Augustus v. Gosset

Augustus v. Gosset
Collection
Supreme Court Judgments
Date
1996-10-03
Report
[1996] 3 SCR 268
Case number
24607
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Quebec
Subjects
Constitutional law
Torts
Notes
SCC Case Information: 24607
Decision Content
Augustus v. Gosset, [1996] 3 S.C.R. 268
Gloria Augustus Appellant
v.
Communauté urbaine de Montréal Respondent
and
Allan Gosset Respondent
and
Orberth Griffin Mis en cause
Indexed as: Augustus v. Gosset
File No.: 24607.
1996: June 10; 1996: October 3.
Present: La Forest, L’Heureux‑Dubé, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for quebec
Damages ‑‑ Moral prejudice ‑‑ Solatium doloris ‑‑ Whether solatium doloris a type of moral prejudice for which compensation available under Quebec law ‑‑ Assessment of prejudice ‑‑ Applicable criteria ‑‑ Civil Code of Lower Canada, arts. 1053, 1056.
Damages -- Right of parenthood -- Victim mortally wounded by shot fired by police officer -- Mother claiming damages for interference with her right of parenthood -- Whether Charter of Human Rights and Freedoms or Canadian Charter of Rights and Freedoms protects right to maintain and continue parent-child relationship.
Damages ‑‑ Loss of life or of life expectancy ‑‑ Victim shot in head by police officer ‑‑ Victim dying few hours later without regaining consciousness ‑‑ Whether right to life guaranteed by Charter of Human Rights and Freedoms allows victim’s mother to claim compensatory damages for loss of life or of life expectancy ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 1, 49.
Civil rights ‑‑ Right to life ‑‑ Remedy ‑‑ Compensatory damages ‑‑ Victim shot in head by police officer ‑‑ Victim dying few hours later without regaining consciousness ‑‑ Whether right to life guaranteed by Charter of Human Rights and Freedoms allows victim’s mother to claim compensatory damages for loss of life or of life expectancy ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 1, 49.
Civil rights ‑‑ Right to life ‑‑ Remedy ‑‑ Exemplary damages ‑‑ Victim mortally wounded by shot fired by police officer ‑‑ Trial judge finding police officer negligent in using weapon ‑‑ Whether unlawful interference with victim’s right to life intentional ‑‑ Meaning of “unlawful and intentional interference” ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 1, 49.
The appellant brought a civil liability action against G and the CUM following the death of her 19‑year‑old son. G, a police officer, responded to a call from a taxi driver complaining that the victim had refused to pay his fare. On checking his identity, G learned that an arrest warrant was outstanding against the victim and arrested him. When they arrived at the police station, G opened the door for the victim, who got out of the car and started running. G began chasing him. At the same time, G drew his revolver and ordered the victim to stop running. The victim stopped, although he did not stand perfectly still. G again ordered the victim to stop while aiming his revolver at him. At that instant, the victim was hit in the head by a gunshot. He was taken to the hospital, where he died the same day without regaining consciousness.
After reviewing the evidence, the trial judge found that G was negligent in aiming his weapon with his finger on the trigger while running and that this negligence was the direct cause of the victim’s death. Since the CUM had admitted its liability as G’s employer, the judge ordered G and the CUM jointly and severally to pay the appellant $10,795 in compensatory damages: $9,000 for loss of moral and financial support, and $1,795 for funeral expenses. The trial judge dismissed the appellant’s claim for solatium doloris and refused to compensate her, as her son’s heir, for his loss of life expectancy and suffering, of which he would not have been aware. The judge ordered G to pay the appellant $4,000 in exemplary damages. Although he found that G had not intended to kill the victim, the judge found that the way G handled his weapon when he knew or ought to have known that he was placing the victim’s security in jeopardy constituted wanton or reckless misconduct and amounted to “unlawful and intentional interference” within the meaning of s. 1 and the second paragraph of s. 49 of the Charter of Human Rights and Freedoms. The Court of Appeal, in a majority decision, allowed the appellant’s appeal in part and increased the compensatory damages to $16,795, including $15,000 as solatium doloris, but refused both to recognize interference with her right of parenthood and to award her compensation as her son’s heir for his loss of life expectancy and the interference with his right to life and security. The majority of the court also allowed G’s appeal and quashed the order that he pay exemplary damages. The court pointed out that in aiming his weapon at the victim, G did not intend to kill him, but to keep him under control at a distance, and held that G’s actions did not constitute “intentional interference” within the meaning of the second paragraph of s. 49 of the Charter.
Held: The appeal should be allowed in part.
(1) Solatium doloris
Solatium doloris is a compensable head of moral prejudice in Quebec civil law under arts. 1053 and 1056 C.C.L.C. In civil law, any prejudice, whether moral or material, even if it is difficult to assess, is compensable if proven. From this perspective, compensation for the grief and distress felt when someone close dies is clearly consistent with the civil law’s full recognition of moral damages. Furthermore, it is French law, not English law, that must be applied in deciding whether to recognize solatium doloris in Quebec civil law. French law has always recognized that compensation is available for the moral prejudice resulting from the death of a close relative or friend, and this is also the case in Quebec civil law.
In granting an award for solatium doloris, the Court of Appeal considered all the elements of moral prejudice. However, it erred in its assessment of the moral prejudice suffered by the appellant. The Court of Appeal based its assessment on the amounts generally awarded by Quebec courts and the awards provided for in various social statutes. The Quebec jurisprudence does not reflect the principle of restitutio in integrum, as the courts have considered themselves bound by the rule that solatium doloris is not available as a head of compensable damage. Furthermore, a comparison with the indemnities provided for in certain pieces of social legislation can only be of limited relevance; such statutes generally allow smaller awards in order to provide compensation to a larger number of persons who might not receive compensation under the general principles of civil liability. By recognizing that compensation for solatium doloris is available in Quebec civil law yet failing to develop new tests for assessing prejudice in that form, the Court of Appeal thus deprived the appellant of her right to be fully compensated for the moral prejudice she suffered as a result of her son’s death. Furthermore, due to the need for certainty and predictability in the law concerning the amounts awarded for this type of prejudice, appropriate parameters of assessment must be established. Although a parent’s grief over the death of a child cannot be compensated adequately, the assessment of the moral prejudice depends on the assessment of the evidence presented to the court. From this perspective, it is appropriate to develop criteria in order to preserve the objectivity of the process. Furthermore, while remaining sensitive to the particular circumstances of each case, such a process cannot ignore the limits of the principle of restitutio in integrum in this area in which moderation and predictability must always be fostered. In assessing the moral prejudice resulting from the death of a loved one, a court should consider the following factors, inter alia: the circumstances of the death, the ages of the deceased and the parent, the nature and quality of the relationship between the deceased and the parent, the parent’s personality and ability to manage the emotional consequences of the death, and the effect of the death on the parent’s life in light, inter alia, of the presence of other children or the possibility of having others. In this case, taking these factors into account, an award in the order of $25,000 might be fair and reasonable in the circumstances, although it remains to the Court of Appeal to fix the quantum, after hearing the parties on this point.
(2) Right of parenthood
Neither the Canadian Charter of Rights and Freedoms nor the Quebec Charter protects the right to maintain and continue a parent‑child relationship. The Court of Appeal was thus correct both in refusing to recognize interference with the appellant’s right of parenthood and in rejecting this head of compensation.
(3) Loss of life or of life expectancy
Since the right to life is extinguished when the victim dies, an action for damages for loss of life or shortening of life, where the victim dies immediately as a result of the wrongful act or survives a few hours without regaining consciousness before dying, cannot become part of the victim’s patrimony and, therefore, cannot be transmitted to his or her heirs. The right to life guaranteed by s. 1 of the Quebec Charter does not require a change to this principle of non‑transmissibility. The Charter has not created an autonomous system of civil liability and, although it has helped clarify the scope of fundamental rights in Quebec law, it did not create the right to life, which has always been valued and recognized in Quebec civil law. The major judicial policy considerations underlying the judge‑made principle that the right to claim damages for loss of life or of life expectancy cannot be transmitted to one’s heirs ‑‑ the most significant of which is that it is extremely difficult to quantify life ‑‑ have continued to be just as relevant since the advent of the Charter. Loss of life or of life expectancy, by its very nature, constitutes a unique prejudice which justifies departing from the civil liability rule of restitutio in integrum. Moreover, in light of the basically remedial function of the civil liability system, it is hard to justify compensating a prejudice the very nature of which will systematically ensure that the victim is unable to gain any benefit therefrom. Thus, no compensation can be awarded in respect of the appellant’s claim for interference with her son’s right to life under either art. 1053 C.C.L.C. or ss. 1 and 49 of the Charter. The refusal to award compensation does not depreciate the right to life. Finally, the victim’s right to personal security was not interfered with independently of his right to life when G trained his weapon upon him in the aim of keeping him under control at a distance.
(4) Exemplary damages
The Court of Appeal was right to refuse to award exemplary damages to the appellant. While unlawful interference with a right protected by the Charter has been established ‑‑ the victim’s right to life was infringed as a result of G’s wrongful conduct ‑‑ this unlawful interference was not “intentional” within the meaning of the second paragraph of s. 49 of the Charter. There is unlawful and intentional interference within the meaning of that paragraph when the person who commits the unlawful interference has a state of mind that implies a desire or intent to cause the consequences of his or her wrongful conduct, or when that person acts with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause. In this case, the trial judge therefore erred in law in holding that G’s negligent conduct was sufficient to constitute “unlawful and intentional interference”. It is clear from the evidence that G did not shoot to kill the victim and that he did not fire his weapon intentionally. Furthermore, since using a weapon to keep a suspect under control at a distance is standard police practice, the unfortunate consequences of doing so in this case surely cannot be characterized as “immediate and natural” or even as “extremely probable”.
Cases Cited
Overruled: Canadian Pacific Railway Co. v. Robinson (1887), 14 S.C.R. 105; applied: Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand, [1996] 3 S.C.R. 211; Driver v. Coca‑Cola Ltd., [1961] S.C.R. 201, aff’g [1960] Que. Q.B. 313; Pantel v. Air Canada, [1975] 1 S.C.R. 472; distinguished: B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; referred to: R. v. Gosset, [1993] 3 S.C.R. 76; Chaput v. Romain, [1955] S.C.R. 834; Robinson v. Canadian Pacific Railway Co., [1892] A.C. 481; Miller v. Grand Trunk Railway Co. of Canada, [1906] A.C. 187; Town of Montreal West v. Hough, [1931] S.C.R. 113; Canadian Pacific Railway Co. v. Lachance (1909), 42 S.C.R. 205; Montreal Tramways Co. v. Lindner, [1939] S.C.R. 405; Ravary v. Grand Trunk Railway Co. of Canada (1860), 6 L.C.J. 49; Provost v. Jackson (1869), 13 L.C.J. 170; Vanasse v. Cité de Montréal (1888), 16 R.L. 386; Cadoret v. Cité de Montréal (1888), 16 R.L. 397, note 1; Hospice Desrosiers v. The King (1920), 60 S.C.R. 105; Rubis v. Gray Rocks Inn Ltd., [1982] 1 S.C.R. 452; Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351; Snyder v. Montreal Gazette Ltd., [1988] 1 S.C.R. 494; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3; Lindal v. Lindal, [1981] 2 S.C.R. 629; Macartney v. Islic (1996), 34 C.C.L.I. (2d) 119; Wilson v. Martinello (1993), 47 A.C.W.S. (3d) 69, aff’d (1995), 23 O.R. (3d) 417; Guimond v. Guimond Estate (1995), 160 N.B.R. (2d) 278; Lian v. Money (1994), 93 B.C.L.R. (2d) 16, aff’d (1996), 15 B.C.L.R. (3d) 1; Thornton v. Board of School Trustees of School District No. 57 (Prince George), [1978] 2 S.C.R. 267; Arnold v. Teno, [1978] 2 S.C.R. 287; Nightingale v. Mazerall and Elliott (1991), 121 N.B.R. (2d) 319; Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; R. v. Morgentaler, [1988] 1 S.C.R. 30; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.
Statutes and Regulations Cited
Act for compensating the Families of Persons killed by Accidents (U.K.), 9 & 10 Vict., c. 93 (Lord Campbell’s Act).
Act for compensating the Families of Persons killed by Accident, and for other purposes therein mentioned, S. Prov. Can. 1847, 10 & 11 Vict., c. 6 [later R.S.C. 1859, c. 78].
Administration of Justice Act 1982 (U.K.), 1982, c. 53, s. 1(1)(a).
Automobile Insurance Act, R.S.Q., c. A‑25.
Canadian Charter of Rights and Freedoms, s. 7 .
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 1 [repl. 1982, c. 61, s. 1], 39 [repl. 1980, c. 39, s. 61], 49.
Civil Code of Lower Canada, arts. 626 [repl. 1915, c. 74, s. 6], 1053, 1054 [am. 1977, c. 72, s. 7], 1056 [am. 1930, c. 98, s. 1; am. 1970, c. 62, s. 11; am. 1980, c. 39, s. 42].
Civil Code of Québec, S.Q. 1991, c. 64, arts. 3, 1457.
Crime Victims Compensation Act, R.S.Q., c. I‑6.
Family Law Act, R.S.O. 1990, c. F.3.
Fatal Accidents Act, R.S.A. 1980, c. F‑5, s. 8(2) [rep. & sub. 1994, c. 16, s. 5].
Fatal Accidents Act, R.S.N.B. 1973, c. F‑7, s. 3(4) [ad. 1986, c. 36, s. 1].
Authors Cited
André, Robert. La réparation du préjudice corporel. Bruxelles: E. Story‑Scientia, 1986.
Baudouin, Jean‑Louis. La responsabilité civile, 4e éd. Cowansville, Qué.: Yvon Blais, 1994.
Baudouin, Jean‑Louis. «Le Code civil québécois: crise de croissance ou crise de vieillesse» (1966), 44 Can. Bar Rev. 391.
Baudouin, Louis. Le droit civil de la province de Québec. Montréal: Wilson & Lafleur, 1953.
Baudouin, Louis. «Le Solatium doloris» (1955), 2 C. de D. 55.
Caron, Madeleine. «Le Code civil québécois, instrument de protection des droits et libertés de la personne?» (1978), 56 Can. Bar Rev. 197.
Dupichot, Jacques. Des préjudices réfléchis nés de l’atteinte à la vie ou à l’intégrité corporelle. Paris: L.G.D.J., 1969.
Frenette, Orville. L’incidence du décès de la victime d’un délit ou d’un quasi‑délit sur l’action en indemnité. Ottawa: Université d’Ottawa, 1961.
Gardner, Daniel. L’évaluation du préjudice corporel. Cowansville, Qué.: Yvon Blais, 1994.
Luntz, Harold. Assessment of Damages, 3rd ed. Melbourne: Butterworths, 1990.
Mayrand, Albert. «Les chefs d’indemnité en cas d’accident mortel» (1968), 9 C. de D. 639.
McClurg, Andrew Jay. «It’s a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases» (1990), 66 Notre Dame L. Rev. 57.
Nantel, Maréchal. «Le recours des parents en vertu de l’article 1056 C.c. est‑il de droit anglais?» (1930), 8 R. du D. 469.
Poirier, Jean Sébastien. «Autopsie d’une disposition disparue; l’article 1056 du Code civil du Bas Canada et le solatium doloris» (1995), 29 R.J.T. 657.
VanHorne, Robert D. «Wrongful Death Recovery: Quagmire of the Common Law» (1985‑86), 34 Drake L. Rev. 987.
Viney, Geneviève. «Responsabilité civile», J.C.P. 1995, éd. G, I, 3853.
Viney, Geneviève. Traité de droit civil, t. 4, Les obligations: la responsabilité ‑‑ conditions. Paris: L.G.D.J., 1982.
Viney, Geneviève. Traité de droit civil, t. 5, Les obligations: la responsabilité ‑‑ effets. Paris: L.G.D.J., 1988.
Waddams, S. M. The Law of Damages, 2nd ed. Toronto: Canada Law Book, 1991 (loose‑leaf updated December 1995, release 4).
Walker, David M. Principles of Scottish Private Law, vol. 2, 4th ed. Oxford: Clarendon Press, 1988.
Wasserman, Gertrude. «‘Solatium Doloris’ as an element in the awarding of damages arising from delict and quasi‑delict» (1953), 13 R. du B. 127.
APPEAL from a judgment of the Quebec Court of Appeal, [1995] R.J.Q. 335, 68 Q.A.C. 127, 27 C.C.L.T. (2d) 161, reversing in part a judgment of the Superior Court, [1990] R.J.Q. 2641. Appeal allowed in part.
James Murphy, Patrice Deslauriers and Reevin Pearl, for the appellant.
François Poliquin and Pierre‑Yves Boisvert, for the respondent the Communauté urbaine de Montréal.
Mario Létourneau and Janine Kean, for the respondent Gosset.
//L’Heureux-Dubé J.//
The judgment of the Court was delivered by
1 L’Heureux‑Dubé J. ‑‑ This case has its origins in the death of a 19‑year‑old black youth who was shot by a police officer. The issue is whether the victim’s mother can obtain compensatory damages for solatium doloris under arts. 1053 and 1056 of the Civil Code of Lower Canada (“C.C.L.C.”) and, as her son’s heir, damages for his loss of life or of life expectancy under ss. 1 and 49 of the Quebec Charter of Human Rights and Freedoms (the “Charter”). The Court must also decide whether, in light of the principles enunciated in Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand, [1996] 3 S.C.R. 211, rendered concurrently, it is appropriate in the circumstances of this case to award exemplary damages under the second paragraph of s. 49 of the Charter.
I. Facts
2 At about 5:30 a.m. on November 11, 1987, Anthony Griffin having taken a taxi refused to pay the fare upon arriving at his destination. At about 6:30 a.m., the respondent Allan Gosset, a police officer in the employ of the respondent Communauté urbaine de Montréal (“CUM”), and Constable Kimberley Campbell were sent to the scene in response to a call from the taxi driver. When asked by the respondent Gosset to identify himself, the suspect answered that his name was Tony Bowers. After a check with the police station revealed this to be a lie, the respondent Gosset searched him and found a paper bearing the name Anthony Griffin. He learned from a second check that Griffin was wanted and that a warrant had been issued against him. The respondent Gosset consequently arrested Anthony, who was already sitting in the back of the police car, but neither handcuffed nor searched him further.
3 At about 7:00 a.m., the police car left the scene for the police station. When they arrived, the respondent Gosset, who was seated on the passenger side, got out of the car and opened the door for Anthony, who upon getting out, started to run. The respondent Gosset began chasing him. At the same time, he drew his revolver, and ordered Anthony to stop running, shouting for the first time, “Stop”. Anthony immediately stopped and turned to face the respondent Gosset, shifting his weight from foot to foot; he did not stand perfectly still. The respondent shouted “Stop” a second time and then, aiming his revolver at Anthony, shouted “Stop or I’ll shoot”. At that instant, a gunshot hit Anthony in the head. The victim was taken to the Jewish General Hospital, where he never regained consciousness, and died at 11:45 a.m. the same day. Criminal proceedings were instituted, and, after this Court had ruled on an appeal therefrom (R. v. Gosset, [1993] 3 S.C.R. 76), the respondent Gosset was acquitted in the end.
4 Anthony’s mother, the appellant Gloria Augustus, brought a civil liability action against the respondents Gosset and CUM, claiming $858,591 in compensatory and exemplary damages for her son’s death. Anthony’s father, the mis en cause Orberth Griffin, intervened in the action and himself claimed $760,000 from the respondents.
5 During the trial, the appellant filed a motion to amend her declaration, inter alia to permit her to claim damages for interference with her “right of parenthood” under the Charter. That application was dismissed by interlocutory judgment dated May 22, 1990.
6 On July 20, 1990, the Superior Court of Quebec allowed the appellant’s action in part: [1990] R.J.Q. 2641. The respondents Gosset and CUM were ordered jointly and severally to pay $10,795 and $3,795 in compensatory damages to the appellant and the mis en cause, respectively. As for exemplary damages, only the respondent Gosset was ordered to pay $4,000 to each of the victim’s parents.
7 All the parties except the CUM appealed that decision. On January 13, 1995, the Quebec Court of Appeal rendered three judgments: it dismissed the appeal of the victim’s father, while the majority allowed the appellant’s appeal in part and allowed the appeal of the respondent Gosset (the reasons of the majority with respect to the latter two appeals were written in English and French, respectively): [1995] R.J.Q. 335, 68 Q.A.C. 127, 27 C.C.L.T. (2d) 161. The majority ordered the respondents Gosset and CUM to pay the appellant $16,795 in compensatory damages, including $15,000 under the head of solatium doloris, but refused both to recognize interference with her “right of parenthood” and to award her compensation as her son’s heir for his loss of life expectancy and interference with his right to life and security. The majority of the court also refused to order the respondent Gosset to pay any amount whatsoever in exemplary damages and reversed the Superior Court’s decision on this point. The appellant is appealing that judgment; the victim’s father did not appeal it to this Court.
II. Relevant Statutory Provisions
8 The possibility of claiming compensatory damages in Quebec for solatium doloris is based on arts. 1053 and 1056 C.C.L.C. Those provisions, which have now been replaced by the single art. 1457 of the Civil Code of Québec, S.Q. 1991, c. 64, read as follows:
1053. Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.
1056. In all cases where the person injured by the commission of an offence or a quasi‑offence dies in consequence, without having obtained indemnity or satisfaction, his consort and his ascendant and descendant relations have a right, but only within a year after his death, to recover from the person who committed the offence or quasi‑offence, or his representatives, all damages occasioned by such death.
9 The recognition of parental rights is said to be based, inter alia, on s. 39 of the Charter, which reads as follows:
39. Every child has a right to the protection, security and attention that his parents or the persons acting in their stead are capable of providing.
10 Finally, questions relating to compensation for loss of life or of life expectancy and the awarding of exemplary damages relate to ss. 1 and 49 of the Charter, which read as follows:
1. Every human being has a right to life, and to personal security, inviolability and freedom.
He also possesses juridical personality.
49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.
In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to exemplary damages.
III. Judgments
Superior Court
11 After reviewing the evidence, and in particular the testimony of Constable Kimberley Campbell concerning the events immediately before the shot was fired, Guthrie J. found that the respondent Gosset was negligent in aiming his weapon with his finger on the trigger while running and that this negligence was the direct cause of the victim’s death. In his view, such a use of force was neither necessary nor justified in the circumstances. The judge concluded, however, that the evidence did not support the allegations of racial discrimination. Since the CUM had admitted that, as the respondent Gosset’s employer, it was liable for his negligence, the judge, therefore, held them jointly and severally liable for compensatory damages under arts. 1053 and 1054 C.C.L.C.
12 On the issue of the quantum of compensatory damages, the trial judge dismissed the appellant’s claim for solatium doloris under arts. 1053 and 1056 C.C.L.C. In his view, this head of damage is not compensable in Quebec. He also refused to compensate the appellant, as her son’s heir, for his loss of life expectancy and suffering, as it appeared from the evidence that he would not have been aware of this suffering. However, the trial judge held that the appellant should receive $9,000 for loss of moral and financial support. On this point, he noted that Anthony, who was 19 and the appellant’s only child, was no longer living with her. Furthermore, in light of the victim’s problems with the law and the fact that he had neither a diploma nor known employment at the time, the judge considered it unlikely that he would have provided financial support. As for the victim’s father, since after leaving the appellant he had not been in contact with his son from 1972 to 1985, until Anthony himself took the initiative to visit him on two occasions, the judge awarded him $2,000. Finally, each of the victim’s parents was awarded $1,795 for funeral expenses.
13 Although the trial judge found that the respondent Gosset had not intended to kill Anthony, the claim for exemplary damages against him was granted. According to the judge, while gross negligence is not sufficient to justify awarding exemplary damages, wanton or reckless misconduct, such as that of the respondent Gosset in the case at bar, should be. Thus, the way the respondent Gosset handled his weapon when he knew or ought to have known that he was placing the victim’s security in jeopardy amounted to “unlawful and intentional interference” within the meaning of s. 1 and the second paragraph of s. 49 of the Charter. He added that the right to claim exemplary damages was, by its very nature, transmissible to Anthony’s parents as his heirs and that this right arose the instant the respondent Gosset aimed his weapon at the victim. However, the judge refrained from awarding damages under this head against the respondent CUM on the ground that an employer cannot be required to pay exemplary damages unless it expressly or implicitly authorized or ratified the employee’s reprehensible act. In this case, the respondent CUM did not authorize the force used by the respondent Gosset and, since it immediately suspended him from his duties and subsequently dismissed him, neither did it ratify his actions.
14 Concerning the quantum of exemplary damages, the trial judge considered that this must be calculated on the basis of the following criteria: the preventive and deterrent role such damages play, the conduct of the person guilty of interference, the seriousness of the prejudice suffered by the victim, the financial resources of the person guilty of interference, the amount of compensatory damages awarded, the duration of the reprehensible conduct, any punishment already meted out to the person guilty of interference, the amount of any profit or benefit derived by the person guilty of interference from his or her reprehensible behaviour, and any provocation on the part of the victim. He accordingly set the quantum of the exemplary damages at $8,000, which was to be divided equally between the victim’s parents in accordance with art. 626 C.C.L.C.
Court of Appeal (Vallerand, Fish (dissenting in part) and Deschamps JJ.A.), [1995] R.J.Q. 335
15 The court began by disposing of the appeal from the interlocutory judgment dismissing the appellant’s motion to amend her declaration in order, inter alia, to insert a claim for interference with her parental rights under the Charter. After explaining that leave is not required to appeal such a judgment on an appeal from the final judgment, the court agreed with the trial judge that parental rights are protected by neither the Quebec Charter nor the Canadian Charter of Rights and Freedoms and held that the interlocutory judgment was accordingly well founded.
16 Since the civil liability of the respondents Gosset and CUM was not contested, the Court of Appeal limited its discussion to the issue of the prejudice and its quantum.
17 On the issue of the amount of compensatory damages, the majority of the court refused to grant the appellant’s claim, as her son’s heir, for his loss of life expectancy under art. 1053 C.C.L.C. According to the court, the law as it now stands in Quebec establishes a right to compensation only if the prejudice is proven and, on the basis of the functional approach it considered this Court to have adopted, the victim is capable of appreciating that compensation. In the case at bar, the victim lost consciousness almost immediately after being shot and died a few hours later. As a result, the right to recover damages under this head did not become part of his patrimony and could not be transmitted to his heirs.
18 Furthermore, for the same reasons, the court did not award the appellant compensation for the infringement of her son’s right to life and security under s. 1 of the Charter . On this point, Vallerand J.A. noted that s. 49 of the Charter merely restates the principle previously established in art. 1053 C.C.L.C. and, in light of the presumption of stability of the law, cannot overturn the judge‑made rule that a person’s right to life is extinguished when he or she dies.
19 Fish J.A., in dissent, considered that judge‑made rule inconsistent with the right to compensation for the moral prejudice resulting from unlawful interference with the right to life and to personal security and inviolability under ss. 1 and 49 of the Charter, the right unlawfully interfered with in the present case. In his view, there was, therefore, a right to compensation under both art. 1053 C.C.L.C. and s. 49 of the Charter, although he pointed out that double compensation could not be awarded.
20 On the issue of compensation for solatium doloris under arts. 1053 and 1056 C.C.L.C., the court unanimously held that this head of damage is compensable in Quebec civil law. After reviewing the historical background of and case law relating to art. 1056 C.C.L.C. and referring to French law, the court concluded that, in the case at bar, although the trial judge erred in holding that the law as it now stands in Quebec does not authorize an award for solatium doloris, he did make an award for moral damage to compensate for [translation] “injury to feelings caused by the death of a loved one”, which is exactly what solatium doloris entails. In the circumstances, however, the trial judge’s award of $9,000 for loss of moral and financial support was insufficient, and the court raised it to $15,000. Fish J.A. would instead have awarded $100,000, half of which would have gone to the appellant. As for the amount awarded to the victim’s father, the court did not intervene, since the trial judge considered that in reality he had abandoned his son. According to Vallerand J.A., the trial judge’s findings of fact should not be interfered with in light of the principle of non‑intervention by a court of appeal, which is not just a warning, but a legal rule.
21 On the issue of exemplary damages, the majority of the court held that the respondent Gosset’s actions did not constitute “intentional interference” within the meaning of the second paragraph of s. 49 of the Charter. In their view, the element of intent does not encompass reckless or negligent interference, no matter how serious, but implies that the person guilty of interference intended the consequences of his or her actions. Thus, in the majority’s view, the trial judge erred in law in holding that the state of mind of a person who ought reasonably to have foreseen the consequences of his or her actions is equivalent to that of a person who actually does foresee the consequences of his or her actions and embarks upon them wilfully. In the circumstances, since in aiming his weapon at Anthony the respondent Gosset did not intend to kill him, but to keep him under control at a distance and to ensure that he not resist arrest, the majority held that there was no “intentional interference” within the meaning of the second paragraph of s. 49 of the Charter, reversing the trial judge’s decision on this point. The court further held, for essentially the same reasons as the trial judge, that the respondent CUM could not be ordered to pay exemplary damages because it had neither expressly nor implicitly authorized or ratified its employee’s reprehensible act.
22 Fish J.A. agreed with the trial judge that the respondent Gosset knowingly and deliberately used his firearm without justification and, accordingly, interfered unlawfully and intentionally with the victim’s right to security, as opposed to his right to life. It was therefore proper in his view to order the respondent Gosset to pay exemplary damages. Stressing that trial judges must be accorded sufficient freedom in exercising their discretion when assessing the quantum of such damages, Fish J.A. felt that the trial judge’s decision to award $8,000, to be divided equally between the victim’s parents, involved no error that would justify the intervention of the Court.
IV. Issues
23 This Court granted leave to appeal the Court of Appeal’s decision solely on the following three issues:
1. Did the majority of the Court of Appeal err in law in refusing to find that the appellant is personally entitled to claim compensatory damages for her son’s death under the head of solatium doloris pursuant to arts. 1053 and 1056 C.C.L.C. or for interference with her parental rights pursuant to ss. 1 , 39 and 49 of the Charter?
2. Did the majority of the Court of Appeal depreciate the right to life by refusing to recognize the appellant’s right as her son’s heir to obtain compensatory damages for his loss of life or of life expectancy under ss. 1 and 49 of the Charter?
3. Did the majority of the Court of Appeal err in law in determining what constitutes “intentional interference” within the meaning of the second paragraph of s. 49 of the Charter, and was the result of this error to deny the appellant the right to exemplary damages?
I shall deal with each of these questions in the above order.
V. Analysis
A. Solatium Doloris
24 I note that the trial judge refused to award the appellant moral damages for solatium doloris but that he nevertheless awarded her $9,000 for loss of moral and financial support. The Court of Appeal, unanimous on this point, held that solatium doloris is a type of moral prejudice that is compensable in Quebec civil law, also finding that, in the circumstances, the appellant should receive a larger award of $15,000, according to the majority, and $50,000, according to Fish J.A.
25 The appellant pointed out that the question in respect of which leave to appeal was granted is framed incorrectly. She conceded to this Court that the Court of Appeal correctly recognized solatium doloris as a head of prejudice that is compensable in Quebec civil law. She now submits instead that the Court of Appeal erred in law in refusing to recognize her right to full compensation for the moral prejudice she actually suffered. More specifically, the appellant criticized the Court of Appeal for holding that solatium doloris is the only head of moral prejudice that can result from a person’s death and, in the alternative, for awarding the minimum compensation under that head.
26 Before disposing of these arguments, it would be interesting, even though the principle is no longer at issue in this appeal, to consider the origins of solatium doloris as a recoverable head of damage in Quebec civil law.
27 Unlike the common law, the civil law tradition has never denied that an indirect victim can obtain compensation for the moral prejudice resulting from a person’s death: S. M. Waddams, The Law of Damages (2nd ed. 1991 (loose‑leaf)), at p. 6‑1; G. Viney, Traité de droit civil, vol. 4, Les obligations: la responsabilité ‑‑ conditions (1982), at pp. 327‑32. According to the general civil law rule, any prejudice, whether moral or material, even if it is difficult to assess, is compensable if proven: J. Dupichot, Des préjudices réfléchis nés de l’atteinte à la vie ou à l’intégrité corporelle (1969), at pp. 215‑16; J.‑L. Baudouin, La responsabilité civile (4th ed. 1994), at p. 202; see also art. 1457 C.C.Q. As Taschereau J. stated in Chaput v. Romain, [1955] S.C.R. 834, 1 D.L.R. (2d) 241, at pp. 246‑47 D.L.R.:
[translation] Under art. 1053 C.C., the obligation to compensate flows from two essential elements: an injury suffered by the victim, and fault on the part of the author of the delict or quasi‑delict. Even if no pecuniary damage is proven, there exists nevertheless, not a right to punitive or exemplary damages which the law of Quebec does not recognize, but without doubt a right to moral damages. . . . Moral damages, as any other damages awarded by the civil Court, have exclusively a compensatory character. [Italics in original; underlining added.]
From this perspective, compensation for the grief and distress felt when someone close to us dies — the prejudice commonly referred to as solatium doloris or injury to feelings — is clearly consistent with the civil law’s full recognition of moral damages.
28 The situation at common law was entirely different at that time. In 1846, the English Parliament enacted a statute known as Lord Campbell’s Act (U.K.), 9 & 10 Vict., c. 93, which listed those persons to whom an action was available as the result of a person’s death. A similar statute, which applied uniformly throughout Upper and Lower Canada, was passed by the Canadian Parliament the following year: Act for compensating the Families of Persons killed by Accident, and for other purposes therein mentioned, S. Prov. Can. 1847, 10 & 11 Vict., c. 6 (later R.S.C. 1859, c. 78). It was after this that art. 1056 C.C.L.C. was adopted in Quebec in the 1866 codification. For the sake of convenience, I will repeat the text here:
1056. In all cases where the person injured by the commission of an offence or a quasi‑offence dies in consequence, without having obtained indemnity or satisfaction, his c