Originally published in The Lawyers Weekly, April 17,
The British Columbia Court of Appeal recently weighed in on
whether damages are available for breach of a Charter right where
no bad faith or accompanying tort is proven.
In Ward v. British Columbia,  B.C.J. No. 91, the
plaintiff brought an action arising out of his arrest. He was
mistaken for someone else, detained, taken to police lockup and
subjected to a strip search. The strip search was done under a
policy found to be ambiguous. The trial judge concluded that the
plaintiff 's Charter right under s. 8 to be secure against
unreasonable search was infringed, either because the strip search
was not in accordance with the policy or the policy was
unreasonable. While the plaintiff did not prove that the
corrections officers acted in bad faith or committed an
accompanying tort, the trial judge awarded the plaintiff damages
under the Charter.
On appeal, Justice Richard Low, for the majority of the court,
held that when the breach of a Charter right results in a law being
struck down, declaratory relief is an effective remedy because it
affects future rights and liabilities, but where the breach is a
past wrong committed by government agents, a declaration is only a
finding of fact that may not effectively redress it. In such cases,
he recognized that requiring a tort or bad faith to justify damages
for a Charter breach may deprive the victim of a true remedy. An
award of damages may not always be warranted where a person's
Charter rights have been breached, but an appropriate and just
remedy pursuant to subs. 24(1) must be determined in each case.
Justice Low upheld the trial judge's award of damages.
Justice Mary Saunders, writing in dissent, considered the
reasons that damages awards are generally given. Since the
objective of damages is compensation for loss, she struggled with
the fact that the strip search did not cause pecuniary loss. She
reasoned that a damages award was unnecessary to correct the
behaviour of those who caused the Charter infringement if they
acted without malice or bad faith. She also noted that awarding
even nominal Charter damages in recognition of the breach amounts
to a form of strict liability. Thus, Justice Saunders concluded
that, absent a tort, something like bad faith or wilful blindness
is required to award damages under subs. 24(1).
Justice Saunders' conclusion is supported by a 1994 decision
of the New Brunswick Court of Appeal. In McGillivary v. New
Brunswick,  N.B.J. No. 265, the plaintiff had been
charged, refused bail and then granted bail and committed to stand
trial at her preliminary hearing. Before trial, the charge against
her was withdrawn. She claimed damages under subs. 24(1) of the
Charter, arguing that her rights were infringed.
In rejecting her claim, the New Brunswick Court of Appeal
unanimously concluded that the enforcement of criminal law is one
of the most important aspects of maintaining law and order. Without
mala fides on the part of those charged with carrying out
investigations and prosecutions, there can be no recovery.
Otherwise, the criminal justice system would cease to function
McGillivary was cited with approval by the Court of
Appeal for Ontario in Mammoliti v. Niagara Regional Police
Service,  O.J. No. 397, although without significant
analysis. In Mammoliti, the plaintiff sought a remedy for
malicious prosecution and breaches of the Charter. In
Mammoliti, as in McGillivary, the proper
functioning of the criminal justice system was squarely engaged. In
both cases, unfairness to the accuseds, against whom charges were
subsequently withdrawn, could be addressed though the tort of
malicious prosecution, if it could be proven.
Perhaps Justice Low was not far off the mark in suggesting that
different types of Charter breaches justify different remedies. One
can see how the honest, but mistaken, pursuit of a criminal
investigation ought to be immune from damage awards if malicious
prosecution cannot be made out. On the other hand, cases such as
Ward do not deal with the proper functioning of the
justice system, but focus on isolated injustices that arguably
warrant some kind of consequence if all rights are to have
In her dissent in Ward, Justice Saunders bemoaned the
lack of a framework of principles for liability and quantum of
damages under subs. 24(1) of the Charter. The Supreme
Court of Canada will have an opportunity to offer some guidance in
Ward should it decide to grant the leave application
pending before it.
Until some clarity comes from the Supreme Court, counsel will be
advised to plead accompanying torts and bad faith in any claim for
Charter damages to hedge their bets against the current uncertainty
in the law.
The issue as framed by the Federal Court of Appeal was whether the potential impacts on Aboriginal rights asserted by the First Nation were of sufficient probability that they were more than merely speculative.