New Situation where the Quebec Charter Applies to the Federal Crown

By Francis Legault-Mayrand

In the case of Hinse v. Canada (Attorney General), 2015 SCC 35 [Hinse], the Supreme Court provided further clarification as to the application of the Charter of Human Rights and Freedoms, CQLR c C-12 [the “Quebec Charter”] to the Federal Crown.

Before Hinse, the state of the law on this question had been established in a 2002 Court of Appeal decision, Ouimette v. Canada (Procureur général), 2002 CanLII 30452 (QC CA), in which it was held that the Quebec Charter did not apply to the Federal Crown when it carried on activities within a field of federal jurisdiction. This general principle has been tempered significantly by the Supreme Court in Hinse, which found that a litigant could rely on section 49 of the Quebec Charter to claim punitive damages against the Federal Crown.

In Hinse, the appellant, Mr. Réjean Hinse, sought damages against the Federal Crown in relation to his unjust imprisonment which lasted some 15 years. Specifically, the appellant argued that the Minister of Justice committed a civil fault pursuant to article 1457 of the Civil Code of Quebec in exercising its “power of mercy” under the Criminal Code. In addition to compensatory damages, the appellant sought punitive damages pursuant to section 49 of the Quebec Charter, because in his view the Minister’s conduct was an “unlawful and intentional interference” with his rights protected under the Quebec Charter.

Despite the fact that the Minister had acted in an exclusive field of federal jurisdiction, the Supreme Court of Canada held that a litigant could claim punitive damages based on the Quebec Charter under the circumstances, since the scheme of punitive damages under the provincial statute complemented the Quebec rules of extracontractual liability which the Federal Crown is subject to:

[160] In our opinion, the scheme established by the Charter in this regard can be seen as complementing the rules of extracontractual liability. The Charter [translation] “has the effect of complementing the protection afforded by the Civil Code by creating a new remedy that enables victims to claim punitive damages that are not available under the [Civil] Code”: L. Perret, “De l’impact de la Charte des droits et libertés de la personne sur le droit civil des contrats et de la responsabilité au Québec” (1981), 12 R.G.D. 121, at p. 170.

[161] Thus, the scheme of punitive damages provided for in s. 49 of the Charter is not distinct from and inconsistent with the rules of extracontractual civil liability. Rather, they contribute to this area of the law without being totally subsumed by it. The two sets of rules intersect at several levels, but the remedy under s. 49 is not entirely subordinate to the conditions for civil liability. It can constitute an autonomous scheme that creates remedies that are not based in civil liability: de Montigny, at para. 44; Cinar, at para. 124; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30 (CanLII), [2004] 1 S.C.R. 789, at para. 26.

[…]

[163] For these reasons, we conclude that the reference in the C.L.P.A. [Crown Liability and Proceedings Act, RSC 1985, c C-50] to provincial law encompasses the remedy of punitive damages provided for in the Charter. We would add that since punitive damages are also available in the law of the common law provinces, this conclusion favours a more uniform application of the law of Crown liability across the country. Having resolved this preliminary issue, we will now consider whether it was appropriate to award such damages in this case.

In the end however, the Supreme Court did not award punitive damages since it concluded that there had been no “intentional interference” by the Minister of Justice, as his conduct “cannot be equated with bad faith or serious recklessness” (para.165).

Although Hinse is largely known for reiterating or summarizing the test to establish a civil fault committed by the Crown, it also provides for a new situation where the Federal Crown is subject to the Quebec Charter. Thus, Hinse is indeed a useful case to consider by litigants who may find themselves in a situation where their fundamental rights are better protected by the provisions of Quebec Charter than by those of the Canadian Charter.