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

310 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
At all stages in a criminal or civil case, whether before a judge or a
jury, the justice system depends on complete argument to reach an
appropriate result. In a criminal case, opposing counsel make arguments
and recommendations to the sentencing judge; he or she depends on
counsel’s representations in order to arrive at a fit sentence. In civil and
criminal trials, counsel make arguments to juries, advocating for the jury
to believe them over their opponents. Only when determining the size of
punitive damages do we leave the trier of fact alone, to make its decision
in the absence of argument and precedent. In Whiten, Binnie J was
uncomfortable with the trial judge’s “skeletal” 84 instruction to the jury.
However, his recommendations for change are not substantially different.
Juries are to be given only minimal information when deciding on the size
of punitive damage awards: “They should be told in some detail about the
function of punitive damages and the factors that govern both the award
and the assessment of a proper amount.” 85 Binnie J refuses to permit juries
to hear about previous awards in similar cases unless counsel can agree on
an appropriate range. Juries are left to administer punishment based on
opinion, without argument and without reference to precedent. Their
decisions are to be based solely on their level of outrage and indignation at
the particular facts of the case: is this not the “palm tree justice” 86 Lord
Reid warned of in Broome?
LeBel J took the concern about palm tree justice and Canadianised it.
He was concerned about what was developing “under the pine trees of this
country”, 87 as his conclusion in Whiten shows:
The problems that occurred in the present case demonstrate that some sort of
instruction on the range of punitive damages awards, even without counsel’s
agreement, would have been useful. Without removing the jury’s discretion, it
would at least communicate to them some idea of past figures and of guidelines
that may be found in appellate or Supreme Court of Canada judgments. They
should also be instructed clearly that an award of general damages may also
amount to all the punishment that is necessary in a given case. Failing this, and
84
Supra note 1 at para 26.
85
Ibid at para 75.
86
Supra note 13 at 30. See also the comments of Binnie J in Pacific National Investments
Ltd v Victoria (City), 2004 SCC 75 at para 13: “This is not to say that it is a form of
“‘palm tree’ justice” that varies with the temperament of the sitting judges.” There are
many parallels between the unjust enrichment remedy and punitive damages.
87
Whiten SCC, supra note 1 at para 158.