MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

Pine Tree Justice 299
B. Confusion between civil and criminal law
By definition, punitive damages incorporate punishment and censure
as goals among their other objects. 54 In Whiten, LeBel J is resigned to the
entrenchment of punitive damages as a remedy in the system of Canadian
law, but nonetheless comments on how Whiten particularly and punitive
damages generally tend to distort the function of tort law:
The award of punitive damages in discussion here leads us far away from this
principle. It tends to turn tort law upside down. It transmogrifies what should
have remained an incident of a contracts case into the central issue of the
dispute. The main purpose of the action becomes the search for punishment, not
compensation. Perhaps, at some time in the future, this will be viewed as part of
a broad intellectual and social movement of privatization of criminal justice,
consonant with the general evolution of society. For the time being, without
using in terrorem arguments, such an award has a potential to alter significantly
what would appear to have been the proper function of tort law. 55
This criticism of punitive damages has a long pedigree. Undeniably,
punitive damages blur the line between criminal and civil law. As LeBel J
identifies, it is a step towards the privatisation of criminal justice. The
blurring of these lines was described with colourful indignation by Foster J
in Fay v Parker:
What is a civil remedy but reparation for a wrong inflicted, to the injury of the
party seeking redress,—compensation for damage sustained by the plaintiff? How
could the idea of punishment be deliberately and designedly installed as a
doctrine of civil remedies? Is not punishment out of place, irregular, anomalous,
exceptional, unjust, unscientific, not to say absurd and ridiculous, when classed
among civil remedies? What kind of a civil remedy for the plaintiff is the
punishment of the defendant? The idea is wrong. It is a monstrous heresy. It is
an unsightly and an unhealthy excrescence, deforming the symmetry of the body
of the law. 56
Two representative cases will demonstrate the practical implications of
the confusion and overlap between punitive damages in a civil trial and a
criminal prosecution on the same facts.
694 (2d Cir 1943) at para 5.
54
David G Owen, “A Punitive Damages Overview: Functions, Problems and Reform”
(1994) 39 Vill L Rev 363 at 373-382. Owen identifies five functions of punitive
damages: 1. Education 2. Retribution 3. Deterrence 4. Compensation 5. Law
Enforcement.
55
Supra note 1 at para 148.
56
Fay v Parker, 53 New Hampshire Reports 342 (1872) at 382.