Date: Wed, 8 Nov 2006 16:02:51

From: Allan Beever

Subject: Punitive damages for negligence

Dear Lionel and everyone

I'm sorry. I am obviously not making myself clear. This will be my last attempt to do so. First, I am not trying to argue against punitive damages here. I am not trying to use the Canadian Constitution to support opposition to punitive damages. I do think that they should be abolished, but that is irrelevant to my argument here.

And I accept that the provinces have the power to punish breaches of provincial law. I am even happy to accept that punishment is not necessarily a criminal law matter. In fact, I think that punishment probably just can't be only in the federal jurisdiction in systems with Constitutions such as your own and so can't be just a criminal law matter. So my point does not turn on the fact that punitive damages punish.

It turns rather on the reasons given for punishing though imposing punitive damages.

My point is that, at least according to many supporters of punitive damages at common law, those damages serve a criminal law purpose. As you say, "Punishment is OK, but a criminal law purpose is not" and that is the point I am trying to make.

This is why I keep insisting that the argument applies only to punitive damages AT COMMON LAW. I accept that regulatory regimes, for instance, may impose punitive damages in order to give teeth to provincial law. I have nothing to say about that.

So I accept that "anyone arguing that provinces have no authority to impose punitive damages for breach of valid provincial law has a very difficult argument to make", but this does not, at least often, describe punitive damages at common law which do serve a criminal purpose - at least according to mainstream accounts of them.

Allan

Lionel Smith wrote:

Allan, I can't help you with your first year exam (maybe it is time to let go of that :-) ) but I am not sure there is much of an argument to be built on the division of powers in the Canadian constitution. As David Wingfield noted, the provinces have the express power to imprison without limit of time and to fine without limit of amount as punishment for violation of provincial law (s 92(15): "The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section."). How this is supposed to make sense when the federal level has authority over criminal law is a difficult question. Punishment is OK, but a criminal law purpose is not; the implication is that those who framed our Constitution thought that punishment was not essentially a criminal law matter. The province only gets into trouble if it lacks the power to prohibit the conduct it is seeking to prohibit (see your first year exam). But the upshot is that anyone arguing that provinces have no authority to impose punitive damages for breach of valid provincial law has a very difficult argument to make. Once it accepted to be intra vires the province, you still have the possibility of a paramountcy argument but that is not much easier.

I do not mean to sound like a punitive damages advocate but I don't think the Canadian constitution is going to solve this one.

Dr Allan Beever
Reader in Law
Department of Law
50 North Bailey
Durham
DH1 3ET
United Kingdom
FAX : +44 191 334 2801
Internal Telephone: 42816
External Telephone: +44 191 334 2816
http://www.dur.ac.uk/a.d.beever/

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