On July 23, 2010, the Supreme Court of Canada released its long-anticipated decision in Vancouver (City) v. Ward, 2010 SCC 27. In a unanimous decision, the Supreme Court confirmed that damages may be available to claimants who have suffered violations of their Charter rights. Recognizing that the authority on this issue is sparse, the Court comprehensively analyzed section 24(1) of the Charter and concluded that it allows for damages to be awarded for a Charter breach where it is appropriate and just to do so.
Alan Cameron Ward, a Vancouver lawyer, attended a ceremony in Vancouver on August 1, 2002, where Prime Minister Chrétien was present. The Vancouver Police Department, acting on information that someone intended to throw a pie at the Prime Minister, mistakenly identified Mr. Ward as the would-be pie thrower and detained him. Mr. Ward loudly protested this detention and was arrested for breach of the peace. Once he arrived at the police station, Mr. Ward was strip searched and then left in a small cell where he spent several hours. In the meantime, Mr. Ward's car was impounded so that the police could later search it. The officers subsequently decided that they did not have the evidence to charge Mr. Ward or the grounds to obtain a search warrant for his car. Mr. Ward was released.
Mr. Ward brought an action for breach of his Charter rights against the City and others for his arrest, detention, strip search and car seizure. The trial judge held that, although the police officers did not act in bad faith and were not liable in tort for either incident, the strip search and car seizure violated Mr. Ward's right to be free from unreasonable search and seizure. The trial judge assessed damages under section 24(1) at $100 for the car seizure and $5,000 for the strip search. The B.C. Court of Appeal upheld the decision.
The Supreme Court's Decision
The Supreme Court found that damages can be an appropriate remedy under section 24(1). Chief Justice McLachlin found that section 24(1) grants courts broad discretion to award damages, though this discretion is limited by what is appropriate and just according to the facts and circumstances of a particular case. On that basis, the Court allowed damages for the strip search, but not for the car seizure.
The Court laid out a four-part test for assessing when it would be appropriate and just to award damages. First, the Charter breach must be proved. Second, the claimant must provide a functional justification for damages. Third, if the claimant succeeds in providing the functional justification, the evidentiary burden then shifts to the Crown to show that there are countervailing factors against awarding damages. Finally, the quantum of the damages must be assessed.
A Functional Justification
The Claimant bears the burden of demonstrating to the Court that damages will serve a useful function or purpose and that it will therefore be appropriate and just to award them. More specifically, the award of damages must be shown to further the objectives of the Charter, which can be demonstrated by analyzing three functions that damages may serve.
The first and most prominent function is compensation. While damages must serve the purpose of making the claimant whole by compensating for her personal loss, the Court recognized that a claimant also has intangible interests which must be taken into consideration. Thus, a claimant "whose intangible interests are harmed should not be precluded from recovering damages simply because she cannot prove a substantial psychological injury."
The second and third functions are vindication and deterrence. Damages may be awarded where doing so will affirm constitutional values and where the breach impairs "public confidence and diminish[es] public faith in the efficacy of the [constitutional] protection." Similarly, an award of damages would be appropriate and just if it would help regulate government behavior by deterring future breaches of the right.
If the claimant successfully meets her burden, then the onus shifts to the state to show countervailing factors as to why, despite the fact that damages would further a purpose of the Charter, they should not be awarded. While being careful to leave open the possibility that other countervailing considerations could "be developed as the law in this area matures" the Court dealt with two considerations: the existence of alternative remedies and concerns for good governance.
If the state can show that the functions of damages can be fulfilled through other remedies, then damages would lose their utilitarian justification. Thus, the state must show that other remedies can sufficiently address the breach, such as a successful concurrent action in tort.
The amount of the damages must also be appropriate and just. Generally, as in tort law, it would be appropriate to award damages so as to restore the claimant to the position she would have been in had the breach not been committed. However, the Court recognized that there may be situations where compensation alone may not be sufficient. Thus one must also consider the seriousness of the breach so as to also protect the vindication and deterrence interests. Generally, the more egregious the conduct, the higher the damages should be. Finally, the Court held that there must also be some recognition that the Court is dealing in public funds, and a large damages award may not be in the public interest.
Mala Fides Required?
One of the significant features of this judgment is that it implicitly rejects a higher threshold for damages as a result of state misconduct. The Court did not address the Crown's argument that bad faith must be shown in order for damages to be awarded. Instead, it upheld the trial judge's decision that bad faith does not need to be shown by the claimant, but rather that a simple breach of Charter rights is sufficient to trigger the 24(1) remedy. According to the Supreme Court bad faith is only considered where the state is acting pursuant to a formerly valid law so as to negate the immunity the state would otherwise enjoy.
Ward represents an important step in the Supreme Court's jurisprudence on Charter damages. Though the quantum awarded to Mr. Ward may be nominal given the serious infringement of his rights, the fact that he was awarded damages offers a new approach for Charter claimants, especially those who are not challenging the validity of a statute or regulation, or seeking to have evidence excluded in a criminal trial. Ward will inevitably lead to further litigation, especially on the issue of quantum as claimants attempt to assess the cost of a breach of their Charter rights.