A-44-87
Her Majesty the Queen (Appellant)
v.
Charles Lawrence LeBar (Respondent)
INDEXED As: LEBAR v. CANADA
Court of Appeal, Urie, Mahoney and MacGuigan
JJ.—Ottawa, October 12 and 27, 1988.
Constitutional law — Fundamental principles — Rule of
law — Federal Court of Appeal, upon special case under R.
475, having interpreted statutory provision on sentence calcu
lation — Another convict detained beyond release date as
calculated in accordance with Court's interpretation — Crown
arguing earlier decision merely declaratory and matter not res
judicata for want of mutuality of parties — That government
officials obey law is fundamental to principle of rule of law,
enshrined in preamble to Charter — Unthinkable enforcement
process needed to ensure Government discharging legal obliga
tions — Officials could not have doubted generality of Court's
pronouncement — Government's disobedience of declaratory
judgment scandalous — Courses open to Government if judi
cial authorities in conflict.
Practice — Judgments and orders — Effect of declaratory
judgment upon special case under R. 475 — Court of appeal
interpreting sentence calculation provision of Criminal Code
— Crown arguing another convict's case not res judicata for
want of mutuality of parties — Rationale for declaratory
awards Unthinkable enforcement process required to ensure
government officials obey law — Consequence of rule of law
principle for declaratory proceedings — Crown's argument
ignores reality — Court having answered statutory interpreta
tion question in universal proposition Options open to
officials if believing conflict of judicial authority.
Penitentiaries — Federal Court having, in universal propo
sition, interpreted Code provision as to sentence calculation
Sentence administrator at Collins Bay notified plaintiff en
titled to immediate release based on Court's interpretation —
Detained further 43 days — Whether Crown's servants bound
to apply earlier decision in plaintiffs case — Argument that
declaratory judgment not coercive against Crown — Court of
Appeal sustaining Trial Division judgment awarding general
exemplary damages.
Crown — Torts — Unlawful imprisonment — Penitentiary
convict detained 43 days beyond release date as calculated in
accordance with Court interpretation of Code sentence calcu
lation provision — Trial Judge awarding general exemplary
damages — Sustained on appeal — Government officials
having no option to disobey law — Scandalous for Government
to disobey declaratory judgment — Unnecessary respondent
show malice or bad faith where oppressive, arbitrary or uncon
stitutional action by government servants — Respondent's
cross-appeal as to quantum of damages dismissed.
This was an appeal and cross-appeal against the Trial Divi
sion's declaration that the respondent should have been released
from penitentiary six weeks before the date he was in fact
released. The respondent was awarded general damages of
$430 and $10,000 as exemplary damages. The Crown is disput
ing the award of exemplary damages arguing that the Mac/n-
tyre judgment, relied upon at trial, was merely declaratory and
had not rendered the matter res judicata as there was not an
exact mutuality of parties. The respondent, in his cross-appeal,
contested the quantum of general and exemplary damages
awarded.
Held, the appeal and cross-appeal should be dismissed.
The Court's holding in the Mac/ntyre case affected not only
the rights of the inmate in that case, but answered in a
universal proposition a general question as to the meaning of
section 24.2 of the Penitentiary Act. The generality of the
Court's pronouncement could not have been doubted by govern
ment officials. The Government must be seen to be obedient to
the law.
In awarding exemplary damages, the Court was not required
to find malice in the case of oppressive, arbitrary or unconstitu
tional government actions.
The respondent failed to establish any error by the Trial
Judge in his award of damages.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14, s.
I 4(4)(e).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. I l (U.K.).
Criminal Code, R.S.C. 1970, e. C-34, s. 137 (as am. by
S.C. 1972, c. 13, s. 9; 1976-77, c. 53, s. 6).
Federal Court Rules, C.R.C., e. 663, R. 338(2).
Penitentiary Act, R.S.C. 1970, c. P-6, s. 24.2 (as added
by S.C. 1976-77, c. 53, s. 41).
CASES JUDICIALLY CONSIDERED
APPLIED:
Mactntyre v. The Queen, [1983] 1 F.C. 603 (C.A.);
Dyson v. Attorney-General, [1911] 1 K.B. 410 (C.A.);
Reference re Manitoba Language Rights, [1985] 1
S.C.R. 721; B.C.G.E.U. v. British Columbia (Attorney
General), [ 1988] 2 S.C.R. 214; Gould v. Attorney Gener
al of Canada, [ 1984] 1 F.C. 1 1 19 (T.D.); [ 1984] 1 F.C.
1 133 (C.A.); affirmed by [1984] 2 S.C.R. 124; 13 D.L.R.
(4th) 491; Rookes v. Barnard, [1964] 1 All E.R. 367
(H.L.); Lindal v. Linda!, [1981] 2 S.C.R. 629; 129
D.L.R. (3d) 263.
DISTINGUISHED:
Re Sowa and the Queen (1979), 50 C.C.C. (2d) 513
(Sask. C.A.).
CONSIDERED:
Letter Carriers' Union of Canada v. Canada Post Corpo
ration (1986), 8 F.T.R. 93 (T.D.); Emms v. The Queen et
al., [1979] 2 S.C.R. 1148; R. v. Ouimet, [1979] I F.C. 55
(C.A.); Broome v. Cassell & Co. Ltd., [1972] A.C. 1027
(H.L.).
REFERRED TO:
Andrews et al. v. Grand & Toy Alberta Ltd. et al.,
[1978] 2 S.C.R. 229; 83 D.L.R. (3d) 452; Arnold et al. v.
Teno et al., [1978] 2 S.C.R. 287; 83 D.L.R. (3d) 609;
Thornton v. School District No. 57 (Prince George) et al.,
[1978] 2 S.C.R. 267; 83 D.L.R. (3d) 480.
AUTHORS CITED
Wade, H.W.R. Administrative Law, 5th ed., Oxford:
Clarendon Press, 1982.
Evans, J.M. De Smith's Judicial Review of Administra
tive Action, 4th ed., London: Stevens & Sons Ltd.,
1980.
Dicey, A.V. Introduction to the Study of the Law of the
Constitution, 10th ed., London: Macmillan & Co. Ltd.,
1959.
COUNSEL:
Donald J. Rennie for appellant.
Fergus J. O'Connor for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
O'Connor, Ecclestone & Kaiser, Kingston, for
respondent.
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: This is an appeal and cross-
appeal from the judgment of Muldoon J. rendered
on January 12, 1987 [[1987] 1 F.C. 585], wherein
he declared that the respondent was entitled to
have been released from prison on August 10,
1982, and not September 22, 1982, when he was in
fact released.
Muldoon J. awarded general damages in the
amount of $430 and exemplary damages in the
amount of $10,000. In this Court, the appellant
contested neither the finding of liability nor the
award of general damages, and appealed only with
respect to the award of exemplary damages. In his
cross-appeal, the respondent contested both the
award of general damages and that of exemplary
damages.
During the summer of 1982, the respondent was
completing a term of imprisonment with an
expected release date of October 22, 1982. The
salient events were tabulated as follows by the
Trial Judge [at pages 588-589]:
July 19 —Federal Court of Appeal released its unani
mous decision in Maclntyre v. The Queen,
[ 1983] 1 F.C. 603;
August 10 Plaintiff's correct date for release according to
the law's interpretation which was expressed
and decided in Maclntyre;
August 13 —The Correctional Service of Canada, through
notification of the sentence administrator at
Collins Bay Penitentiary, (all servants of the
defendant) were notified that the Maclntyre
decision affected the plaintiff's duration of his
term and that his solicitor opined that the
plaintiff ought to be released forthwith;
September 14—Statement of claim and notice of motion for
interim injunction filed, the latter returnable
on September 23;
September 22 The plaintiff was released from incarceration:
—Defendant's solicitor confirms consent to
the plaintiff's withdrawal of the above-men
tioned motion, without costs;
On these facts, the Trial Judge held as follows
[at page 599]:
The Court's record reveals that the Maclntyre judgment was in
fact signed on July 19, 1982. The defendant's servants were
notified of its effect in regard to the plaintiff by his solicitor on
August 13, 1982. He was not released until September 22,
1982. The defendant's solicitor knows the law. The clear infer
ence of that unexplained prodigious delay is negligence and
wilful or wanton disregard of the plaintiff's right to liberty.
This Court so finds. Pondering the possibility of seeking leave
to appeal further to the Supreme Court of Canada does not
excuse the unlawful imprisonment. Accordingly, this Court
finds that the plaintiff was, and remains, entitled to have the
term of his imprisonment calculated in accordance with the
judgment in Macintyre v. The Queen, signed and released by
the Federal Court of Appeal on July 19, 1982, and now
reported in [1983] I F.C. 603. The Crown's servants were
obliged to apply it to the defendant. They refused or neglected
to do so. Accordingly, the defendant is liable to the plaintiff in
damages for having kept him involuntarily and unnecessarily
imprisoned in Collins Bay penitentiary during the 43 days from
and including August 11, 1982, through September 22, 1982.
As a result of this unlawful imprisonment, the
learned Trial Judge awarded exemplary damages
of $10,000, which he justified as follows [at pages
608-6091:
To ignore the Court's decision rendered the previous July 19
until September 22, 1982, was to evade the duty which it
lawfully imposed for a period of 65 days. To ignore the
solicitor's notification of the effect of the Court's decision from
August 13 to September 22 was to purport to repudiate both
the decision and the duty it imposed for a period of 40 days.
That is high-handed and arbitrary detention of the plaintiff.
The Court's interpretation of the pertinent law, as already
noted, became operative and authoritative upon its judgment
having been rendered.
Exemplary damages are those which are also called "puni-
tive", "aggravated", "retributory" and according to Linden
[Canadian Tort Law, (3rd ed., 1982, Butterworths, Toronto) p.
5I ] even "vindictive" and "penal". Such a varied, but single-
minded and strong nomenclature certainly conveys the judicial
intention to denounce the defendant's misconduct. Although
keeping the plaintiff unlawfully for 43 days after his 20 years of
imprisonment, excepting periods of his being unlawfully at
large, could hardly inflict any additional humiliation or loss of
reputation upon him, it did constitute oppressive, arbitrary and
fundamentally unconstitutional conduct by servants of the
defendant. In this country where liberty is a constitutionally,
albeit conditionally, protected individual right and societal
value, it is not tolerable to treat even this plaintiff's self-cheap
ened liberty, or anyone else's precious liberty, with insouciant
disregard.
In all the circumstances here, however, there is one pejora
tive quality of the defendant's servants' misconduct which was
not proved on the part of anyone in particular and which
cannot be inferred, and that is malice. Their negligence and
their oppressive and wilful or wanton disregard of the plaintiff's
right to be released were amply abusive to support the award of
exemplary damages. Despite reasonably timely notification,
they persisted in deliberately detaining him in prison until the
day before his motion for a mandatory injunction was return
able in this Court in September, 1982. Unjustified by any
explanation, their misconduct is legally unjustifiable.
Here in the matter of exemplary damages, the taxpayers
again will have to pay but now a more substantial assessment
for the misconduct of the defendant's servants. This task of
assessment is not an exact science. The assessment of exem
plary damages must be an adequate disapproval of those serv
ants' reprehensible misconduct in ignoring the law whose
authoritative interpretation was clearly signalled to them, and
in oppressively, abusively and deliberately disregarding the
plaintiff's right to regain his conditional liberty and liberation
from unlawful imprisonment. In light of the jurisprudence,
which, unfortunately for the assessor of damages, does not
present any exactly, or even nearly, similar situation, the Court
awards the plaintiff the sum of $10,000 exemplary damages.
The effect of the Maclntyre decision, [Maclntyre
v. The Queen, [1983] 1 F.C. 603 (C.A.)], was to
vary the interpretation accorded section 137 of the
Criminal Code [R.S.C. 1970, c. C-34 (as am. by
S.C. 1972, c. 13, s. 9; 1976-77, c. 53, s. 6)] as to
the calculation of sentences in situations where a
prisoner has committed an offence while unlawful
ly at large.
The appellant's fundamental contention, in oral
argument, was that exemplary damages could not
be awarded since the Maclntyre decision was
merely declaratory and that a declaration does not
render a matter res judicata where there is not an
exact mutuality of parties. In support of this argu
ment, the appellant cited H. W. R. Wade,
Administrative Law, 5th ed., at page 523, to the
following effect:
A declaratory judgment by itself merely states some existing
legal situation. It requires no one to do anything and to
disregard it will not be contempt of court. By enabling a party
to discover what his legal position is, it opens the way to the use
of other remedies for giving effect to it, if that should be
necessary.
The appellant also relied on the words of Addy
J. in Letter Carriers' Union of Canada v. Canada
Post Corporation (1986), 8 F.T.R. 93 (T.D.), at
page 94, who, in citing the above passage from
Wade, commented that no declaratory judgment
or order "is capable of sustaining, without more,
any execution process nor a fortiori any contempt
of court remedy".
The appellant also drew the Court's attention to
Emms v. The Queen et al., [1979] 2 S.C.R. 1148.
In Emms, this Court had held, at [1978] 2 F.C.
174, that the appellant government employee was
properly released from employment during an
extension of the normal probation period, but
subsequently in R. v. Ouimet, [1979] 1 F.C. 55
(C.A.), this Court had held that the regulation
allowing management to extend the normal proba
tionary period was ultra vires. Ouimet was not
appealed but Emms was. Pigeon J., for the concur
ring minority on the Supreme Court, raised the
same issue as in the case at bar without deciding
it, at pages 1160-1162:
1 know of no case in which the doctrine of res judicata has
yet been applied to a judicial determination of the validity of an
administrative regulation. But the principles governing res
judicata are not statutory, they are "judge-made law" like the
rule of evidence dealt with in Ares v. Venner ([1970] S.C.R.
608) and are to be developed by the courts in accordance with
the needs of the time.
The judgment at trial in Ouimet indicates how serious it
would be to treat a declaration of invalidity as binding only
towards the plaintiff in the case in which it was issued.
Thus it will be seen that if a formal declaration of invalidity
of an administrative regulation is not considered effective
towards all those who are subject thereto, it may mean that all
other persons concerned with the application of the regulation,
including subordinate administrative agencies, have to keep on
giving effect to what has been declared a nullity. It is obviously
for the purpose of avoiding this undesirable consequence that,
in municipal law, the quashing of a by-law is held to be
effective "in rem".
Should it be possible for an administrative agency to allow a
declaration of invalidity to stand in a given case while ignoring
it towards other parties, on the chance that in another case it
might succeed in having it overruled by a higher court, if not by
a different judge? Should the situation be viewed in the same
way as in the case of declarations of invalidity of statutes which
seem to have always been considered only as precedents?
After anxious consideration, I find it unnecessary to express
an opinion on this difficult question because, assuming the
respondent is entitled to ask that the judgment in Ouimet be
overruled, I find no reason to do so. No argument was submit
ted to support the validity of s. 30(2) of the Public Service
Employment Regulations which had not been considered and
dealt with by the trial judge and the Federal Court of Appeal
and no error was shown in the decisions rendered thereupon.
Martland J. for the majority decided the case
without reference to the issue. In the result, this
case is not an authority either way.
Declaratory relief, as we now know it, first
appeared in the case law only in Dyson v. Attor-
ney-General, [1911] 1 K.B. 410 (C.A.). A decla
ration differs from other judicial orders in that it
declares what the law is without pronouncing any
sanction against the defendant, but the issue which
is determined by a declaration clearly becomes res
judicata between the parties and the judgment a
binding precedent. The rationale for declaratory
awards is expressed as follows by De Smith's
Judicial Review of Administrative Action, 4th ed.,
by J. M. Evans, London: Stevens & Sons Ltd.,
1980, at page 475:
[lit is sometimes neither necessary nor desirable for a legal
dispute to be settled by the threat of coercion. If one has a
dispute with a friend and a ruling by a court of law on the
relevant legal issues is required, it is incongruous for one to be
obliged to ask the court to award sanctions against him. And no
matter what may be the personal relationship of the parties,
litigation in which sanctions are sought is apt to generate an
acerbity which is contrary to the interests of the parties and of
the community. Again, it is often unseemly to proceed on the
implied assumption that the defendant will fail to observe the
law as declared by the court unless contingent sanctions exist.
Especially is this true where the defendant is a body invested
with public responsibilities. Moreover, there may be serious
practical difficulties in the way of securing judicial enforcement
of a coercive order against the organs of the State. (Orders
made by the European Court (the Court of the Communities)
against member-States are almost exclusively declaratory.)
There are also cases where the award of coercive relief would
be unfair to the defendant but where the validity of the
plaintiff's claim against him warrants formal judicial recogni
tion. In all these classes of cases it is highly advantageous for
the courts to have power to make binding declarations of the
rights and duties of the parties, without the necessity of decree
ing any consequential relief.
The force of this analysis, it seems to me, is that
a declaration is a peculiarly apt instrument in
dealing with bodies "invested with public respon
sibilities" because it can be assumed that they will,
without coercion, comply with the law as stated by
the courts. Hence the inability of a declaration to
sustain, without more, an execution process should
not be seen as an inadequacy of declaratory pro
ceedings vis-Ã -vis the Government. Any power to
enforce such a judgment against the Government
would be a superfluity.
In my opinion, the necessity for the Government
and its officials to obey the law is the fundamental
aspect of the principle of the rule of law, which is
now enshrined in our Constitution by the preamble
to the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)]. This aspect was noted by A. V. Dicey,
Introduction to the Study of the Law of the
Constitution, 10th ed., E. C. S. Wade, 1959, pages
193, 202-203, and was authoritatively established
by the Supreme Court in its per curiam decision in
Reference re Manitoba Language Rights, [1985] 1
S.C.R. 721, at page 748:'
The rule of law, a fundamental principle of our Constitution,
must mean at least two things. First, that the law is supreme
over officials of the government as well as private individuals,
and thereby preclusive of the influence of arbitrary power.
Elusive as it is as a concept, the rule of law must in
all events mean "the law is supreme" and that
officials of the Government have no option to
disobey it. It would be unthinkable, under the rule
of law, to assume that a process of enforcement is
required to ensure that the Government and its
officials will faithfully discharge their obligations
under the law. That the Government must and will
obey the law is a first principle of our Constitution.
The consequence of this principle for declarato-
ry proceedings has, it seems to me, already been
implicitly established by this Court in the Gould
case: Gould v. Attorney General of Canada,
[1984] 1 F.C. 1119 (T.D.), Reed J.; Attorney
General of Canada v. Gould, [1984] 1 F.C. 1133
(C.A.); affirmed by [ 1984] 2 S.C.R. 124; 13
D.L.R. (4th) 491
That case involved a motion for an interlocutory
injunction (in an action for declaratory relief)
requiring the Chief Electoral Officer and the
Solicitor General to enable the applicant peniten
tiary inmate to exercise his right to vote in the
' In its recent decision in B.C.G.E.U. v. British Columbia
(Attorney General), [19881 2 S.C.R. 214, at p. 229, Dickson
C.J.C. writing for the majority declared that "rule of law is the
very foundation of the Charter."
1984 federal election, despite paragraph 14(4)(e)
of the Canada Elections Act [R.S.C. 1970 (1st
Supp.), c. 14]. In assessing the balance of conve
nience with respect to an interlocutory injunction,
the Trial Judge said, at page 1127:
It seems clear that the balance of convenience is all in the
applicant's favour in this case. His claim relates only to his
right to vote. He is not claiming on behalf of all inmates.
I recognize that had the claim been on behalf of a great
many inmates the balance of convenience might have tipped in
the other direction because it would simply be impossible to set
up the machinery before September 4 for providing all inmates
(or a large number) with the right to vote.
Mahoney J. for the majority in this Court wrote as
follows, at page 1139:
To treat the action as affecting only the rights of the
respondent is to ignore reality. If paragraph 14(4)(e) is found
to be invalid in whole or part, it will, to that extent, be invalid
as to every incarcerated prisoner in Canada.
The Chief Justice of Canada, in dismissing the
appeal to the Supreme Court, commented [at page
124] that "We generally share the views expressed
by Mr. Justice Mahoney".
It seems to me that we must similarly say that
to treat the Macdntyre case as affecting only the
rights of the inmate in that case is to ignore
reality—and indeed the wording of the Court's
holding in that case, which answered in a universal
proposition a general question as to the meaning of
section 24.2 of the Penitentiary Act [R.S.C. 1970,
c. P-6 (as added by S.C. 1976-77, c. 53, s. 41)].
The question was put this way, at page 609:
7. The question for adjudication proposed by and concurred in
by both parties is as follows:
Does the term in Section 24.2 of the Penitentiary Act,
namely "The sentence he was then serving", mean a "Sentence
consisting of a term of imprisonment commencing on the
earliest day on which any of those sentences of imprisonment
(to which he was subject) commenced and ending on the
expiration of the last to expire of such terms of imprisonment",
pursuant to Section 14(1) of the Parole Act?
8. If the Court shall be of opinion in the positive, a declaratory
order is to be made that the Applicant is entitled to earned
remission up to one-third of the aggregate calculated on that
basis.
9. If the Court shall be of opinion in a negative, then the
Applicant is not entitled to earn any earned remission after
December 1st, 1979, and his release date is to be calculated
accordingly.
To that question, the Court's stated answer was as
follows, at page 624:
I am accordingly of the opinion that the appeal should be
allowed, the order appealed from should be set aside and the
question posed in paragraph 7 of the special case should be
answered in the positive. There should also be a declaration, in
accordance with paragraph 8 of the special case, that the
appellant is entitled to statutory and earned remission up to
one-third of the aggregate calculated on the basis that "the
sentence he is then serving" in section 24.2 of the Penitentiary
Act means, in the case of the appellant, a "sentence consisting
of a term of imprisonment commencing on the earliest day on
which any of the sentences of imprisonment to which the
appellant was subject commenced, i.e. July 6, 1971, and ending
on the expiration of the last to expire of such terms of imprison
ment, pursuant to subsection 14(1) of the Parole Act".
Government officials could not have been in any
doubt as to the generality of the Court's
pronouncement.
The appellant argued before this Court that
Government officials must nevertheless have been
in a quandary because of the apparent conflict of
the Maclntyre decision with that of the Saskatche-
wan Court of Appeal in Re Sowa and the Queen
(1979), 50 C.C.C. (2d) 513. Thurlow C.J., concur
ring in Maclntyre, expressly distinguished Sowa
(at page 605). The respondent argued that the
majority implicitly did so as well.
But accepting, arguendo, that the two cases
were in conflict and that officials were caught in a
genuine dilemma as to what to do with respect to
inmates in the Prince Albert Penitentiary in Sas-
katchewan, the proper course of action for the
appellant, as the Trial Judge pointed out, would
have been to seek to have the judgment in MacIn-
tyre postdated pursuant to Rule 338(2) [Federal
Court Rules, C.R.C., c. 663] or to seek leave to
appeal to the Supreme Court along with a stay of
the Maclntyre judgment. Even if in the minds of
its officials it has good reason to pause and consid
er, it is not enough for the Government to remain
outwardly mute and disobedient in the face of a
declaratory judgment, because such an apparent
failure to obey the law is a ready occasion of
scandal for the public. The Government must be
seen to be obedient to the law. If it has some
reason for uncertainty, it owes it to the principle of
the rule of law to reveal its position publicly,
through a legal challenge to its apparent duty as
declared by the courts. In my view, the rule of law
can mean no less. I therefore reject the appellant's
contention that she had no obligation to follow the
declaratory judgment in Maclntyre.
The other issue on the appeal is that of the exem
plary damages in themselves.
The appellant argued that, since the purpose of
an award of exemplary damages is deterrence
rather than compensation, such damages are
awarded only to punish a tortfeaser for high-hand
ed, malicious or arbitrary conduct, conduct that is
sufficiently outrageous as to warrant the condem
nation of the Court, and never where the defen
dant acted in good faith. The Trial Judge made no
finding of malice. It was, he said, [at page 609]
"not proved on the part of anyone in particular
and ... cannot be inferred".
The leading authority, Rookes v. Barnard,
[1964] 1 All E.R. 367 (H.L.), dealt with the
question of exemplary damages for the tort of
intimidation on the part of a trade union. Lord
Devlin stated the issue thus, at page 407:
Exemplary damages are essentially different from ordinary
damages. The object of damages in the usual sense of the term
is to compensate. The object of exemplary damages is to punish
and deter. It may well be thought that this confuses the civil
and criminal functions of the law; and indeed, so far as 1 know,
the idea of exemplary damages is peculiar to English law.
There is not any decision of this House approving an award of
exemplary damages and your lordships therefore have to con
sider whether it is open to the House to remove an anomaly
from the law of England.
After reviewing the authorities, he concluded, at
pages 410-411:
These authorities convince me of two things. First, that your
lordships could not without a complete disregard of precedent,
and indeed of statute, now arrive at a determination that
refused altogether to recognise the exemplary principle.
Secondly, that there are certain categories of cases in which an
award of exemplary damages can serve a useful purpose in
vindicating the strength of the law, and thus affording a
practical justification for admitting into the civil law a principle
which ought logically to belong to the criminal. I propose to
state what these two categories are ....
The first category is oppressive, arbitrary or unconstitutional
action by the servants of the government. I should not extend
this category,—I say this with particular reference to the facts
of this case,—to oppressive action by private corporations or
individuals. Where one man is more powerful than another, it is
inevitable that he will try to use his power to gain his ends; and
if his power is much greater than the other's, he might perhaps
be said to be using it oppressively. 1f he uses his power illegally,
he must of course pay for his illegality in the ordinary way; but
he is not to be punished simply because he is the more
powerful. In the case of the government it is different, for the
servants of the government are also the servants of the people
and the use of their power must always be subordinate to their
duty of service.
Cases in the second category are those in which the defen
dant's conduct has been calculated by him to make a profit for
himself which may well exceed the compensation payable to the
plaintiff.
In a case in which exemplary damages are appropriate, a jury
should be directed that if, but only if, the sum which they have
in mind to award as compensation (which may of course be a
sum aggravated by the way in which the defendant has behaved
to the plaintiff) is inadequate to punish him for his outrageous
conduct, to mark their disapproval of such conduct and to deter
him from repeating it, then they can award some larger sum.
Lord Devlin here recognized that "outrageous"
or "oppressive" conduct on the part of the Govern
ment is quite different from similar conduct by
powerful corporations or individuals, and that it is
much more serious, "for the servants of the gov
ernment are also the servants of the people and the
use of their power must always be subordinate to
their duty of service." 2 There is no mention that
the conduct must be malicious or in bad faith.
2 In a subsequent case, Broome v. Cassell & Co. Ltd., [1972]
A.C. 1027 (H.L.), Lord Diplock alone doubted that it is still
necessary to retain this category relating to government action.
Lord Devlin's category is "oppressive, arbitrary or
unconstitutional action by the servants of the gov
ernment." This was the very standard applied by
the learned Trial Judge in the case at bar. He
referred to [at page 609] the "oppressive and
wilful or wanton disregard of the plaintiff's right
to be released", and to [at page 609] the persist
ence "in deliberately detaining him in prison until
the day before his motion for a mandatory injunc
tion was returnable to this Court".
The appellant argued that the Trial Judge drew
a wrong inference from the failure to act, given the
conflicting Saskatchewan decision and the fact
that the date on which the respondent was released
was still well within the time prescribed by law
within which leave to appeal could have been
sought against the Maclntyre decision.
But in my view, this argument could succeed
only if malice were required to found exemplary
damages. If, as seems clear to me, malice is not
necessary for the existence of "oppressive, arbi
trary or unconstitutional action by the servants of
the government", the appellant's argument serves
only to strengthen the Trial Judge's finding that
the conduct of the Government was wilful and
deliberate. As I have already said in dealing with
an earlier argument, apparently persistent failure
by the Government to obey a clear judicial deci
sion is not consonant with the principle of the rule
of law.
I would therefore dismiss the appeal with costs.
In his cross-appeal, the respondent sought an
increase in general damages from $10 a day to
$500 a day and in exemplary damages from
$10,000 to $50,000.
The learned Trial Judge reviewed the law,
including all of the authorities cited before this
Court by the respondent, and also the respondent's
long life of criminal activity, beginning with a first
incarceration in 1942 and culminating in a convic
tion for breaking and entering in March 1983,
after the events herein, to which the Trial Judge
attributed the delay in the hearing of this trial
until the fall of 1986. On general damages, he
concluded [at pages 606-6071:
The above recitation indicates why the damages awarded in
the cases cited for the plaintiff are greater than he can expect
to recover here. Upon becoming sui juris, if one does not
exercise that restraint which nourishes personal liberty but
continually victimizes others by means of criminal depreda
tions, one is responsible for the devaluation of one's own liberty.
Such a person cannot reasonably require the people and govern
ment of Canada to pay him a princely price for the liberty
which he himself has constantly undervalued and squandered.
The plaintiff is a virtually life-long tax consumer who seeks to
impose the price of his 43 days of loss of his cheap liberty on
the taxpayers of Canada. Indeed, if all monetary values were
counterpoised as sums, it is almost certain that the plaintiff
would owe the people of Canada, whom he has cheated and
robbed, more for food and lodging, social burden and criminal
misconduct than he could ever pay. In that regard, it may be
wondered why the defendant did not assert a set-off herein.
How, then, is the plaintiff to be compensated for his self-
devalued, squandered liberty? His behavioural record and his
subsequent misconduct indicate the probability that, left at
large to his own devices on August 10, 1982, the plaintiff could
well have incurred negative gain during the following 43 days.
Yet, he would (but for how long?) have been able to draw the
sweet air of liberty and, arguably, might have been able to find
legitimate employment. That counts for something, but in the
plaintiff's particular case, not much. In 1982 he was being paid
a wage of $35 per week in Collins Bay. If that were his measure
of fixed compensation—$5 per day his damages would be
assessed at $215 for the 43 days. But even to the Charles
LeBars of this world loss of liberty is worth more than that.
Doubling that sum to $10, and realizing that if he had been so
paid over the last 20 years, 1962 to 1982, when he was
incarcerated (generously overlooking his periods of being
unlawfully at large, when self-help was his necessity), it is
evident that he could have emerged from prison in 1982 with
$10 x 365 days x 20) $73,000, plus interest if he had frugally
saved it all. The taxpayers of Canada cannot reasonably be
expected to pay more than $10 per day in general damages for
the liberty which Mr. LeBar himself has so apparently despised
both before and after August 10, 1982. The Court therefore
awards the plaintiff $430 in general damages for his unlawful
imprisonment between midnight of August 10, 1982, and what
ever time he was released on September 22, 1982.
In my opinion, the respondent has not succeeded in
establishing any reviewable error in this award.
Indeed, the Supreme Court of Canada adopted a
functional approach for general damages in its
trilogy of judgments of January 19, 1978: Andrews
et al. v. Grand & Toy Alberta Ltd. et al., [1978] 2
S.C.R. 229; 83 D.L.R. (3d) 452; Arnold et al. v.
Teno et al., [1978] 2 S.C.R. 287; 83 D.L.R. (3d)
609; Thornton v. School District No. 57 (Prince
George) et al., [1978] 2 S.C.R. 267; 83 D.L.R.
(3d) 480. Subsequently, in Lindal v. Lindal,
[1981] 2 S.C.R. 629, at page 637; 129 D.L.R. (3d)
263, at page 270, the Court emphasized that "An
appreciation of the individual's loss is the key"
(per Dickson J. as he then was). This was the
approach of the Trial Judge.
In awarding the respondent the sum of $10,000
for exemplary damages, the learned Trial Judge
noted [at page 609] that "the jurisprudence, .. .
unfortunately for the assessor of damages, does not
present any exactly, or even nearly, similar situa
tion". His analysis of the factual evidence was as
follows [at pages 607-608]:
Counsel for the defendant pleaded in argument that there
was at the relevant time no computer whereby the defendant's
servants could immediately identify the "20 or so" prison
inmates (Transcript: pages 73 and 74) out of a total inmate
population of "13,000 people incarcerated in some seven prov
inces" (Transcript: page 89) who were in the same plight as the
plaintiff's. As counsel rightly noted, there is no evidence before
the Court about the necessity of effecting a manual search of
inmate records, but even so, one may in law ask, "So, what?"
Complex as the legislative provisions are, the judgment in the
Maclntyre case did not further complicate computation of
terms of imprisonment. The statutory provisions remain as
complex as before.
It must be remembered that, through his solicitor and coun
sel the plaintiff attempted appropriately to mitigate damages
by reasonably timely notification of the defendant's proper
servants, and even the Minister, to the effect that he ought to
be released on the basis of a proper method of calculation
declared by the Federal Court of Appeal. If the prison authori
ties had set a sentence administrator immediately to the task of
computing and verifying the plaintiff's release date, and if he
had thereupon been released, the Court would not now be
considering exemplary damages. No one would begrudge the
defendant's officials taking several hours, even a day, after
notification, to calculate the plaintiff's correct date of release.
Again, the respondent has failed to demonstrate
any error. The sum of $10,000 is far from negli
gible and I believe large enough to qualify as a
deterrent against future conduct of this kind, espe
cially since the financial consequences will in all
likelihood be visited upon the budget of the par
ticular Government agency at fault.
I would therefore dismiss the cross-appeal. Since
the respondent was successful on the appeal, and
since a minimum of the parties' effort was directed
to the cross-appeal, I would not award costs on the
cross-appeal.
URIE J.: I agree.
MAHONEY J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.