Marcotte, Beaupré, Kalichman

Appeal from a judgment of the Superior Court condemning the appellant to pay moral and punitive damages because of the sexual acts committed against his granddaughter. Allowed in part, with dissenting reasons.

The appellant contends that the trial judge committed reviewable errors in awarding: (i) $150,000 in moral damages to the victim rather than $100,000; $40,000 in moral damages to the mother, rather than $15,000; and $75,000 in punitive damages to the victim, rather than $25,000.

With respect to the moral damages, the judge correctly noted that the exact number of incidents is irrelevant. The prejudice stems from the repetitive and inexorable nature of the incidents. Moreover, contrary to what the appellant argues, the amounts awarded are not excessive in light of the case law in such matters. The appellant relies on judgments rendered before the leading case of R. v. Friesen (S.C. Can., 2019-10-16), 2020 SCC 9, SOQUIJ AZ-51680674, 2020EXP-902, [2020] 1 S.C.R. 424, in which the Supreme Court notes that Canadian society now has a better understanding of the harm likely to result from sexual violence against children.

The award of $75,000 in punitive damages is considerably higher than those previously awarded by the courts in similar circumstances. Indeed, prior to the judgment under appeal, the highest award ever granted was $25,000.

In this case, it is possible to infer that the judge’s reasoning relied, at least in part, on Friesen. Such an interpretation of that judgment is entirely justified because the gravity of the fault is one of the circumstances to be taken into account when assessing punitive damages (art. 1621 para. 2 C.C.Q. (S.Q. 1991, c. 64)). Therefore, just as society’s deepened understanding of the harmful effects of sexual violence on children justifies an increase in the length of the sentences imposed to date in criminal matters, it also justifies an increase in the punitive damages awarded for the same type of behaviour, to reflect the gravity of the fault.

There is no rational connection, however, between the $75,000 awarded to the victim and the objectives underlying the award of punitive damages. In this case, $37,500 is sufficient to fulfill the preventative purpose of such damages without exceeding it. Such compensation sends a clear message that it is appropriate to increase punitive damages for the sexual abuse of children, without contravening the principle of deference imposed by Parliament. It also makes it possible to take into account the punishments already imposed on the appellant for the acts committed, that is, his criminal conviction, his registration as a sexual offender, and the loss of his job as borough mayor, with the attendant renown.

Beaupré, J.A. would have dismissed the appeal. According to him, the award of $75,000 was fair and appropriate and contains no error in law. It is the result of the judge’s careful assessment of the evidence, and it is not devoid of any rational connection with the inherent objectives of prevention, deterrence, and denunciation of punitive damages. This compensation, while high, is not so high as to shock the sense of justice in light of all the specific circumstances of this case. Furthermore, the judge did not commit a reviewable error in considering the teachings in Friesen to establish this amount. 

Text of the decision: http://citoyens.soquij.qc.ca