2011 QCCA 2430, 2011 QCCA 2430

Robertson c. Mohawk Council of Kahnawake 2011 QCCA 2430 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-020470-100 ( 505-17-002858-068 ) MINUTES OF THE HEARING DATE: December 13, 2011 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. ALLAN R. HILTON, J.A. JACQUES R. FOURNIER, J.A. APPELLANT(

S) INCIDENTAL RESPONDENT ATTORNEY(

S) CHARLES ROBERTSON Mtre John Glazer LEITHMAN & GLAZER RESPONDENT(

S) INCIDENTAL APPELLANTS ATTORNEY(

S) MOHAWK COUNCIL OF KAHNAWAKE WARREN WHITE DWAYNE ZACHARIE Mtre Stephen Ashkenazy HAMILTON, COOPER, ASHKENAZY Defendants in the Superior Court ATTORNEY(

S) LOUIS DELARONDE

On appeal from a judgment rendered on February 3, 2010 by the Honourable Mr. Justice Paul Mayer of the Superior Court, District of Longueuil. NATURE OF THE APPEAL : Civil Liability Clerk: MARC LEBLANC Courtroom: PIERRE-BASILE-MIGNAULT HEARING 9 h 33 Beginning of the hearing. 9 h 33 Argument of Mtre Glazer. 9 h 33 Mtre Glazer produces copies of a proposal regarding Mr. Charles Robertson to his creditors.

Mtre Ashkenazy does not object to the production of the document. 10 h 43 Argument of Mtre Ashkenazy. 10 h 58 Suspension of the hearing. 11 h 21 Resumption of the hearing. 11 h 21 Argument of Mtre Ashkenazy (continuation). 11 h 39 Notwithstanding that the Mohawk Council of Kahnawake should not be held legally responsible to pay punitive damages, the attorney for respondents agrees that the condemnation be solidarily against the three respondents that he represents. 11 h 47 Reply by Mtre Glazer. 11 h 56 Intervention by Mtre Ashkenazy. 11 h 56 Suspension of the hearing. 12 h 08 Resumption of the hearing.

Judgment is rendered – see page 3. 12 h 11 The hearing is concluded. Marc Leblanc Clerk BY THE COURT JUDGMENT

[ 1 ] For the reasons of the Chief Justice and Fournier, J.A., the appeal is dismissed and the incidental appeal is dismissed. Success being divided, there will be no award of costs either on the appeal or the incidental appeal [ 2 ] For other reasons, Hilton, J.A. would have allowed the appeal in part, without costs, for the sole purpose of increasing the award of exemplary damages to $15,000 from $5,000. NICOLE DUVAL HESLER, C.J.Q. ALLAN R. HILTON, J.A. JACQUES R. FOURNIER, J.A.

REASONS OF DUVAL HESLER, J.C.Q. AND FOURNIER, J.A. [1] First, Appellant contends that the investigating officer was negligent in not conducting a sufficient enquiry before requesting a search warrant. [2] At paragraphs 21 and 22 of the judgment a quo , the trial judge describes the information given by the informant, a former employee of Appellant, and, at paragraph 36, concludes as a matter of fact that "the amount of information and degree of details provided by Delaronde is extensive and compelling".

Deference is owed to the finder of facts and the judge properly directed himself in law. [ 3 ] He summed up his thinking on this issue at paragraph 62 of the judgment a quo , which reads as follows : [62] Regardless, the Court concludes that the ITO meets the test set out in Garofoli and Araujo , that is, " there was at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued ". [ 4 ] The search was fruitful in that the stolen items and counterfeit $100 bills (albeit of poor quality) identified by the informant were indeed found on the premises.

As a result, there was sufficient reason for Appellant's arrest, even though no charges were eventually brought against him. [ 5 ] Appellant also argues that his Charter rights were breached. The trial judge made two specific findings of fact allowing the granting of damages and exemplary damages to Appellant, which he fixed at $13,000 in total.

I refer in particular to paragraphs 264 to 270 of the judgment a quo , which read as follows: [264] Firstly, when White, as a person of authority in the community, speaks to a reporter of the only newspaper in town and he tells him that an individual is going to be arrested, surely he knows that the reputation of that individual is going to be tarnished. White had to know knew what he was doing.

When you say you are going to lay charges against someone you better investigate the matter and proceed to lay charges if the evidence shows criminal wrongdoing. [265] Secondly, it is beyond the Court's comprehension that in these circumstances, charges remained pending over Robertson for 13 months. This should not have occurred. Something does not make sense here and does not sit well. Robertson should not have had to put up with this. [266] White has admitted that he knew in December 2003 that charges would not be laid against Robertson. He then took another nine months to advise him of this fact.

It is difficult to imagine how White could have ignored the probable stress and inconvenience that his inaction would cause Robertson. [267] This way of handling matters cannot become the norm. It is a step beyond recklessness for which exemplary damages are to be awarded. [268] The object of exemplary damages is not to compensate Robertson for the harm he has suffered. This is done by the ordinary compensatory damages that have been awarded. [269] Exemplary damages have a different purpose.

They are intended to punish the wrongdoer for his or her acts and to deter the wrongdoer and others who might be tempted to imitate such behaviour from repeating this kind of conduct. [270] Given the circumstances of this case, a message needs to be sent to the Peacekeepers and to the Council that such conduct is unacceptable. [ 6 ] Appellant also pleads that the judge below did not take into account art. 1621 C.C.Q. in assessing exemplary damages at $5,000.

However, the judge did address the issue of the gravity of the fault and other relevant circumstances in arriving at the amount of exemplary damages awarded and the Appellant fails to convince us that he improperly exercised his discretion in this regard. [ 7 ] Appellant fails to show any error in the evaluation of compensatory damages made by the trial judge. [ 8 ] Finally, notwithstanding that the Mohawk Council should not be liable for exemplary damages, only the officers who committed the breach of Appellant's rights, the attorney for Respondents stated that the latter agree that the condemnation should be pronounced solidarily against all three. [ 9 ] For these reasons, the appeal is dismissed and the Incidental Appeal is dismissed, without costs.

NICOLE DUVAL HESLER, C.J.Q.

JACQUES R. FOURNIER, J.A. REASONS OF HILTON, J.A. [1] I agree with the disposition of the appeal and the incidental appeal that my colleagues have proposed, save with respect to the quantum of the damages the trial judge awarded to Mr. Robertson for exemplary damages. [2] In my opinion the award of $5,000 is little more than symbolic and inadequately reflects the gravity of the failure of Mr. White to conduct any investigation after Mr. Robertson's arrest, and to inform him of his decision that no criminal charges would be brought against him until nine months after his decision had been made.

The message of deterrence the trial judge purports to send to the Mohawk Council and the Peacekeepers with such a parsimonious award, which my colleagues endorse, is little more than a mild slap on the wrist that will hardly have the intended deterrent effect. [3] Given the circumstances, an award of $15,000 for exemplary damages would in my opinion better reflect the severity of the omissions the trial judge eloquently described in his judgment, which are set out at length in paragraph [5] of my colleagues' reasons. [4] I would therefore allow the appeal in part, without costs, for the sole purpose of increasing the award of exemplary damages to $15,000 from $5,000.

ALLAN R. HILTON, J.A.