Preliminary provision of the C.c.Q

Preliminary provision of the C.c.Q.

Art. 3, 10, 32, 35, 36 and 1457 C.c.Q.

Art. 3: Every perosn is fully able to exercise his civil rights.

In certain cases, the law provides for representation or assistance.
Art. 10: Every person is inviolable and is entitled to the integrity of his person.

Except in cases provided for by law, no one may interfere with his person without his free and enlightened consent.

No one may invade the privacy of a person without the consent of the person unless authorized by law.

(5) using his name, image, likeness or voice for a purpose other than the legitimate information of the public.

Art. 1-9, 10 and 49 of the Quebec Charter of Human Rights and Freedoms, L.R.Q. c. C-12

1. Every human being has a right to life, and to personal security, inviolability and freedom.

He also possesses juridical personality.

2. Every human being whose life is in peril has a right to assistance.

Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason.

3. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.

4. Every person has a right to the safeguard of his dignity, honour and reputation.

5. Every person has a right to respect for his private life.

6. Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.

7. A person's home is inviolable.

8. No one may enter upon the property of another or take anything therefrom without his express or implied consent.

9. Every person has a right to non-disclosure of confidential information.

No person bound to professional secrecy by law and no priest or other minister of religion may, even in judicial proceedings, disclose confidential information revealed to him by reason of his position or profession, unless he is authorized to do so by the person who confided such information to him or by an express provision of law.

The tribunal must, ex officio, ensure that professional secrecy is respected.

9.1. In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec.

In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.

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 punitive damages.

Beliveau St-Jacques v. F.E.E.S.P., [1996] 2 S.C.R. 345. [Background reading]

• 
  Béliveau launched civil action based on the Quebec Charter against her employer and a co-worker who had allegedly sexually harassed her.
  
• 
  She was subsequently compensated under the Act respecting industrial accidents and occupational diseases for employment injury arising out of the same events.  
  

• 
  Appellant cannot base a claim for compensation on s. 49(1) of the Quebec Charter because she has already claimed through worker’s compensation scheme.
  
• 
  Furthermore, absence of s. 49(1) claim precludes a claim of exemplary damages as per s. 49(2) of the Quebec Charter.
  
• 
  Gonthier (majority): Quebec Charter does not create a parallel compensation system or authorize double compensation.
  
• 
  L’Heureux-Dubé (dissent): s. 49(2) exemplary damages should be recoverable despite compensation under workers comp.
  
• 
  Where a civil statute excludes a civil code remedy, it also excludes a Quebec Charter remedy.
  

1. 
   The Charter does not create a parallel compensation system;
   

• 
  The violation of a right protected by the Charter is equivalent to a civil fault.
  
• 
  The violation of one of guaranteed rights is therefore wrongful behaviour, that is breaches the general duty of good conduct.
  
• 
  Art. 1457 specifies that rules of conduct the violation of which results in civil liability may derive from the law.
  

2. 
   The Charter neither breaks new ground nor adds to the general law. – The burden of poof still on the victim: injury, fault and causation.
   

3. 
   The nature of exemplary damages in s.49 (2):
   

• 
  the purpose of this damages is to achieve the dual objective of punishment and deterrence;
  
• 
  the ability to award exemplary damages remains exceptional in Que. Law, it has not been raised to the status of a principle.
  

• 
  An action for exemplary damages based on the s.49(2) of the Charter can only be incidental to a principal action seeking compensation for moral or material prejudice.
  
• 
  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.
  
• 
  It is the combination of unlawfulness and intentionality that underlies the decision to award exemplary damages.
  
• 
  It is a civil liability remedy.
  

• 
  in Chaput v. Romain, 1053 with respect to freedom of conscience and religion
  
• 
  art. 1053 has even been considered as a veritable charter of rights.
  
• 
  the flexibility inherent in the principle of civil fault was of course able to allow for judicial adaptation to changes in standards of conduct and, correspondingly, in the content of human rights.
  

Aubry v. Éditions Vice-Versa Inc., [1998] 1 S.C.R. 591.

• 
  Aubry's photograph was taken, published, and marketed without her consent.  Duclos, a professional photographer, photographed Aubry seated on steps outside a Montreal building.  
  
• 
  Aubry later learned that her photograph was published for free to illustrate a story in a special edition of the magazine, Vice-Versa.  
  
• 
  Aubry sued Duclos and Vice-Versa for $5,000 for moral prejudice to her reputation and honour and invasion of her privacy, and $5,000 in exemplary damages.  
  
• 
  The Court of Quebec allowed the action in part and ordered the defendants jointly and severally to pay $2,000 damages for the moral prejudice suffered due to the photo's unauthorized publication which interfered with Aubry's right to her image and privacy.
  
• 
  The Court of Appeal majority dismissed the defendants' appeal.
  

• 
  The issue here is the scope of the right to one’s image as an element of the more general right to privacy. It also involves a balancing of the right to privacy and freedom of expression.
  

• 
  The infringement of a right guaranteed by the Charter gives rise, under s.49(1), to an action for moral and material prejudice. Such an action is subject to the civil law principle of recovery. As a result, the traditional elements of liability, namely fault, damage and causal connection, must be established.
  
• 
  There is a debate in Que. Law as to whether the right to one’s image is a separate right of personality or an element of the right to privacy. SCC held that the right to one’s image, which has an extra-patrimonial and a patrimonial aspect, is an element of the right to privacy under s.5 of the Charter as the interpretation in Godbout v. Longueuil.
  
• 
  Since the right to one’s image is included in the right to respect for one’s private life, it is axiomatic that every person possesses a protected right to his or her image. This right arises when the subject is recognizable. There is an infringement of the person’s right to his or her image, and therefore fault, as soon as the image is published without consent and enables the person to be identified.
  
• 
  The right to respect for one’s private life should not be confused with the right to one’s honour and reputation under s.4 of the Charter, even though in certain cases, wrongful publication of an image may in itself result in an injury to one’s honour and reputation.
  
• 
  In the case at bar, the photograph in no way reprehensible and did not injury the respondent’s honour or reputation.
  
• 
  The right to respect for one’s private life comes into conflict with another right protected by the Charter, in s.3, namely the right to freedom of expression. SCC held that freedom of expression includes freedom of artistic expression.
  
• 
  The right to respect for one’s private life, like freedom of expression, must be interpreted in accordance with the provisions of s. 9(1) of the Charter.  the balance b/w the two rights
  
• 
  The public’s right to information, supported by freedom of expression, places limits on the right to respect for one’s private life in certain circumstances.
  
• 
  The public interest so defined is thus conclusive in certain cases. The balancing of the rights in Q depends both on the nature of the information and on the situation of those concerned.  Q of context.
  
• 
  Situation in which the photographer is exempt from liability: the person “snapped without warning”.
  
• 
  In the context of freedom of expression, SCC don’t consider the argument of “social useful” (the notion borrowed from U.S by the trial judge) is appropriate to adopt for the purpose of legal analysis. The Q is whether the public’s right to information can justify dissemination of a photograph taken without authorization.
  
• 
  In this case, the appellants are liable a priori, since the photograph was published when the respondent was identifiable. It has not been shown that the public’s interest in seeing this photograph is predominant.
  
• 
  An artist’s right to publish his or her work cannot include the right to infringe, without any justification, a fundamental right of the subject whose image appears in the work. In this case, there appears to be no justification for giving precedence to the appellants.
  
• 
  With respect to the patrimonial aspect of the invasion of privacy, SCC held that the commercial or promotional exploitation of an image, whether of a well-known person or a private individual, can cause the victim material prejudice. In the case at bar, the photograph was used for commercial purposes, in particular to sell the magazine. So the respondent was entitled to claim an amount in exchange for the use of her image. – not the issue here b/c the respondent didn’t bring this claim.
  

• 
  The rules in civil law is different from the rule in Canadian Charter (= public law).
  

1. 
   Mere infringement of a right or freedom does not necessary constitute fault. As the Crt in Beliveau stated that “it is … clear that the violation of a right protected by the Charter is equivalent to a civil fault”. Only unjustifiable infringement of freedom of expression, as the freedom is defied in public law, constitute fault.
   
2. 
   Civil liability analysis doesn’t allow the burden of proof to be shifted b/w the parties.
   

• 
  The real issue here is whether the appellants committed a fault.  a reasonable person respect the rights and freedom of everyone and carries out his or her obligations while bearing his or her own rights in mind.
  
• 
  In the case at bar, the dissemination of the respondent’s image constitute a violation of her privacy and of her right to her image = a fault. A reasonable person would have been more diligent and would at least have tried to obtain the respondent’s consent to the publication of her photograph. In balancing the public’s right to information, the appellants’ fault is not justified by that public interest.
  
• 
  Causation is not at issue here.
  
• 
  As to damages, there is no evident shown that the respondent suffered prejudice. So no damage, no compensation.
  

Arthur v. Gravel, [1991] R.J.Q. 2123 (C.A.).

• 
  although public figures should expect to be subject to more scrutiny than private citizens, the legislator did not make a distinction in the legislation between politicians and every one else. Running for public office does not renounce your right to dignity and fair treatment.
  
• 
  there is a distinction between defamation: allegation or imputation of a fact that undermine’s ones dignity and insult: outrageous expression, contempt or abuse that has nothing to do with any fact
  
• 
  in this case, Gravel was not defamed and cannot complain about the insults that Arthur made
  
• 
  Gravel pretends that Arthur implied that he had been a patient in the hospital, but judge diagrees
  
• 
  Gravel says that Arthur insinuated that he had personally paid for and hired a criminal, but judge finds that Arthur was just highlighting his involvement in a failed endeavour. He implied incompetence, but not dishonesty
  
• 
  in terms of the mopology comments, he is definitely ridiculing him, but this does not constitute an abusive exercise of freedom of expression, also guaranteed by the Charter. It does not go beying what an elected official in a society such as ours is exposed to. To many condidtions on what media can and cannot say is too dangerous for democracy.
  

• 
  this is not a case of defamation, but rather a case of art. 4 of QC charter (honour, dignity. Etc.)
  
• 
  the problem is Baudouin doesn’t really explain the difference betweeen the two!
  
• 
  Gravel can be criticized for his political ability and competence, but not ridiculed because of his social origins
  
• 
  when there is no connection between what is criticized and the job to be done, it is harder to justify insults in the name of freedom of expression
  
• 
  of course public figures have to be a bit more tolerant, but let’s also not forget about the think skull rule which says that you take the victim as you find him. Politicians are not obliged to be completely insensitive
  
• 
  the mopology comments were a violation of art. 4, the trial judge’s award of 20,000 in moral and 10,000 in exemplary is not very generous, but it is inapropriate to interfere with the trial judge’s appreciation and to substitute my own judgement.
  

A. Popovici, “De l'impact de la Charte des droits et libertés de la personne sur le droit de la responsabilité civile: un mariage raté?” [1998-1999] Meredith Mem. Lect. 49-94.

• 
  Preliminary provision of the C.C.Q. = “The Civil Code of Québec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property…”
  
• 
  Popovici says there is a separate regime of civil liability under the Quebec Charter.
  

CLASS 13 Revision and Preparation for the Examination