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Aubry v. Éditions Vice‑Versa, [1998] 1 S.C.R. 591

 

Les Éditions Vice‑Versa inc.                                                             Appellant

 

and

 

Gilbert Duclos                                                                                    Appellant

 

v.

 

Pascale Claude Aubry Respondent

 

and

 

Canadian Broadcasting Corporation                                                Intervener

 

Indexed as:  Aubry v. Éditions Vice‑Versa inc.

 

File No.:  25579.

 

1997:  December 8; 1998:  April 9.

 

Present:  Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, Iacobucci, Major and Bastarache JJ.

 

on appeal from the court of appeal for quebec

 


Civil liability ‑‑ Invasion of privacy ‑‑ Publication in arts magazine of photograph of teenager taken in public place without her permission ‑‑ Whether publication of photograph infringes teenager’s right to her image and to privacy ‑‑ Whether freedom of artistic expression or public’s right to information justifies publication of photograph ‑‑ Whether publication of photograph caused teenager prejudice ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 3, 5, 9.1, 49.

 

Civil rights ‑‑ Right to privacy ‑‑ Right to one’s image ‑‑ Publication in arts magazine of photograph of teenager taken in public place without her permission ‑‑ Balancing of right to privacy and freedom of expression ‑‑ Whether publication of photograph infringes teenager’s right to her image and to privacy ‑‑ Whether freedom of artistic expression or public’s right to information justifies publication of photograph ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 3, 5, 9.1.

 

Civil rights ‑‑ Freedom of expression ‑‑ Freedom of artistic expression ‑‑ Publication in arts magazine of photograph of teenager taken in public place without her permission ‑‑ Balancing of right to privacy and freedom of expression ‑‑ Whether freedom of artistic expression or public’s right to information justifies publication of photograph even though such publication infringes teenager’s right to her image and to privacy ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 3, 5, 9.1.

 

Costs ‑‑ Additional costs ‑‑ Important case ‑‑ Additional award of costs inappropriate here even if this were recognized to be test case ‑‑ Including additional costs in claim for damages inconsistent with art. 477 C.C.P. ‑‑ Code of Civil Procedure, R.S.Q., c. C‑25, art. 477 ‑‑ Tariff of judicial fees of advocates, R.R.Q. 1981, c. B‑1, r. 13, s. 15.

 


The respondent brought an action in civil liability against the appellants, a photographer and the publisher of a magazine, for taking and publishing, in a magazine dedicated to the arts, a photograph showing the respondent, then aged 17, sitting on the steps of a building.  The photograph, which was taken in a public place, was published without the respondent’s consent.  The trial judge recognized that the unauthorized publication of the photograph constituted a fault and ordered the appellants to pay $2,000 jointly and severally.  The majority of the Court of Appeal affirmed this decision.

 

Held (Lamer C.J. and Major J. dissenting):  The appeal should be dismissed.

 

Per L’Heureux‑Dubé, Gonthier, Cory, Iacobucci and Bastarache JJ.:  Although the infringement of a right guaranteed by the Quebec Charter of Human Rights and Freedoms gives rise, under s. 49 para. 1, to an action for moral and material prejudice, such an action is subject to the civil law principles of recovery.  As a result, the traditional elements of liability must be established.

 

The right to one’s image is an element of the right to privacy under s. 5 of the Quebec Charter.  If the purpose of the right to privacy is to protect a sphere of individual autonomy, it must include the ability to control the use made of one’s image.  There is an infringement of a person’s right to his or her image and, therefore, fault as soon as the image is published without consent and enables the person to be identified.

 


However, the right to respect for one’s private life comes into conflict here with the right to freedom of expression protected by s. 3 of the Quebec Charter.  Freedom of expression includes freedom of artistic expression, and it is unnecessary to create special categories of expression.  The right to respect for one’s private life, like freedom of expression, must be interpreted in accordance with s. 9.1 of the Quebec Charter.  The public’s right to information, supported by freedom of expression, places limits on the right to respect for one’s private life in certain circumstances.  The balancing of the rights in question depends both on the nature of the information and on the situation of those concerned.  In short, this is a question that depends on the context.  For the purposes of legal analysis, it is inappropriate to resort to the notion of “socially useful information” adopted by the Court of Appeal.

 

In this case, the appellants are liable a priori, since the photograph was published when the respondent was identifiable.  The artistic expression of the photograph cannot justify the infringement of the right to privacy it entails.  An artist’s right to publish his or her work is not absolute and cannot include the right to infringe, without any justification, a fundamental right of the subject whose image appears in the work.  It has not been shown that the public’s interest in seeing this photograph is predominant.  In these circumstances, the respondent’s right to protection of her image is more important than the appellants’ right to publish the photograph of the respondent without first obtaining her permission.  As for the causal connection between the publication of the photograph and the prejudice, there clearly is one.

 

Finally, although the infringement of a right guaranteed by the Quebec Charter is in itself insufficient to establish that prejudice has been sustained, the evidence, while limited, could serve as a basis for the extrapatrimonial damages awarded.  While the trial judge did make some errors in assessing the moral prejudice, these errors do not call into question the existence of such prejudice resulting from the infringement of the respondent’s right to respect for her private life and accordingly do not warrant this Court’s intervention to reduce a compensatory award that, although high, is within reasonable limits.

 


Per Lamer C.J. (dissenting):  In civil liability, even though the respondent alleges that the appellants infringed a right guaranteed to her by the Quebec Charter, she must prove that a fault committed by the appellants caused her prejudice.  Although the law of civil liability is informed by the constitutional or quasi‑constitutional rights protected by the charters of rights, we must be reluctant to view fault as amounting to a violation of rights alone.  Mere infringement of a right or freedom does not necessarily constitute fault.  It is unjustifiable infringements that constitute fault.  It is also necessary to give the first paragraph of s. 9.1 of the Quebec Charter -- which provides that rights and freedoms must be exercised in relation to each other, with proper regard for public order, democratic values and general well‑being -- an interpretative significance and adapt the law of civil liability, as needed, to make it consistent with the rights guaranteed by the Quebec Charter.  The rights concerned must therefore be balanced.  In short, the concept of fault is central to the resolution of this case.  Such an approach recognizes the flexible and contextual nature of this concept, and its capacity to reconcile the rights relied upon.  A reasonable person respects the rights and freedoms of everyone and carries out his or her obligations while bearing his or her own rights in mind.  This approach is also consistent with the wording of s. 9.1 of the Quebec Charter.

 


Here, the dissemination of the respondent’s image constituted a violation of her privacy and of her right to her image.  In the abstract, to appropriate another person’s image without his or her consent to include it in a publication constitutes a fault.  However, in light of the first paragraph of s. 9.1 of the Quebec Charter, the respondent’s right to privacy must be interpreted and harmonized in a manner consistent with the appellants’ freedom of expression and the public’s right to information, which is guaranteed by s. 44 of the Quebec Charter.  In matters involving the right to one’s image, this harmonizing role is played by the concept of the public interest.  The content of this concept depends on the nature of the information conveyed by the image and on the situation of the parties involved.  On the other hand, it must be balanced against the reasonable expectation of privacy of the person whose image is reproduced and, generally, against the severity of the infringement of the parties’ rights.  The concept of public interest limited to the right to receive “socially useful information” is too narrow.  In this case, the public interest does not justify the appellants’ fault.  The photographer could easily have obtained the respondent’s consent, but did not do so.  As for causality, it is not at issue.  Regarding prejudice, the Quebec law of civil liability requires proof of prejudice resulting from the fault.  The respondent’s simple statement that her classmates laughed at her does not in itself constitute sufficient evidence of prejudice, since it does not provide any information about how she felt.  Nor is there any evidence that the respondent has become a “well-known figure” or that the instant proceedings and the media coverage they received have increased her notoriety.

 

Per Major J. (dissenting):  The appeal should be allowed for the reasons of the dissenting judge in the Court of Appeal that there was no evidence of damage.

 

Cases Cited

 

By L’Heureux‑Dubé and Bastarache JJ.

 


Referred to:  Hodgkinson v. Simms, [1994] 3 S.C.R. 377; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; Augustus v. Gosset, [1996] 3 S.C.R. 268; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; R. v. Dyment, [1988] 2 S.C.R. 417; Field v. United Amusement Corp., [1971] C.S. 283; R. v. Keegstra, [1990] 3 S.C.R. 697; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Butler, [1992] 1 S.C.R. 452; Estate of Presley v. Russen, 513 F.Supp. 1339 (1981); Current Audio, Inc. v. RCA Corp., 337 N.Y.S.2d 949 (1972); Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Moises v. Canadian Newspaper Co., [1997] 1 W.W.R. 337; CKOY Ltd. v. The Queen, [1979] 1 S.C.R. 2; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Kowarsky v. Procureur général du Québec, [1988] R.D.J. 339; Droit de la famille ‑‑ 1777, [1994] R.J.Q. 1493; Banque canadienne impériale de commerce v. Aztec Iron Corp., [1978] C.S. 266; Berthiaume v. Réno‑Dépôt inc., [1996] R.J.Q. 1323.

 

By Lamer C.J. (dissenting)

 

Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Dyment, [1988] 2 S.C.R. 417; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; R. v. Salituro, [1991] 3 S.C.R. 654; Deschamps v. Renault Canada (1977), 18 C. de D. 937; Société Radio‑Canada v. Radio Sept‑Îles inc., [1994] R.J.Q. 1811; Syndicat des communications graphiques local 41‑M v. Journal de Montréal, [1994] R.D.J. 456; Towner v. Constructions H. Rodrigue inc., [1991] R.J.Q. 381; Gazette (The) (Division Southam inc.) v. Valiquette, [1997] R.J.Q. 30; Rebeiro v. Shawinigan Chemicals (1969) Ltd., [1973] C.S. 389.

 


Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 1, 8.

 

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 3, 4, 5, 9.1 [en. 1982, c. 61, s. 2], 44, 49.

 

Civil Code of Lower Canada, arts. 1053, 1073.

 

Civil Code of Québec, S.Q. 1991, c. 64, art. 36.

 

Code of Civil Procedure, R.S.Q., c. C‑25, art. 477, para. 1.

 

Tariff of judicial fees of advocates, R.R.Q. 1981, c. B‑1, r. 13, s. 15 [published at R.R.Q. 1981, p. 157 (Supp.)].

 

Authors Cited

 

Caron, Madeleine.  “Le Code civil québécois, instrument de protection des droits et libertés de la personne” (1978), 56 Can. Bar Rev. 197.

 

Chevrette, François.  “La disposition limitative de la Charte des droits et libertés de la personne:  le dit et le non‑dit” (1987), 21 R.J.T. 461.

 

Deleury, Édith, et Dominique Goubau.  Le droit des personnes physiques, 2e éd. Cowansville, Qué.:  Yvon Blais, 1997.

 

Glenn, H. Patrick.  “Le droit au respect de la vie privée” (1979), 39 R. du B. 879.

 

Kayser, Pierre.  La protection de la vie privée, 2e éd. Paris:  Économica, 1990.

 

Nerson, R.  Les droits extrapatrimoniaux.  Paris:  L.G.D.J., 1939.

 

Perret, Louis.  “De l’impact de la Charte des droits et libertés de la personne sur le droit civil des contrats et de la responsabilité au Québec” (1981), 12 R.G.D. 121.

 

Potvin, Louise.  La personne et la protection de son image:  étude comparée des droits québécois, français et de la common law anglaise.  Cowansville, Qué.:  Yvon Blais, 1991.

 

Québec.  Assemblée nationale.  Journal des débats:  Commissions parlementaires, 3e sess., 32e lég. Commission permanente de la justice, Étude des projets de loi nos 101, 219, 260, 254, 262, 269, 278, 221 et 86 ‑‑ Loi modifiant la Charte des droits et libertés de la personne, 16 décembre 1982, no 230, p. B‑11609.

 

Ravanas, J.  La protection des personnes contre la réalisation et la publication de leur image.  Paris:  L.G.D.J., 1978.


Vallières, Nicole.  La presse et la diffamation.  Montréal:  Wilson & Lafleur, 1985.

 

APPEAL from a judgment of the Quebec Court of Appeal, [1996] R.J.Q. 2137, 141 D.L.R. (4th) 683 (sub nom. Aubry v. Duclos), 71 C.P.R. (3d) 59, [1996] Q.J. No. 2116 (QL), affirming a decision of the Court of Québec, [1991] R.R.A. 421. Appeal dismissed, Lamer C.J. and Major J. dissenting.

 

Guylaine Bachand, for the appellant Les Éditions Vice‑Versa inc.

 

Vivianne De Kinder, for the appellant Duclos.

 

Nathalie Charbonneau and Yves Archambault, for the respondent.

 

Marc‑André Blanchard and Marie‑Philippe Bouchard, for the intervener.

 

English version of the reasons delivered by

 

1                             The Chief Justice (dissenting) -- I have had the opportunity to read the joint reasons of Justices L’Heureux‑Dubé and Bastarache and, while I generally agree with them, I cannot fully subscribe to their analytical approach or their conclusion.  I wish to make certain comments concerning the nature of the right to one’s image and how I believe rights should be incorporated into an analysis of civil liability.  Furthermore, I would allow this appeal because there is no evidence of damage.

 


I.  Civil Liability and Rights

 

2                             To a great extent, the oral arguments of the parties in this Court concerned the scope of the right to one’s image and the limits imposed on it by the freedom of expression of a photographer and that of a publishing company.  To this effect, the intervener Canadian Broadcasting Corporation relied on this Court’s freedom of expression jurisprudence to challenge the scope of a person’s right to his or her image.  The important role played by freedom of expression in our society was raised.  While these submissions are most relevant to the resolution of the case, I think it is important to clarify first how rights influence our analysis of civil liability.  This approach makes clear to us how to reconcile the conflicting values at issue.

 

3                             I would stress that the concept of fault is central to the resolution of this case.  Before the Quebec legislature enacted a charter of human rights and freedoms, it was the law of civil liability, with all its flexibility, that protected privacy and the individual’s interest in his or her image in Quebec private law.  I read with interest the reasons of the judges of the Court of Appeal on this topic.  In enacting its Charter of Human Rights and Freedoms, R.S.Q., c. C-12, the legislature thus consolidated the advances of civil liability in the protection of human rights:  M. Caron, “Le Code civil québécois, instrument de protection des droits et libertés de la personne” (1978), 56 Can. Bar Rev. 197, at pp. 199‑200; H. P. Glenn, “Le droit au respect de la vie privée” (1979), 39 R. du B. 879, at pp. 880‑81.

 


4                             This Court recognized the historical and conceptual continuity between the law of civil liability and the Quebec Charter in Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345.  The Court held at para. 120, per Gonthier J., that the constituent elements of the remedy available under s. 49 of the Quebec Charter cannot be distinguished from those of the general civil liability remedy:

 

The fact that an interpreter of the Charter first has to clarify the scope of a protected right in light of a specific provision does not make this exercise any different from the one that involves deducing a specific application from the principle recognized in art. 1053 C.C.L.C.

 

5                             My intention here is to place the analytical approach that characterizes the dispute in this case as being primarily a conflict between the rights of the respondent and those of the appellants in its proper theoretical context.  Accordingly, even though she relies on a certain right to her image, the plaintiff respondent must prove that a fault committed by the appellants caused her prejudice.

 

6                             I also wish to point out that the parties referred us to a number of public law cases.  I do not doubt that the law of civil liability is informed by the constitutional or “quasi‑constitutional” rights protected by the Charters.  I am certain that a reasonable person respects everyone’s right to privacy, right to his or her image and freedom of expression in accordance with the Charters.  However, I believe that it is important to emphasize the comprehensive and contextual nature of civil fault.  We should be reluctant to view fault as amounting to a violation of rights alone.  In my view, such an approach is riddled with obstacles, of which the following are those that appear most obvious to me.

 


7                             More often than not, the decisions of this Court concerning fundamental rights have been rendered in the criminal law context.  It must first be asked whether those decisions are directly applicable to a dispute between private parties, as in the case at bar.  Although I do not intend to give a general answer to this question, my comments can be illustrated with an example.

 

8                             Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable search and seizure, thereby guaranteeing a certain right to privacy.  However, the decisions of this Court relating to s. 8 recognize that there is a fundamental difference between a person’s reasonable expectation of privacy in his or her dealings with the state and the same person’s reasonable expectation of privacy in his or her dealings with ordinary citizens.  I refer here to the reasons of the majority of this Court in R. v. Duarte, [1990] 1 S.C.R. 30, at pp. 43‑45, and R. v. Wong, [1990] 3 S.C.R. 36, at pp. 48‑55.  For example, La Forest J. wrote in Wong, at p. 48:  “it must follow that there is an important difference between the risk that our activities may be observed by other persons, and the risk that agents of the state, in the absence of prior authorization, will permanently record those activities on videotape”.  In the view of La Forest J. it is possible to consent to one of these risks without consenting to the other (at p. 51):  “We must be prepared to live with the first risk, but, in a free and open society, need not tolerate the spectre of the second.”

 

9                             It would therefore be wrong to define the scope of the right to privacy between citizens solely on the basis of the decisions relating to s. 8.  Although I agree with the functional definitions of privacy adopted by this Court, particularly in R. v. Dyment, [1988] 2 S.C.R. 417, and Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, it seems to me that the right to privacy can have a different scope in private law.

 


10                           The analysis under the Canadian Charter can also be distinguished from civil liability analysis in another way.  In Charter matters, this Court has developed a two‑stage approach:  the plaintiff must first show that a right or freedom has been infringed before the defendant attempts to demonstrate that the limit on the protected rights and freedoms is reasonable.  For example, freedom of expression enjoys very broad protection in Canada.  Any peaceful activity that conveys or attempts to convey meaning is protected by freedom of expression.  According to this definition, even defamatory remarks are protected by freedom of expression.  Therefore, the person who maintains the validity of a limit on such expression has the burden of proving that the limit is reasonable.  Where the Canadian Charter is concerned, the burden of justification is always on the state.

 

11                           In contrast, the rules of civil liability are different.  First, mere infringement of a right or freedom does not in my view necessarily constitute fault.  For example, firefighters who interrupt a political meeting to evacuate a burning building do not commit a fault.  In my view, the following statement by Gonthier J. in Béliveau St‑Jacques, supra, must be interpreted in light of the foregoing:  “It is . . . clear that the violation of a right protected by the Charter is equivalent to a civil fault” (para. 120).  Only unjustifiable infringements of freedom of expression, as this freedom is defined in public law, constitute fault.

 

12                           Second, I do not think that a civil liability analysis allows the burden of proof to be shifted between the parties in the same manner as is permitted in Charter law.  Section 9.1 of the Charter of Human Rights and Freedoms is relevant here.  It reads as follows:

 

9.1.  In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well‑being of the citizens of Québec.

 

In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.


13                           This Court has held, in cases in which the validity of a statutory provision was challenged, that s. 9.1 is to be interpreted in the same way as s. 1 of the Canadian Charter.  We have also suggested, however, that this provision can have a somewhat different meaning.  Thus, in Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 769‑70, the Court put forward a different interpretation in these terms:

 

It was suggested in argument that because of its quite different wording s. 9.1 was not a justificatory provision similar to s. 1 [of the Canadian Charter] but merely a provision indicating that the fundamental freedoms and rights guaranteed by the Quebec Charter are not absolute but relative and must be construed and exercised in a manner consistent with the values, interests and considerations indicated in s. 9.1 — “democratic values, public order and the general well‑being of the citizens of Québec.”  In the case at bar the Superior Court and the Court of Appeal held that s. 9.1 was a justificatory provision corresponding to s. 1 of the Canadian Charter and that it was subject, in its application, to a similar test of rational connection and proportionality.  This Court agrees with that conclusion.  The first paragraph of s. 9.1 speaks of the manner in which a person must exercise his fundamental freedoms and rights.  That is not a limit on the authority of government but rather does suggest the manner in which the scope of the fundamental freedoms and rights is to be interpreted.  [Underlining in original; italics added.]

 

The Court continued its analysis in Ford by noting that the second paragraph of s. 9.1 does refer to “legislative authority to impose limits on the fundamental freedoms and rights” (p. 770).  It held that this second paragraph must be interpreted in the same way as s. 1 of the Canadian Charter.

 

14                           Similarly, in the recent case of Godbout v. Longueuil (City), supra, La Forest J. stated, at para. 103:

 


As is evident from its very terms, s. 9.1 allows for the possibility that the "fundamental freedoms and rights" enshrined in the Quebec Charter may be subject to limits fixed by law. While it might be argued ‑‑ I do not say how successfully ‑‑ that the residence requirement at issue would not constitute a "law" for the purposes of s. 9.1, and while there appears to be some uncertainty in the academic literature as to whether the first paragraph of s. 9.1 can ever apply to limit rights even where no applicable "law" does so (see, e.g., F. Chevrette, "La disposition limitative de la Charte des droits et libertés de la personne:  le dit et le non‑dit", in De la Charte québécoise des droits et libertés:  origine, nature et défis (1989), 71), I do not consider it necessary to pronounce specifically upon either of those issues.  I take this view for the following reasons.  [Emphasis added.]

 

15                           Furthermore, the statement of the test for s. 1 of the Canadian Charter itself refers to “the legislative objective which the limitation is designed to promote”:  R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 768.  It is difficult to apply this language to the law of civil liability.  Article 1053 of the Civil Code of Lower Canada lays down a standard of conduct in general wording that does not lend itself well to a sufficiently specific analysis of its objective.  In light of the foregoing, I believe that we must give the first paragraph of s. 9.1 an interpretative significance and adapt the law of civil liability, as needed, to make it consistent with the rights guaranteed by the Quebec Charter.

 

16                           In this respect, a parallel can be drawn between the present case and the case before the Court in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.  This Court recognized in Hill that in libel cases, “the twin values of reputation and freedom of expression will clash” (para. 100).  This type of balancing must also be done here.  While this Court concluded in that case that the Canadian Charter did not apply to the actions of the plaintiff Casey Hill, it repeated that the common law is subject to the Canadian Charter.  Cory J. quoted the comments of Iacobucci J. to that effect in R. v. Salituro, [1991] 3 S.C.R. 654, at p. 675:

 

Where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the courts should scrutinize the rule closely. If it is possible to change the common law rule so as to make it consistent with Charter values, without upsetting the proper balance between judicial and legislative action that I have referred to above, then the rule ought to be changed.


In my view, this is a judicial process similar to that prescribed by s. 9.1.

 

17                           In short, the real issue is whether the appellants committed a fault.  This approach recognizes the flexible and contextual nature of the concept of fault, and its capacity to reconcile the rights relied upon in this case (see L. Perret, “De l’impact de la Charte des droits et libertés de la personne sur le droit civil des contrats et de la responsabilité au Québec” (1981), 12 R.G.D. 121, at p. 124).  A reasonable person respects the rights and freedoms of everyone and carries out his or her obligations while bearing his or her own rights in mind.

 

18                           This approach is also consistent with the wording of s. 9.1 of the Quebec Charter.  The parliamentary proceedings that resulted in the adoption of s. 9.1 show that the legislature’s intention was for the first paragraph of s. 9.1 to place limits on private relations rather than on the law itself:  see F. Chevrette, “La disposition limitative de la Charte des droits et libertés de la personne:  le dit et le non‑dit” (1987), 21 R.J.T. 461, at pp. 463‑68.  The statement made by the Quebec Minister of Justice when the provision was adopted in 1982 can also be noted, with appropriate caution:

 

[translation] The purpose of s. 9.1 is to temper the absolute nature of the freedoms and rights set out in ss. 1 to 9 both from the perspective of the limits imposed on the holders of those rights and freedoms in respect of other citizens, which is the case for the first paragraph, and from that of the limits the legislature may place on the community as a whole, a principle formed in the second paragraph.

 

(Journal des débats:  Commissions parlementaires, 3rd sess., 32nd Leg., December 16, 1982, at p. B‑11609.)

 


19                           This case cannot be resolved merely by relying upon the respondent’s right to her image or the appellants’ freedom of expression; the rights concerned must also be balanced.  Since freedom of expression is fairly well known, I shall now discuss the right to one’s image.

 

II.  Right to One’s Image

 

20                           The Quebec courts have applied the principles of civil liability to allow compensation for the prejudice resulting from the use of a person’s image without his or her consent.  According to the authors, these judicial interventions have created a right to one’s image at issue in the present case.  The reasons of the Court of Appeal include a detailed account of the evolution of Quebec and French jurisprudence and doctrine, and that account is entirely satisfactory.  However, I wish to add the following comments.

 

21                           I would hesitate to conclude that the right to one’s image has no existence independent of the right to privacy.  It is common knowledge that this Court has defined the right to privacy very broadly (albeit in the public law context).  In Dyment, supra, La Forest J. noted that according to certain authors privacy “is at the heart of liberty in a modern state” (p. 427), and that it is based “on the notion of the dignity and integrity of the individual” (p. 429).  La Forest J. reiterated this functional approach in Godbout v. Longueuil (City), supra, in which he stated at para. 97 that the right to privacy protects, inter alia, the “narrow sphere of personal autonomy within which inherently private choices are made”, a view shared by all the members of this Court.  I believe that the right to privacy can be analysed in similar terms in private law.  Furthermore, this right certainly includes a person’s right to his or her image.  Nevertheless, I do not rule out the possibility that a person’s commercial interest in his or her image does not derive uniquely from his or her right to privacy.  As a result, it may be advisable to preserve the integrity of the concept of privacy.

 


22                           I also agree with my colleagues that the right to one’s image is primarily a personality right, an interest of an extrapatrimonial nature.  I do not consider it necessary to go further and determine whether there is also a right to one’s image of a patrimonial nature, as Rothman J. suggested in Deschamps v. Renault Canada (1977), 18 C. de D. 937 (Que. Sup. Ct.).  I would note simply that it is not contrary to public order for individuals, whether famous or not, to profit from consenting to the use of their image.

 

23                           In the case at bar, I am of the view that the dissemination of the respondent’s image constituted a violation of her privacy and of her right to her image.  In the abstract, to appropriate another person’s image without his or her consent to include it in a publication constitutes a fault.  I am of the view that a reasonable person would have been more diligent and would at least have tried to obtain the respondent’s consent to the publication of her photograph.  The appellants did not do everything necessary to avoid infringing the respondent’s rights.  In this regard, a parallel can be drawn with the obligation of diligence the news media must meet in gathering information in order to avoid liability for defamation should their comments prove to be inaccurate:  Société Radio-Canada v. Radio Sept‑Îles inc., [1994] R.J.Q. 1811 (C.A.), at pp. 1818‑21.

 


24                           I do not doubt that freedom of expression provides the appellants with powerful arguments to the effect that they acted reasonably.  However, as s. 9.1 of the Quebec Charter provides, rights and freedoms must be exercised in relation to each other, with proper regard for public order, democratic values and general well‑being (see also Syndicat des communications graphiques local 41-M v. Journal de Montréal, [1994] R.D.J. 456 (C.A.), at p. 458; Towner v. Constructions H. Rodrigue inc., [1991] R.J.Q. 381 (Sup. Ct.), at pp. 382‑83).  Thus, the rights of the appellants and the respondent must be harmonized in the facts of the case.  The concept of the public interest is intended to play this role in matters involving the right to one’s image as in the case of the right to one’s honour and reputation.  This rule should now be examined.

 

III.  Public Interest

 

25                           The respondent’s right to privacy must be interpreted in a manner consistent with the appellants’ freedom of expression and the public’s right to information, which is guaranteed by s. 44 of the Quebec Charter.  As the Court of Appeal recently stated in The Gazette (Division Southam inc.) v. Valiquette, [1997] R.J.Q. 30 (C.A.), at p. 36:

 

[translation] The right to privacy, on the other hand, is not absolute.  It is subject to a series of limits, and its application requires a balancing with other fundamental rights, including the public’s right to information.  A violation of the right to privacy thus cannot be characterized as illicit or wrongful if there is a reasonable justification or a legitimate purpose, or if it can be concluded that the person consented to the invasion of his or her privacy.

 

26                           It is inevitable that the concept of public interest is imprecise.  In her work on defamation, Nicole Vallières writes of the public interest in this context:  [translation] “[t]his abstract concept is difficult to delimit, and as far as we know, no definition of the public interest has been applied to the press by the Quebec courts”:  La presse et la diffamation (1985), at p. 90.  In my view, the content of the concept of public interest depends on the nature of the information conveyed by the image and on the situation of the parties involved.  On the other hand, it must be balanced against the reasonable expectation of privacy of the person whose image is reproduced and, generally, against the severity of the infringement of the parties’ rights.

 


27                           With respect, I believe that LeBel J.A. of the Court of Appeal erred in limiting the notion of public interest to the right to receive [translation] “socially useful” information ([1996] R.J.Q. 2137, at p. 2149).  This concept appears to me to be too narrow.  Be that as it may, it is my view that in the case at bar the public interest does not justify the appellants’ fault.  The appellant Duclos could easily have obtained the respondent’s consent, but did not do so.  It is possible for the public interest to justify the dissemination of the image of a person who is in a crowd or is at the scene of an important event in a purely incidental manner.  However, I will express no opinion on this subject, and I do not think it appropriate to specify, in the context of the present case, the circumstances in which the public interest prevails over a person’s right to his or her image.  It is sufficient to state that the appellants committed a fault.  Since causality is not at issue here, it is now necessary to consider damage and the proof thereof.

 

IV.  Damage

 

28                           The Quebec law of civil liability requires proof of prejudice resulting from the fault.  This is an essential element of civil liability.  On this question of damage, I agree with Baudouin J.A. that the plaintiff respondent has not proven that she suffered prejudice.

 

29                           The complete evidence of damage reads as follows:

 

[translation]

 

Q.   Did that photo cause you any difficulties?

 

A.   Some difficulties; people laughed at me.

 

Q.   People, who are these people?

 

A    My friends, the people at school.


Q.   The people at school?

 

A.   Uh‑huh.

 

Q.   I have no further questions, Your Honour.

 

30                           The trial judge concluded from the evidence that the respondent had been a victim of [translation] “teasing by friends her own age” and that this entitled her to compensation [translation] “of at least $2,000 for the humiliation suffered as a result of the invasion of her privacy and injury to her reputation” ([1991] R.R.A. 421, at p. 423).  For his part, LeBel J.A. of the Court of Appeal noted that the respondent’s evidence of prejudice was limited, but hastened to add that the trial judge believed this evidence, which accordingly made it sufficient evidence of damage.  Thus, [translation] “[i]n order to find that there was no moral injury, it would be necessary to go back over this assessment of credibility, an area essentially reserved to the sovereign assessment of the trier of fact, absent any manifest, serious and decisive error” (p. 2150).

 

31                           I believe that if the respondent had stated, “I felt humiliated when I saw the photograph published in Vice‑Versa magazine”, there would have been sufficient evidence of damage in this case, provided that Judge Bourret believed her.  As Perrault J. of the Superior Court suggested in Rebeiro v. Shawinigan Chemicals (1969) Ltd., [1973] C.S. 389, at p. 391, [translation] “[s]ome people may find it unpleasant to see their photographs appear on advertising posters; it is up to each individual to judge and decide this by giving or refusing the necessary consent.”

 


32                           However, in my view the statement “people laughed at me” does not in itself constitute sufficient evidence of damage, since it does not provide any information about how the respondent Aubry felt.  The fact that the trial judge accepted this evidence, without giving any reasons or explanation, suggests to me that he erred in presuming damage solely because the respondent’s classmates laughed at her.  On re‑reading the Court of Québec’s judgment, I cannot convince myself that Judge Bourret considered this essential element of civil liability.

 

33                           The respondent nonetheless suggests that her prejudice consists of the fact that she has become well-known, thereby losing her anonymity.  With respect, there is no evidence on the record tending to show that the respondent is now a “well-known figure”.  No witnesses were called to testify that the respondent’s face or person is now known to them as a result of the events that gave rise to the litigation.  The respondent also maintains that the civil proceedings in the present case and the media coverage they received have increased her notoriety, thereby entitling her to compensation.  Once again, no evidence was adduced as to the respondent’s notoriety.

 

34                           Justices L’Heureux‑Dubé and Bastarache state that the evidence on the record “could serve as a basis for the damages awarded.  This evidence did exist and illustrated in the trial judge’s view the discomfort and upset felt by the respondent as a result of the publication of her photograph” (para. 71).  However, the trial judge did not in fact find that the plaintiff had felt discomfort.  Judge Bourret did mention [translation] “the humiliation suffered as a result of the invasion of her privacy and injury to her reputation” (p. 423 (emphasis added)), but this merely confirms that the trial judge committed a significant error in identifying the interest harmed by the events in question.

 


35                           According to one French author, damage in the case of an infringement of the right to one’s image [translation] “may consist simply in the annoyance felt by a person at becoming a ‘celebrity’” (L. Potvin, La personne et la protection de son image:  étude comparée des droits québécois, français et de la common law anglaise (1991), at p. 272, quoting Dean Nerson, Les droits extrapatrimoniaux (1939), thesis from the Université de Lyon, at p. 384).  With respect, this statement cannot mean that the infringement of a personality right on its own results in civil liability in Quebec in the absence of evidence of prejudice, contrary to what seems to be possible in France:  P. Kayser, La protection de la vie privée (2nd ed. 1990), at pp. 222‑66.

 

36                           For these reasons, I do not rule out the possibility that the dissemination of a person’s image without consent might result in damage for which he or she can be compensated.  As Baudouin J.A. noted, at p. 2152,

 

[translation] there is prejudice where the image is exploited commercially without authorization (Deschamps v. Renault Canada, (1977) 18 C. de D. 937 (Sup. Ct.)), or for purposes other than those for which consent was originally given (Rebeiro v. Shawinigan Chemicals (1969) Ltd., [1973] C.S. 389; Cohen v. Queenswear International Ltd., [1989] R.R.A. 570 (Sup. Ct.); P.T. v. B.R., Sup. Ct. Montréal 500‑05‑015382‑912, March 3, 1993, commentary by Adrian Popovici, “Chroniques sectorielles. L’altération de la personnalité aux yeux du public”, (1994) 28 R.J.T. 289-302).

 

However, the evidence satisfies me that the instant case quite simply does not come within this category of affairs.

 

V.  Disposition

 

37                           I am of the view that the evidence is insufficient to conclude that the wrongful dissemination of the photograph of the respondent Aubry caused her moral prejudice.  For this reason, I would allow the appeal, set aside the judgments below and dismiss the action, with costs.

 


English version of the judgment of L’Heureux-Dubé, Gonthier, Cory, Iacobucci and Bastarache JJ. delivered by

 

38                      L’Heureux‑Dubé and Bastarache JJ. -- This appeal concerns the scope of the right to one’s image as an element of the more general right to privacy.  It also involves a balancing of the right to privacy and freedom of expression.

 

39                      It should be noted at the outset that since the events on which this case is based occurred in 1988, the matter is governed by the Civil Code of Lower Canada.

 

I.  Facts

 

40                      The respondent, Pascale Claude Aubry, brought an action in civil responsibility against the appellants, Gilbert Duclos and Les Éditions Vice‑Versa inc., for taking and publishing a photograph showing the respondent sitting on a step in front of a building on Ste‑Catherine Street in Montreal.  Both sides accept that the photograph was taken in a public place and published without the respondent’s consent.  According to the evidence, it was the appellant Gilbert Duclos who took the respondent’s photograph.  The photograph was published by the appellant Les Éditions Vice‑Versa inc. in the June issue of Vice-Versa, a magazine dedicated to the arts, and 722 copies of the issue in question were sold.  The photograph was drawn to the respondent’s attention by a friend who had purchased a copy of the magazine.  The respondent, who was 17 at the time, brought this action for damages in the amount of $10,000, half as compensatory damages and the other half as exemplary damages.

 


II.  Judicial History

 

A.  Court of Québec, [1991] R.R.A. 421

 

41                           At trial, Judge Bourret of the Court of Québec allowed the respondent’s action in part.  Recognizing that the unauthorized publication of the photograph constituted a fault to which both the magazine’s publisher and the photographer who handed over the photograph to the magazine had contributed, he ordered them to pay $2,000 jointly and severally.  However, the judgment is somewhat ambiguous regarding the nature of the damage this amount was intended to compensate.  Judge Bourret wrote in this connection (at p. 423):

 

[translation] In the court’s view, to learn through teasing by friends her own age that her picture had been published in a prestigious, large‑circulation magazine without her even knowing that her picture had been taken by a third party and without her having ever authorized its publication, merits compensation of at least $2,000 for the humiliation suffered as a result of the invasion of her privacy and injury to her reputation.

 

42                           This passage suggests that the $2,000 would cover both the damages resulting from the injury to her reputation and the loss of privacy resulting from the publication of the photograph.

 

43                           However, since the photograph was not defamatory in nature either in itself or by association with the accompanying text in the magazine, Judge Bourret denied any compensation on this ground.  He also refused to award exemplary damages, as there was no evidence of malice on the part of the defendants.

 


B.  Court of Appeal, [1996] R.J.Q. 2137

 

44                           The majority of the Court of Appeal affirmed Judge Bourret’s decision.  LeBel J.A. and Biron J. (ad hoc) both found that the fault lay not in the taking of the photograph but in its publication.  According to LeBel J.A., writing for the majority, since the respondent was in a public place when the photograph was taken, that act alone could not be considered an invasion of her privacy.  However, the unauthorized publication of the photograph constituted an infringement of her anonymity, which is an essential element of the right to privacy.

 

45                           LeBel J.A. recognized that the unauthorized publication of a photograph could be justified on the basis of the public’s legitimate interest in information.  In his view, however, Quebec law recognizes no such exception for artistic activity.  Even in the absence of bad faith, the dissemination of the photograph was, therefore, wrongful.

 

46                           While the judges of the majority recognized that there was only limited evidence of moral prejudice, they refused to alter Judge Bourret’s decision.  Relying on the judgments of this Court in Hodgkinson v. Simms, [1994] 3 S.C.R. 377, at p. 426, and Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705, at p. 810, they noted that an appellate court must show deference to findings of fact drawn from the evidence by the trial judge.

 


47                           Baudouin J.A.’s dissent focussed essentially on the question of damages.  In his view, damages cannot be found to have been sustained solely because the photograph was wrongfully disseminated.  Nor can the absence of evidence of damages be concealed under the head “nominal damages”.  This was particularly important, in his view, where the right to privacy is claimed as against freedom of information or artistic freedom.  In this case, Baudouin J.A. refused to consider the respondent’s sole statement that [translation] “people laughed at me” as sufficient evidence.  In his view, therefore, the issue was not one of credibility warranting an appellate court’s deference but rather one of lack of evidence.

 

III.  Relevant Statutory Provisions

 

48                      Charter of Human Rights and Freedoms, R.S.Q., c. C‑12

 

3.  Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.

 

4.  Every person has a right to the safeguard of his dignity, honour and reputation.

 

5.  Every person has a right to respect for his private life.

 

9.1.  In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well‑being of the citizens of Québec.

 

In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.

 

49.  Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

 

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to exemplary damages.

 

IV.  Analysis

 


49                           The case at bar raises a problem of civil law and it is in light of that law that it must be resolved.  The infringement of a right guaranteed by the Charter of Human Rights and Freedoms (hereinafter the “Quebec Charter”) gives rise, under s. 49 para. 1, to an action for moral and material prejudice.  Such an action is subject to the civil law principles of recovery.  As a result, the traditional elements of liability, namely fault, damage and causal connection, must be established.  See Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345, at para. 122, and Augustus v. Gosset, [1996] 3 S.C.R. 268, at para. 58.

 

50                      It should be mentioned at the outset that our analysis will be limited to the sole issue before this Court, namely publication of a photograph taken without permission.

 

51                      There is a debate in French law, and a corresponding uncertainty in Quebec law, as to whether the right to one’s image is a separate right of personality or an element of the right to privacy.  See in this regard L. Potvin, La personne et la protection de son image:  étude comparée des droits québécois, français et de la common law anglaise (1991), at p. 33, and É. Deleury and D. Goubau, Le droit des personnes physiques (2nd ed. 1997), at pp. 168‑70.  In our view, the right to one’s image, which has an extrapatrimonial and a patrimonial aspect, is an element of the right to privacy under s. 5 of the Quebec Charter.  This is consistent with the liberal interpretation given to the concept of privacy in the recent decision Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, and in past judgments of this Court.  See R. v. Dyment, [1988] 2 S.C.R. 417, at p. 427.

 


52                      In Godbout v. Longueuil (City), the Supreme Court held that the purpose of the protection accorded to privacy is to guarantee a sphere of individual autonomy for all decisions relating to “choices that are of a fundamentally private or inherently personal nature” (para. 98).  If the purpose of the right to privacy guaranteed by s. 5 of the Quebec Charter is to protect a sphere of individual autonomy, that right must include the ability to control the use made of one’s image, since the right to one’s image is based on the idea of individual autonomy, that is, on the control each person has over his or her identity.  It can also be stated that this control implies a personal choice.  It should be noted, finally, that art. 36 of the new Civil Code of Québec, S.Q. 1991, c. 64, although not applicable here, confirms this interpretation since it recognizes that the use of a person’s name, image, likeness or voice for a purpose other than the legitimate information of the public is an invasion of privacy.

 

53                      Since the right to one’s image is included in the right to respect for one’s private life, it is axiomatic that every person possesses a protected right to his or her image.  This right arises when the subject is recognizable.  There is, thus, an infringement of the person’s right to his or her image, and therefore fault, as soon as the image is published without consent and enables the person to be identified.  See Field v. United Amusement Corp., [1971] C.S. 283.

 

54                      The right to respect for one’s private life should not be confused with the right to one’s honour and reputation under s. 4 of the Quebec Charter even though, in certain cases, wrongful publication of an image may in itself result in an injury to one’s honour and reputation.  Since every person is entitled to protection of his or her privacy, and since the person’s image is protected accordingly, it is possible for the rights inherent in the protection of privacy to be infringed even though the published image is in no way reprehensible and has in no way injured the person’s reputation.  In the case at bar, the judges at trial and on appeal found that the photograph was in no way reprehensible and did not injure the respondent’s honour or reputation.  The Court of Appeal also found that the manner in which the photograph was juxtaposed with the text did not make it possible to associate the two elements and that, at any rate, the text was serious and not open to ridicule.


 

55                      The right to respect for one’s private life comes into conflict here with another right protected by the Quebec Charter, in s. 3, namely the right to freedom of expression.  LeBel J.A. and Biron J. stated that Quebec law does not yet consider artistic expression to be a separate right.  It is our view that freedom of expression includes freedom of artistic expression.  See, for example, R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 762; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at pp. 969‑70 and 1009; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 756 and 767; R. v. Butler, [1992] 1 S.C.R. 452, at p. 490.  It is, therefore, unnecessary to create a special category to take freedom of artistic expression into account.  Artistic expression does not require a special category to be effective.  Nor is there any justification for giving it a status superior to that of general freedom of expression.  An artist can assert his or her right to freedom of expression under the same conditions as any other person.  There is, thus, no need to distinguish freedom of artistic expression from journalistic reporting, as we have been asked to do.

 

56                      The right to respect for one’s private life, like freedom of expression, must be interpreted in accordance with the provisions of s. 9.1 of the Quebec Charter.  For this purpose, it is necessary to balance these two rights.

 

57                      The public’s right to information, supported by freedom of expression, places limits on the right to respect for one’s private life in certain circumstances.  This is because the expectation of privacy is reduced in certain cases.  A person’s right to respect for his or her private life may even be limited by the public’s interest in knowing about certain traits of his or her personality.  In short, the public’s interest in being informed is a concept that can be applied to determine whether impugned conduct oversteps the bounds of what is permitted.


 

58                      The public interest so defined is thus conclusive in certain cases.  The balancing of the rights in question depends both on the nature of the information and on the situation of those concerned.  This is a question that depends on the context.  Thus, it is generally recognized that certain aspects of the private life of a person who is engaged in a public activity or has acquired a certain notoriety can become matters of public interest.  This is true, in particular, of artists and politicians, but also, more generally, of all those whose professional success depends on public opinion.  There are also cases where a previously unknown individual is called on to play a high‑profile role in a matter within the public domain, such as an important trial, a major economic activity having an impact on the use of public funds, or an activity involving public safety.  It is also recognized that a photographer is exempt from liability, as are those who publish the photograph, when an individual’s own action, albeit unwitting, accidentally places him or her in the photograph in an incidental manner.  The person is then in the limelight in a sense.  One need only think of a photograph of a crowd at a sporting event or a demonstration.

 

59                      Another situation where the public interest prevails is one where a person appears in an incidental manner in a photograph of a public place.  An image taken in a public place can then be regarded as an anonymous element of the scenery, even if it is technically possible to identify individuals in the photograph.  In such a case, since the unforeseen observer’s attention will normally be directed elsewhere, the person “snapped without warning” cannot complain.  The same is true of a person in a group photographed in a public place.  Such a person cannot object to the publication of the photograph if he or she is not its principal subject.  On the other hand, the public nature of the place where a photograph was taken is irrelevant if the place was simply used as background for one or more persons who constitute the true subject of the photograph.


 

60                      In the context of freedom of expression, which is at the heart of the public’s interest in being informed, the person’s express or tacit consent to the publication of his or her image must, therefore, be taken into account.  For a more thorough analysis of these various exemptions, see Potvin, supra, at pp. 351‑431.

 

61                      LeBel J.A. and Biron J. analysed this question on the basis of the notion of [translation] “socially useful information” (p. 2149).  In their view, freedom of expression and the public’s right to information will prevail where the expression at issue concerns information that is “socially useful”.  This notion seems to have been borrowed from American law, which draws a distinction between useful information, in the sense of the public’s right to be informed, and information whose sole purpose is commercial.  See Estate of Presley v. Russen, 513 F.Supp. 1339 (D.N.J. 1981), and Current Audio Inc. v. RCA Corp., 337 N.Y.S.2d 949 (Sup. Ct. 1972).  Only the first category is protected in the United States.  In the United States, freedom of expression and public information prevail over the right to privacy except where the information’s sole purpose is commercial.  We agree with the intervener that this notion of “socially useful” refers only to the fact that the information in question has an economic, political, artistic, cultural, sporting or other value.  A photograph of a single person can be “socially useful” because it serves to illustrate a theme.  That does not make its publication acceptable, however, if it infringes the right to privacy.  We do not consider it appropriate to adopt the notion of “socially useful” for the purposes of legal analysis.  The distinction based on commercial purpose is inconsistent with s. 9.1 of the Quebec Charter.  Only one question arises, namely the balancing of the rights at issue.  It must, therefore, be decided whether the public’s right to information can justify dissemination of a photograph taken without authorization.

 


62                      In the case at bar, the appellants are liable a priori, since the photograph was published when the respondent was identifiable. In our view, the artistic expression of the photograph, which was alleged to have served to illustrate contemporary urban life, cannot justify the infringement of the right to privacy it entails.  It has not been shown that the public’s interest in seeing this photograph is predominant.  The argument that the public has an interest in seeing any work of art cannot be accepted, especially because an artist’s right to publish his or her work, no more than other forms of freedom of expression, is not absolute.  The wording of s. 9.1 of the Quebec Charter should be borne in mind here, together with the fact that this Court has stated on a number of occasions that freedom of expression must be defined in light of the other values concerned.  See Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; and Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 103.  See also Moises v. Canadian Newspaper Co., [1997] 1 W.W.R. 337 (B.C.C.A.).

 

63                      An artist’s right to publish his or her work cannot include the right to infringe, without any justification, a fundamental right of the subject whose image appears in the work.  While the artist’s right must be taken into consideration, so must the rights of the photograph’s subject.  If it is accepted that publishing the artist’s work is an exercise of freedom of expression, the respondent’s right not to consent must also be taken into consideration.  That is what this Court held in the context of the Canadian Bill of Rights in CKOY Ltd. v. The Queen, [1979] 1 S.C.R. 2, at pp. 14‑15, where the Court denied a radio station the right to broadcast an interview without the consent of the person interviewed.

 


64                      When the values at issue in a case must be balanced, it is important to bear in mind that our law is characterized by recognition of interrelated rights whose purpose is to strengthen the democratic ideal.  Individual freedom is at the heart of that ideal.  Dickson J. (as he then was) stated the following in this regard in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at pp. 336‑37:

 

Freedom can primarily be characterized by the absence of coercion or constraint.  If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free.  One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint.  Coercion includes not only . . . blatant forms of compulsion . . . [but also] includes indirect forms of control which determine or limit alternative courses of conduct available to others.

 

65                      None of the exceptions mentioned earlier based on the public’s right to information is applicable here.  Accordingly, there appears to be no justification for giving precedence to the appellants other than their submission that it would be very difficult in practice for a photographer to obtain the consent of all those he or she photographs in public places before publishing their photographs.  To accept such an exception would, in fact, amount to accepting that the photographer’s right is unlimited, provided that the photograph is taken in a public place, thereby extending the photographer’s freedom at the expense of that of others.  We reject this point of view.  In the case at bar, the respondent’s right to protection of her image is more important than the appellants’ right to publish the photograph of the respondent without first obtaining her permission.

 

V. Damages

 


66                      The appellants argued that there was no causal connection between the publication of the photograph and the damages.  In our view, no particular problem arises here since the damages are the logical, direct and immediate consequence of the fault.  A teenager’s sensitivity and the possibility of being teased by her friends are eminently foreseeable.

 

67                      Nonetheless, it was necessary for the respondent to establish that she had suffered prejudice.  Such prejudice may be extrapatrimonial and/or patrimonial.

 

68                      Where extrapatrimonial damages are concerned, we agree with Baudouin J.A. that the infringement of a right guaranteed by the Quebec Charter is in itself insufficient to establish that damage has been sustained.  Nor is an award of symbolic damages justified when the courts wish to punish the infringement of a right that will, in most cases, result in minimal injury.  This would be contrary to the principles of civil responsibility.

 

69                      The damages must, therefore, be proven.  As Dean Nerson pointed out in his thesis entitled Les droits extrapatrimoniaux (1939), at p. 384 (cited in Potvin, supra, at p. 272), damages [translation] “may consist simply in the annoyance felt by a person at becoming a ‘celebrity’”.  The publication of a picture of a person that discloses a scene from his or her private life violates the victim’s feeling of [translation] “eminently respectable” propriety and can cause him or her a significant moral prejudice.  In his thesis entitled La protection des personnes contre la réalisation et la publication de leur image (1978), No. 347, at pp. 388‑89 (cited in Potvin, supra, at p. 274), J. Ravanas described the elements of moral prejudice as follows:

 


[translation] Such a feeling is likely to be offended each time a photographer invades someone’s privacy or serves it up to the public.  The camera lens captures a human moment at its most intense, and the snapshot “defiles” that moment.  The privileged instant of personal life becomes “this object image offered to the curiosity of the greatest number”.  A person surprised in his or her private life by a roving photographer is stripped of his or her transcendency and human dignity, since he or she is reduced to the status of a “spectacle” for others. . . . This “indecency of the image” deprives those photographed of their most secret substance.

 

70                      In the case at bar, the evidence of moral damages is limited.  The moral prejudice is described in a few lines.  Nonetheless, it is possible for a trial judge in a case such as this to assess the victim’s conduct and, going beyond his or her words, to detect a violation of dignity in the sense described by Mr. Ravanas.

 

[translation]

 

Q.   Did that photo cause you any difficulties?

 

A.   Some difficulties; people laughed at me.

 

Q.   People, who are these people?

 

A.   My friends, the people at school.

 

Q.   The people at school?

 

A.   Uh‑huh.

 

Q.   I have no further questions, Your Honour.

 

71                      Although the evidence is limited, we agree with LeBel J.A. and Biron J. that, having been accepted by the trial judge, it could serve as a basis for the damages awarded.  This evidence did exist and illustrated in the trial judge’s view the discomfort and upset felt by the respondent as a result of the publication of her photograph.  Thus, contrary to what Baudouin J.A. stated, the trial judge did not find that an injury had been sustained solely because the photograph was wrongfully disseminated.  To find that there was no moral prejudice, it would be necessary to reassess the respondent’s credibility, but that assessment is essentially the province of the trier of fact.  No manifest, serious and critical error has been shown.  See in this regard Hodgkinson v. Simms, supra, at p. 426.


 

72                      The damages awarded were $2,000, which seems high.  It must be recognized, however, that it is always difficult to assess moral damage and that such a decision is up to the trier of fact.  This Court has stressed the importance of the trial court’s role in such matters and the caution appellate courts must show before intervening in such an assessment.  See Laurentide Motels Ltd. v. Beauport (City), supra, at p. 810:

 

The rule is that an appellate court should not alter the quantum of damages set by the trial judge simply because it would have awarded a different amount if it had itself been sitting at the trial level.  For the quantum to be altered, an appellate court must be shown that the trial judge applied an erroneous rule of law or that the amount awarded was palpably incorrect compensation for the damage suffered.

 

73                      It is clear, however, that the trial judge erred with respect to the extent of the dissemination of the magazine.  He also erred in stating that the damages would compensate in part for the humiliation suffered by the respondent as a result of the injury to her reputation, whereas no injury to her honour and reputation had been proven.  However, these errors in the assessment do not call into question the existence of moral damages resulting from the infringement of the respondent’s right to respect for her private life.  Accordingly, they do not warrant this Court’s intervention to reduce a compensatory award that is still within reasonable limits.

 


74                      With respect to the patrimonial aspect of the invasion of privacy, we are of the view that the commercial or promotional exploitation of an image, whether of a well‑known person or a private individual, can cause the victim material prejudice.  The compensation must, then, be calculated on the basis of the loss actually sustained and the lost profit (art. 1073 C.C.L.C.).  In this regard, the respondent is correct in stating that the magazine does not cease to be “commercial” merely because it has an artistic content.  In the case at bar, the photograph was used for commercial purposes, in particular to sell the magazine.  The trial judge stated that the amount of $2,000 was compensation for moral damages only.  Neither the trial judge nor the judges of the Court of Appeal discussed the patrimonial aspect of the damages.  The respondent was, however, entitled to claim an amount in exchange for the use of her image.  The respondent argued that there was commercial exploitation and adduced evidence in support of her claim for damages in respect thereof.  The testimony of Gilbert Duclos disclosed that he usually has to pay between $30 and $40 an hour for the services of a model, generally for a period of two to four hours.  Thus, the respondent would ordinarily have been entitled to a sum of money.  In the present case, this was the only evidence available to this Court for calculating these damages.  In other circumstances, where the evidence so permits, it is not impossible to compensate for patrimonial damages through profit‑sharing based on the principles of profit lost and loss sustained.  Since no cross‑appeal was brought with respect to the amount of the damages, we will not vary the amount awarded by the trial judge.

 

75                      The appeal is dismissed with costs.

 

76                      The respondent has asked that the appellants be ordered to pay not only costs, but also fees, or solicitor‑client costs.  In Quebec, the awarding of costs is governed exhaustively by the Code of Civil Procedure, R.S.Q., c. C-25, and the various tariffs.  See Kowarsky v. Procureur général du Québec, [1988] R.D.J. 339 (C.A.).  These confer a discretion on the judge to award additional costs.

 

77                      The first paragraph of art. 477 C.C.P. provides that:

 


477.  The losing party must pay all costs, including the costs of the stenographer, unless by decision giving reasons the court reduces or compensates them, or orders otherwise.

 

78                      Section 15 of the Tariff of judicial fees of advocates, R.R.Q. 1981, c. B-1, r. 13, reads as follows:

 

15.  The Court may, upon request or ex officio, grant a special fee, in addition to all others [sic] fees, in an important case.

 

79                           The Quebec courts have not interpreted the above provisions as authorizing them to award additional costs to punish bad faith or abuse of process, as is the case in the common law jurisdictions.  Under art. 477 a court may, nonetheless, order that costs be paid by counsel personally where he or she is guilty of highly reprehensible conduct.  See Droit de la famille -‑ 1777, [1994] R.J.Q. 1493 (C.A.), at p. 1501, per Delisle J.A.

 

80                           Nor does the “important case” referred to in s. 15 cover additional costs for the purpose of punishing reprehensible conduct.  See Banque canadienne impériale de commerce v. Aztec Iron Corp., [1978] C.S. 266, at p. 284, per Archambault J., and Droit de la famille -- 1777, supra, at p. 1501.  However, it does apply to a very long and complex case (see Berthiaume v. Réno‑Dépôt inc., [1996] R.J.Q. 1323 (Sup. Ct.)).  In certain circumstances, a test case may meet the requirements of s. 15 if its importance for an industry has transformed it into a much longer and more complex case than the interests of the immediate parties would ordinarily have warranted.

 


81                      In the present case, the respondent argues that the media more or less took the initiative in the proceedings in order to obtain a decision establishing their own rights in the practice of the professions of photographer and journalist, and that this justifies an additional award of costs, even though the respondent is still eligible for legal aid.  Counsel for the appellant, Les Éditions Vice-Versa inc., argues, for her part, that the respondent should have included such costs in its claim for damages.  Even if this were recognized to be a test case that entitles the respondent to additional costs, we do not feel that it would be appropriate to award such costs.  We wish to make it clear, however, that we also reject the appellant’s position that additional costs must be included in the claim for damages.  This approach would be entirely inconsistent with the provisions of art. 477 C.C.P.  It should also be noted that, in the instant case, the costs cannot be considered to be the direct result of the violation of the Quebec Charter.

 

The following are the reasons delivered by

 

82                               Major J. (dissenting) -- I agree with the result reached by the Chief Justice and would allow the appeal for the reasons of Baudouin J.A. that there was no evidence of damage.

 

Appeal dismissed with costs, Lamer C.J. and Major J. dissenting.

 

Solicitors for the appellant Les Éditions Vice‑Versa inc.:  McCarthy Tétrault, Montréal.

 

Solicitor for the appellant Duclos:  Vivianne De Kinder, Montréal.

 

Solicitors for the respondent:  Charbonneau & Archambault, Montréal.

 

Solicitors for the intervener:  Lafleur Brown, Montréal.

 

 

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