Court File No. 35613 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF QUEBEC) BETWEEN: REJEAN HINSE APPELLANT - and - THE ATTORNEY GENERAL OF CANADA RESPONDENT - and - THE ASSOCIATION IN DEFENCE OF THE WRONGLY CONVICTED, CENTRE PRO BONO QUEBEC and PRO BONO LAW ONTARIO INTERVENERS FACTUM OF THE INTERVENER, THE ASSOCIATION IN DEFENCE OF THE WRONGLY CONVICTED GREENSPAN HUMPHREY LAVINE BORDEN LADNER GERVAIS 15 Bedford Road 100 Queen Street, Suite 1300 Toronto, Ontario M5R 2J7 Ottawa, Ontario KIP 139 Tel: (416) 868-1755 Tel.: (613) 237-5160 Fax: (416) 868-1990 Fax: (613) 230-8842 Brian H. Greenspan /Naomi M. Lutes Nadia Effendi Counsel for the Intervener, Ottawa Agent for the Intervener, The The Association in Defence of the Wrongly Association in Defence of the Wrongly Convicted Convicted 2 BORDEN LADNER GERVAIS BORDEN LADNER GERVAIS Suite 900 - 1000 de La Gauchetiere St. West 100 Queen Street, Suite 1300 Montreal, Quebec H3B 5H4 Ottawa, Ontario KIP 1J9 Tel.: (514) 879-1212 Tel.: (613) 237-5160 Fax: (514) 954-1905 Fax.: (613) 230-8842 Guy J. Pratte Nadia Effendi Counsel for the Appellant, Rejean Hinse Ottawa Agent for the Appellant, Mean Hinse ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF CANADA Procureur general du Canada 50 O'Connor Street 284, rue Wellington, T-6060 Suite 500, Room 557 Ottawa, Ontario K1A 0118 Ottawa, Ontario K1A OH8 Tel.: (613) 946-2776 Tel: (613) 670-6290 Fax: (613) 952-6006 Fax: (613) 954-1920 Bernard Letarte Vincent Veilleux Lindy Rouillard-Labbe Christopher M. Rupar Counsel for the Respondent the Attorney Ottawa Agent for the Respondent the Attorney General of Canada General of Canada BENNETT JONES LLP BENNETT JONES LLP 3400, One First Canadian Place Bureau 1900, 45, rue O'Connor Toronto, Ontario Ottawa, Ontario M5X 1A4 Ka) 1A4 Tel.: (416) 863-1200 Tel.: (613) 683-2302 Fax: (416) 863-1716 Fax: (613) 683-2323 Counsel for the Intervener Ottawa Agent for the Intervener Pro Bono Law Ontario Pro Bono Law Ontario LAVERY, De BILLY NOEL et ASSOCIES Bureau 4000 111, rue Champlain 1, Place Ville-Marie Gatineau, Quebec Montreal, Quebec J8X 3R1 H3B 4M4 Tel.: (514) 871-1522 Tel.: (819) 771-7393 Fax: (514) 871-8977 Fax: (819) 771-5397 Counsel for the Intevener Ottawa Agent for the Intevener Centre Pro Bono Quebec Centre Pro Bono Quebec TABLE OF CONTENTS PART I — OVERVIEW AND STATEMENT OF FACTS 1 A. Overview 1 B. Statement of Facts 2 PART II — QUESTIONS IN ISSUE 3 PART III — STATEMENT OF ARGUMENT 3 A. Overview 3 B. The Liability of the Crown in Conducting Ministerial Reviews — The Duty of Care 4 A Prima Facie Duty of Care is Owed to an Applicant at Common Law 5 Ministerial Reviews are Not Core Policy Decisions 5 C. No Immunity for Negligence: The Royal Prerogative of Mercy Then and Now 6 D. The Standard of Care and Procedural Safeguards 8 PART IV — SUBMISSIONS AS TO COSTS 10 PART V — ORDER SOUGHT 10 PART VI — TABLE OF AUTHORITIES 11 Court File No. 35613 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF QUEBEC) BETWEEN: REJEAN RINSE APPELLANT - and - THE ATTORNEY GENERAL OF CANADA RESPONDENT - and - THE ASSOCIATION IN DEFENCE OF THE WRONGLY CONVICTED, CENTRE PRO BONO QUEBEC and PRO BONO LAW ONTARIO INTERVENERS FACTUM OF THE INTERVENER, THE ASSOCIATION IN DEFENCE OF THE WRONGLY CONVICTED PART I — OVERVIEW AND STATEMENT OF FACTS A. Overview 1. As this Honourable Court stated in Hill v. Hamilton-Wentworth, infra, in addressing the issue of negligent police investigations, "the existing remedies for wrongful prosecution and conviction are incomplete." It is submitted that to deny a remedy in tort to a wrongly convicted 2 person who has suffered negligence at the hands of the Minister of Justice is, quite literally, to deny justice.' 2. The Intervener, the Association in Defence of the Wrongly Convicted ("AIDWYC"), is a national public interest organization. It has two broad objectives: first, to propose legislative and other changes to reduce the likelihood of miscarriages of justice; and second, to participate in the review and correction of wrongful convictions. AIDWYC is recognized as an expert in the investigation and remediation of wrongful convictions. It advocates not only for its clients, through mechanisms such as appeals and conviction reviews, but has also been actively engaged in criminal law reform and policy development since its inception. AIDWYC files this factum to address the first question raised on appeal by the Appellant; namely, what standard of liability should apply to the conduct of government officials engaged in the process of ministerial review. 3. AIDWYC respectfully submits that Justice Poulin was correct in determining that the Attorney General of Canada's actions were to be assessed in accordance with the usual rules of civil liability when damages are caused by government servants acting in the operational sphere. It is further AIDWYC' s position that the Quebec Court of Appeal erred in finding that a wrongly convicted person seeking compensation arising from negligent government action must establish that the Minister or his delegate acted with malicious intent. 4. It is the position of AIDWYC that the Minister and his delegates who receive an application for ministerial review of a conviction must undertake a reasonable and prudent review. This process must protect the Applicant's procedural rights and fulfil his or her legitimate expectations. The failure to thoroughly, diligently, and transparently assess and determine the merits of an application amounts to a breach of the standard of care. B. Statement of Facts 5. AIDWYC takes no position with respect to the facts as advanced by the parties and defers to the parties on the factual record. However, it should be noted that the factual record, in l Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129 at para. 35 [Hill], Appellant's Book of Authorities, Vol. I, Tab 23 ("A.B.A.") 3 relation to the issue of access to justice, reveals a consistent, if not persistent, attempt by the Appellant to vigorously assert his innocence and pursue his remedy. PART II — QUESTIONS IN ISSUE 6. AIDWYC submits that a failure by the Minister to adequately and diligently review applications submitted pursuant to the ministerial review process is negligent, and attracts liability. Specifically, it is the position of AIDWYC that: i) The ministerial review process is operational in nature, as it does not engage the exercise of ministerial discretion in making a decision. The Quebec Court of Appeal erred in conflating the exercise of ministerial discretion with the standard of care in undertaking a review of the application; ii) The historical roots of the review process derived from the royal prerogative of mercy cannot shield the government from liability for failing to comply with the standard of conduct expected of public officials undertaking ministerial reviews; and iii) The Minister is required to act reasonably and prudently, and as such, an applicant alleging negligence need not demonstrate bad faith or malicious intent. The standard of care owed to ministerial review applicants must include a consideration of procedural fairness. Applicants must be afforded procedural safeguards which accord with their legitimate expectations, and these safeguards should be transparent and open in order to ensure accountability. PART III — STATEMENT OF ARGUMENT A. Overview 7. An application for a ministerial review is the last resort of a wrongly convicted person; his or her last hope. This case is not about the Minister's decision-making authority. It is not about the exercise of discretion, or the roots of that discretion in the royal prerogative of mercy. It is about compensation for a lack of decision making, a lack of review, and a lack of reasonable action. It is about the ability of a wrongly convicted person to sue the federal government for its negligence in handling ministerial reviews. It is respectfully submitted that to require a plaintiff to demonstrate malicious intent on the part of the Minister would not only impose an unfair and 4 possibly insurmountable burden, but would be inconsistent with the function and purpose of ministerial reviews as the last resort of the innocent. 8. It is AIDWYC' s position that, whether exercising his powers under either the former ministerial review provision or pursuant to his powers and duties under the current section 696.1, the Minister owes a duty of care to an applicant to review his or her application diligently and fairly, both in accordance with the civil law of Quebec and at common law. B. The Liability of the Crown in Conducting Ministerial Reviews — The Duty of Care 9. It is the position of AIDWYC that the Crown is liable in tort for its failure to act reasonably and prudently in conducting ministerial reviews, as the Minister owes the applicant a duty of care. Moreover, the ministerial review process is operational in nature, as it does not engage the exercise of ministerial discretion in reaching a final decision. It is respectfully submitted that the Quebec Court of Appeal erred in conflating the exercise of ministerial discretion with the standard of care in undertaking a review of the application. 10. Because of the importance of ministerial reviews in ameliorating wrongful convictions, it is the submission of AIDWYC that this Court should recognize that such a duty exists in accordance with both the civil code of Quebec and at common law. 11. In Quebec, the Minister's duty is codified in art. 1457 of the Civil Code,2 which does not require that the Court find a specific duty of care. Negligence can arise, and fault may be established, for any failure to meet the ordinary standard of reasonable behaviour in the circumstances.3 Although the Crown is subject to the laws of fault as if it were a person, it can nevertheless invoke its immunity in certain circumstances.