Vancouver (City) v. Ward

On July 23, 2010, the Supreme Court of Canada released its decision in Vancouver (City) v. Ward in which it held that damages may be awarded for a breach of Charter rights, even where public officials have not acted in bad faith and the individual has not suffered any monetary damages.

Alan Cameron Ward was mistaken by police as someone who was planning to throw a pie at the Prime Minister. He was arrested and stripped searched. His car was impounded and he was held in lock-up for several hours. Police later determined that they had the wrong person.

Ward sued the City of Vancouver and the Province of B.C. both in tort and for breach of his Charter rights. He won at trial. The trial judge dismissed the tort action, but held that, even though the Province and the City did not act in bad faith, the strip search and the vehicle seizure violated Ward's right to be free from unreasonable search and seizure under s. 8 of the Charter. He ordered the City to pay Ward $100 for the vehicle seizure and the Province to pay Ward $5000 for the strip search. The B.C. Court of Appeal upheld the decision.

The City and Province appealed to the Supreme Court of Canada. They argued that damages were an inappropriate remedy for Charter breaches absent bad faith, abuse of power, or tortious conduct.

The Supreme Court did not agree. In a unanimous decision, the Court noted that section 24(1) of the Charter gives courts of competent jurisdiction a broad power to grant “appropriate and just” remedies for Charter breaches. Prior jurisprudence held that an appropriate and just remedy will:

(1) meaningfully vindicate the rights and freedoms of the claimants;

(2) employ means that are legitimate within the framework of Canada's constitutional democracy;

(3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and

(4) be fair to the party against whom the order is made.

The Court concluded that damages for breach of a claimant’s Charter rights may meet these conditions:

They may meaningfully vindicate the claimant’s rights and freedoms. They employ a means well-recognized within our legal framework. They are appropriate to the function and powers of a court. And, depending on the circumstances and the amount awarded, they can be fair not only to the claimant whose rights were breached, but to the state which is required to pay them. I therefore conclude that s. 24(1) is broad enough to include the remedy of damages for Charter breach. That said, granting damages under the Charter is a new endeavour, and an approach to when damages are appropriate and just should develop incrementally. Charter damages are only one remedy amongst others available under s. 24(1), and often other s. 24(1) remedies will be more responsive to the breach.

The Court held that, where a Charter breach has been established, a functional approach must be taken to determining whether a remedy of damages would be appropriate. That is, for damages to be awarded, they must further the general objects of the Charter as reflected in three interrelated functions that damages may serve:

The function of compensation, usually the most prominent function, recognizes that breach of an individual’s Charter rights may cause personal loss which should be remedied. The function of vindication recognizes that Charter rights must be maintained, and cannot be allowed to be whittled away by attrition. Finally, the function of deterrence recognizes that damages may serve to deter future breaches by state actors.

If it is determined that an award of damages would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches, the state will have an opportunity to convince the court that countervailing factors, such as the existence of alternative remedies or concerns for good governance, would render an order of damages inappropriate or unjust in the particular circumstances of a case.

Finally, where it has been determined that damages should be awarded, the quantum of damages must also be appropriate and just having regard to the principles of compensation, vindication and deterrence. In some cases, the Court noted, the claimant’s losses will be non-pecuniary. While harder to measure, such losses are not by that reason to be rejected. "Pain and suffering are compensable. Absent exceptional circumstances, compensation is fixed at a fairly modest conventional rate, subject to variation for the degree of suffering in the particular case." The Court concluded:

...[T]o be “appropriate and just”, an award of damages must represent a meaningful response to the seriousness of the breach and the objectives of compensation, upholding Charter values, and deterring future breaches. The private law measure of damages for similar wrongs will often be a useful guide. However, as Lord Nicholls warns in Ramanoop ... “this measure is no more than a guide because . . . the violation of the constitutional right will not always be coterminous with the cause of action at law”

Applying these principles to the facts In this case, the Court held that the $5000 in damages ordered for the strip search was appropriate:

In this case, the need for compensation bulks large. Mr. Ward’s injury was serious. He had a constitutional right to be free from unreasonable search and seizure, which was violated in an egregious fashion. Strip searches are inherently humiliating and degrading regardless of the manner in which they are carried out and thus constitute significant injury to an individual’s intangible interests ...

The corrections officers’ conduct which caused the breach of Mr. Ward’s Charter rights was also serious. Minimum sensitivity to Charter concerns within the context of the particular situation would have shown the search to be unnecessary and violative. Mr. Ward did not commit a serious offence, he was not charged with an offence associated with evidence being hidden on the body, no weapons were involved and he was not known to be violent or to carry weapons. Mr. Ward did not pose a risk of harm to himself or others, nor was there any suggestion that any of the officers believed that he did. In these circumstances, a reasonable person would understand that the indignity resulting from the search was disproportionate to any benefit which the search could have provided. In addition, without asking officers to be conversant with the details of court rulings, it is not too much to expect that police would be familiar with the settled law that routine strip searches are inappropriate where the individual is being held for a short time in police cells, is not mingling with the general prison population, and where the police have no legitimate concerns that the individual is concealing weapons that could be used to harm themselves or others...

However, the Court overturned the $100 in damages the City had been ordered to pay for seizing Ward's car. Noting that the car had not been searched, the Court concluded that a declaration that the seizure violated Ward's Charter rights was sufficient.

The Association in Defence of the Wrongly Convicted intervened in this case. AIDWYC was represented by Louis Sokolov and Heidi Rubin.

Click here to read the Court's decision.