Have Mercy! Supreme Court Clarifies Mercy Power under Criminal Code
In “Burning Love”, Elvis pleaded with the Lord to have mercy. It was coming closer. The flames were lickin’ his body. He felt like he was slipping away. It was hard to breathe. His chest was a heavy. He was burning a hole where he lay. Burning a hole with burning love. In short, Elvis was just a hunk. A hunk of burning love.
To this author’s knowledge, the results of Elvis’ mercy application were never made public, though it is widely believed that the Lord did in fact have mercy on his soul.
In Hinse v. Canada (Attorney General), the Supreme Court of Canada clarified the law regarding a different type of mercy application – with due respect for Elvis’ plight in Burning Love, one that has far more serious consequences for the applicant.
The Mercy Provisions
The Criminal Code contains a mercy power allowing a person convicted of an offence to apply for ministerial review on the grounds of a miscarriage of justice. If satisfied that there is a reasonable basis to conclude that a miscarriage of justice has likely occurred, the Minister may direct a new trial or refer the matter to the court of appeal for a hearing. The Criminal Code provisions are derived from the prerogative of mercy, one of the historical royal prerogatives of the British monarch. The power was originally incorporated into Canadian law from English common law and conferred on the Governor General by letters patent.
The Hinse Case
Réjean Hinse was wrongly convicted of armed robbery. In 1964, he was sentenced to 15 years in prison. In 1966, he persuaded three of the five perpetrators of the robbery to sign affidavits to clear 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 his fourth and final mercy application. The Minister of Justice replied that he should seek relief in the Quebec Court of Appeal, which he did. 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 Supreme Court’s decision, Mr. Hinse instituted an action in the Quebec Superior Court against the Attorney General of Quebec, the Attorney General of Canada and the town of Mont-Laurier. The town and the Attorney General of Quebec paid him $5,550,000 in out-of-court settlements. Mr. Hinse continued with a claim against the Attorney General of Canada for pecuniary, non-pecuniary and punitive damages totaling approximately $13 million. He claimed the Attorney General of Canada was liable for failing to exercise the mercy power in his favour.
The Supreme Court of Canada upheld the decision of the Quebec Court of Appeal dismissing the action against the Attorney General. The Supreme Court clarified that the mercy power is a “true policy decision”. It confers “broad discretion” and a “great deal of latitude on the Minister.
In exercising the mercy power, the Minister is protected by a “qualified” or “relative” immunity. On being presented with an application for mercy that is neither frivolous nor vexatious, the Minister has a “duty to conduct a meaningful review of the application.” “[A] breach of that duty amounting to bad faith, which encompasses serious recklessness, could expose the Crown to liability.” However, the Crown will only be liable if the Minister acts “irrationally or in bad faith.” Liability is not limited to cases where the Minister acts with malice; under the applicable standards in Quebec civil law, bad faith encompasses serious recklessness. The Court noted that the Minister’s duty to conduct a “meaningful review” of the application for mercy is not the equivalent of a judicial appeal, a police investigation or a commission of inquiry. However, the Minister has “a duty to make a decision in good faith on the basis of the evidence uncovered by [a meaningful] review.”
On the facts, the Supreme Court held that Mr. Hinse had failed to prove that the Minister acted in bad faith or with serious recklessness in reviewing his applications for mercy.
Hinse clarifies that the decision to have mercy (or not) is a discretionary decision to be made by the Minister. Absent bad faith and recklessness, and provided that a meaningful review of the application has been conducted, the Crown will not be liable in damages for declining to grant a mercy application. Have mercy.
Hinse v. Canada (Attorney General), 2015 SCC 35
SCC Docket: 35613
Date of Decision: June 19, 2015
 “Burning Love”, written by Dennis Linde, as recorded by Elvis (1972).
 2015 SCC 35.
 Criminal Code, s. 696.1(1).
 Criminal Code, s. 696.3(3). The Criminal Code now sets out specific matters that the Minister shall take into account when rendering a decision on a mercy application. Section 696.4 provides that the Minister “shall take into account all matters that the Minister considers relevant, including (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; (b) the relevance and reliability of information that is presented in connection with the application; and (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.” These provisions were enacted in 2001, after Mr. Hinse’s mercy applications.
 Attorney General for Canada v. Attorney General of the Province of Ontario (1894), 23 S.C.R. 458, at pp. 468‑69; Letters Patent Constituting the Office of Governor General of Canada (1947), R.S.C. 1985, App. II, No. 31.
 Hinse, supra note 2 at ¶ 4 and 36.
 Ibid. at ¶ 31-32.
 Ibid. at ¶ 4.
 Ibid. at ¶ 4 and 68.
 Ibid. at ¶ 36.
 Ibid. at ¶ 4 and 51-53.
 Ibid. at ¶ 68.
bad faith mercy power miscarriage of justice true policy decision