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), 1887 CanLII 45 (SCC), 14 S.C.R. 105; applied: Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand, 1996 CanLII 172 (SCC), [1996] 3 S.C.R. 211; Driver v. Coca‑Cola Ltd., 1960 CanLII 88 (SCC), [1961] S.C.R. 201, aff’g [1960] Que. Q.B. 313; Pantel v. Air Canada, 1974 CanLII 139 (SCC), [1975] 1 S.C.R. 472; distinguished: B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315; referred to: R. v. Gosset, 1993 CanLII 62 (SCC), [1993] 3 S.C.R. 76; Chaput v. Romain, 1955 CanLII 74 (SCC), [1955] S.C.R. 834; Robinson v. Canadian Pacific Railway Co., 1891 CanLII 37 (SCC), [1892] A.C. 481; Miller v. Grand Trunk Railway Co. of Canada, 1903 CanLII 54 (SCC), [1906] A.C. 187; Town of Montreal West v. Hough, 1930 CanLII 78 (SCC), [1931] S.C.R. 113; Canadian Pacific Railway Co. v. Lachance (1909), 1909 CanLII 43 (SCC), 42 S.C.R. 205; Montreal Tramways Co. v. Lindner, 1939 CanLII 27 (SCC), [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), 1888 CanLII 75 (QC CS), 16 R.L. 386; Cadoret v. Cité de Montréal (1888), 16 R.L. 397, note 1; Hospice Desrosiers v. The King (1920), 1920 CanLII 77 (SCC), 60 S.C.R. 105; Rubis v. Gray Rocks Inn Ltd., 1982 CanLII 17 (SCC), [1982] 1 S.C.R. 452; Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229; Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351; Snyder v. Montreal Gazette Ltd., 1988 CanLII 66 (SCC), [1988] 1 S.C.R. 494; Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130; Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3; Lindal v. Lindal, 1981 CanLII 35 (SCC), [1981] 2 S.C.R. 629; Macartney v. Islic (1996), 1996 CanLII 22078 (ON CJ), 34 C.C.L.I. (2d) 119; Wilson v. Martinello (1993), 47 A.C.W.S. (3d) 69, aff’d (1995), 1995 CanLII 303 (ON CA), 23 O.R. (3d) 417; Guimond v. Guimond Estate (1995), 1995 CanLII 10849 (NB QB), 160 N.B.R. (2d) 278; Lian v. Money (1994), 1994 CanLII 895 (BC SC), 93 B.C.L.R. (2d) 16, aff’d (1996), 1996 CanLII 2722 (BC CA), 15 B.C.L.R. (3d) 1; Thornton v. Board of School Trustees of School District No. 57 (Prince George), 1978 CanLII 12 (SCC), [1978] 2 S.C.R. 267; Arnold v. Teno, 1978 CanLII 2 (SCC), [1978] 2 S.C.R. 287; Nightingale v. Mazerall and Elliott (1991), 1991 CanLII 2716 (NB CA), 121 N.B.R. (2d) 319; Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., 1996 CanLII 208 (SCC), [1996] 2 S.C.R. 345; R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30; Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [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, 4^e 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 CanLII 5101 (QC CA), [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 CanLII 3831 (QC CS), [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 CanLII 172 (SCC), [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 CanLII 62 (SCC), [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 CanLII 3831 (QC CS), [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 CanLII 5101 (QC CA), [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.

1054. 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 CanLII 5101 (QC CA)](https://www.canlii.org/en/qc/qcca/doc/1995/1995canlii5101/1995canlii5101.html), [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 CanLII 74 (SCC), [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 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.

29 The issue of the recognition of solatium doloris in Quebec civil law was raised before this Court for the first time in Canadian Pacific Railway Co. v. Robinson (1887), 1887 CanLII 45 (SCC), 14 S.C.R. 105. In that unanimous decision, the Court, inspired by a concern to apply the rule of non‑recovery for solatium doloris uniformly in Canada and by the common law’s traditional reluctance to compensate for non‑economic losses, refused to award the wife and children of a deceased person any compensation whatsoever for their bereavement. Although the decision was subsequently reversed for reasons related to prescription, the Privy Council stressed the special nature it considered art. 1056 C.C.L.C. to have in relation to Lord Campbell’s Act: Robinson v. Canadian Pacific Railway Co., 1891 CanLII 37 (SCC), [1892] A.C. 481, at pp. 487‑88; see also: Miller v. Grand Trunk Railway Co. of Canada, 1903 CanLII 54 (SCC), [1906] A.C. 187, at p. 194.

30 The Privy Council’s obiter dicta were apparently insufficient to alter the position adopted by this Court in Canadian Pacific Railway Co. v. Robinson, supra: Town of Montreal West v. Hough, 1930 CanLII 78 (SCC), [1931] S.C.R. 113, at p. 117; Driver v. Coca‑Cola Ltd., 1960 CanLII 88 (SCC), [1961] S.C.R. 201, at p. 207. It should be mentioned, though, that this Court has supported a different interpretation on at least two occasions. In Canadian Pacific Railway Co. v. Lachance (1909), 1909 CanLII 43 (SCC), 42 S.C.R. 205, the Court refused to set aside the verdict of a jury that had awarded compensation to remedy the moral prejudice suffered by parents due to their child’s death. This Court subsequently upheld a charge to the jury concerning awards for solatium doloris: Montreal Tramways Co. v. Lindner, 1939 CanLII 27 (SCC), [1939] S.C.R. 405.

31 The Quebec courts have mostly followed this Court’s decision in Canadian Pacific Railway Co. v. Robinson, supra, despite the prior and contemporaneous Quebec judgments holding that damages could be awarded for solatium doloris: Ravary v. Grand Trunk Railway Co. of Canada (1860), 6 L.C.J. 49 (Q.B.); Provost v. Jackson (1869), 13 L.C.J. 170 (Q.B.); Vanasse v. Cité de Montréal (1888), 1888 CanLII 75 (QC CS), 16 R.L. 386 (Sup. Ct.); Cadoret v. Cité de Montréal (1888), 16 R.L. 397 (Sup. Ct.), note 1. Although they have awarded compensation for, inter alia, the pecuniary consequences of grief such as loss of moral support or deterioration of health due to a person’s death, the Quebec courts have generally refused to grant claims for solatium doloris: A. Mayrand, “Les chefs d’indemnité en cas d’accident mortel” (1968), 9 C. de D. 639, at pp. 663‑64; Baudouin, supra, at pp. 202‑3; J. S. Poirier, “Autopsie d’une disposition disparue; l’article 1056 du Code civil du Bas Canada et le solatium doloris” (1995), 29 R.J.T. 657. This is exactly what the trial judge did in the case at bar.

32 To adopt the words of Fish J.A., the Quebec courts subsequently considered Canadian Pacific Railway Co. v. Robinson, supra, a “historical error”, but one that is no longer relevant today given the absence of a provision equivalent to art. 1056 C.C.L.C. in the Civil Code of Québec. In light of the specificity of the legal tradition of Quebec, I agree with the Court of Appeal that it was French law, not English law, that should have been applied in deciding whether to recognize solatium doloris in Quebec civil law: Hospice Desrosiers v. The King (1920), 1920 CanLII 77 (SCC), 60 S.C.R. 105, at p. 126; Pantel v. Air Canada, 1974 CanLII 139 (SCC), [1975] 1 S.C.R. 472, at p. 478; Rubis v. Gray Rocks Inn Ltd., 1982 CanLII 17 (SCC), [1982] 1 S.C.R. 452, at p. 468. As I mentioned earlier, it is clear that French law has always recognized, at the outset, that compensation is available for the moral prejudice resulting from the death of a close relative or friend: Viney, supra, at pp. 327‑32; Dupichot, supra, at pp. 215‑16.

33 Canadian Pacific Railway Co. v. Robinson, supra, has been the subject of extensive criticism: see, inter alia, M. Nantel, “Le recours des parents en vertu de l’article 1056 C.c. est‑il de droit anglais?” (1930), 8 R. du D. 469; G. Wasserman, “‘Solatium Doloris’ as an element in the awarding of damages arising from delict and quasi‑delict” (1953), 13 R. du B. 127; L. Baudouin, Le droit civil de la province de Québec (1953), at pp. 836‑38; L. Baudouin, “Le Solatium doloris” (1955), 2 C. de D. 55; O. Frenette, L’incidence du décès de la victime d’un délit ou d’un quasi‑délit sur l’action en indemnité (1961), at pp. 22‑23; J.‑L. Baudouin, “Le Code civil québécois: crise de croissance ou crise de vieillesse” (1966), 44 Can. Bar Rev. 391; Mayrand, supra.

34 France and Quebec are not alone in providing compensation for the moral prejudice suffered by third parties due to the death of loved ones. Belgium and Scotland, to give two examples, have also done so: R. André, La réparation du préjudice corporel (1986), at pp. 370‑71; D. M. Walker, Principles of Scottish Private Law (4th ed. 1988), vol. 2, at p. 618. Even a number of common law jurisdictions, including certain states in Australia and the United States, have abandoned the rule that only pecuniary losses may be recovered in the event of death: H. Luntz, Assessment of Damages (3rd ed. 1990), at p. 437; R. D. VanHorne, “Wrongful Death Recovery: Quagmire of the Common Law” (1985‑86), 34 Drake L. Rev. 987, at p. 997.

35 The appellant argued at length, stressing trends in Canadian case law and the state of the law in foreign jurisdictions, that compensation for moral prejudice in the form of solatium doloris has always been recognized in French civil law, and should thus also be in Quebec civil law. This argument is without question valid; the Court of Appeal was clearly right to hold that the trial judge had applied an erroneous principle of law in refusing to find that this type of prejudice is compensable in Quebec civil law. It was, therefore, right, according to the test for reviewing the assessment of the prejudice, to intervene to correct the trial judge’s judgment in this respect: Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, at p. 235; Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351, at pp. 358‑61.

36 In so doing, the appellant argued, the Court of Appeal itself committed an error of law — which this Court must correct — in holding that solatium doloris was the only compensable head of moral prejudice and in awarding her an insufficient amount under that head.

37 Contrary to the appellant’s submission, it seems clear to me that the Court of Appeal considered all the elements of moral prejudice in granting the appellant a higher award for solatium doloris. According to the majority, the solatium doloris concept includes all extrapatrimonial damage, both immediate grief and the loss of future moral support, resulting from the death of a loved one. Deschamps J.A. stated the following (at p. 368):

Even though the suffering and the tears of a mother can theorically [sic] be distinguished from the loss of her child’s smile or companionship, all of these injured feelings can be broadly included in the solatium doloris notion. [Emphasis added.]

Fish J.A. instead appears to have considered solatium doloris to represent only one aspect of moral prejudice. On this basis, he wrote the following about the $50,000 he would have awarded the appellant as compensation for material and moral damage (at p. 349):

It would provide more than a nominal indemnity for the other elements of appellant’s affective prejudice, including solatium doloris in the strict sense of pain, grief and sorrow.

38 It would be possible to hold a lengthy discussion on the exact meaning of the Latin expression solatium doloris (a literal translation of which is “solace for grief”) in contemporary legal language. Whatever meaning it is given, however, what matters most is that the moral prejudice actually suffered by the appellant be compensated in full. Since the definition of solatium doloris adopted by the majority of the Court of Appeal does not in itself make this impossible, the appellant’s first argument must be dismissed.

39 In my view, the Court of Appeal’s error lies not in its definition of solatium doloris but in its assessment of the moral prejudice suffered by the appellant. I disagree with the court, which was unanimous on this point, that the trial judge in reality granted the appellant an award for moral damage that was, for all practical purposes, equivalent to an award for solatium doloris. Whatever his conception of solatium doloris may have been, the trial judge, in expressly dismissing this head of damage, essentially held that the appellant was not entitled to full compensation for her entire loss. Similarly, although it recognized solatium doloris, the majority of the Court of Appeal, in referring to the amounts generally awarded by Quebec courts in respect of solatium doloris and the awards provided for in various social statutes, did not have full compensation in mind when considering the appellant’s claim under that head.

40 Despite the singular difficulty in assessing moral prejudice, such prejudice can in theory be recovered in so far as it is proven: Snyder v. Montreal Gazette Ltd., 1988 CanLII 66 (SCC), [1988] 1 S.C.R. 494, at pp. 505‑6; Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand, supra, at paras. 63‑71. As I mentioned earlier, the Quebec jurisprudence, which has considered itself bound by the rule that solatium doloris is not available as a head of compensable damage, does not reflect this principle of restitutio in integrum. It is, therefore, not surprising that the amounts awarded by the Quebec courts in respect of the death of a loved one have generally been quite modest: D. Gardner, L’évaluation du préjudice corporel (1994), at pp. 314‑15; Baudouin, La responsabilité civile, supra, at p. 203.

41 Thus, the existing jurisprudence cannot guide the courts where the assessment of prejudice in the form of solatium doloris is concerned, for it is based on a serious error in principle. Furthermore, for the same reason, 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.

42 In the case before us, the majority of the Court of Appeal expressly relied on the damages ordinarily awarded by Quebec judges for solatium doloris and the indemnities provided for in the Crime Victims Compensation Act, R.S.Q., c. I‑6, and the Automobile Insurance Act, R.S.Q., c. A‑25, to conclude that the appellant should be awarded $15,000 in the circumstances. Deschamps J.A., speaking for the majority, stated the following about the appellant’s claim under this head (at p. 370):

In my view, the claim of $100,000 is exaggerated and totally unrealistic. It is out of proportion with any of the amounts generally granted by Quebec Courts. As any moral damages, an exact calculation is impossible. That is not to say that the Court should depart from guided evaluation. Guidelines must be found in contemporary legislation and jurisprudence. [Emphasis added.]

43 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 majority of the Court of Appeal 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. As a result, even though this Court refused the appellant leave to appeal the amount of her award of moral damages specifically, the issue concerning solatium doloris is sufficiently broad for this Court to give its views on this aspect of the case, while still leaving it to the Court of Appeal to assess the quantum thereof in light of the evidence in the record and the principles we articulate.

44 Although it is difficult to quantify a prejudice related to a person’s emotional or physical integrity, it is not uncommon for the courts to face this task. For example, this Court recently awarded $300,000 in moral damages for defamation: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130; see also Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3. Moreover, the cap on awards of non‑pecuniary damages for bodily injury, which was originally set at $100,000 in 1978, is now approximately $243,000: Andrews v. Grand & Toy Alberta Ltd., supra; Lindal v. Lindal, 1981 CanLII 35 (SCC), [1981] 2 S.C.R. 629, at pp. 640‑41.

45 It is striking to note the gulf that separates the non‑pecuniary damages awarded in such situations from the usual award in Canada to the parents of a child who loses his or her life owing to the fault of a third person. For example, in a recent Ontario decision, awards of $25,000 and $15,000 were made to the mother and father of a 19‑year-old man who had been killed in an automobile accident, as in the judge’s opinion there was no reason to depart from the amounts usually awarded under the Family Law Act, R.S.O. 1990, c. F.3, in such circumstances: Macartney v. Islic (1996), 1996 CanLII 22078 (ON CJ), 34 C.C.L.I. (2d) 119 (Ont. Ct. (Gen. Div.)); see also: Wilson v. Martinello (1993), 47 A.C.W.S. (3d) 69 (Ont. Ct. (Gen. Div.)), aff’d on another point (1995), 1995 CanLII 303 (ON CA), 23 O.R. (3d) 417 (C.A.) ($25,000 awarded to the plaintiff for the death of his 15‑year‑old daughter in an automobile accident); Guimond v. Guimond Estate (1995), 1995 CanLII 10849 (NB QB), 160 N.B.R. (2d) 278 (Q.B.) ($30,000 awarded to the father of a 10‑year‑old girl killed in an automobile accident). On the other hand, in Lian v. Money (1994), 1994 CanLII 895 (BC SC), 93 B.C.L.R. (2d) 16 (S.C.), aff’d on this point (1996), 1996 CanLII 2722 (BC CA), 15 B.C.L.R. (3d) 1 (C.A.), a mother who lost her 20‑year‑old daughter received a modest award of $5,000 for “loss of love, guidance and companionship”.

46 It should be mentioned that in every Canadian province except Quebec, the right to claim damages owing to the death of a third person is governed by special statutes similar to Lord Campbell’s Act that, like art. 1056 C.C.L.C., courts were very quick to interpret as covering only pecuniary losses: Waddams, supra, at pp. 6‑1 and 6‑2. However, some statutes do expressly provide for compensation for non‑pecuniary losses. In Alberta, for example, since 1994, the amount fixed “for grief and loss of . . . guidance, care and companionship” is $40,000 for the spouse and parents of the victim and $25,000 for the victim’s children: Fatal Accidents Act, R.S.A. 1980, c. F‑5, s. 8(2). Furthermore, in New Brunswick, s. 3(4) of the Fatal Accidents Act, R.S.N.B. 1973, c. F‑7, provides for the awarding of damages for “the loss of companionship that the deceased might reasonably have been expected to give to the parents” and “the grief suffered by the parents as a result of the death”.

47 It is not hard to understand that the death of one’s own child is in all respects an extremely distressing, indeed even traumatizing, event. The suffering that accompanies this unnatural event has no equivalent in intensity aside from the immeasurable joy that can result from the birth of a child. Such suffering is so acute that it seems impossible even to assess it in monetary terms.

48 Bearing in mind that a parent’s grief over the death of a child can never be compensated adequately, the assessment of the moral prejudice in such painful cases, as in others, nevertheless depends on the assessment of the evidence presented to the court. From this perspective, it is especially appropriate to develop criteria which preserve, if only slightly, the objectivity of this process. 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: Andrews v. Grand & Toy Alberta Ltd., supra, at pp. 260‑62; Thornton v. Board of School Trustees of School District No. 57 (Prince George), 1978 CanLII 12 (SCC), [1978] 2 S.C.R. 267, at p. 284; Arnold v. Teno, 1978 CanLII 2 (SCC), [1978] 2 S.C.R. 287, at pp. 332‑33; Lindal v. Lindal, supra, at pp. 639‑40.

49 The New Brunswick Court of Appeal discussed the determination of the quantum of moral damages in the event of death in Nightingale v. Mazerall and Elliott (1991), 1991 CanLII 2716 (NB CA), 121 N.B.R. (2d) 319 (C.A.). In that case, awards of $60,000 made to each of the parents of victims aged six years and nine months for loss of companionship and grief were reduced to $32,500 by the majority and $45,000 by Rice J.A., dissenting in part. Angers J.A., writing for the majority, stated the following (at pp. 330‑31):

Therefore, what are the criteria to be relied upon in determining a fair and reasonable Canadian award? From a realistic point of view, the award cannot be compensatory or reparative, nor can it be accurate. It should not reflect sympathy, punishment or the means of the defendant. In my opinion, in arriving at a fair and reasonable award, the court must be as objective as possible and take into consideration the amounts awarded in other cases of nonpecuniary losses, the socio‑economic impact of this new award and the need to establish predictability and certainty. That is not to say that there will be no human element, the nature of the claim will take care of that, but the emotions involved must not mislead the court. Grief is very personal and intimate but there is an inner element common to all which is not easy to perceive. The tangible manifestations are very subjective and often unreliable. The parade of long faces is not always a true indicator of the broken heart. The psychological evidence will be important to establish the objective process of grief, but it will have a mitigated value when dealing with the individual.

I emphasize the importance that the award be reasonably predictable so that the parent who might find it objectionable and demeaning to publicly articulate his grief will not be less compensated than the one who more easily exteriorizes his emotions. [Emphasis added.]

Rice J.A. focused more on the extent of the evidence presented in each case (at p. 344):

In this province, grief was added by the Legislature as an award to be assessed. In such an evaluation, mental anguish with its related pang and pain predominates. In my view, in order to assess grief it is incumbent on the trial judge to hear evidence from the person who suffered the grief. All parents will sustain grief on the death of their children, but as pointed out by Dr. Fleming, the degree of the pain will vary with the relationships and personalities of the parents and other factors such as stresses, support of friends and family, religious and cultural background. A case by case approach is inevitable in my judgment. Such an assessment invites the description of the pain, mental anguish or other sequelae, which by necessity will require some probing into a survivor’s feelings and the impact the death has had on his or her life.

While it is desirable that conventional awards be reached so that there could be predictability in assessing damages for grief, courts should not be hindered or restricted in both their prerogative and duty assigned to them by the Legislature in evaluating grief. It seems to me that if the Legislature had intended such a conventional assessment, it would have done so itself by setting a predetermined amount for grief as was done in the Province of Alberta. [Emphasis added.]

50 These two passages place particular emphasis on the seemingly contradictory objectives of the difficult role of the courts in assessing the moral prejudice resulting from the death of a loved one: on the one hand, full compensation for the grief unique to an individual, and on the other hand, the assessment of each case from a broader perspective, so as to ensure, inter alia, an appropriate relationship between the moral damages awarded in different contexts. Since this exercise is subject to the particular circumstances of each case, the courts 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. Since monetary compensation of any nature will not mitigate the parent’s grief, the figure will necessarily be arbitrary to a great extent.

51 In the case at bar, there is extensive evidence of the grief caused to the appellant by the death of her only surviving child, exacerbated by the facts that, in 1983, she experienced the death of a little girl who had been born very sick and, that, at her age, she cannot hope to have other children owing. Despite her son’s trouble with the law and the fact that he had neither a diploma nor known employment, the trial judge considered that the appellant had nevertheless done everything she could to support and educate him when he was living with her. In addition, owing to the unforeseeable circumstances of Anthony’s death, the appellant was unprepared for her ensuing grief. I would also add that the extensive publicity given to the unfortunate facts at the root of this case certainly did not make it easier for the appellant to resume a normal life. Although I recognize that it is impossible out of context to appraise the feelings resulting from the irreparable circumstance of the death of one’s own child, it is my view that an award in the order of $25,000 might be fair and reasonable in the circumstances of this case; that being said, it remains to the Court of Appeal to fix the quantum, after hearing the parties on this point.

52 In addition to claiming compensatory damages for her son’s death under arts. 1053 and 1056 C.C.L.C., the appellant argued that she is entitled to compensation for interference with her parental rights under the Charter. She submitted that her right to continue her association with her son as a parent was taken from her as a result of the respondent Gosset’s wrongful acts. At trial, this submission was the subject of a motion to amend, which was dismissed in an interlocutory judgment dated May 22, 1990. The Court of Appeal unanimously affirmed that decision, holding that parental rights are protected neither by the Quebec Charter nor by the Canadian Charter of Rights and Freedoms. Speaking for the Court on this point, Deschamps J.A. wrote the following (at p. 357):

On the contrary, if parental status entails responsabilities [sic], it is the source of few rightso [sic]. Indeed, the Charter enshrines the right of a child to the protection, security and safety that his parent is capable of providing. These are rights of the child not of the parent.

I am therefore of the opinion that no claim for deprivation of a right of parenthood may be presented under either of the Charters because it is not a protected right. [Footnotes omitted; emphasis added.]

53 In support of her submission, the appellant relied exclusively on this Court’s decision in B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315. The issue in that case was whether the Ontario Child Welfare Act, R.S.O. 1980, c. 66, infringed the right of parents to choose medical treatment for their children. This right clearly exists for the sole purpose of enabling parents to ensure their children’s well‑being. It cannot entail rights unrelated to that objective, such as the right the appellant is asking us to recognize in the case at bar. The appellant is arguing not that she has a right to make decisions concerning her son’s education and health but that she has a right to have a relationship with him within the family unit and is entitled to claim damages on the basis of interference with that right. It is clear that neither the Canadian Charter nor the Quebec Charter protects the right to maintain and continue a parent‑child relationship. Thus, the Court of Appeal was correct in rejecting this head of compensation.

54 The second issue in this appeal concerns the appellant’s claim as her son’s heir in respect of his loss of life or of life expectancy and, more specifically, the meaning that must be given to the right to life protected by s. 1 of the Charter.

B. Loss of Life or of Life Expectancy

55 I should begin by explaining that this argument by the appellant does not concern any pain her son may have suffered before dying. Since the victim lost consciousness immediately after being shot, no evidence was adduced in this respect and, accordingly, the trial judge found that the very existence of the prejudice had not been established.

56 Rather, the appellant is asking us to consider the death of any person to be a prejudice that is objectively compensable under Quebec civil law, or in other words, that is the basis for a right to compensation regardless of whether the deceased was aware of his or her death. Accordingly we are also asked to reconsider, in light of the Charter, the past judgments of this Court that bar such compensation. This Court has already held on two occasions that an action for damages for loss of life or shortening of life cannot be transmitted where the victim dies immediately as a result of the wrongful act or survives a few hours without regaining consciousness before dying: since the right to life is extinguished when the victim dies, this remedy cannot become part of the victim’s patrimony and, therefore, cannot be transmitted to his or her heirs. In Driver v. Coca‑Cola Ltd., supra, at pp. 204-5 and 207-8, the majority of the Court, per Taschereau J., explained the rule (upheld by unanimous judgment of this Court in Pantel v. Air Canada, supra, at pp. 478‑79) as follows:

[translation] The general rule is that the patrimony of the deceased, that is, all the rights and obligations of the de cujus on which a money value can be placed, vests in the heirs. The whole of that property constitutes a legal universality. The only property included in the patrimony is that with economic value; such property is patrimonial property and is clearly transmissible to the heirs.

In addition, there are extrapatrimonial rights that are of monetary value only to the holder thereof and are accordingly not transmissible. They are extinguished at death and are not included in the body or mass of the succession that opens. It is correct to say that property in respect of which the holder had no claim while living is not included in the succession, and the logical result is that the heir cannot be seised of it.

The result would therefore, as stated by Galipeault C.J., be a claim the heirs wish to make for Beverley Driver’s loss of life. I am clearly of the opinion that the victim never held this right, which was not transmissible. She could certainly not sue for the loss of her own life. [Emphasis added.]

Taschereau J. accordingly affirmed the opinion of Galipeault C.J. of the Quebec Court of Appeal, who had stated the following ([1960] Que. Q.B. 313, at pp. 317‑18):

[translation] In my view, there is still no claim for loss of life aside from that granted by art. 1056 C.C. to those mentioned therein, and the terms of art. 1053 of the said Code cannot be extended or expanded to give the deceased a claim for the loss of his or her life that is transmitted to his or her heirs.

It is quite clear that if the child Beverley had lived a certain time after the accident and had not obtained compensation or satisfaction while alive, her heirs could have made a claim against the person who committed the delict for suffering, loss of earnings and deprivation of the pleasures or amenities of life until her death, but that claim would result not from the victim’s death but from an asset that would have become part of the property of the succession or the patrimony of the deceased before her death. [Emphasis added.]

57 The appellant argued before this Court that these decisions became limited to their historical interest upon the enactment of the Charter, ss. 1 and 49 of which now confer on the heirs of a person who dies through the fault of another the right to obtain compensatory damages for loss of life or of life expectancy.

58 The appellant’s argument faces an initial difficulty relating to the nature of the Charter remedies. In Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., 1996 CanLII 208 (SCC), [1996] 2 S.C.R. 345, the Court clearly held that the inclusion of fundamental rights and freedoms in the Charter had not created an autonomous system of civil liability. Gonthier J., with whom I agreed on this point, wrote the following at para. 121:

It is understood that the moral and material damages awarded by a court following a Charter violation are strictly compensatory in nature. The wording of the provision leaves no doubt in this regard, since it entitles the victim of an unlawful interference with a protected right to obtain "compensation for the moral or material prejudice resulting therefrom". Compensation so awarded will thus comply with the fundamental principle of restitutio in integrum. This means that for a given fact situation, the Charter cannot authorize double compensation or be a basis for awarding damages separate from those that could have been obtained under the general law. The violation of a guaranteed right does not change the general principles of compensation or in itself create independent prejudice. The Charter does not create a parallel compensation system. [Emphasis added.]

In that decision, I added that the overlap between the general system of law and that of the Charter applies only to the remedy of compensatory damages, thereby excluding the exemplary remedy provided for in the second paragraph of s. 49 of the Charter (at paras. 24‑26).

59 It does not, in my view, follow that the Charter has not done much to clarify the scope of fundamental rights in Quebec law: M. Caron, “Le Code civil québécois, instrument de protection des droits et libertés de la personne?” (1978), 56 Can. Bar Rev. 197. Furthermore, the principles of interpretation applicable to human rights legislation, which I discussed in Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., supra, at paras. 42 and 45, attest to the particular significance of those fundamental rights in relation to the general law:

The Charter is not an ordinary statute implemented by the Quebec legislature in the same way as any other enactment. Rather, it has a special status: it is a fundamental, quasi‑constitutional statute of public order that must be given a large and liberal interpretation in order to achieve the general purposes underlying it as well as the specific objectives of its particular provisions.

Moreover, not only does the nature of this human rights and freedoms legislation call for a large and liberal interpretation, but s. 53 of the Charter also provides that “(i)f any doubt arises in the interpretation of a provision of the Act, it shall be resolved in keeping with the intent of the Charter”. This provision has been relied upon to ensure that statutes are interpreted in a manner consistent with the rights guaranteed in the Charter. . . . [Emphasis added.]

60 In light of these principles, it must now be determined whether the right to life guaranteed by s. 1 of the Charter requires a change to the judge‑made principle that a person’s right to life ceases to exist at the time of his or her death, thereby preventing the person’s heirs from claiming compensatory damages for loss of life or of life expectancy. For the following reasons, I believe it does not.

61 The Charter did not create the right to life, which has always been valued and recognized in Quebec civil law. As Vallerand J.A. stated (at p. 341):

[translation] The Charter clearly created new rights, and new remedies to assert them. But it is obvious to me that it did not create the right to life. Nor did it create the action for damages of the victim of a delict. It is my view that both the right to life of s. 1 of the Charter and the action for compensation of s. 49 existed before the advent of the Charter and that the instructions of the Supreme Court of Canada, which are binding upon us here, are applicable thereto. [Emphasis added.]

The validity of this statement can no longer be in doubt today in light of art. 3 C.C.Q., which reads as follows:

3. Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy.

These rights are inalienable.

62 Although it is undeniable that death is the ultimate interference with the right to life, the courts, in Quebec as in the common law jurisdictions, have refused to consider loss of life or of life expectancy a compensable prejudice, that is, one for which compensatory damages are available. The right to life has thus been interpreted as terminating at the time of death, or in other words, as not including the right not to die through the fault of another: Driver v. Coca‑Cola Ltd. and Pantel v. Air Canada, supra. Although the irony of this interpretation, dictated as it was by powerful arguments of judicial policy, must be recognized, it is, in my view, wrong to argue, as the appellant has done, that it depreciates the right to life.

63 The fact that a person’s death does not add to the patrimony transmitted to his or her heirs, whoever they are and whatever their relationship with the victim, does not imply that the victim’s right to life has no value. On the contrary, it is precisely because of the respect due to the right to life that compensation is available only to those persons to whom the right was in fact of value. On this point, there can no longer be any question that the distress felt by those close to a person who loses his or her life through the fault of another is fully compensable under the head of solatium doloris. Underlying the recognition of such a head of damage is nothing other than a recognition of the very value of the right to life.

64 The judicial policy considerations that support the position adopted by this Court in Driver v. Coca‑Cola Ltd. and Pantel v. Air Canada, supra, are manifold; the most significant is that it is infinitely difficult, if not absolutely impossible, to quantify life. Life represents the quintessence of intangibility, and has consistently defied philosophical attempts at definition. The difficulty in defining the right to life, which is illustrated by certain contemporary legal debates concerning the right to life under s. 7 of the Canadian Charter of Rights and Freedoms (R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30; Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519), pales in comparison with that of placing a dollar value thereon.

65 How can a value be placed on the prejudice a person suffers by dying? Should the victim’s personal characteristics, such as his or her intellectual and physical capacity, be taken into consideration? Where a person is suffering, for example, from an incurable illness that has a substantial effect on his or her quality of life, what would be the impact of the person’s perception of his or her own life? I stop this exercise here, for the ramifications are preposterous; they are clearly inconsistent with the idea that every individual’s right to life is of equal value regardless of his or her condition and potential.

66 In light of these practical and theoretical objections, which are not insignificant, I note that Canada is not the only jurisdiction that has opposed objective compensation for loss of life or of life expectancy. Among others, England passed legislation in 1982 that repealed this head of damage: Administration of Justice Act 1982 (U.K.), 1982, c. 53, s. 1(1)(a). A number of American states, including Florida, Ohio, Oklahoma, Illinois, Maine, Wisconsin, Wyoming, Arizona, Colorado and Nebraska, have also passed legislation to make such compensation impossible: A. J. McClurg, “It’s a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases” (1990), 66 Notre Dame L. Rev. 57, at pp. 96‑97. In France, although the Court of Cassation recently ruled in favour of awarding moral damages to a person whose serious injuries had reduced him to a state of permanent unconsciousness, the question, however, has not been resolved where, as here, a victim dies as a result of his or her injuries: G. Viney, “Responsabilité civile”, J.C.P. 1995, ed. G, I, 3853, at p. 271. As for the academic debate on this question, Professor Viney opposes the possibility of transmitting the right to claim damages for loss of life or of life expectancy to one’s heirs: Traité de droit civil, vol. 5, Les obligations: la responsabilité ‑‑ effets (1988), at pp. 230‑31.

67 On the other hand, no recognized type of prejudice seems to me appropriate to designate that which results from death, which, in a way, is equivalent to an inability to feel any prejudice whatsoever. Thus, loss of life or of life expectancy, by its very nature, constitutes a unique prejudice, which, in my view, justifies departing from the civil liability rule of restitutio in integrum, the scope of which this Court recently defined in Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand, supra.

68 In that case, this Court affirmed the trial judge’s finding that the patients of a hospital for the mentally disabled had the necessary capacity to suffer the moral prejudice of discomfort, which they did in fact suffer as a result of illegal strikes by the hospital’s staff. Although that type of prejudice is clearly compensable if suffered by persons without disabilities, the issue in Syndicat was whether the patients should, owing to their mental disability, be denied their right to compensation in light of their inability to appreciate and enjoy such compensation. Stressing the compensatory function of civil liability, the Court concluded as follows (at para. 71):

[I]n the civil law . . . the reason that damages may be recovered is not because the victim may benefit from them, but rather because of the very fact that there is a moral prejudice. The victim’s condition or capacity to perceive are, therefore, irrelevant in relation to the right to compensation for the moral prejudice.

69 That is not the issue in the case at bar, since loss of life or of life expectancy, as opposed to moral prejudice, for example, is not a head of damage that is transmissible to a victim’s heirs in Quebec civil law. 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. This point of view is shared by, inter alia, Professor Viney, Les obligations: la responsabilité ‑‑ effets, supra, at pp. 230‑31:

[translation] Finally, it is therefore the movement in favour of the “patrimonialization” of the compensation of moral damage that seems to provide the strongest support for the transmissibility argument. However, the whole question is in fact how far this trend should go and whether it should not be qualified to avoid excessive “commercialization” of feelings and moral values.

Thus, none of the arguments made by those in favour of transmissibility seem conclusive. On the other hand, the opposing argument is supported by very strong considerations.

First of all, it cannot be denied that compensation for moral prejudice has a specific function of either giving the victim satisfaction intended to remedy the pain caused by his or her suffering or imposing a sort of civil sanction on the person who caused the suffering that meets a need, if not for revenge, at least for public affirmation that the person who suffers has a right against the person who caused that suffering. It is quite clear that, if it is actually to fulfil this function, the compensation must be claimed and obtained by the victim him or herself. If it is claimed by the victim’s heirs, it provides no relief for the suffering and gives no moral satisfaction to the sufferer. Its only effect is to enable the successors to make money off a suffering they did not endure and for which their predecessor in title may not personally have wished to claim relief, which seems especially disagreeable, and maybe even downright immoral. [Footnotes omitted; emphasis added.]

70 The judicial policy underlying this judge‑made rule, as established in Driver v. Coca‑Cola Ltd. and Pantel v. Air Canada, supra, has continued to be just as relevant since the advent of the Charter.

71 It is indisputable that the respondent Gosset’s wrongful conduct resulted in unlawful interference with Anthony’s right to life. However, the Charter is no more capable than the general law of protecting the right to life once a person has died. Thus, for the judicial policy considerations set out earlier, 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 fact that the appellant stressed the shortening of the life of her son, who survived for four hours after being injured, rather than the loss of his life, is in my view not relevant here. These two heads of damage are indissociable where the victim dies instantaneously owing to the wrongful act or survives without regaining consciousness before dying.

72 Furthermore, contrary to the appellant’s submission, her son’s right to security was not interfered with independently of his right to life when the respondent Gosset trained his weapon upon him, according to his testimony, in the aim of keeping him under control at a distance for the purpose of arrest. Without deciding whether these are distinct rights, to accept the opposite argument in the circumstances would amount to holding that this practice universally accepted by the police is necessarily, as the appellant contends, an unlawful interference with the suspect’s right to personal security on the basis of which compensatory and exemplary damages can be claimed under s. 49 of the Charter. This is surely not the Charter’s objective.

73 Having said this, it is clear that the Charter has reiterated the protection of the right to life, to which every person is inherently entitled, as recognized by the general law of civil liability. As Deschamps J.A. pointed out at p. 364, the exemplary damages remedy provided for in the second paragraph of s. 49 of the Charter is a tool for protecting the right to life that should not be underestimated:

A criticism often made about the subjective approach is that it allows the authors of a fault to go unpunished for the death of their victim whereas a lesser fault would have been sanctioned. I refer to the often‑mentioned example of the automobilist who is more advantaged by killing a person rather than only injuring him or her. This reflects again a confusion between exemplary and compensatory damages. It is also useful to note that the circumstances in which an advantage might seem to accrue to the author whose victim does not suffer from the fault are more seldom seen now that exemplary damages can be awarded. These damages take into consideration the gravity of the act, which is not a prime consideration in evaluating compensatory damages. [Emphasis added.]

74 On the other hand, there is nothing to prevent an award of exemplary damages in the context of an action for moral or material prejudice of the mother since the latter is based on the unlawful interference with her son’s right to life, resulting in civil liability toward her, an indirect victim. I note the analysis of s. 49 in Gonthier J.’s majority opinion in Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., supra, at para. 127:

Despite [its dual objective of punishment and deterrence], an action for exemplary damages based on the second paragraph of s. 49 of the Charter cannot be dissociated from the principles of civil liability. Such an action can only be incidental to a principal action seeking compensation for moral or material prejudice. The second paragraph of s. 49 clearly states that in case of unlawful and intentional interference with a protected right, "the tribunal may, in addition, condemn the person guilty of it to exemplary damages" [emphasis in original]. This wording clearly shows that, even if it were admitted that an award of exemplary damages is not dependent upon a prior award of compensatory damages, the court must at least have found that there was an unlawful interference with a guaranteed right. Some wrongful conduct that gives rise to civil liability will therefore be identified and further consideration given to the intention of the person responsible. It is the combination of unlawfulness and intentionality that underlies the decision to award exemplary damages. The necessary connection with the wrongful conduct that gives rise to civil liability leads one to associate the remedy of exemplary damages with the principles of civil liability. [Emphasis added.]

75 This discussion leads us to the final question to be discussed, namely the element of intent to which an award of exemplary damages under the second paragraph of s. 49 of the Charter is subject.

C. Unlawful and Intentional Interference

76 As I have already mentioned, the facts of this case show beyond the shadow of a doubt that Anthony’s right to life was infringed as a result of the respondent Gosset’s wrongful conduct. Unlawful interference with a right protected by the Charter having been established, it must now be determined whether that interference can be characterized as “intentional” within the meaning of the second paragraph of s. 49 of the Charter. This must be so for exemplary damages to be awarded.

77 What “unlawful and intentional interference” should be understood to mean was discussed in detail in Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand, supra. After reviewing the decisions of the Quebec Court of Appeal, the Court was unanimous in holding that the special nature of the Charter as an instrument for protecting human rights supports an interpretation of this concept giving full effect to the punishment and deterrence objective of exemplary damages. Pointing out that the relevant intent within the meaning of the second paragraph of s. 49 of the Charter was related to the consequences of the wrongful conduct of the person guilty of unlawful interference, I stated the applicable test as follows (at para. 121):

[T]here will be unlawful and intentional interference within the meaning of the second paragraph of s. 49 of the Charter 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.

78 In the present case, the trier of fact found that the respondent Gosset did not intend to fire the fatal shot but that his wilful and negligent use of his weapon nevertheless constituted unlawful and intentional interference with Anthony’s right to security, as a reasonable person would have foreseen that such an act would place that right in serious jeopardy. The majority of the Court of Appeal rejected this interpretation on the ground that the element of intent required by the second paragraph of s. 49 of the Charter implies that the person guilty of the unlawful interference intended the consequences of his or her wrongful acts. In this respect, Deschamps J.A., speaking for the majority, gave the following definition (at pp. 372‑73):

[translation] [Baudouin J.A.’s interpretation in Association des professeurs de Lignery (A.P.L.), syndicat affilié à la C.E.Q. v. Alvetta‑Comeau, [1990] R.J.Q. 130 (C.A.)] seems to me to be the only one that can be accepted, having regard to the historical context and the specific nature of the civil law. The legislator has chosen to make only truly intentional interference subject to exemplary damages and the fact that reckless or negligent interference was not included, regardless of the gravity of the recklessness or negligence, must surely also be by choice. The distinction cannot have escaped the legislator, and I must respect that distinction.

In some situations, the intention to commit the interference with a right protected by the Charter may be immediately apparent from the deliberate nature of the act committed. Thus in both Association des professeurs de Lignery (A.P.L.), syndicat affilié à la C.E.Q. v. Alvetta‑Comeau and West Island Teachers’ Association v. Nantel [[1988] R.J.Q. 1569 (C.A.)], it was apparent that the purpose of the intentional acts of the union representatives was to interfere with the protected rights of the dissident union members.

Similarly, in Syndicat national des employés de l’Hôpital St‑Ferdinand v. Curateur public du Québec, [[1994] R.J.Q. 2761 (C.A.)] the union members knew that the deprivation of services would cause inconvenience to the patients; while this was a way for them to put pressure on the employer, nonetheless the consequence of the acts committed, the interference with the protected right, was intended.

Having regard to the foregoing, I do not believe that section 49 paragraph 2 of the Charter leaves any room for the introduction of the concept of recklessness which the trial judge seems to have applied. [Emphasis added.]

Thus, since the trial judge recognized that the respondent Gosset used his weapon with the intent not to kill Anthony but to keep him under control at a distance to ensure his consent to arrest, the majority concluded that there was no “unlawful and intentional interference” within the meaning of the second paragraph of s. 49 of the Charter.

79 The trial judge erred in law in holding that the merely negligent conduct of the respondent Gosset was sufficient to constitute “unlawful and intentional interference” within the meaning of the second paragraph of s. 49 of the Charter.

80 Applying the test in Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand, supra, I agree with the majority of the Court of Appeal that, in the present case, the respondent Gosset did not intend to kill Anthony and did not intend the consequences of his act. It is clear from the evidence that he did not shoot to kill Anthony and also that, after being led to cock his weapon while drawing it, he did not fire it 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”.

81 The unlawful interference with Anthony’s right to life was accordingly not “intentional” within the meaning of the second paragraph of s. 49 of the Charter. This means that the majority of the Court of Appeal was right to reverse the trial judgment on this point and to refuse to award exemplary damages to the appellant.

VI. Conclusion

82 For these reasons, I would allow the appeal in part solely to refer the matter back to the Quebec Court of Appeal so that it may determine the quantum of compensatory damages for solatium doloris after hearing the parties on this point and in accordance with the criteria established in this judgment, the whole with costs throughout.

Appeal allowed in part with costs.

Solicitors for the appellant: Pearl & Associés, Montréal.

Solicitors for the respondent the Communauté urbaine de Montréal: Leduc, Bélanger, Boisvert, Laurendeau, Rivard, Montréal.

Solicitors for the respondent Gosset: Alarie, Legault, Beauchemin, Paquin, Jobin & Brisson, Montréal.