SUPREME
COURT OF CANADA
Between:
City of Vancouver
Appellant
and
Alan Cameron Ward
Respondent
And Between:
Her
Majesty The Queen in Right of the
Province
of British Columbia
Appellant
and
Alan Cameron Ward
Respondent
‑ and ‑
Attorney
General of Canada, Attorney General of Ontario,
Attorney
General of Quebec, Aboriginal Legal Services of
Toronto
Inc., Association in Defence of the Wrongly Convicted,
Canadian
Civil Liberties Association, Canadian Association of
Chiefs
of Police, Criminal Lawyers’ Association (Ontario),
British
Columbia Civil Liberties Association and
David
Asper Centre for Constitutional Rights
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish,
Abella, Charron, Rothstein and Cromwell JJ.
Reasons for
Judgment:
(paras. 1 to 80)
|
McLachlin C.J. (Binnie, LeBel,
Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring)
|
______________________________
Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28
City of Vancouver Appellant
v.
Alan Cameron Ward Respondent
‑ and ‑
Her Majesty
The Queen in Right
of the Province of British Columbia Appellant
v.
Alan Cameron Ward Respondent
and
Attorney General of Canada,
Attorney
General of Ontario,
Attorney
General of Quebec,
Aboriginal
Legal Services of Toronto Inc.,
Association
in Defence of the Wrongly Convicted,
Canadian
Civil Liberties Association,
Canadian
Association of Chiefs of Police,
Criminal
Lawyers’ Association (Ontario),
British
Columbia Civil Liberties Association and
David Asper Centre for Constitutional Rights Interveners
Indexed as: Vancouver (City) v. Ward
2010 SCC 27
File No.: 33089.
2010: January 18; 2010: July 23.
Present: McLachlin C.J. and Binnie, LeBel,
Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal
for british columbia
Constitutional law — Charter of Rights — Enforcement
— Damage award as remedy for breach of rights — Quantum — Claimant strip
searched and his car seized in violation of his constitutional rights — Whether
claimant entitled to damages as remedy under s. 24(1) of Canadian Charter
of Rights and Freedoms — If so, how should quantum of damages be assessed.
During a ceremony in Vancouver, the city police
department received information that an unknown individual intended to throw a
pie at the Prime Minister who was in attendance. Based on his appearance,
police officers mistakenly identified W as the would‑be pie‑thrower,
chased him down and handcuffed him. W, who loudly protested his detention and
created a disturbance, was arrested for breach of the peace and taken to the
police lockup. Upon his arrival, the corrections officers conducted a strip
search. While W was at the lockup, police officers impounded his car for the
purpose of searching it once a search warrant had been obtained. The
detectives subsequently determined that they did not have grounds to obtain the
required search warrant or evidence to charge W for attempted assault. W was
released approximately 4.5 hours after his arrest. He brought an action
in tort and for breach of his rights guaranteed by the Canadian Charter of
Rights and Freedoms against several parties, including the Province and the
City. With respect to the strip search and the car seizure, the trial judge
held that, although the Province and the City did not act in bad faith and were
not liable in tort for either incident, the Province’s strip search and the
City’s vehicle seizure violated W’s right to be free from unreasonable search
and seizure under s. 8 of the Charter . The trial judge assessed
damages under s. 24(1) of the Charter at $100 for the seizure of
the car and $5,000 for the strip search. The Court of Appeal, in a majority
decision, upheld the trial judge’s ruling.
Held: The appeal should
be allowed in part.
The language of s. 24(1) is broad enough to include
the remedy of constitutional damages for breach of a claimant’s Charter rights
if such remedy is found to be appropriate and just in the circumstances of a
particular case. The first step in the inquiry is to establish that a Charter
right has been breached; the second step is to show why damages are a just and
appropriate remedy, having regard to whether they would fulfill one or more of
the related functions of compensation, vindication of the right, and/or
deterrence of future breaches.
Once the claimant has established that damages are functionally
justified, the state has the opportunity to demonstrate, at the third step,
that countervailing factors defeat the functional considerations that support a
damage award and render damages inappropriate or unjust. Countervailing
considerations include the existence of alternative remedies. Claimants need
not show that they have exhausted all other recourses. Rather, it is for the
state to show that other remedies including private law remedies or another Charter
remedy are available in the particular case that will sufficiently address the Charter
breach. Concern for effective governance may also negate the appropriateness
of s. 24(1) damages. In some situations, the state may establish that an
award of Charter damages would interfere with good governance such that
damages should not be awarded unless the state conduct meets a minimum
threshold of gravity.
If the state fails to negate that the award is
“appropriate and just”, the final step is to assess the quantum of the damages.
To be “appropriate and just”, an award of damages must represent a meaningful
response to the seriousness of the breach and the objectives of s. 24(1)
damages. Where the objective of compensation is engaged, the concern is to
restore the claimant to the position he or she would have been in had the
breach not been committed. With the objectives of vindication and deterrence,
the appropriate determination is an exercise in rationality and
proportionality. Generally, the more egregious the breach and the more serious
the repercussions on the claimant, the higher the award for vindication or
deterrence will be. In the end, s. 24(1) damages must be fair to both the
claimant and the state. In considering what is fair to both, a court may take
into account the public interest in good governance, the danger of deterring
governments from undertaking beneficial new policies and programs, and the need
to avoid diverting large sums of funds from public programs to private
interests. Damages under s. 24(1) should also not duplicate damages
awarded under private law causes of action, such as tort, where compensation of
personal loss is at issue.
Here, damages were properly awarded for the strip search
of W. This search violated his s. 8 Charter rights and compensation
is required, in this case, to functionally fulfill the objects of
constitutional damages. Strip searches are inherently humiliating and
degrading and the Charter breach significantly impacted on W’s person
and rights. The correction officers’ conduct which caused the breach 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. Combined with the police conduct, the impingement on W also engages
the objects of vindication of the right and deterrence of future breaches. The
state did not establish countervailing factors and damages should be awarded
for the breach. Considering the seriousness of the injury and the finding that
the corrections officers’ actions were not intentional, malicious, high‑handed
or oppressive, the trial judge’s $5,000 damage award was appropriate.
With respect to the seizure of the car, W has not
established that damages under s. 24(1) are appropriate and just from a
functional perspective. The object of compensation is not engaged as W did not
suffer any injury as a result of the seizure. Nor are the objects of
vindication of the right and deterrence of future breaches compelling. While
the seizure was wrong, it was not of a serious nature. A declaration under
s. 24(1) that the vehicle seizure violated W’s right to be free from
unreasonable search and seizure under s. 8 of the Charter
adequately serves the need for vindication of the right and deterrence of future
improper car seizures.
Cases Cited
Considered: Mackin v.
New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405; referred
to: Mills v. The Queen, [1986] 1 S.C.R. 863; Doucet‑Boudreau
v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Dunlea
v. Attorney‑General, [2000] NZCA 84, [2000] 3 N.Z.L.R. 136; Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Anufrijeva v.
Southwark London Borough Council, [2003] EWCA Civ 1406, [2004] Q.B. 1124; Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971); Taunoa v. Attorney‑General, [2007] NZSC 70, [2008] 1
N.Z.L.R. 429; Fose v. Minister of Safety and Security, 1997 (3) SA 786; Attorney
General of Trinidad and Tobago v. Ramanoop, [2005] UKPC 15, [2006] 1 A.C.
328; Smith v. Wade, 461 U.S. 30 (1983); R. v. B.W.P., 2006 SCC
27, [2006] 1 S.C.R. 941; Simpson v. Attorney‑General, [1994] 3
N.Z.L.R. 667; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339;
Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC
41, [2007] 3 S.C.R. 129; Béliveau St‑Jacques v. Fédération des
employées et employés de services publics inc., [1996] 2 S.C.R. 345; R.
v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Conway, 2010 SCC
22, [2010] 1 S.C.R. 765; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679.
Statutes and Regulations Cited
Act respecting industrial
accidents and occupational diseases, R.S.Q.,
c. A‑3.001.
Canadian Charter of Rights and Freedoms, ss. 8 , 9 , 24 , 32 .
Charter of human rights and freedoms, R.S.Q., c. C‑12, ss. 49, 51.
Constitution Act, 1982, s. 52(1) .
APPEAL from a judgment of the British Columbia Court of
Appeal (Finch C.J.B.C. and Saunders and Low JJ.A.), 2009 BCCA 23, 89 B.C.L.R.
(4th) 217, 265 B.C.A.C. 174, 446 W.A.C. 174, 304 D.L.R. (4th) 653, [2009] 6
W.W.R. 261, 63 C.C.L.T. (3d) 165, [2009] B.C.J. No. 91 (QL), 2009
CarswellBC 115, affirming a decision of Tysoe J., 2007 BCSC 3, 63 B.C.L.R.
(4th) 361, [2007] 4 W.W.R. 502, 45 C.C.L.T. (3d) 121, [2007] B.C.J. No. 9
(QL), 2007 CarswellBC 12, finding a breach of Charter rights and
awarding damages. Appeal allowed in part.
Tomasz M. Zworski,
for the appellant the City of Vancouver.
Bryant Alexander Mackey
and Barbara Carmichael, for the appellant Her Majesty the Queen in Right
of the Province of British Columbia.
Brian M. Samuels,
Kieran A. G. Bridge and Jennifer W. Chan, for the
respondent.
Mark R. Kindrachuk,
Q.C., and Jeffrey G. Johnston, for the intervener the
Attorney General of Canada.
Robert E. Charney
and Josh Hunter, for the intervener the Attorney General of Ontario.
Isabelle Harnois
and Gilles Laporte, for the intervener the Attorney General of Quebec.
Kimberly R. Murray
and Julian N. Falconer, for the intervener the Aboriginal Legal
Services of Toronto Inc.
Louis Sokolov and Heidi
Rubin, for the intervener the Association in Defence of the Wrongly
Convicted.
Stuart Svonkin and
Jana Stettner, for the intervener the Canadian Civil Liberties
Association.
Vincent Westwick
and Karine LeBlanc, for the intervener the Canadian Association of
Chiefs of Police.
Sean Dewart and Tim
Gleason, for the intervener the Criminal Lawyers’ Association (Ontario).
Kent Roach and Grace
Pastine, for the interveners the British Columbia Civil Liberties
Association and the David Asper Centre for Constitutional Rights.
The judgment of the Court was delivered by
The Chief Justice —
I. Introduction
[1]
The Canadian Charter of Rights and Freedoms guarantees the
fundamental rights and freedoms of all Canadians and provides remedies for
their breach. The first and most important remedy is the nullification of laws
that violate the Charter under s. 52(1) of the Constitution Act,
1982 . This is supplemented by s. 24(2) , under which evidence obtained in
breach of the Charter may be excluded if its admission would bring the
administration of justice into disrepute, and s. 24(1) — the provision at issue
in this case — under which the court is authorized to grant such remedies to
individuals for infringement of Charter rights as it “considers
appropriate and just in the circumstances”.
[2]
The respondent Ward’s Charter rights were violated by Vancouver
and British Columbia officials who detained him, strip searched his person and
seized his car without cause. The trial judge awarded Mr. Ward damages for
the Charter breaches, and the majority of the Court of Appeal of British
Columbia upheld that award.
[3]
This appeal raises the question of when damages may be awarded under s.
24(1) of the Charter , and what the amount of such damages should be.
Although the Charter is 28 years old, authority on this question is
sparse, inviting a comprehensive analysis of the object of damages for Charter
breaches and the considerations that guide their award.
[4]
I conclude that damages may be awarded for Charter breach under
s. 24(1) where appropriate and just. The first step in the inquiry is to
establish that a Charter right has been breached. The second step is to
show why damages are a just and appropriate remedy, having regard to whether
they would fulfill one or more of the related functions of compensation, vindication
of the right, and/or deterrence of future breaches. At the third step, the
state has the opportunity to demonstrate, if it can, that countervailing
factors defeat the functional considerations that support a damage award and
render damages inappropriate or unjust. The final step is to assess the
quantum of the damages.
[5]
I conclude that damages were properly awarded for the strip search of
Mr. Ward, but not justified for the seizure of his car. I would therefore
allow the appeal in part.
II. Facts
[6]
On August 1, 2002, Prime Minister Chrétien participated in a ceremony to
mark the opening of a gate at the entrance to Vancouver’s Chinatown. During the
ceremony, the Vancouver Police Department (“VPD”) received information that an
unknown individual intended to throw a pie at the Prime Minister, an event that
had occurred elsewhere two years earlier. The suspected individual was
described as a white male, 30 to 35 years, 5' 9", with dark short hair,
wearing a white golf shirt or T‑shirt with some red on it.
[7]
Mr. Ward is a Vancouver lawyer who attended the August 1 ceremony. On
the day, Mr. Ward, a white male, had grey, collar‑length hair, was in his
mid‑40s and was wearing a grey T‑shirt with some red on it. Based
on his appearance, Mr. Ward was identified — mistakenly — as the would-be
pie-thrower. When the VPD officers noticed him, Mr. Ward was running and
appeared to be avoiding interception. The officers chased Mr. Ward down and handcuffed
him. Mr. Ward loudly protested his detention and created a disturbance, drawing
the attention of a local television camera crew. The television broadcast
showed that Mr. Ward had a “very agitated look on his face”, “appeared to be
yelling for the benefit of the onlookers” and was “holding back” as he was
being escorted down the street.
[8]
Mr. Ward was arrested for breach of the peace and taken to the police
lockup in Vancouver, which was under the partial management of provincial
corrections officers. Upon his arrival, the corrections officers instructed
Mr. Ward to remove all his clothes in preparation for a strip search. Mr. Ward
complied in part but refused to take off his underwear. The officers did not
insist on complete removal and Mr. Ward was never touched during the search.
After the search was completed, Mr. Ward was placed in a small cell where
he spent several hours before being released.
[9]
While Mr. Ward was at the lockup, VPD officers impounded his car for
the purpose of searching it once a search warrant had been obtained. VPD
detectives subsequently determined that they did not have grounds to obtain the
required search warrant or evidence to charge Mr. Ward for attempted assault.
Mr. Ward was released from the lockup approximately 4.5 hours after he was
arrested and several hours after the Prime Minister had left Chinatown
following the ceremony.
III. Judicial History
A. Supreme Court of British Columbia, 2007
BCSC 3, 63 B.C.L.R. (4th) 361
[10] Mr.
Ward brought an action in tort and for breach of his Charter rights
against the City, the Province, and individual police and corrections officers
for his arrest, detention, strip search, and car seizure. Justice Tysoe found
Mr. Ward’s arrest for breach of the peace to be lawful and dismissed the action
against the individual police and corrections officers. However, Tysoe J. held
that — although they did not act in bad faith and were not liable in tort for
either incident — the Province’s strip search and the City’s vehicle seizure
violated Mr. Ward’s right to be free from unreasonable search and seizure under
s. 8 of the Charter . In addition, Tysoe J. found that the City breached
Mr. Ward’s rights under s. 9 of the Charter and committed the tort
of wrongful imprisonment by keeping Mr. Ward in the police lockup longer than
necessary.
[11] Tysoe
J. assessed damages under s. 24(1) of the Charter at $100 for the
seizure of the car and $5,000 for the strip search. He rejected the
governments’ argument that damages were an inappropriate remedy for Charter
breaches absent bad faith, abuse of power, or tortious conduct. In addition,
Tysoe J. awarded $5,000 in damages for the wrongful imprisonment. This award is
not at issue on this appeal.
B. British Columbia Court of Appeal, 2009
BCCA 23, 89 B.C.L.R. (4th) 217
[12] Justice
Low, Finch C.J.B.C. concurring, upheld Tysoe J.’s ruling, agreeing with Mr.
Ward that bad faith, abuse of power, or tortious conduct are not necessary
requirements for the awarding of Charter damages.
[13] Justice
Saunders, dissenting, would have allowed the Province and City appeals, holding
that damages cannot be awarded where the police did not act in bad faith and
simply made a mistake as to the proper course of action.
IV. Constitutional Provisions
[14] Section
24(1) of the Charter provides as follows:
Anyone whose rights or freedoms, as guaranteed by this Charter, have
been infringed or denied may apply to a court of competent jurisdiction to
obtain such remedy as the court considers appropriate and just in the
circumstances.
V. Issues
[15] The
issues are the following:
A. When are damages under s. 24(1) available?
1. The language of s. 24(1) and the nature
of Charter damages;
2. Step one: Proof of a Charter
breach;
3. Step two: Functional justification of
damages;
4. Step three: Countervailing factors;
5. Step four: Quantum of s. 24(1) damages;
6. Forum and procedure.
B. Application to the Facts
1. Damages for the strip search;
2. Damages for the car seizure.
VI. Analysis
A. When Are Damages Under Section 24(1)
Available?
(1) The Language of Section 24(1) and the
Nature of Charter Damages
[16] Section
24(1) empowers courts of competent jurisdiction to grant “appropriate and just”
remedies for Charter breaches. This language invites a number of
observations.
[17] First,
the language of the grant is broad. As McIntyre J. observed, “[i]t is
difficult to imagine language which could give the court a wider and less
fettered discretion”: Mills v. The Queen, [1986] 1 S.C.R. 863, at p.
965. The judge of “competent jurisdiction” has broad discretion to determine
what remedy is appropriate and just in the circumstances of a particular case.
[18] Second,
it is improper for courts to reduce this discretion by casting it in a
strait-jacket of judicially prescribed conditions. To quote McIntyre J. in Mills
once more, “[i]t is impossible to reduce this wide discretion to some sort of
binding formula for general application in all cases, and it is not for
appellate courts to pre-empt or cut down this wide discretion”: Mills,
at p. 965.
[19] Third,
the prohibition on cutting down the ambit of s. 24(1) does not preclude
judicial clarification of when it may be “appropriate and just” to award
damages. The phrase “appropriate and just” limits what remedies are
available. The court’s discretion, while broad, is not unfettered. What is
appropriate and just will depend on the facts and circumstances of the
particular case. Prior cases may offer guidance on what is appropriate and
just in a particular situation.
[20] The
general considerations governing what constitutes an appropriate and just
remedy under s. 24(1) were set out by Iacobucci and Arbour JJ. in Doucet‑Boudreau
v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3
S.C.R. 3. Briefly, 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 our 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:
Doucet‑Boudreau, at paras. 55‑58.
[21] 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.
[22] The
term “damages” conveniently describes the remedy sought in this case. However,
it should always be borne in mind that these are not private law damages, but
the distinct remedy of constitutional damages. As Thomas J. notes in Dunlea
v. Attorney-General, [2000] NZCA 84, [2000] 3 N.Z.L.R. 136, at para. 81, a
case dealing with New Zealand’s Bill of Rights Act 1990, an action for
public law damages “is not a private law action in the nature of a tort claim
for which the state is vicariously liable but [a distinct] public law action
directly against the state for which the state is primarily liable”. In
accordance with s. 32 of the Charter, this is equally so in the Canadian
constitutional context. The nature of the remedy is to require the state (or
society writ large) to compensate an individual for breaches of the
individual’s constitutional rights. An action for public law damages —
including constitutional damages — lies against the state and not against
individual actors. Actions against individual actors should be pursued in
accordance with existing causes of action. However, the underlying policy
considerations that are engaged when awarding private law damages against state
actors may be relevant when awarding public law damages directly against the
state. Such considerations may be appropriately kept in mind.
(2) Step One: Proof of a Charter Breach
[23]
Section 24(1) is remedial. The first step, therefore, is to
establish a Charter breach. This is the wrong on which the claim for
damages is based.
(3) Step Two: Functional Justification of
Damages
[24] A
functional approach to damages finds damages to be appropriate and just to the
extent that they serve a useful function or purpose. This approach has been
adopted in awarding non‑pecuniary damages in personal injury cases (Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229), and, in my view, a
similar approach is appropriate in determining when damages are “appropriate
and just” under s. 24(1) of the Charter .
[25] I
therefore turn to the purposes that an order for damages under s. 24(1) may
serve. For damages to be awarded, they must further the general objects of the
Charter. This reflects itself 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.
[26] These
functions of s. 24(1) damages are supported by foreign constitutional
jurisprudence and, by analogy, foreign jurisprudence arising in the statutory
human rights context.
[27] Compensation
has been cited by Lord Woolf C.J. (speaking of the European Convention of
Human Rights) as “fundamental”. In most cases, it is the most prominent of
the three functions that Charter damages may serve. The goal is to
compensate the claimant for the loss caused by the Charter breach; “[t]he
applicant should, in so far as this is possible, be placed in the same position
as if his Convention rights had not been infringed”: Anufrijeva v. Southwark
London Borough Council, [2003] EWCA Civ 1406, [2004] Q.B. 1124, at para.
59, per Lord Woolf C.J. Compensation focuses on the claimant’s personal
loss: physical, psychological and pecuniary. To these types of loss must be
added harm to the claimant’s intangible interests. In the public law damages
context, courts have variously recognized this harm as distress, humiliation,
embarrassment, and anxiety: Dunlea; Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); Taunoa v.
Attorney-General, [2007] NZSC 70, [2008] 1 N.Z.L.R. 429. Often the harm to
intangible interests effected by a breach of rights will merge with
psychological harm. But a resilient claimant whose intangible interests are
harmed should not be precluded from recovering damages simply because she
cannot prove a substantial psychological injury.
[28] Vindication,
in the sense of affirming constitutional values, has also been recognized as a
valid object of damages in many jurisdictions: see Fose v. Minister of
Safety and Security, 1997 (3) SA 786 (C.C.), at para. 55, for a summary of
the international jurisprudence. Vindication focuses on the harm the
infringement causes society. As Didcott J. observed in Fose, violations
of constitutionally protected rights harm not only their particular victims,
but society as a whole. This is because they “impair public confidence and
diminish public faith in the efficacy of the [constitutional] protection”: Fose,
at para. 82. While one may speak of vindication as underlining the seriousness
of the harm done to the claimant, vindication as an object of constitutional
damages focuses on the harm the Charter breach causes to the state and
to society.
[29] Finally,
deterrence of future breaches of the right has also been widely recognized as a
valid object of public law damages: e.g., Attorney General of Trinidad and
Tobago v. Ramanoop, [2005] UKPC 15, [2006] 1 A.C. 328, at para. 19; Taunoa,
at para. 259; Fose, at para. 96; Smith v. Wade, 461 U.S. 30
(1983), at p. 49. Deterrence, like vindication, has a societal purpose.
Deterrence seeks to regulate government behaviour, generally, in order to
achieve compliance with the Constitution. This purpose is similar to the
criminal sentencing object of “general deterrence”, which holds that the
example provided by the punishment imposed on a particular offender will dissuade
potential criminals from engaging in criminal activity. When general
deterrence is factored in the determination of the sentence, the offender is
punished more severely, not because he or she deserves it, but because the
court decides to send a message to others who may be inclined to engage in
similar criminal activity: R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R.
941. Similarly, deterrence as an object of Charter damages is not aimed
at deterring the specific wrongdoer, but rather at influencing government
behaviour in order to secure state compliance with the Charter in the
future.
[30]
In most cases, all three objects will be present. Harm to the
claimant will evoke the need for compensation. Vindication and deterrence will
support the compensatory function and bolster the appropriateness of an award
of damages. However, the fact that the claimant has not suffered personal loss
does not preclude damages where the objectives of vindication or deterrence
clearly call for an award. Indeed, the view that constitutional damages are
available only for pecuniary or physical loss has been widely rejected in other
constitutional democracies: see, e.g., Anufrijeva; Fose; Taunoa;
Smith; and Ramanoop.
[31] In
summary, damages under s. 24(1) of the Charter are a unique public law
remedy, which may serve the objectives of: (1) compensating the claimant for
loss and suffering caused by the breach; (2) vindicating the right by
emphasizing its importance and the gravity of the breach; and (3) deterring
state agents from committing future breaches. Achieving one or more of these
objects is the first requirement for “appropriate and just” damages under s.
24(1) of the Charter .
(4) Step Three: Countervailing
Factors
[32]
As discussed, the basic requirement for the
award of damages to be “appropriate and just” is that the award must be
functionally required to fulfill one or more of the objects of compensation,
vindication of the right, or deterrence of future Charter breaches.
[33] However,
even if the claimant establishes that damages are functionally justified, the
state may establish that other considerations render s. 24(1) damages
inappropriate or unjust. A complete catalogue of countervailing considerations
remains to be developed as the law in this area matures. At this point,
however, two considerations are apparent: the existence of alternative remedies
and concerns for good governance.
[34] A
functional approach to damages under s. 24(1) means that if other remedies adequately
meet the need for compensation, vindication and/or deterrence, a further award
of damages under s. 24(1) would serve no function and would not be “appropriate
and just”. The Charter entered an existent remedial arena which already
housed tools to correct violative state conduct. Section 24(1) operates
concurrently with, and does not replace, these areas of law. Alternative
remedies include private law remedies for actions for personal injury, other Charter
remedies like declarations under s. 24(1) , and remedies for actions covered by
legislation permitting proceedings against the Crown.
[35] The
claimant must establish basic functionality having regard to the objects of
constitutional damages. The evidentiary burden then shifts to the state to show
that the engaged functions can be fulfilled through other remedies. The
claimant need not show that she has exhausted all other recourses. Rather, it
is for the state to show that other remedies are available in the particular
case that will sufficiently address the breach. For example,
if the claimant has brought a concurrent action in tort, it is open to the
state to argue that, should the tort claim be successful, the resulting award
of damages would adequately address the Charter breach. If that were the
case, an award of Charter damages would be duplicative. In addition, it
is conceivable that another Charter remedy may, in a particular case,
fulfill the function of Charter damages.
[36] The
existence of a potential claim in tort does not therefore bar a claimant from
obtaining damages under the Charter. Tort law and the Charter
are distinct legal avenues. However, a concurrent action in tort, or
other private law claim, bars s. 24(1) damages if the result would be double
compensation: Simpson v. Attorney-General, [1994] 3 N.Z.L.R. 667 (C.A.),
at p. 678.
[37] Declarations
of Charter breach may provide an adequate remedy for the Charter
breach, particularly where the claimant has suffered no personal damage.
Considering declarations in Taunoa, at para. 368, McGrath J. writes:
The court’s finding of a breach of rights and a
declaration to that effect will often not only be appropriate relief but may
also in itself be a sufficient remedy in the circumstances to vindicate a
plaintiff’s right. That will often be the case where no damage has been
suffered that would give rise to a claim under private causes of action and, in
the circumstances, if there is no need to deter persons in the position of the
public officials from behaving in a similar way in the future. If in all the
circumstances the court’s pronouncement that there has been a breach of rights
is a sufficiently appropriate remedy to vindicate the right and afford redress
then, subject to any questions of costs, that will be sufficient to meet the
primary remedial objective.
[38] Another
consideration that may negate the appropriateness of s. 24(1) damages is
concern for effective governance. Good governance concerns may take different
forms. At one extreme, it may be argued that any award of s. 24(1) damages
will always have a chilling effect on government conduct, and hence will impact
negatively on good governance. The logical conclusion of this argument is that
s. 24(1) damages would never be appropriate. Clearly, this is not what the
Constitution intends. Moreover, insofar as s. 24(1) damages deter Charter
breaches, they promote good governance. Compliance with Charter
standards is a foundational principle of good governance.
[39] In
some situations, however, the state may establish that an award of Charter
damages would interfere with good governance such that damages should not be
awarded unless the state conduct meets a minimum threshold of gravity. This
was the situation in Mackin v. New Brunswick (Minister of Finance),
2002 SCC 13, [2002] 1 S.C.R. 405, where the claimant sought damages for state
conduct pursuant to a valid statute. The Court held that the action must be
struck on the ground that duly enacted laws should be enforced until declared
invalid, unless the state conduct under the law was “clearly wrong, in bad
faith or an abuse of power”: para. 78. The rule of law would be undermined if
governments were deterred from enforcing the law by the possibility of future
damage awards in the event the law was, at some future date, to be declared
invalid. Thus, absent threshold misconduct, an action for damages under s.
24(1) of the Charter cannot be combined with an action for invalidity
based on s. 52 of the Constitution Act, 1982 : Mackin, at para.
81.
[40] The Mackin
principle recognizes that the state must be afforded some immunity from
liability in damages resulting from the conduct of certain functions that only
the state can perform. Legislative and policy-making functions are one such
area of state activity. The immunity is justified because the law does not
wish to chill the exercise of policy-making discretion. As Gonthier J.
explained:
The limited immunity given to government is specifically a means of
creating a balance between the protection of constitutional rights and the need
for effective government. In other words, this doctrine makes it possible to
determine whether a remedy is appropriate and just in the circumstances.
Consequently, the reasons that inform the general principle of public law are
also relevant in a Charter context. [para. 79]
[41] The
government argues that the Mackin principle applies in this case, and,
in the absence of state conduct that is at least “clearly wrong”, bars Mr.
Ward’s claim. I cannot accept this submission. Mackin stands for the
principle that state action taken under a statute which is subsequently
declared invalid will not give rise to public law damages because good
governance requires that public officials carry out their duties under valid
statutes without fear of liability in the event that the statute is later
struck down. The present is not a situation of state action pursuant to a
valid statute that was subsequently declared invalid. Nor is the rationale
animating the Mackin principle — that duly enacted laws should be
enforced until declared invalid — applicable in the present situation. Thus,
the Mackin immunity does not apply to this case.
[42] State
conduct pursuant to a valid statute may not be the only situation in which the
state might seek to show that s. 24(1) damages would deter state agents from
doing what is required for effective governance, although no others have been
established in this case. It may be that in the future other situations may be
recognized where the appropriateness of s. 24(1) damages could be negated on
grounds of effective governance.
[43] Such
concerns may find expression, as the law in this area matures, in various
defences to s. 24(1) claims. Mackin established a defence of immunity
for state action under valid statutes subsequently declared invalid, unless the
state conduct is “clearly wrong, in bad faith or an abuse of power” (para. 78).
If and when other concerns under the rubric of effective governance emerge,
these may be expected to give rise to analogous public law defences. By
analogy to Mackin and the private law, where the state establishes that
s. 24(1) damages raise governance concerns, it would seem a minimum threshold,
such as clear disregard for the claimant’s Charter rights, may be
appropriate. Different situations may call for different thresholds, as is the
case at private law. Malicious prosecution, for example, requires that
“malice” be proven because of the highly discretionary and quasi-judicial role
of prosecutors (Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R.
339), while negligent police investigation, which does not involve the same
quasi-judicial decisions as to guilt or innocence or the evaluation of evidence
according to legal standards, contemplates the lower “negligence” standard (Hill
v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41,
[2007] 3 S.C.R. 129). When appropriate, private law thresholds and defences may
offer guidance in determining whether s. 24(1) damages would be “appropriate
and just”. While the threshold for liability under the Charter must be
distinct and autonomous from that developed under private law, the existing
causes of action against state actors embody a certain amount of “practical
wisdom” concerning the type of situation in which it is or is not appropriate
to make an award of damages against the state. Similarly, it may be necessary
for the court to consider the procedural requirements of alternative remedies.
Procedural requirements associated with existing remedies are crafted to
achieve a proper balance between public and private interests, and the
underlying policy considerations of these requirements should not be negated by
recourse to s. 24(1) of the Charter . As stated earlier, s. 24(1)
operates concurrently with, and does not replace, the general law. These are
complex matters which have not been explored on this appeal. I therefore leave
the exact parameters of future defences to future cases.
[44] I find
it useful to add a comment on the judgment of our Court in Béliveau
St-Jacques v. Fédération des employées et employés de services publics inc.,
[1996] 2 S.C.R. 345. Béliveau St-Jacques is not determinative of the
availability of the public law remedy of damages under s. 24(1) . The judgment
raised specific issues concerning the interpretation of ss. 49 and 51 of the
Quebec Charter of human rights and freedoms, R.S.Q., c. C-12, and its
interaction with the statutory regime set up under the Act respecting
industrial accidents and occupational diseases, R.S.Q., c. A-3.001.
[45] If the
claimant establishes breach of his Charter rights and shows that an
award of damages under s. 24(1) of the Charter would serve a functional
purpose, having regard to the objects of s. 24(1) damages, and the state fails
to negate that the award is “appropriate and just”, the final step is to
determine the appropriate amount of the damages.
(5) Step Four: Quantum of
Section 24(1) Damages
[46] The
watchword of s. 24(1) is that the remedy must be “appropriate and just”. This
applies to the amount, or quantum, of damages awarded as much as to the initial
question of whether damages are a proper remedy.
[47] As
discussed earlier, damages may be awarded to compensate the claimant for his
loss, to vindicate the right or to deter future violations of the right. These
objects, the presence and force of which vary from case to case, determine not
only whether damages are appropriate, but also the amount of damages awarded.
Generally, compensation will be the most important object, and vindication and
deterrence will play supporting roles. This is all the more so because other Charter
remedies may not provide compensation for the claimant’s personal injury
resulting from the violation of his Charter rights. However, as
discussed earlier, cases may arise where vindication or deterrence play a
major and even exclusive role.
[48] Where
the objective of compensation is engaged, the concern is to restore the
claimant to the position she would have been in had the breach not been
committed, as discussed above. As in a tort action, any claim for compensatory
damages must be supported by evidence of the loss suffered.
[49] In
some cases, the Charter breach may cause the claimant pecuniary loss.
Injuries, physical and psychological, may require medical treatment, with
attendant costs. Prolonged detention may result in loss of earnings. Restitutio
in integrum requires compensation for such financial losses.
[50]
In other cases, like this one, the claimant’s losses will be
non-pecuniary. Non-pecuniary damages are harder to measure. Yet they are not
by that reason to be rejected. Again, tort law provides assistance. 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. In extreme cases of catastrophic injury,
a higher but still conventionally determined award is given on the basis that
it serves the function purpose of providing substitute comforts and pleasures: Andrews
v. Grand & Toy.
[51] When
we move from compensation to the objectives of vindication and deterrence, tort
law is less useful. Making the appropriate determinations is an exercise in
rationality and proportionality and will ultimately be guided by precedent as
this important chapter of Charter jurisprudence is written by Canada’s
courts. That said, some initial observations may be made.
[52]
A principal guide to the determination of quantum is the
seriousness of the breach, having regard to the objects of s. 24(1) damages.
The seriousness of the breach must be evaluated with regard to the impact of
the breach on the claimant and the seriousness of the state misconduct: see, in
the context of s. 24(2), R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
Generally speaking, the more egregious the conduct and the more serious the
repercussions on the claimant, the higher the award for vindication or
deterrence will be.
[53] Just
as private law damages must be fair to both the plaintiff and the defendant, so
s. 24(1) damages must be fair — or “appropriate and just” — to both the
claimant and the state. The court must arrive at a quantum that respects
this. Large awards and the consequent diversion of public funds may serve
little functional purpose in terms of the claimant’s needs and may be
inappropriate or unjust from the public perspective. In considering what is
fair to the claimant and the state, the court may take into account the public
interest in good governance, the danger of deterring governments from
undertaking beneficial new policies and programs, and the need to avoid
diverting large sums of funds from public programs to private interests.
[54] Courts
in other jurisdictions where an award of damages for breach of rights is
available have generally been careful to avoid unduly high damage awards. This
may reflect the difficulty of assessing what is required to vindicate the right
and deter future breaches, as well as the fact that it is society as a whole
that is asked to compensate the claimant. Nevertheless, to 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, at para. 18, “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”.
[55] In
assessing s. 24(1) damages, the court must focus on the breach of Charter
rights as an independent wrong, worthy of compensation in its own right. At
the same time, damages under s. 24(1) should not duplicate damages awarded
under private law causes of action, such as tort, where compensation of
personal loss is at issue.
[56]
A final word on exemplary or punitive damages. In Mackin,
Justice Gonthier speculated that “[i]n theory, a plaintiff could seek
compensatory and punitive damages by way of ‘appropriate and just’ remedy under
s. 24(1) of the Charter ”: para. 79. The reality is that public law
damages, in serving the objects of vindication and deterrence, may assume a
punitive aspect. Nevertheless, it is worth noting a general reluctance in the
international community to award purely punitive damages: see Taunoa, at
paras. 319‑21.
[57] To sum
up, the amount of damages must reflect what is required to functionally serve
the objects of compensation, vindication of the right and deterrence of future
breaches, insofar as they are engaged in a particular case, having regard to
the impact of the breach on the claimant and the seriousness of the state
conduct. The award must be appropriate and just from the perspective of the
claimant and the state.
(6) Forum and Procedure
[58]
For a tribunal to grant a Charter remedy under s. 24(1) ,
it must have the power to decide questions of law and the remedy must be one
that the tribunal is authorized to grant: R. v. Conway, 2010 SCC 22,
[2010] 1 S.C.R. 765. Generally, the appropriate forum for an award of damages
under s. 24(1) is a court which has the power to consider Charter
questions and which by statute or inherent jurisdiction has the power to award
damages. Provincial criminal courts are not so empowered and thus do not have
the power to award damages under s. 24(1) .
[59] As was
done here, the claimant may join a s. 24(1) claim with a tort claim. It may be
useful to consider the tort claim first, since if it meets the objects of Charter
damages, recourse to s. 24(1) will be unnecessary. This may add useful context
and facilitate the s. 24(1) analysis. This said, it is not essential that the
claimant exhaust her remedies in private law before bringing a s. 24(1)
claim.
B. Application to the Facts
[60] At
trial, Justice Tysoe held that the provincial correction officers’ strip search
and the Vancouver Police Department’s vehicle seizure violated Mr. Ward’s right
to be free from unreasonable search and seizure under s. 8 of the Charter .
There are thus two distinct claims to consider.
(1) Damages for the Strip Search
[61] The
first question is whether Mr. Ward has established entitlement to the
s. 24(1) remedy of damages. This requires him to show: (1) a breach of
his Charter rights; and (2) that an award of damages would serve a
functional purpose in the circumstances, having regard to the objects of s.
24(1) damages. If these are established, the burden shifts to the state (step
3) to show why, having regard to countervailing factors, an award of damages
under s. 24(1) of the Charter would be inappropriate. If the state
fails to negate s. 24(1) damages, the inquiry moves to the final step,
assessment of the appropriate amount of the damages.
[62] Here
the first step is met. Justice Tysoe found that the strip search violated Mr.
Ward’s personal rights under s. 8 of the Charter . This finding is not
challenged on this appeal. Nor is it suggested that the British Columbia
Supreme Court is not an appropriate forum for the action.
[63] The
second question is whether damages would serve a functional purpose by serving
one or more of the objects of s. 24(1) damages — compensation, vindication and
deterrence.
[64] 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: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at
para. 90.
[65] 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: Golden, at para. 97.
[66]
In sum, the Charter breach significantly impacted on
Mr. Ward’s person and rights and the police conduct was serious. The
impingement on Mr. Ward calls for compensation. Combined with the police
conduct, it also engages the objects of vindication of the right and deterrence
of future breaches. It follows that compensation is required in this case to
functionally fulfill the objects of public law damages.
[67] The
next question is whether the state has established countervailing factors that
would render s. 24(1) damages inappropriate or unjust.
[68] The
state has not established that alternative remedies are available to achieve
the objects of compensation, vindication or deterrence with respect to the
strip search. Mr. Ward sued the officers for assault, as well as the City and
the Province for negligence. These claims were dismissed and their dismissal
was not appealed to this Court. While this defeated Mr. Ward’s claim in tort,
it did not change the fact that his right under s. 8 of the Charter to
be secure against unreasonable search and seizure was violated. No tort action
was available for that violation and a declaration will not satisfy the need
for compensation. Mr. Ward’s only recourse is a claim for damages under
s. 24(1) of the Charter . Nor has the state established that an
award of s. 24(1) damages is negated by good governance considerations, such as
those raised in Mackin.
[69]
I conclude that damages for the strip search of
Mr. Ward are required in this case to functionally fulfill the objects of
public law damages, and therefore are prima facie “appropriate and
just”. The state has not negated this. It follows that damages should be
awarded for this breach of Mr. Ward’s Charter rights.
[70] This
brings us to the issue of quantum. As discussed earlier, the amount of damages
must reflect what is required to functionally fulfill the relevant objects of
s. 24(1) compensation, while remaining fair to both the claimant and the
state.
[71] The
object of compensation focuses primarily on the claimant’s personal loss:
physical, psychological, pecuniary, and harm to intangible interests. The
claimant should, in so far as possible, be placed in the same position as if
his Charter rights had not been infringed. Strip searches are
inherently humiliating and thus constitute a significant injury to an
individual’s intangible interests regardless of the manner in which they are
carried out. That said, the present search was relatively brief and not
extremely disrespectful, as strip searches go. It did not involve the removal
of Mr. Ward’s underwear or the exposure of his genitals. Mr. Ward was never
touched during the search and there is no indication that he suffered any
resulting physical or psychological injury. While Mr. Ward’s injury was
serious, it cannot be said to be at the high end of the spectrum. This suggests
a moderate damages award.
[72] The
objects of vindication and deterrence engage the seriousness of the state
conduct. The corrections officers’ conduct was serious and reflected a lack of
sensitivity to Charter concerns. That said, the officers’ action was
not intentional, in that it was not malicious, high-handed or oppressive. In
these circumstances, the objects of vindication and deterrence do not require
an award of substantial damages against the state.
[73] Considering
all the factors, including the appropriate degree of deference to be paid to
the trial judge’s exercise of remedial discretion, I conclude that the trial
judge’s $5,000 damage award was appropriate.
(2) Damages for the Car Seizure
[74] As
with the strip search, we must determine whether Mr. Ward has established
entitlement to the s. 24(1) remedy of damages to compensate for the
constitutional wrong he suffered due to the City’s seizure of his vehicle.
Again, this requires determining: (1) breach of Charter right; (2)
whether an award of damages would serve a functional purpose, having regard to
the objects of s. 24(1) damages; (3) whether the state has established
countervailing factors negating an award of s. 24(1) damages; and (4) quantum,
if the right to damages is established.
[75] The
trial judge found that the seizure of the car violated Mr. Ward’s rights under
s. 8 of the Charter . This finding is not contested and thus satisfies
the first requirement.
[76] The
next question is whether Mr. Ward has established that damages under s. 24(1)
for the car seizure are appropriate and just from a functional perspective.
[77] The
object of compensation is not engaged by the seizure of the car. The trial
judge found that Mr. Ward did not suffer any injury as a result of the seizure.
His car was never searched and, upon his release from lockup, Mr. Ward was
driven to the police compound to pick up the vehicle. Nor are the objects of
vindication of the right and deterrence of future breaches compelling. While
the seizure was wrong, it was not of a serious nature. The police officers did
not illegally search the car, but rather arranged for its towing under the
impression that it would be searched once a warrant had been obtained. When the
officers determined that they did not have grounds to obtain the required
warrant, the vehicle was made available for pickup.
[78] I
conclude that a declaration under s. 24(1) that the vehicle seizure violated
Mr. Ward’s right to be free from unreasonable search and seizure under s. 8 of
the Charter adequately serves the need for vindication of the right and
deterrence of future improper car seizures.
VII. Disposition
[79] The
appeal is allowed in part. The award against the City in the amount of $100 is
set aside, substituted by a declaration under s. 24(1) that the vehicle seizure
violated Mr. Ward’s right to be free from unreasonable search and seizure under
s. 8 of the Charter . The award of damages against the Province in the
sum of $5,000 for breach of Mr. Ward’s s. 8 Charter rights is confirmed.
[80] We
have been informed of a pre‑existing agreement between Mr. Ward and the
Province regarding costs and, as such, no cost order is made between Mr. Ward
and the Province. No costs are awarded to or against the City.
Appeal allowed in part.
Solicitor for the appellant the City of Vancouver: City of
Vancouver, Vancouver.
Solicitor for the appellant Her Majesty the Queen in Right of the
Province of British Columbia: Attorney General of British Columbia,
Victoria.
Solicitors for the respondent: Samuels & Company,
Vancouver.
Solicitor for the intervener the Attorney General of
Canada: Attorney General of Canada, Saskatoon.
Solicitor for the intervener the Attorney General of
Ontario: Attorney General of Ontario, Toronto.
Solicitor for the intervener the Attorney General of
Quebec: Attorney General of Quebec, Ste‑Foy.
Solicitors for the intervener the Aboriginal Legal Services of Toronto
Inc.: Aboriginal Legal Services of Toronto Inc., Toronto; Falconer
Charney, Toronto.
Solicitors for the intervener the Association in Defence of the
Wrongly Convicted: Sack Goldblatt Mitchell, Toronto.
Solicitors for the intervener the Canadian Civil Liberties
Association: Torys, Toronto.
Solicitor for the intervener the Canadian Association of Chiefs of
Police: Ottawa Police Service, Ottawa.
Solicitors for the intervener the Criminal Lawyers’ Association
(Ontario): Sack Goldblatt Mitchell, Toronto.
Solicitor for the intervener the British Columbia Civil Liberties
Association and the David Asper Centre for Constitutional
Rights: University of Toronto, Toronto.