IMMUNITY
In exercising royal prerogative of mercy, Minister has broad discretion
Appellant granted parole after serving third of 15-year sentence. Appellant’s three applications for mercy to federal Minister of Justice and application for pardon denied. Following investigation, Commission de police du Quebec stated it hoped Attorney General of Quebec (AGQ) would intervene. In response to fourth application for mercy, Minister stated appellant should seek relief in Quebec Court of Appeal. Quebec Court of Appeal allowed appeal but directed stay. Supreme Court of Canada acquitted appellant. Appellant commenced action against AGQ, Attorney General of Canada (AGC) and town of Mont-Laurier. Town and AGQ settled out of court and action continued against AGC. Superior Court ordered AGC to pay almost $5.8 million, finding simple fault sufficient for Crown liability. Trial judge concluded federal government committed “institutional indifference” and that sustained and extensive review would have uncovered errors. Court of Appeal reversed judgment, finding that Minister’s power of mercy protected by immunity analogous to that applying to Crown prosecutor in case of malicious prosecution. It also found that AGC’s conduct at trial amounted to abuse of process and ordered AGC to pay appellant’s legal fees even though appellant’s lawyer took case pro bono. In absence of intentional or gross fault, or even simple fault, by Minister, appellant’s action dismissed. Appellant’s appeal dismissed. Federal Crown generally subject to rules of civil liability; only true policy decisions are protected by Crown immunity. Power of mercy derives from royal prerogative of mercy. In exercising royal prerogative of mercy, Minister has broad discretion. Minister must assess and weigh public policy considerations on basis of social, political and economic factors; it is true core policy act. Inappropriate to import malice standard. In Quebec civil law, concept of bad faith is flexible, encompassing serious recklessness. At minimum, Minister must conduct meaningful review which entails duty to make decision in good faith on basis of evidence uncovered by that review. Documentary evidence negated trial judge’s inference there had been no review of appellant’s initial application. Circumstances did not support conclusion that any Ministers acted in bad faith or with serious recklessness on any applications. Even if Minister had conducted more extensive investigation, there was no evidence Minister would probably have discovered key evidence uncovered by investigator of Commission de police 20 years later. Appellant failed to prove failure to conduct meaningful review or to conduct one more expeditiously was probable cause of failure to discover miscarriage of justice. Not appropriate to award punitive damages given that Minister’s conduct could not be equated with bad faith or serious recklessness nor could it be said he intended to harm appellant. Only abuse of process can justify awarding extrajudicial fees as damages. Trial judge erred in finding abuse of process; AGC’s conduct did not amount to abuse of process. It was reasonable and appropriate for AGC to contest action given that law on federal Crown’s liability for fault committed by Minister in exercising power of mercy was far from clear. Appellant not entitled to extrajudicial fees.
Hinse v. Canada (Attorney General) (Jun. 19, 2015, S.C.C., McLachlin C.J.C., Lebel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35613) 253 A.C.W.S. (3d) 822.
