation by a Privy Council committee that the Minister of Justice
should further study the matter to determine whether the Appellant should be given a new trial. 115
75.
Thus, there is uncontradicted evidence showing that the Minister considered the 1967 application,
took steps to obtain documentation from provincial authorities in order to make a decision on this
application and, despite delays in the handling of the application, there is no evidence that would cast
doubt upon the assertions that a [TRANSLATION] “thorough examination” was conducted and that the
Appellant’s file had been “carefully” reviewed. Indeed, the Appellant’s statement that [TRANSLATION]
“there is no evidence to show that there was any study whatsoever of the Hinse file” flies directly in
the face of the documentary evidence. One cannot presume, as the Appellant does, that what is
written in these letters that are contemporaneous with the events is false. The Appellant, who had the
burden of proving a wrongful conduct, 116 produced no evidence contradicting these letters.
76.
In other words, in the absence of any shred of evidence on the part of the Appellant that would
contradict the documentary evidence and considering the presumption of good faith, 117 the trial judge
could not, without making a palpable and overriding error, conclude, some forty years after the facts,
that no meaningful review of the Appellant’s application was undertaken. As the Court of Appeal
indicated, such an inference simply cannot be drawn from the record. 118
77.
More specifically, no negative inference can be drawn from the lack of reasons for decision or written
documents explaining the Minister's reasoning because, at the time, neither administrative decisionmakers nor even judges were bound to provide reasons for their decisions unless a statute provided
otherwise. 119 It also appears that there was no practice to give reasons for decisions on applications
114
115
116
117
118
119
Letter from S.F. Sommerfeld (22/12/71), Exhibit P-180, A.R., vol. X, p. 102.
Letter from J.L. Cross and appendix (30/3/71), Exhibit P-67, A.R., vol. X, p. 81
Art. 2803 C.c.Q., R.B.A., vol. I, tab. 9; Quebec (Public Curator) v. Syndicat national des employés de l’hôpital
St-Ferdinand, [1996] 3 S.C.R. 211, para. 31, R.B.A., vol. II, tab. 54; Prud’homme v. Prud’homme, [2002] 4
S.C.R. 663, par 32, R.B.A., vol. I, tab. 22.
Art. 2805 C.c.Q, R.B.A., vol. I, tab. 9.
Judgment of the Court of Appeal, para. 177-178, A.R., vol. I., p. 149.
Supermarchés Jean Labrecque Inc. v. Flamand, [1987] 2 S.C.R. 219, p. 232-233, R.B.A., vol. II, tab. 55;
Canadian Arsenals Ltd. v. C.L.R.B, [1979] 2 F.C. 393 (C.A.), paras 14-15, R.B.A., vol. II, tab. 56; Gilles Pépin
and Yves Ouellette, Principes de contentieux administratif, 2nd edition (Cowansville: Yvon Blais, 1982), p. 277,
R.B.A., vol. III, tab. 100.
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Arguments
for mercy at the time. 120 Thus, contrary to the Appellant's contention, the absence of reasons or of
written documents in the Minister's file explaining how the conclusions were reached is not surprising
and certainly cannot lead to the conclusion that no serious review was conducted, especially since
there are letters indicating the contrary.
78.
Furthermore, as noted by the Court of Appeal, the trial judge erred in emphasising the length of time
before the decision because the alleged injury was not caused by the time elapsed, but by the
decision itself. The Appellant would not have been in a better position if his application had been
denied more quickly, in 1969 or 1970. 121
79.
Finally, contrary to what the trial judgment implies, the Minister was not obliged to believe the
Appellant and to grant his application on the evidence that he had submitted and on that which the
Minister had obtained from Quebec as part of his review.
80.
The Appellant's 1967 application was laconic and based on three short affidavits signed by persons
whose credibility could be seriously questioned. Indeed, as noted by the Court of Appeal in this case
and in its 1994 judgment ordering a stay of proceedings in favour of the Appellant, the affidavits of
the three detainees could be considered suspect given that their authors had not testified at the trial
even though they could have done so. 122 In addition, the testimony of criminals may not be
considered very credible in itself. Indeed, section 12 of the Canada Evidence Act reflects Parliament's
opinion that past convictions actually influence a witness's credibility. 123 The Appellant himself
acknowledged at trial how little credibility could be given to some of the perpetrators of this crime. 124
81.
In addition, police reports obtained from Quebec undermine the affiants’ credibility. A report dated
January 27, 1967, indicates that, around the time their affidavits were signed, the three affiants were
questioned by the SQ, but did not want to make more elaborate statements concerning the Grenier
120
121
122
123
124
Examination for discovery of Kerry Scullion, Exhibit P-158, p. 89-90, A.R., vol. VII, p. 163.
Judgment of the Court of Appeal, para.171, A.R., vol. I, p. 147.
R. v. Hinse, [1994] Q.J. No 480, para. 21, R.B.A., vol. II, tab. 57; Motions for subpoenas and orders, Exhibits P20 to P-22, P-24 and PG-10, R.R., vol. II, p. 50 to 53 and 146.
Canada Evidence Act, R.S.C., 1985, c. C-5; s. 12, R.B.A., vol. I, tab. 10; R. v. Corbett, [1988] 1 S.C.R. 670, p.
685, R.B.A., vol. II, tab. 58; see also R. v. Bevan, [1993] 2 S.C.R. 599, R.B.A., vol. II, tab. 59; R. v. Brooks, 41
O.R. (3d) 661, R.B.A., vol. II, tab. 60.
Cross-examination of Réjean Hinse (9/11/10), R.R., vol. I, p. 39, 40, 43 and 44; Cross-examination of Réjean
Hinse (11/11/10), p. 20-22, R.R., vol. I, p. 177 and 178.
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Arguments
robbery. 125. Another report reveals that in August 1966 the victims continued to identify the Appellant
as one of the perpetrators of the crime even after they were shown photographs of the affiants. 126 It
cannot be presumed, as does the Appellant, that those reports, which were communicated by the
province to the Minister and are part of his file, were not considered in reviewing his application.
82.
In these circumstances, the Minister could very well not give credence to the affidavits of the three
detainees. In addition, the credibility of Appellant, a man who already had a criminal record, could
also be questioned. 127 At his trial, the judge of the Court of Sessions of the Peace did not believe his
defence of alibi, which he considered to be entirely fabricated. As noted by the Court of Appeal, one
can readily suspect that the Minister was not impervious to Côté J. findings vis-à-vis the Appellant’s
lack of credibility. 128 Moreover, another police report obtained from Quebec indicates that the
Appellant made five different statements concerning his comings and goings on the day of the
crime. 129 In short, there was a reasonable basis to deny the Appellant's application. 130
83.
Finally, the fact that the CPQ – an organization responsible for investigating complaints against the
police – could discover 25 years after the conviction new facts that ultimately led to the Appellant's
acquittal should lead to no conclusions with regard to the Minister’s conduct years earlier. The
Minister and the CPQ did not have the same role, the same powers, 131 or the same information 20
years apart. More specifically, the Minister had no obligation to conduct an investigation in the nature
of the one undertaken by the CPQ. Also, when the Appellant contacted the CPQ in 1989, he provided
precise details regarding the conduct of police officers Bourgeois and Scott. 132 Such information was
not forwarded to the Minister in 1967.
125
126
127
128
129
130
131
132
Report of the SQ (27/1/67), Exhibit P-141, A.R. vol. X, p. 31; Examination for discovery of police officer André
St-Louis (29/1/09), p. 36-41, Exhibit P-160, R.R., vol. II, p. 117 and 118.
Report of the SQ (12/9/66), Exhibit P-141, A.R., vol. X, p. 17.
Judgment of Jude Omer Côté (27/9/64), Exhibit P-125, A.R., vol. VI, p. 130; Statement of the forensic
identification services of the RCMP, Exhibit PG-8, R.R., vol. II, p. 141; Cross-examination of Réjean Hinse
(9/11/10), R.R., vol. I, p. 47 and sq.
MacLean Hunter Limited v. Canada (D-M.N.R), 88 DTC 6096, p. 6098, R.B.A., vol. II, tab. 61; Trillium Labels
Inc. v. Canada (M.N.R.), 2001 FCA 60, para. 2, R.B.A., vol. II, tab. 62.
Police Act, R.S.Q. 1977, c. P-13, R.B.A., vol. I, tab. 11; Letter from L. Cobetto (16/1/89), Exhibit P-82, A.R.,
vol. XI, p. 23; Examination of L. Cobetto (12/11/10), p. 13 to 29, R.R., vol. II, p. 1 and sq.
Letter from R. Hinse (28/1/89), Exhibit P-83, A.R., vol. XI, p. 24; Letter from R. Hinse (23/3/89), P-83, A.R.,
vol. XI, p. 28.
84.
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Arguments
In summary, the Minister's action in this case was entirely within the parameters authorized by his
broad discretionary power. Not only is there no evidence on record making it possible to conclude
that he acted in bad faith, but there is also nothing that would lead to the conclusion that he had
committed a simple fault. As a result, his liability cannot be engaged.
- The hypothetical acquittal in the mid-1970s
85.
Alternatively, even if this Court found that the Minister's conduct with respect to the 1967 application
for mercy engaged his liability, nothing leads to the conclusion that his conduct was the cause of any
damage. Indeed, it was purely speculative for the Superior Court to conclude that, had the Minister of
Justice conducted a more thorough investigation at the end of the 1960s, the error would certainly
have been discovered and the Appellant's acquittal would have been entered in the mid-1970s. Not
only is this conclusion purely speculative, it is also highly improbable.
86.
The trial judge seemed to assume that a more thorough investigation in the 1960s would have made
it possible to discover the same facts as those that came out of the CPQ investigation conducted in
the late 1980s. It becomes apparent from reading the CPQ report that the statements of Officer Scott
of the Mont-Laurier police and of a certain Hugues Duval, made in 1989, played an important role in
its conclusions. 133
87.
Yet, had the Minister conducted an even more thorough investigation in the late 1960s, it is
improbable that Officer Scott would have modified his version of the facts at that point, only a few
years after the testimonies he had given in 1963 134 and 1966, 135 since he indicated that it was not
until the mid-1970s that he began to doubt it. 136 It is even more doubtful that Hugues Duval would
have agreed to make, in Canada, the incriminating statements he made 28 years after the events
from the Dominican Republic, a country with which Canada has not concluded an extradition
treaty. 137
133
134
135
136
137
Report of the CPQ (30/8/90), P-86, A.R., vol. XI, p. 56.
Testimony of Arthur Scott at the appellant’s trial, Exhibit P-16, R.R., vol. II, p. 46 and sq.
Testimony of Arthur Scott at the preliminary inquiry of L. Véronneau, Exhibit P-28, p. 377, R.R. vol. II, p. 62.
Transcript of the unsworn testimony of Arthur Scott (7/12/98), Exhibit PG-21, p. 52, 54, 62, 75-82, 127, R.R.,
vol. II, p. 159, 161, 169, 174 to 181 and 185.
Report of the CPQ (30/9/90), Exhibit P-86, A.R., vol. XI, p. 55-56; written statements of Duval, Exhibit P-176,
A.R., vol. IX, p. 1 to 10.
88.
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Arguments
Finally, there is every indication that the three affiants, Savard, Beausoleil and Levasseur, would not
have co-operated at the time with an investigation by the Minister because they had refused to cooperate with SQ investigators when they were questioned regarding their respective affidavit in
1967. 138 In sum, everything points to the fact that a more in-depth investigation would not have
changed anything in the situation.
89.
And even if the Minister had referred the matter back to the Court of Appeal based on the affidavits of
the three detainees, there is no indication that the Court would have rendered a decision favourable
to the Appellant. First, one can wonder whether the affidavits obtained in 1966 would have been
accepted as "new evidence" because their authors had been called to the Appellant's trial but had not
testified in the end, following a decision of his counsel. 139 Second, even with the best evidence that
the Appellant could obtain following the CPQ investigation, the Court of Appeal ruled in 1994 that this
evidence was not conclusive enough to justify an acquittal. While it is true that this Court set aside
the Court of Appeal decision, the fact remains that the three Court of Appeal judges ruled that all of
the evidence, including the new evidence obtained by the CPQ, did not warrant an acquittal. One
might think therefore that a referral to the Court of Appeal at the end of 1960s would not have yielded
the results expected by the Appellant.
90.
In the circumstances, the Appellant did not prove, on the balance of probabilities, that the denial of
his application for mercy in 1967 caused any kind of damage. The Court of Appeal was therefore
correct in intervening on this point as well.
iii.
91.
The 1980 and 1981 applications for mercy
The Crown’s liability is no more engaged by the denial of the 1980 and 1981 applications for mercy.
At that time, more than 8 years after his first application was denied, the Appellant made a new
application. Given the brevity of this application, which was contained on one page, 140 there is no
doubt that the Minister was within his right to deny it. He cannot be faulted in this regard. In fact, the
Appellant later specified that his one-page letter was only an introduction, and he then asked the
138
139
140
Re Regina v. Gorecki (No 2), [1976] O.J. No 2308, para. 26, R.B.A., vol. II, tab. 63; Reference Re: Gruenke,
[1998] M.J. No 549, paras 31-40, aff’d by [2000] 1 S.C.R. 836, R.B.A., vol. II, tab. 64; R v. Palmer, [1980] 1
SCR 759, R.B.A., vol. II, tab. 65; Motions for subpoenas and order Exhibits P-20 to P-22, P-24 and PG-10,
R.R., vol. II, p. 50 to 53 and 146.
Letter from Réjean Hinse (23/7/80), Exhibit P-75, A.R., vol. X, p. 106.
- 28 -
Arguments
Minister for leave to file a more detailed application. 141 The request was granted, but the Appellant
was advised that he had to reveal new facts in support of it. 142
92.
In March 1981, the Appellant thus filed a third application for mercy. It is supported by the same
affidavits as those filed in 1967. Furthermore, the Appellant alleged that the judicial authorities had
been aware of the identity of the real perpetrators since 1964, that a lawyer had made it so that
certain witnesses had not testified at his trial and that a police officer had mislead the court. However,
there is nothing to support these allegations. 143 As noted by the Court of Appeal, [TRANSLATION] given
that Mr. Hinse did not go into much detail, the new allegations, based on vague irregularities could
have struck the Minister as being of little consequence. 144
93.
In his reply, the Minister indicated that he had nevertheless conducted an in-depth study of the
Appellant's file, a statement that is not contradicted by the evidence, but he concluded that this was
not an exceptional case warranting his intervention. 145 In the circumstances, it cannot be found that
the Minister committed a fault and even less that he acted in bad faith in denying the Appellant's
application. Clearly, the exercise of his discretionary power was reasonable.
iv.
94.
The 1990 application for mercy
In November 1990, following the CPQ report, which reveals some new evidence, the Appellant filed a
fourth application for mercy, this time through counsel, nine years after his previous application had
been denied. 146
95.
In his reply dated April 1991, the then Minister of Justice, the Honourable Kim Campbell, stated that
she had been informed by her officials that the CPQ report contained new facts deserving of
consideration. She also recognized that the issues raised by the CPQ were serious and relevant to
exercising her discretion. However, she indicated that these issues could also be raised with the
Quebec Court of Appeal without the need to impose this task on the Court through section 690 C.C.
The Minister ended her letter by inviting the Appellant's counsel to remind her of his case if the Court
141
142
143
144
145
146
Letter from Réjean Hinse (6/1/81), Exhibit PGC-4, A.R., vol. X, p. 109.
Letter from Jacques A. Demers, Exhibit PGC-5, A.R., vol. X, p. 111.
Letter from Réjean Hinse (9/3/81), Exhibit P-77, A.R., vol. XI, p. 1.
Judgment of the Court of Appeal, paras 180-181, A.R., vol. I, p. 150.
Letter from Jacques A. Demers (23/9/81), Exhibit P-78, A.R., vol. XI, p. 16.
Letter from Mr. Longtin (20/11/90), Exhibit PGC-6, A.R., vol. XI, p. 71.
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Arguments
of Appeal refused to act in the Appellant’s favor. 147 As stated by the Court of Appeal, there is no
malicious or wrongful conduct to be found in the Minister's actions. 148
96.
The Minister never indicated that she definitively denied the Appellant's application. She simply asked
him to address himself to the Court of Appeal first, which he had never done up until that point.
Indeed, the power of mercy is reserved for the person who has exhausted all other avenues of
appeal. 149 In Truscott, Marshall and Milgaard, which the trial judge discussed extensively in her
decision, the power of mercy was exercised by the Minister after those persons had themselves
unsuccessfully appealed their convictions. 150 This requirement is now codified under section 696.1
C.C. Thus, even seen from the angle of the simple fault test, there can be no doubt that Minister
Campbell's conduct was not wrongful.
D. COMPENSATORY DAMAGES AND CAUSALITY
97.
The Quebec Court of Appeal was correct to intervene and set aside the analysis of the Superior
Court with regard to compensatory damages. In fact, the trial judgment contained several errors of
law on that issue, namely, the lack of a causal link between the Minister's conduct and the injury
alleged by the Appellant, on the one hand, and, assuming such a link, the failure to share liability, the
double compensation awarded by the Superior Court on certain aspects and the excessive amount
awarded for non-pecuniary losses, on the other hand.
98.
As shown by the evidence filed by the Appellant himself 151 and as noted by the Court of Appeal,152 it
is the Appellant's arrest, conviction and imprisonment that are the direct and immediate cause of the
harm he suffered. 153 But for those events, he would have suffered no injury. Yet, the Ministers’
conduct is completely unrelated to the arrest, conviction and imprisonment of the Appellant. It follows
that the Government of Quebec and the Ville de Mont-Laurier officials are exclusively liable for the
147
148
149
150
151
152
153
Letter from Minister Campbell (24/4/91), Exhibit P-89, A.R., vol. XI, p. 75.
Bilodeau c. Canada, [2009] R.J.Q. 1003 (C.A.), paras 21 and 24, R.B.A., vol. II, tab. 41; Thatcher v. Canada,
[1997] 1 FC 289, para. 9, R.B.A., vol. II, tab. 42.
R. v. Truscott, 32 C.R. 150, R.B.A., vol. II, tab. 66; R. v. Milgaard, 1971 CarswellSask 26 [1971] 2 W.W.R. 266
(Sask. C.A.), application for leave to the S.C.C. dismissed on November 15, 1971, R.B.A., vol. II, tab. 67; R. v.
Marshall, 1972 4 N.S.R. (2d) 517 (N.S. C.A.), R.B.A., vol. II, tab. 68.
Expert Report of L. Béliveau, p. 1, 5-8, 10-11, R.R., vol. II, p. 130, 134 to 137, 139 and 140; Testimony of
L. Béliveau, p. 47- 59, A.R., vol. V, p. 80-83; Testimony of Dr. Charles Roy, p. 228, 239-241, 250-252, A.R.,
vol. V, p. 125, 128, 131.
Art. 1607 C.C.Q., R.B.A., vol. I, tab. 9.
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Arguments
Appellant’s harm. However, the trial judge completely ignored that reality when she ordered the
Respondent to pay the Appellant close to $3 million in compensatory damages.
99.
Indeed, the Ministers' decisions resulted only in the Appellant's losing a chance of being acquitted
earlier than he was. The Ministers could not acquit the Appellant, and as mentioned earlier, it is far
from clear that a committal for trial or a referral to the Court of Appeal at the beginning of the 1970s
would have led to an acquittal a few years later. Since the loss of a chance does not constitute
compensable damage in Quebec law, given the causality requirement in civil liability, the Minister's
fault, if such a fault existed, would not constitute a causal fault. 154
100. Even if we accept the improbable assumption of the Superior Court that a positive decision by the
Minister would have led to the Appellant's acquittal in 1976, the fact remains that the Appellant would
still have suffered the damages flowing from his wrongful arrest and conviction. He would also have
been deprived of his physical freedom for five years, between 1964 and 1969, to then be on parole
for many years. In the best case scenario for the Appellant, assuming that a causal fault existed in
the Ministers' conduct, that fault could only have been the cause of a minimal part of the moral injury
suffered by the Appellant.
101. More particularly, for the reasons below, the Court of Appeal had to intervene to set aside the trial
judgment on each of the heads of damages granted by the Superior Court.
i. Loss of income from 1997 to 2002
102. The Superior Court ordered the Attorney General of Canada to pay the Appellant $127,214 for loss of
income experienced by the Appellant between 1997 and 2002, that is, after his acquittal. The Court
decided to compensate the Appellant because he chose to retire at age 60, instead of age 65, in
order to dedicate himself to his civil lawsuit in this case.
103. However, there is clearly no causal link between the Appellant's decision to take early retirement in
1997 and the Ministers' decisions to not exercise the power of mercy in his favour years earlier. The
Ministers’ conduct did not force the Appellant to retire. This is the Appellant's personal decision, the
consequences of which must be borne by him alone. A Plaintiff cannot simply decide as he sees fit to
154
St-Jean v. Mercier, [2002] 1 S.C.R. 491, para. 106, R.B.A., vol. I, tab. 12; Laferrière v. Lawson, [1991] 1 S.C.R.
541, p. 608-609, R.B.A., vol. II, tab. 69.
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Arguments
stop working and to dedicate himself to a lawsuit and then be entitled to claim from the Defendant the
loss of income incurred because of that choice. Therefore, the Court of Appeal had to intervene in
that regard.
ii. Fees and legal costs incurred in the Court of Appeal and the Supreme Court
104. The Superior Court ordered the Attorney General of Canada to pay the Appellant the amount of
$293,660 to compensate him for the costs generated by the appeal proceedings instituted by him
between 1991 and 1997, proceedings which ultimately led to his acquittal.
105. Once again, there is no causal link between the Ministers’ conduct and these costs. Even if one of
the Ministers had allowed the Appellant's application for mercy, he would have either ordered a new
trial or referred the matter to the Court of Appeal. He could not have acquitted the Appellant. The
latter would still have had to cover the costs related to the new trial or to the criminal proceedings
before the Court of Appeal, and, ultimately, before this Court.
106. The Court of Appeal indicated that the above statement needed to be nuanced because the case law
recognizes the right of victims of arbitrary arrest or detention to be compensated for counsel fees
incurred during the criminal trial. 155 However, the Federal Ministers are not responsible for the
Appellant's arrest and detention. Thus, there is no justification for making an order against the
Respondent in that regard, even if it was concluded that the Minister had committed a fault.
Moreover, should there be an order to that effect, liability would, at the very least, have to be shared
with Quebec and Ville de Mont-Laurier.
iii. Investigation costs, loss of time, effort, photocopies, transcripts, travel, etc.
107. Under these various heads of damages, the Superior Court ordered the Respondent to pay $500,000
to the Appellant. Once again, this order was unjustified. As noted by the Court of Appeal, the loss of
time and the efforts made to obtain justice are inconveniences and problems inherent in the efforts of
anyone involved in such an undertaking. They are part of non-pecuniary damages because there is
no evidence of loss of income in this case. 156
155
156
Judgement of the Court of Appeal, paras 208 to 213, A.R., vol. I, p. 158-160.
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Arguments
108. Since the trial judgment included separate compensation for non-pecuniary damages, the amount of
$500,000 duplicates the amount of $1.9 million awarded as such, and that last amount was excessive
in the first place, as argued below.
iv. Non-pecuniary damages
109. The Superior Court considered that the amount of $1.9 million was adequate compensation
[TRANSLATION] "for a life lost, for dignity stolen and for an existence void of daily contract with his wife
and children". 157 The Court agreed with the Appellant's expert that the Appellant suffers from a
psychological disability of up to 15% due to his arrest, conviction and imprisonment. 158 According to
the Court, the Attorney General of Canada had to be held liable for these damages because he could
have ended the damage suffered by the Appellant earlier. 159 It is apparent from a plain reading of the
decision that the non-pecuniary damages were awarded by the Superior Court to compensate the
Appellant for the entire moral prejudice resulting from his arrest, conviction and incarceration.
Furthermore, the precedents on which the trial judge relied were all related to cases of deprivation of
physical freedom. 160
110. As previously mentioned, the Federal Crown cannot be held liable for this harm because none of its
servants were involved in the arrest, police investigation and criminal proceedings that led to the
Appellant's conviction and imprisonment. Thus, the Court of Appeal did not err in rejecting this
reasoning that was wrong in law. Even if we accept that the Minister contributed to extending the
harm related to the stigma attached to conviction and imprisonment, liability should have been shared
and, given the solidary payments resulting from out-of-court settlements, the Minister could have
been held liable only for his portion of the liability. 161 In this scenario, part of the liability would also
lay with the Appellant, who waited 27 years before appealing his conviction.
157
158
159
160
161
Trial judgment, paras 143, 148, A.R., vol. I, p. 47-48; Report of Dr. Lionel Béliveau (11/1/10), p. 10, Exhibit P165, R.R., vol. II, p. 139.
Trial judgment, paras 176-198, A.R., vol. I, p. 53 to 58.
Trial judgment, paras 184-187, A.R., vol. I, p. 54-56 (Truscott, R.B.A., vol. II, tab. 466; Sophonow, R.B.A., vol.
III, tab. 91; Marshall, R.B.A., vol. II, tab. 68; and Milgaard, R.B.A., vol. II, tab. 67) and (Proulx c. Québec
(Procureur général), REJB 1997-08462 (C.Q. Sup. Ct.), R.B.A., vol. II, tab. 70.
Art. 1478 and 1690 C.C.Q.; Court of Appeal decision, paras 185 to 201, A.R., vol. I, p. 151-157.
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Arguments
111. Thus, while it is true that the monetary cap of the trilogy162 is not applicable in this case given this
Court's decision in Cinar Corporation inc. v. Robinson, 163 the fact remains that the amount of
$1,900,000 cannot constitute, as noted by the Court of Appeal, a reasonable assessment of the
extension in time of the moral injury, the main components of which – conviction and imprisonment –
had already had their full detrimental effect on the Appellant. 164 In fact, even after his acquittal in
1997, the Appellant continued to suffer the consequences of his conviction and imprisonment, which
had taken place in the 1960s. 165 Thus, it is apparent that the acquittal did not end his damage, which
makes it quite difficult to see the connection that could exist between the damage and the exercise of
the power of mercy. The Appellant's evidence does not make that connection either. 166
112. The judgment in Proulx c. Québec, 167 cited by the trial judge, involving Quebec's liability for abusive
criminal proceedings, shows the excessiveness of the non-pecuniary damages awarded at trial.
Indeed, the amount awarded to the Appellant for damages caused by the Federal Government, which
had not arrested, prosecuted or convicted the Appellant, is seven times higher than the amount
awarded in Proulx against the party that was entirely responsible for the damage. 168
113. Indeed, because the Federal Crown had not the slightest involvement in the arrest, conviction and
imprisonment of the Appellant, the only parallel that could possibly be drawn regarding the quantum
lies with decisions where a person was compensated following statements labelling him or her a
criminal. In such matters, compensatory damages for non-pecuniary losses usually range from $750
to $135,000. 169 That is far from the amount of $1.9 million awarded at trial, which is also incompatible
162
163
164
165
166
167
168
169
Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, A.B.A., vol. I, tab. 8; Thornton v. School District No
57 (Prince George), [1978] 2 S.C.R. 267, A.B.A., vol. II, tab. 51; Arnold v. Teno, [1978] 2 S.C.R. 287, R.B.A.,
vol. I, tab. 9.
Cinar Corporation v. Robinson, [2013] 3 S.C.R. 1168, paras 95-103, A.B.A., vol. I, tab. 14.
Testimony of Dr Charles Roy, p. 228, 239-241, 250-252, A.R., vol. V, p. 125, 128, 131.
Expert’s report of L. Béliveau, p. 1, 5-8, 10-11, R.R., vol. II, p. 130, 134 à 137, 139 et 140; Testimony of L.
Béliveau, p. 47- 59 A.R. vol. V, p. 80-83.
Proulx c. Québec (Procureur général), REJB 1997-08462, par. 70, R.B.A., vol. II, tab. 70.
Trial judgement, para. 186, A.R., vol. I, p. 56.
Duhaime c. Mulcair, [2005] R.R.A. 533 (Sup. Ct.) ($75,000), R.B.A., vol. II, tab. 71; Fabien c. Dimanche
Matin, [1979] J.Q. No. 26 (S.C.) ($95,000), R.B.A., vol. II, tab. 72; Lavigne c. La Presse, [1984] J.Q. 379 (Sup.
Ct.) ($6,000; $2,000, $5,000; $750), R.B.A., vol. III, tab. 73; Commission scolaire des navigateurs c. Fortin,
[2007] J.Q. 7590 (Sup. Ct.) ($50,000), R.B.A., vol. III, tab. 74; Vallée c. Parent, 2001 QCCS 2015 ($25,000;
$25,000; $1,000), R.B.A., vol. III, tab. 75; Descôteaux c. La Presse, [2004] J.Q. 7276 (C.A.) ($5,000), R.B.A.,
vol. III, tab. 76; Robidas c. Parent, [2003] J.Q. 13125 (C.A.) ($50,000 and $20,000), R.B.A., vol. III, tab. 77;
Rizzuto c. Rocheleau, [2006] J.Q. 291 (Sup. Ct.) ($150,000), R.B.A., vol. III, tab. 78; Snyder v. Montreal
Gazette Ltd., [1988] 1 S.C.R. 494 ($135,000), R.B.A., vol. III, tab. 79.
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Arguments
with the numerous calls for moderation and predictability of this Court with regard to non-pecuniary
damages. 170
E. THE EXEMPLARY DAMAGES ISSUE
114. In finding that no fault was committed by the Ministers, the Court of Appeal closed the door to any
order to pay exemplary damages. A wrongful conduct is necessary to award such damages. 171
However, even in supposing that a fault existed, it is obvious that this case is not one in which it
would be appropriate to award such damages, which are meant to sanction a highly improper
conduct.
115. In the common law tradition, awarding exemplary damages is aimed at showing disapproval of such
conduct and to punish and deter the wrongdoer as well as the public at large. 172 In Hill v. Church of
Scientology of Toronto, Cory J. held that punitive damages may be awarded in situations where the
defendant’s misconduct is so malicious, oppressive and high-handed that it offends the court’s sense
of decency. 173 Foreign to traditional civil law, the concept of exemplary damages is exceptional in
Quebec, since such damages can be awarded only if expressly allowed by law. 174
116. Under section 49 of the Charter of Human Rights and Freedoms (the Quebec Charter), the provision
applied by the Superior Court in this case, punitive damages may be awarded in cases of unlawful
and intentional interference with a right recognized by the Charter. In Quebec v. Syndicat national
des employés de l’hôpital St-Ferdinand, this Court distinguished "unlawful and intentional
interference" from gross fault or even intentional fault and found that there is unlawful and intentional
interference when the person who commits the unlawful interference has a state of mind that implies
a desire or intent to cause the immediate and natural or at least extremely probable consequences
170
171
172
173
174
De Montigny v. Brossard (Succession), [2010] 3 S.C.R. 64, para. 31-32, R.B.A., vol. III, tab. 80; Vancouver
(City) v. Ward, [2010] 2 S.C.R. 28, para. 50, R.B.A., vol. III, tab. 81; Augustus v. Gosset, [1996] 3 S.C.R. 268,
para. 48, R.B.A., vol. III, tab. 82.
Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 S.C.R. 211,
para. 116, R.B.A., vol. II, tab. 54; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, R.B.A., vol.
III, tab. 83.
De Montigny v. Brossard (Succession), [2010] 3 S.C.R. 64, para. 47, R.B.A., vol. III, tab. 80.
Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, p. 1208, R.B.A., vol. III, tab. 83.
Art. 1621 C.C.Q., R.B.A., vol. I, tab. 9; Jean-Louis Baudouin, and Patrice Deslauriers. La responsabilité civile,
8th ed., vol. I, Principes généraux (Cowansville, Quebec: Yvon Blais) 2014, 1-373, R.B.A., vol. III, tab. 92.
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Arguments
that his or her conduct will cause. 175 The Court continued by stating that an individual's recklessness,
however wild and foolhardy, as to the consequences of his or her wrongful acts will not in itself satisfy
this test. 176
117. Therefore, this is a very high threshold, which has clearly not been met in this case. As noted by the
Court of Appeal, even if it was found that there was negligence in reviewing the Appellant's
applications, the evidence does not make it possible to find that the Ministers who succeeded each
other over the years acted with a state of mind that implies a desire to harm Mr. Hinse or with an
equivalent knowledge of the harmful consequences that a refusal would have for him. 177 In other
words, there is no intention to harm here, or a clear, known and deliberate violation 178 of the
Appellant's rights. Indeed, there is not a shred of evidence to that effect in the record.
118. Moreover, the lack of compensation by the Federal Government to the benefit the Appellant under
the Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons179 seems to have
significantly influenced the Superior Court on the question of exemplary damages. 180 However, this
issue is unrelated to the decisions rendered on the applications for mercy, and there are no
allegations regarding this issue in the Appellant's Statement of Claim. In fact, the Appellant never
asked for compensation by the Federal Government under these guidelines.
119. Furthermore, based on the current state of Canadian law, the Federal Government has no legal
obligation to compensate a person who was convicted and then acquitted in a criminal trial. 181 That
said, the Federal Government and the provinces have established a policy that deals with the types
of cases where compensation may be awarded regardless of who is liable. Under this policy,
however, it is the government responsible for the criminal proceedings that led to the wrongful
conviction – in this case, Quebec – that decides whether, in the circumstances, a person is eligible
175
176
177
178
179
180
181
Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 S.C.R. 211,
p. 260, R.B.A., vol. II, tab. 54.
Ibid.
Québec (Procureur Général) c. Boisclair, 2001 CanLII 20655 (QC CA), para. 28, R.B.A., vol. III, tab. 84.
Dumont c. Québec (Procureur général), 2009 QCCS 3213, paras. 124-129, aff’d 2012 QCCA 2039 (CanLII),
R.B.A., vol. III, tab. 85; Communiqué of the Gouvernement du Québec (21/3/88), Exhibit P-159A, Appendix 3,
R.R., vol. II, p. 105.
Trial judgment, paras 203-204, A.R., vol. I, p. 59-60.
Dumont c. Québec (Procureur général), 2009 QCCS 3213, paras 124-129; aff’d 2012 QCCA 2039 (CanLII),
R.B.A., vol. III, tab. 85; Proulx c. Québec, [1999] R.J.Q. 398 (C.A.), p. 416, R.B.A., vol. I, tab. 27.
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Arguments
for compensation. In this case, Quebec decided that the Appellant should not be compensated
because, despite his acquittal, there was no proof of his innocence. 182 This is the context in which the
Respondent's arguments at trial should be understood, when he made a distinction between acquittal
and innocence. 183 Thus, even under this non-binding policy, the Federal Government did not have to
compensate the Appellant.
120. In addition, it was an error of law for the Superior Court to apply the Quebec Charter to the Federal
Crown. In enacting the CLPA, Parliament did not subject the Federal Crown to the system of punitive
damages set out in the Quebec Charter. 184 As shown by the case law, section 3 of the CLPA refers
to the traditional civil law set out in the Civil Code of Québec. 185
121. The concept of exemplary damages is foreign to traditional civil law, under which civil liability law has
only a remedial, and hence, compensatory function. 186 In addition, in De Montigny v. Brossard, this
Court acknowledged the autonomous nature of punitive damages set out in the Quebec Charter as
opposed to the liability regime of the jus commune. The exceptional and autonomous nature of this
type of damage confirms that it is not part the civil liability system referred to in section 3 of the CLPA.
122. Finally, the Superior Court's conclusion that exemplary damages could also be awarded under the
Canadian Charter has no basis in law. First, the trial judge did not identify any violation of a right
protected by the Canadian Charter whereas this is a prerequisite to the award of damages under
subsection 24(1) of the Canadian Charter. 187 In addition, the only post-Charter decision is that of
Minister Campbell made in 1991 dismissing the Appellant's last application. Clearly, the Minister
committed no fault in making that decision.
182
183
184
185
186
187
Examination for discovery of Daniel Grégoire (28/5/09), p. 41-44, 60-70, 83, Exhibit P-159, R.R., vol. II, p. 8990, 94 to 96 and 99; Examination for discovery of Kerry Scullion (18/12/08), p. 105-106, Exhibit P-158, A.R.,
vol. VII, p. 167; Letter of Minister Cotler (01/11/05), Exhibit P-138, A.R., vol. XI, p. 106; Minutes of the
meeting of the Federal-Provincial-Territorial Working Group on Compensation of Victims of Crime held in
Toronto on October 6, 1997, Exhibit P-159A, Appendix 2, R.R.., vol. II, p. 104.
Submissions of the Attorney General of Canada against the plaintiff’s action, paras 102-107, A.R., vol. IV, p. 1617; Article of journalist Y. Boisvert in La Presse, Exhibit P-133, R.R. vol. II, p. 72.
De Montigny v. Brossard (Succession), [2010] 3 S.C.R. 64, R.B.A., vol. III, tab. 80.
Ouimette c. Canada, [2002] R.J.Q. 1228 (C.A.), paras 75-87, R.B.A., vol. I, tab. 26; LeFrançois c. Canada
(Procureur général), 2010 QCCA 1243 (CanLII), paras 83-85, R.B.A., vol. III, tab. 86; R. v. Breton, [1967]
S.C.R. 503, R.B.A., vol. III, tab. 87.
De Montigny v. Brossard (Succession), [2010] 3 S.C.R. 64, paras 47-49, R.B.A., vol. III, tab. 80; Baudouin, J.L.,
Deslauriers, P., Moore, B., La responsabilité civile, 8th ed., vol. I, Principes généraux. Cowansville, Quebec:
Yvon Blais, 2014, 1-373, R.B.A., vol. III, tab. 92.
Vancouver (City) v. Ward, [2010] 2 S.C.R. 28, para. 23, R.B.A., vol. III, tab. 81.
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Arguments
F. EXTRAJUDICIAL FEES
123. The trial judge ordered the Respondent to pay the Appellant $540,000, $440,000 of which was for the
fees of his counsel who had acted pro bono and who had also received $800,000 from Quebec as
part of an out-of-court settlement. For the following reasons, the Court of Appeal correctly set aside
this order.
124. In Quebec, the order to pay extrajudicial fees is used to compensate a party for damages suffered as
a result of an abuse of the court’s process by the other party. Such an order is meant to sanction the
abuse of process (procedural abuse) by a party, not to sanction a party from defending itself in a
claim on the merits. 188 The trial judge obviously lost sight of that distinction in this case in criticizing
the Respondent for taking completely normal and reasonable steps in the conduct of a litigation. She
also made an error of law in deciding the issue based on Ontario case law, which does not take into
account the reality of civil law, as noted by the Court of Appeal. 189
125. An order for extrajudicial fees was completely unjustified in this case. The Attorney General of
Canada, who was a secondary player in this matter until the out-of-court settlement with Quebec, did
not abuse the court process because he:
i.
produced no interlocutory proceedings and held no examinations for discovery;
ii.
produced a brief defence in which he made various admissions 190
iii.
facilitated an out-of-court settlement between the Appellant and the Ville de Mont-Laurier by
waiving any recourse in warranty against the Ville de Mont-Laurier. 191
188
189
190
191
Viel c. Entreprises immobilières de Terroir inc., [2002] R.J.Q. 1262 (C.A.), R.B.A., vol. III, tab. 88; Frappier c.
Constant, 2005 QCCA 778, R.B.A., vol. III, tab. 89.
Judgment of the Court of Appeal, paras 243, 244, A.R., vol. 1, p. 173.
Defence of the AGC, A.R., vol. II, p. 86.
Exhibit R-1 in support of the motion to homologate a transaction by the Ville de Mont-Laurier, R.R., vol. I, p. 5.
iv.
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Submissions concerning costs
made admissions concerning all documents written by or sent to Federal Crown servants;192
and
v.
called only one witness at trial, namely a psychiatrist who was recognized as an expert by all
parties.
126. Furthermore, if the Appellant had to put a great deal of effort into preparing his evidence, it is first and
foremost because the primary defendant in the claim, the Quebec Government, vigorously disputed
the Appellant’s claim. Moreover, the Attorney General was perfectly within his right not to admit facts
that were not to his knowledge, to deny liability on the merits, to rely on the conclusions of his expert
and to argue that the Appellant had not discharged his burden of proof. This is perfectly normal
conduct in the context of a proceeding where the defendant disputes the claim made against him.
The Court of Appeal stated the following in this regard:
[TRANSLATION]
[242] In this case, nothing in the evidence allowed the judge to find that the appellant
abused the right to be a party to legal proceedings. The appellant made certain admissions
in his defence and called only one witness, psychiatrist Lionel Béliveau, whom the judge did
not deem credible. It is not much of a basis on which to condemn a party to the payment of
extrajudicial costs. Nor did the appellant display a malicious attitude or demonstrate bad
faith. The defendant was entitled to defend himself, given the amounts claimed and the
legal principles at play. His legal challenge was not motivated by bad faith. He did not
multiply proceedings or needlessly and abusively prolong the legal debate. [Emphasis
added.]
127. In the circumstances, it was completely unreasonable for the Superior Court to order the Respondent
to pay the Appellant extrajudicial fees.
PART IV – SUBMISSIONS CONCERNING COSTS
128. The Respondent asks for the appeal to be dismissed with costs, in accordance with the rule that
costs follow the event.
192
Documentary evidence in application, A.R., vol. III, p. 133; Documentary evidence in defence, A.R., vol. III,
p. 174; Transcript (9/11/10), A.R., vol. IV, p. 56.
. 39.
Respondent's Factum
Order Sought
PART V - OROER SOUGHT
129. For these reasons, the Respondent asks this Honourable Court to:
DISMISS the appeal.
The whole, with costs.
Vincent Veilleux
284 Wellington, SAT-6060
Ottawa, Ontario K1A OH8
Telephone: 613-946-2776
Facsimile: 613-952-6006
E-mail : [email protected]
Counsel for the respondent,
- 40 -
PART VI – TABLE OF AUTHORITIES
Table of Authorities
PARAGRAPH
Legislation
Civil Code of Québec, S.Q. 1991, c. 64, art. 1478, 1607, 1621, 1690, 2803,
2805.
Criminal Code, R.S.C. 1985, c. C-46, ss. 696.1 to 696.6
75,76,98,110
59,96
Criminal Code, S.C. 1953-54, c. 51, s. 596.
58
Criminal Code, R.S.C. 1970, c. C-34, s. 617.
59
Criminal Code, R.S.C. 1985, c. C-46, s. 690.
59
Criminal Law Amendment Act, 1968-1969, S.C. 1968-69, c. 38, s. 62.
58
Criminal Law Amendment Act, 2001, S.C. 2002, c. 13, s. 71.
59
Police Act, R.S.Q. 1977, c. P-13, ss. 1-37
83
Canada Evidence Act, R.S.C., 1985, c. C-5, s. 12
80
Crown Liability and Proceedings Act, R.S.C. (1985), c. C-50.
39
Inquiries Act, R.S.C., 1985, c. I-11
59
Regulations Respecting Applications for Ministerial Review - Miscarriages of
Justice, SOR/2002-416.
59
Jurisprudence
Canadian Food Inspection Agency v. PIPSC, [2010] 3 S.C.R. 657
Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229
40, 43
111
- 41 -
Arnold v. Teno, [1978] 2 S.C.R. 287
111
Augustus v. Gosset, [1996] 3 S.C.R. 268
113
Wewaykum Indian Band v. Canada, 2002 SCC 79 (CanLII), [2002] 4 S.C.R.
245
61
Beaudoin-Daignault v. Richard, [1984] 1 S.C.R. 2
35
Bilodeau c. Canada (ministre de la Justice), [2009] R.J.Q. 1003
Bilodeau c. Canada (Procureur général), 2011 CF 886
Brochu c. Canada, [2007] R.J.Q. 1505 (C.A.)
55,56,59,96
52
43, 44
Calgary Power Ltd. v. Copithorne, [1959] S.C.R. 24
63
Canada Packers v. Canada, [1989] 1 F.C. 47 (C.A.)
36
Cinar Corporation v. Robinson, [2013] 3 S.C.R. 1168
111
Comeau's Sea Foods v. Canada (Minister of Fisheries and Oceans), [1997] 1
S.C.R. 12
Commission scolaire des navigateurs c. Fortin, [2007] J.Q. 7590 (C.S.)
44
113
Concentrés scientifiques Bélisle inc. c Lyrco Nutrition inc., 2007 QCCA 676
37
Daoulov v. Canada, 2009 FCA 12
52
De Montigny v. Brossard (Succession), [2010] 3 S.C.R. 64
Descoteaux c. La Presse, [2004] J.Q. 7276 (C.A.)
Dorval v. Bouvier, [1968] S.C.R. 288
Duhaime c. Mulcair, [2005] R.R.A. 533 (Sup. Ct.)
Dumont c. Québec (Procureur général), 2009 QCCS 3213; confirmed by
2012 QCCA 2039 (CanLII)
Entreprises Sibeca Inc. v. Frelighsburg (Municipality), [2004] 3 S.C.R. 304
Fabien c. Dimanche matin, [1979] J. Q. no 26 (Sup. Ct.)
Finney v. Barreau du Québec, [2004] 2 S.C.R. 17
Frappier c. Constant, 2005 QCCA 778
113,115,120,121
113
35,36
113
118,119
43,52
113
38,43,45
124
- 42 -
Freitas v. Benny, [1976] A.C. 239
55
Guay v. Lafleur, [1965] S.C.R. 12
63
Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347
44
Harris v. Law Society of Alberta, [1936] S.C.R. 88
44
Henry v. Canada (Minister of Justice), [1992] F.C.J. No. 451
63,64,68
Hickman Motors Ltd. v. Canada, [1997] 2 S.C.R. 336
36
Hill v. Hamilton‑Wentworth Regional Police Services Board, [2007] 3 S.C.R.
129
47
Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130
114,115
Hinse v. Her Majesty the Queen, (S.C. Can., 1995-01-26), 24320
25
Hinse v. Her Majesty the Queen, [1995] 4 S.C.R. 597
25
In the matter of an Application by W. Collin Thatcher to the Minister of Justice
for Certain discretionary relief under section 690 of the Criminal Code of
Canada, (April 14, 1994).
57
Knight v. Indian Head Sch. Div. No. 19, [1990] 1 S.C.R. 653
63
Laferrière v. Lawson, [1991] 1 S.C.R. 541
99
Laliberté c. Gingues, 2008 QCCA 2242 (CanLII)
61
Lavigne c. La Presse, [1984] J.Q. 379 (Sup. Ct.)
113
L'Écuyer c. Quail, [1991] R.R.A. 482
LeFrançois c. Canada (Procureur général), 2010 QCCA 1243 (CanLII)
61
120
Canadian Arsenals Ltd. v. C.L.R.B, [1979] 2 F.C. 393
77
MacLean Hunter Limited v. Canada (D-M.N.R.), 88 DTC 6096
82
Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14
[2013] 1 S.C.R. 623
61
McArthur v. Ontario, 2012 ONSC 5773,
Montambault c. Hôpital Maisonneuve-Rosemont, 2001 CanLII 11069 (QCCA),
[2001] R.J.Q. 893
55,56
44
- 43 -
Ouimette c. Canada, [2002] R.J.Q. 1228 (C.A.)
43,120
Palmer v. The Queen, [1980] 1 S.C.R. 759
89
Popovic c. Montréal (Ville de), 2008 QCCA 2371
44
Proulx v. Quebec (Attorney General), REJB 1997-08462 (QC. Sup. Ct.)
109,112
Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663
40,43,75
Quebec (Commission des droits de la personne et des droits de la jeunesse)
v. Communauté urbaine de Montréal, [2004] 1 S.C.R. 789
40,43
Quebec (Public Curator) v. Syndicat national des employés de l’hôpital StFerdinand, [1996] 3 S.C.R. 211
75,114,116
Québec (Procureur Général) c. Boisclair, 2001 CanLII 20655 (QC CA)
Québec c. Deniso Lebel Inc., [1996] R.J.Q. 1821 (C.A.)
Proulx v. Quebec, [1999] R.J.Q. 398 (C.A.), conf. by [2001] 3 S.C.R. 9
117
43,45
43,44,45,52,119
R. v. Bevan, [1993] 2 S.C.R. 599
80
R. v. Breton, [1967] S.C.R. 503
120
R. v. Brooks, 41 O.R. (3d) 661
80
R. v. Corbett, [1988] S.C.R. 670
80
R. c. Hinse, [1994] Q.J. No. 480
80
R. v. Hinse, [1997] 1 S.C.R. 3
25
R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45
44
R. v. Marshall, 1972 4 N.S.R. (2d) 517 (N.S.C.A.)
R. v. Nord-Deutsche Versicherungs-Gesellschaft, [1971] S.C.R. 849
R. v. Truscott, 32 C.R. 150
96,109
61
96,109
Re Regina v. Gorecki (No 2), [1976] O.J. No. 2308
89
Reference re: Gruenke, [1998] M.J. no 549; conf. by [2000] 1 S.C.R. 836
89
R. v. Milgaard, 1971 CarswellSask 26, [1971] 2 W.W.R. 266 (Sask. C.A.),
application for leave to the S.C.C. dismissed on November 15, 1971
96,109
- 44 -
Rizzuto c. Rocheleau, [1996] J.Q. 291 (Sup. Ct.)
113
Robidas c. Parent, [2003] J.Q. 13125 (C.A.)
113
Rubis v. Gray Rocks Inn Ltd., [1982] 1 S.C.R. 452
36
Rudolph Wolfe & Co. v. Canada, [1990] 1 S.C.R. 695
39
Snyder v. Montreal Gazette, [1988] 1 S.C.R. 494
St-Jean v. Mercier, [2002] 1 S.C.R. 491
Supermarchés Jean Lebrecque inc. c. Flamand, [1987] 2 S.C.R. 219
Thatcher v. Canada (Minister of Justice), [1997] 1 F.C. 289
Therrien (Re), [2001] 2 S.C.R. 3
Thornton v. School Districk no 57 (Prince George), [1978] 2 S.C.R. 267
113
35,38,99
77
55,56,63,64,68,96
55
111
Timm v. Canada, 2012 FCA 282
52
Trillium Labels Inc. v. Canada (M.N.R.), 2001 FCA 60
82
Vallée c. Parent, 2011 QCCS 2015
Vancouver (City) v. Ward, [2010] 2 S.C.R. 28
Viel c. Entreprises immobilières de Terroir inc., [2002] R.J.Q. 1262 (C.A.)
Walchuk v. Canada, 2013 FC 958
Welbridge Holdings v. Greater Winnipeg, [1971] S.C.R. 957
113
113,122
124
52,54
44
Doctrine
Baudouin, Jean-Louis and Patrice Deslauriers. La responsabilité civile, 8th
ed., vol. I, Principes généraux. Cowansville, Quebec: Yvon Blais, 2014
39,40, 41,61,115,121
Cole, D., Manson, A., The Release from Imprisonment, Carswell, 1990,
p. 409-412
55
Ducharme, Léo, Précis de la preuve, 6e édition, 2005, Wilson & Lafleur
38
Dumont, Hélène, Pénologie, Montréal, Éditions Thémis, 1993
55
Dussault, René and Louis Borgeat. Administrative law: a treatise, v. III, 2nd
39,43,44
- 45 -
ed. Quebec: Presses de l’Université Laval, 1989
Garant, Patrice, with the collaboration of Philippe Garant and Jérôme Garant.
Droit administratif, 6th ed. Cowansville, Quebec: Yvon Blais, 2010
43,44
Karim, Vincent, Les obligations, 3rd ed., vol. 1, Montréal: Wilson & Lafleur,
2009
61
Ouellet, Yves, “Actions for damages against the government and public
servants for administrative fault” (1992) 26 R.J.T. 169
41
Pépin, Gilles and Yves Ouellette, Principes de contentieux administratif, 2nd
edition, Cowansville: Éditions Yvon Blais inc. 1982
77
Sgayias, Kinnear, Rennie, Saunders, Crown Liability and Proceedings Act
1995, Carswell, p. 56-57.
41
Gary Trotter, “Justice, Politics and the Royal Prerogative of Mercy: Examining
the Self-Defence Review” (2001), 26 Queens L.J. 339
55
Other references
Standing Senate Committee on Legal and Constitutional Affairs, Minutes of
Proceedings and Evidence, 37th Parl., 1st Sess., no 24 (February 7, 2002)
p. 24
60
Senate Debate, 37th Parl, 1st Sess, no 66 (November 1st, 2001), p. 1612
(Landon Pearson)
60
House of Commons Debates, 37th Parl., 1st Sess., No 54 (May 3, 2011) at
p. 3583 (Anne McLellan)
60
- 46 -
Acts/Regulations/Rules
PART VII – ACTS / REGULATIONS / RULES
S. 596 Cr.C. (S.C. 1953-54, c. 51)
application for the mercy of the Crown by or
on behalf of a person who has been
convicted in proceedings by indictment,
Couronne, faite par ou pour une personne qui
a été condamnée à la suite de procédures sur
un acte d’accusation, le ministre de la Justice
peut :
a) direct, by order in writing, 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;
a) prescrire, au moyen d’une ordonnance
écrite, un nouveau procès devant une cour
qu’il juge appropriée, si, après enquête, il est
convaincu que, dans les circonstances, un
nouveau procès devrait être prescrit ;
b) refer the matter at any time to the court of
court as if it were an appeal by convicted
person; or
b) à toute époque, déférer la cause à la cour
d’appel pour audition et décision par cette
cour comme s’il s’agissait d’un appel interjeté
par la personne condamnée ; ou
c) refer to the court of appeal at any time,
for its opinion, any question upon which he
desires the assistance of that court, and the
court shall furnish its opinion accordingly.
c) à toute époque, soumettre à la cour
d’appel, pour connaître son opinion, toute
question sur laquelle il désire l’assistance de
cette cour, et la cour doit donner son opinion
en conséquence 193.
S. 596 Cr.C. (S.C. 1968-69, c. 38, s. 62)
application for the mercy of the Crown by or on
behalf of a person who has been convicted in
proceedings by indictment or who has been
sentenced to preventive detention under Part
XXI,
Couronne, faite par ou pour une personne qui a
été condamnée à la suite de procédures sur un
acte d'accusation ou qui a été condamnée à la
détention préventive en vertu de la Partie XXI, le
ministre de la Justice peut
(a) direct, by order in writing, a new trial or, in
the case of a person under sentence of
preventive detention, a new hearing, before any
court that he thinks proper, if after inquiry he is
satisfied that in the circumstances a new trial or
hearing, as the case may be, should be directed;
a) prescrire, au moyen d'une ordonnance écrite,
un nouveau procès ou, dans le cas d'une
personne condamnée à la détention préventive,
une nouvelle audition devant toute cour qu'il
juge appropriée si, après enquête, il est
nouveau procès ou une nouvelle audition, selon
le cas, devraient être prescrits;
193
Criminal Code, S.C. 1953-54, c. 51, s. 596; Criminal Law Amendment Act, 1968-1969, S.C. 1968-69, c. 38, s. 62.
- 47 -
(b) refer the matter at any time to the court of
court as if it were an appeal by the convicted
person or the person under sentence of
preventive detention, as the case may be; or
b) à toute époque, renvoyer la cause devant la
cour d'appel pour audition et décision par cette
cour comme s'il s'agissait d'un appel interjeté
par la personne déclarée coupable ou par la
selon le cas; ou
(c) refer to the court of appeal at any time, for its
opinion, any question upon which he desires the
assistance of that court, and the court shall
furnish its opinion accordingly.
c) à toute époque, renvoyer devant la cour
d'appel, pour connaître son opinion, toute
question sur laquelle il désire l'assistance de
cette cour, et la cour doit donner son opinion en
conséquence.
S. 690. (R.S.C. 1985, c. C-46)
690. The Minister of Justice may, on an
application for the mercy of the Crown by or on
behalf of a person who has been convicted in
proceedings by indictment or who has been
sentenced to preventive detention under Part
XXIV,
Couronne, faite par ou pour une personne qui a
été condamnée à la suite de procédures sur un
acte d'accusation ou qui a été condamnée à la
détention préventive en vertu de la Partie XXIV,
le ministre de la Justice peut
(a) direct, by order in writing, a new trial or, in
the case of a person under sentence of
preventive detention, a new hearing, before any
court that he thinks proper, if after inquiry he is
satisfied that in the circumstances a new trial or
hearing, as the case may be, should be directed;
a) prescrire, au moyen d'une ordonnance écrite,
un nouveau procès ou, dans le cas d'une
une nouvelle audition devant tout tribunal qu'il
juge approprié si, après enquête, il est
nouveau procès ou une nouvelle audition, selon
le cas, devrait être prescrit;
(b) refer the matter at any time to the court of
person or the person under sentence of
preventive detention, as the case may be; or
b) à tout moment, renvoyer la cause devant la
cour d'appel pour audition et décision par cette
cour comme s'il s'agissait d'un appel interjeté
par la personne déclarée coupable ou par la
selon le cas ;
c) à tout moment, renvoyer devant la cour
d'appel, pour connaître son opinion, toute
question sur laquelle il désire l'assistance de
cette cour, et la cour d'appel donne son opinion
en conséquence.
(c) refer to the court of appeal at any time, for its
opinion, any question upon which he desires the
- 48 -
Ss. 696.1 to 696.6 Cr.C, S.C. 2002, c. 13, s. 71
696.1 (1) An application for ministerial review on
the grounds of miscarriage of justice may be
made to the Minister of Justice by or on behalf of
a person who has been convicted of an offence
under an Act of Parliament or a regulation made
under an Act of Parliament or has been found to
be a dangerous offender or a long-term offender
under Part XXIV and whose rights of judicial
review or appeal with respect to the conviction
or finding have been exhausted.
696.1 (1) Une demande de révision auprès du
ministre au motif qu'une erreur judiciaire aurait
été commise peut être présentée au ministre de
la Justice par ou pour une personne qui a été
condamnée pour une infraction à une loi
fédérale ou à ses règlements ou qui a été
déclarée délinquant dangereux ou délinquant à
contrôler en application de la partie XXIV, si
toutes les voies de recours relativement à la
condamnation ou à la déclaration ont été
épuisées.
(2) The application must be in the form, contain
the information and be accompanied by any
documents prescribed by the regulations.
(2) La demande est présentée en la forme
réglementaire, comporte les renseignements
réglementaires et est accompagnée des
documents prévus par règlement.
696.2 (1) Sur réception d'une demande
présentée sous le régime de la présente partie,
le ministre de la Justice l'examine conformément
aux règlements.
(2) Dans le cadre d'une enquête relative à une
demande présentée sous le régime de la
présente partie, le ministre de la Justice
possède tous les pouvoirs accordés à un
commissaire en vertu de la partie 1 de la Loi sur
les enquêtes et ceux qui peuvent lui être
accordés en vertu de l'article 11 de cette loi.
696.2 (1) On receipt of an application under this
Part, the Minister of Justice shall review it in
accordance with the regulations.
(2) For the purpose of any investigation in
relation to an application under this Part, the
Minister of Justice has and may exercise the
powers of a commissioner under Part 1 of the
Inquiries Act and the powers that may be
conferred on a commissioner under section 11
of that Act.
(3) Despite subsection 11(3) of the lnquiries Act,
the Minister of Justice may delegate in writing to
any member in good standing of the bar of a
province, retired judge or any other individual
who, in the opinion of the Minister, has similar
background or experience the powers of the
Minister to take evidence, issue subpoenas,
enforce the attendance of witnesses, compel
them to give evidence and otherwise conduct an
investigation under subsection (2).
(3) Malgré le paragraphe 11 (3) de la Loi sur les
enquêtes, le ministre de la Justice peut déléguer
par écrit à tout membre en règle du barreau
d'une province, juge à la retraite ou tout autre
individu qui, de l'avis du ministre, possède une
formation ou une expérience similaires ses
pouvoirs en ce qui touche le recueil de
témoignages, la délivrance des assignations, la
contrainte à comparution et à déposition et, de
façon générale, la conduite de l'enquête visée
au paragraphe (2).
696.3 (1) ln this section, "the court of appeal"
means the court of appeal, as defined by the
definition "court of appeal" in section 2, for the
province in which the person to whom an
696.3 (1) Dans le présent article, « cour d'appel
» s'entend de la cour d'appel, au sens de l'article
2, de la province où a été instruite l'affaire pour
laquelle une demande est présentée sous le
- 49 -
application under this Part relates was tried.
régime de la présente partie.
(2) The Minister of Justice may, at any time,
refer to the court of appeal, for its opinion, any
question in relation to an application under this
Part on which the Minister desires the
(2) Le ministre de la Justice peut, à tout
moment, renvoyer devant la cour d'appel, pour
connaître son opinion, toute question à l'égard
d'une demande présentée sous le régime de la
présente partie sur laquelle il désire son
assistance, et la cour d'appel donne son opinion
en conséquence.
(3) Le ministre de la Justice, peut, à l'égard
d'une demande présentée sous le régime de la
présente partie :
(3) On an application under this Part, the
Minister of Justice may
(a) if the Minister is satisfied that there is a
reasonable basis to conclude that a miscarriage
of justice likely occurred,
a) s'il est convaincu qu'il y a des motifs
raisonnables de conclure qu'une erreur judiciaire
s'est probablement produite :
(i) direct, by order in writing, a new trial before
any court that the Minister thinks proper or, in
the case of a person found to be a dangerous
offender or a long-term offender under Part
XXIV, a new hearing under that Part, or
(i) prescrire au moyen d'une ordonnance écrite,
un nouveau procès devant tout tribunal qu'il juge
approprié ou, dans le cas d'une personne
déclarée délinquant dangereux ou délinquant à
contrôler en vertu de la partie XXIV, une
nouvelle audition en vertu de cette partie.
(ii) refer the matter at any time to the court of
person or the person found to be a dangerous
offender or a long-term offender under Part
XXIV, as the case may be; or
(b) dismiss the application.
(ii) à tout moment, renvoyer la cause devant la
cour d'appel pour audition et décision comme s'il
s'agissait d'un appel interjeté par la personne
déclarée coupable ou par la personne déclarée
délinquant dangereux ou délinquant à contrôler
en vertu de la partie XXIV, selon le cas;
b) rejeter la demande.
(4) A decision of the Minister of Justice made
under subsection (3) is final and is not subject to
appeal.
696.4 (1) In making a decision under subsection
696.3(3), the Minister of Justice shall take into
account all matters that the Minister considers
relevant, including
(4) La décision du ministre de la Justice prise en
vertu du paragraphe (3) est sans appel.
(a) whether the application is supported by new
matters of significance that were not considered
by the courts or previously considered by the
Minister in an application in relation to the same
conviction or finding under Part XXIV;
a) la question de savoir si la demande repose
sur de nouvelles questions importantes qui n'ont
pas été étudiées par les tribunaux ou prises en
considération par le ministre dans une demande
précédente concernant la même condamnation
ou la déclaration en vertu de la partie XXIV;
696.4 (1) Lorsqu'il rend sa décision en vertu du
paragraphe 696.3(3), le ministre de la Justice
prend en compte tous les éléments qu'il estime
se rapporter à la demande, notamment:
- 50 -
(b) the relevance and reliability of information
that is presented in connection with the
application; and
b) la pertinence et la fiabilité des
renseignements présentés relativement à la
demande;
(c) the fact that an application under this Part is
not intended to serve as a further appeal and
any remedy available on such an application is
an extraordinary remedy.
c) le fait que la demande présentée sous le
régime de la présente partie ne doit pas tenir
lieu d'appel ultérieur et les mesures de
redressement prévues sont des recours
extraordinaires.
696.5 The Minister of Justice shall within six
months after the end of each financial year
submit an annual report to Parliament in relation
to applications under this Part.
696.5 Dans les six mois suivant la fin de chaque
exercice, le ministre de la Justice présente au
Parlement un rapport sur les demandes
présentées sous le régime de la présente partie.
696.6 The Governor in Council may make
regulations.
696.6 Le gouverneur en conseil peut prendre
des règlements :
(a) prescribing the form of, the information
required to be contained in and any documents
that must accompany an application under this
Part;
a) concernant la forme et le contenu de la
demande présentée en vertu de la présente
partie et les documents qui doivent
l'accompagner;
(b) prescribing the process of review in relation
to applications under this Part, which may
include the following stages, namely, preliminary
assessment, investigation, reporting on
investigation and decision; and
b) décrivant le processus d’instruction d’une
demande présentée sous le régime de la
présente partie, notamment les étapes suivantes
: l'évaluation préliminaire, l'enquête, le sommaire
d'enquête et la décision;
(c) respecting the form and content of the annual
report under section 696.5.
c) concernant la forme et le contenu du rapport
annuel visé à l'article 696.5.

Respondent Procureur-général-du

Transcription

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