LEBEL

__**"La Protections des droits fondamentaux et la responsabilité civile" by Hon. Louis LeBel**__

- LeBel examines the evolution of civil responsibility in protection fundamental rights before and after the Quebec Charter (1977) and the Canadian Charter (1982). - Even before the Charters, civil responsibility protected civil liberties, to fill a void in public law. - Do the Charters create a new civil responsibility regime or do they integrate into the existing one? In Quebec, they converge. In common law, the question would have to be looked at in more depth. - What is the link between civil responsibility and s.24 of the Charter? The question is as yet unanswered and eventually norms will have to govern courts' discretionary powers. - The constitutionalisation of civil liberties should not take away from the richness and flexibility of civil responsibility. Coordinating both systems would allow for a more nuanced approach to individual situations.
 * Short summary:**


 * Longer summary:**

Definition of fundamental rights: subjective rights of personality (ie: defence of private life; a person's reputation) + subjective rights of public liberty (ie: freedom of expression, right to vote, etc) + criminal procedure rights + equality rights (to eliminate discrimination). - Common law rules on criminal procedure played the role the Charter now does. But civil responsibility also protected certain rights, as we will see...

__I. FUNDAMENTAL RIGHTS AND CIVIL RESPONSIBILITY BEFORE THE CHARTERS'S EXISTENCE__ Fundamental rights were protected by civil responsibility thanks to an evolving, flexible notion of 'fault' and of 'préjudice' (which recognized moral injury, etc). - Civil law gave symbolic monetary compensation for moral damage - Common law recognized torts of defamation, libel and slander. - Slowly courts recognized right to private life, and right to your image. They often sanctioned the breach by awarding moral damages. - Assimilating a violation of a fundamental right with a fault, meant recognizing the right. Tort judgments recognized fundamental rights. - //Ortenberg v. Plamondon//: Plamondon insults all Jews in 1910. Ortenberg is one of 120 Jewish families in Quebec and sues for defamation and wins since, with such a small number of Jewish families, he had a personal interest in the matter. With an absence of constitutional protections, civil responsibility tackles the important questions: the relationship between freedom of religion and freedom of expression, etc. - In //Christie v. York Corporation//, judges did not recognize racial discrimination in hiring practices. **This was one big downside of using civil responsibility to uphold fundmanetal rights: it depended solely on judges' attitudes, and on what rights judges wanted to recognize.** - Three cases (one of which was //Roncarelli v. Duplessis//) recognized torts against the police or the premier of Quebec. - The CCQ was written to manage private patrimonial relationships, but was being applied to recognize public civil liberties.

__II. THE IMPACT OF CONSTITUIONALIZATION OF FUNDAMENTAL RIGHTS ON CIVIL RESPONSIBILITY'S ROLE__ - We are not restricting our attention only to the Canadian Charter because it only applies to legislative or executive action. It doesn't apply to relationships in private law. - The Quebec Charter overrules any other Quebec law (art. 51), the CCQ must be interpreted in harmony with it (preamble, CCQ). The CCQ now has a few provisions on fundamental rights (e.g. arts. 10, 35). The Quebec Charter applies not only to relationships between State and individual, but also individual-individual. - Will the Charters create a new system of civil responsibility, based on different principles than civil responsibility in Quebec or in common law? The answer is as yet unclear for the Canadian Charter. For the Quebec Charter, jurisprudence sets out a method to coordinate it with civil responsibility: - Art. 52 of the Canadian Charter declares unconstitutional any law that conflicts with the Charter. Art. 52 of Quebec Charter says no law, before 1977 or after conflicts with arts. 1 and 38, except if expressly indicated. - The sanction with the Canadian Charter: s.24 - a person whose rights were violated can get a just and appropriate remedy from a tribunal. The Charter is silent on what the remedies would be; and doesn't mention suing for damages. - The Quebec Charter lists suing for damages as one of the compensations possible. Art.49: a victim has a right to compensation for any moral or material injury. Punitive damages can also be awarded. - One philosophy (Philosophy A) was that the Quebec Charter's remedies should be the only remedies for violation of fundamental rights, and that civil responsibility should be abandoned. Another philosophy (Philosophy B) said that both systems could be coordinated.

The SCC uses Philosophy A: one single, unified regime - Art. 49 of Quebec Charter uses "all unlawful interference with any right or freedom" instead of the notion of fault. No need to prove fault. Art 49, para. 2 opens the door to compensation even without injury. This sytem plays a larger role in prevention and dissuasion than the civil responsibility system did. It would save plaintiffs a lot of time not to have to prove causality, and to have injury assumed as soon as there's violation of a right. - In CML provinces, the SCC leaned towards a single regime for fundamental rights: it overturned decisions by courts of appeal that wanted to recognize new torts against discrimination. - In Quebec, the SCC favoured a convergence of the two systems (Charter and civil responsibility). - Two cases refused to admit the existence of a separate civil responsibility regime under the Quebec Charter. In //Beliveau St-Jacques//, a victim sued in tort and then under the Charter. The defendant said she could not sue in both. Gonthier J. wrote that, if the plaintiff proved fault, causation and injury, she could get moral and material damages under the CCQ and punitive damages under the Charter. But she needed to prove everything, and could not rely only on abuse of a right to get punitive damages. - LHD dissented, and wrote that she thought the plaintiff could be compensated even absent proof of material and moral injury.

- LHD found, in another case, that art. 49, para. 2 required, not a "faute lourde", but rather an __intention with regards to the consequences of the unlawful interference with the right__. - Lamer's dissent in //Aubry v. Editions Vice-Versa// says that interference with a fundamental right can't always fully correspond to fault. There must be a nuance between the one concept in public law and the other in private. The violation of a right, alone, does not constitute a fault. - One cannot look just at the violation of a right, because often two rights are at play: e.g. freedom of expression vs. freedom of religion. The Quebec Charter requires weighing the two rights (art. 9.1), much like s.1 of the Canadian Charter. It asks a judge to think of how a reasonable person would behave, just like tort law does.

CRITIQUES: - One current of Quebecois authors says the fact that the SCC didn't recognize a separate regime relying only on the Quebec Charter makes these rights less protected. - Other criticize that a plaintiff must prove material and moral injury in order to claim punitive damages under the Quebec Charter. The SCC treats recourse in punitive damages as an accessory recourse. With time, LHD's dissent may be the future of Quebec law...

- In CML, the SCC has not expressed the relation between torts and the Charter. Torts still play a role in diffamation cases, etc. Though the Canadian Charter only applies to govt, courts said the Charter's values have a role in the develpment of torts such as the tort of diffamation.

__III. CIVIL RESPONSIBILITY AND THE CANADIAN CHARTER__ - Jurisprudence has shown the relationship between the Quebec Charter and civil responsibility, but has so far been silent on the relationship between the Canadian Charter and civil responsibility. - Art. 24 of the Canadian Charter confers a wide and flexible remedy on courts. Courts can order compensatory and punitive damages. - The SCC will have to give a framework for the discretionary powers of courts under art. 24. - Since most infractions of the Charter are in criminal law, the SCC will have to answer many questions about the traditionally separate recourses in criminal and civil courts. Criminal lawyers and judges are not used to tort litigation and tort damage awards. Art. 738 of the Criminal Code allows judges to order the author of a crime to paye damages for his crimes. - In criminal matters, the recourse is not often in damages, but rather in exclusion of evidence. - If a law is found unconstitutional under s. 52, then govt actors are not responsible for having acted under its authority - that is a limit on judges' creativity for remedies

__CONCLUSION__ - The constitutionalization of fundamental liberties was a necessary step in modern society, to recognize some of the horrific crimes in the 20th century. - However, constitutionalization leads us to underestimate the power of CVL and CML. CVL and CML were well used by judges and lawyers to protect fundamental liberties before 1977. Coordination of the two systems allows a more nuanced application of fundamental rights. - A system of law should be seen as a whole. Instead of differentiated certain factual situations as Charter and some as civil responsbility, there should be a unified system which better reflects how people live the law.