Augustus v. Gosset [1996] 3 S.C.R. 268: 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-- 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" -- 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-- Right of parenthood -- 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.

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".

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