Supreme Court of Canada Clarifies Mercy Power

Written on Behalf of Affleck & Barrison LLP

Supreme Court of Canada Clarifies Mercy Power

Miscarriages of justice can and do occur in the Canadian criminal justice system. Victims of a miscarriage of justice have recourse to certain remedies, one of which is the power of mercy codified in s. 696 of the Criminal Code. This section allows a person convicted of an offence to apply for a review by the Minister of Justice on the grounds of a miscarriage of justice. If the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice has occurred, the Minister may direct a new trial or refer the matter to the court of appeal for a hearing.

The Supreme Court of Canada (SCC) recently released its decision in Hinse v Canada (Attorney General), 2015 SCC 35, which clarified the mercy provisions under the Criminal Code.

In 1964, Rejean Hinse was sentenced to 15 years in prison after being wrongly convicted of armed robbery. In 1966, he persuaded 3 of the 5 perpetrators of the robbery to sign affidavits clearing his name. Mr. Hinse submitted several applications for mercy to the federal Minister of Justice and an application for a pardon to the Governor General in Council, all of which were denied. In 1990, Mr. Hinse submitted a fourth mercy application and was instructed by the Minister of Justice to seek relief in the Quebec Court of Appeal. Mr. Hinse did so and the Quebec Court of Appeal allowed his appeal, but entered a stay of proceedings rather than an acquittal. In 1997, the Supreme Court unanimously acquitted Mr. Hinse.

Following the acquittal, Mr. Hinse commenced a civil action in the Superior Court of Quebec against the Attorney General of Quebec “AGQ”), the Attorney General of Canada (“AGC”) and the town of Mont-Laurier. The town and the AGC paid him $5.5 million in out-of-court settlements. Mr. Hinse continued his case against the AGC for damages of almost $13 million, claiming that the AGC was liable for failing to exercise the mercy power in his favour.

The SCC dismissed the action against the AGC, noting that the exercise of the Minister’s power of mercy is a “true policy decision” and the Minister is therefore protected by “a qualified (or ‘relative’) immunity” [para 4]. The SCC found that the power derives from the royal prerogative of mercy and confers a “broad discretion” and a “great deal of latitude on the Minister” [paras 31-32]. As a result, the Crown will only be liable if the Minister makes a decision in bad faith, including demonstration of serious recklessness [para 53].

The SCC held that Mr. Hinse had failed to prove that the Minister acted in bad faith or with serious recklessness in reviewing his application for mercy. The appeal was therefore dismissed, and the Court of Appeal’s decision upheld.

For more information and to speak to an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947

To read the full decision click here.