Hinse v Canada: Incomplete Justice?
In Hinse v Canada, 2015 SCC 35 [Hinse] an element of the Crown’s prerogative power is brought into the limelight. Hinse was exonerated approximately 30 years after his conviction for armed robbery. He served five years and ultimately received a settlement for the injustice he experienced. It was Hinse’s position that not only was the Attorney General of Quebec (“AGQ”) and Town of Mont Laurier responsible for his wrongful conviction but so was the Attorney General of Canada (“AGC”) in repeatedly denying his appeals for mercy under s.748 of the Criminal Code, RSC 1985, c C-46 [CC].
The Supreme Court of Canada (“SCC”) unanimously held that the trial judge got the legal analysis wrong in applying recent decision-making guidelines for granting mercy to past ministerial reviews. According to the SCC, the review of Hinse’s application was a policy decision and so the Crown had the benefit of “qualified immunity” (no different from, say, the protection the Finance Minister receives from potential negative fallout arising from a new tax policy).
While such decisions are still reviewable by the courts, the SCC found that the appropriate review standard at the time of Hinse’s claims was that of bad faith, a high standard given that it requires evidence of serious recklessness in order to expose the Minister to liability. Bad faith is higher than the standard of simple fault, which the trial judge erroneously applied.
At the time of Hinse’s numerous requests for mercy, there were no guidelines in place for how a Minister should exercise this power and a Minister was essentially left to their own devices to conduct a review of an application for mercy.
A case like Hinse rouses our collective societal outrage. Presumably, the trial judge felt the same way, but it led to a rush in assigning blame to the AGC. What I find most frustrating is that in seeking redress at both the municipal, provincial and federal levels of government, Hinse did everything right. He went so far as to contact those responsible for the crime and have them complete affidavits of admission including categorical denials of Hinse’s involvement.
During most of his years challenging this wrongful conviction, Hinse was not incarcerated. He served five years of his 15-year sentence in prison and was subsequently released on parole. Although he was likely restricted in many ways by parole conditions, Hinse was still outside the confines of prison and in a better position to build his case against the government and bring attention to his cause. Still, he was unable to convince the AGC to grant him mercy for 30 years.
The approach the trial judge used to find the AGC responsible was wrongheaded but it reflects an almost desperate attempt to hold relevant parties responsible for the decades it took to correct a miscarriage of justice.
I find it dissatisfying that, at least when it comes to the role of the AGC, all we can really do for Mr. Hinse is harp on the fact that the process of granting mercy through prerogative powers has since changed. Although there is now much more transparency in the process, this does nothing for Mr. Hinse who was wrongfully convicted in an era predating these reforms. He will not reap the full benefits of a changing system.
Healing the Wounds
Today, we have a better grasp of the research surrounding wrongful convictions and dedicated organizations that advocate for confirmed and potential victims of a flawed judicial system.
More importantly, the Regulations Respecting Applications for Ministerial Review-Miscarriages of Justice, SOR/2002-416 legislation is now in place to provide guidelines to a minister when faced with these types of requests.
In the case of Mr. Hinse, the provincial and municipal actors involved in his wrongful conviction agreed to a financial settlement and he received $5.5 million in compensation. Still, could any amount of money adequately address the harm done by a wrongful conviction?
Some might argue that the money Hinse received from the AGQ and the town of Mont Laurier was more than fair considering that he did not serve the entire sentence. David Milgaard served 23 years in prison and received only $4.5 million more than Hinse. On the other hand, when we think of those five lost years of his life, the time supervised on parole and the decades (and money!) spent fighting to vindicate his name, $5.5 million is a pittance.
There is room for significant progress in Canada in creating an imperative that such errors of justice are fairly compensated and publicly acknowledged. Today, there is no legal entitlement to compensation for a miscarriage of justice in Canada. A wrongfully convicted person must pursue civil action such as a tort for negligent investigation or false imprisonment to receive damages. Another option, if civil action is unsuccessful, is to seek a voluntary “ex gratia” payment made by the state. For these types of payments, the government does not have to admit fault.
The Canadian government is aware of the importance of creating a regime that requires compensation when a serious error is made in criminal proceedings. We have gone as far as ratifying the International Covenant on Civil and Political Rights in 1976 but still have not legislated this document and its provisions requiring compensation for wrongful convictions. What are we waiting for? Essentially, without this important step, we leave victims like Hinse feeling re-victimized as they tread the long road of seeking recompense for their tragic encounter with the law.
Moving forward, it is unrealistic to expect that the justice system will never make a similar mistake in holding the wrong person accountable for a serious offense. The least we can do is actively build frameworks to address these mistakes when they do happen and make the needs of victims (financial, in particular) a fundamental part of that framework. To begin, the guidelines for the use of this prerogative power to grant mercy are a useful step forward. However, the next task should be to legislate the requirement of financial settlement.