A remedy under s.24(1) of the Charter can include damages for constitutional violations, Canada’s highest court has unanimously held.
In Vancouver (City) v. Ward, 2010 SCC 27, police were told an unknown individual (described as a 30 to 35 year old white male, 5’ 9” with dark short hair, wearing a white golf or t-shirt with some red on it) intended to throw a pie at Prime Minister Jean Chrétien at a Chinatown ceremony. The plaintiff, a Vancouver lawyer (white male, grey, collar length hair, mid 40s, wearing a grey t-shirt with some red on it), was running and mistakenly identified as the would be culprit.
He appeared to be avoiding interception. Officers chased him down and handcuffed him. Ward loudly protested, creating a disturbance, and was arrested for breaching the peace, taken to the police lockup and effectively strip searched. His car was impounded so it could be searched once a warrant was obtained but detectives subsequently determined that they did not have grounds for a search warrant, nor evidence to charge Ward with attempted assault. He was held for about 4.5 hours and released several hours after the ceremony ended and Chrétien had left.
Ward brought an action in tort and for breach of his Charter rights arising from the arrest, detention, strip search and car seizure. The trial judge found his arrest for breach of the peace was lawful, but held the strip search (undertaken by provincial correctional officers) and police vehicle seizure violated his s.8 Charter right to be free from unreasonable search and seizure. Ward’s s.9 rights were also breached when he was held in the police lockup longer than necessary.
The judge assessed damages under s.24(1) at $100 for the car seizure, $5,000 for the strip search and $5,000 for wrongful imprisonment. He rejected the governments’ argument that damages were an inappropriate remedy for Charter breaches absent bad faith, abuse of power or tortious conduct.
The province and city unsuccessfully appealed to the BC Court of Appeal. The majority agreed that bad faith, abuse of power or tortious conduct were not necessary requirements to award Charter damages. A dissenting justice would have allowed the defendants’ appeals, finding that damages could not be awarded where police did not act in bad faith and simply made a mistake as to the proper course of action.
The defendants appealed to the Supreme Court of Canada.
.h3 Damages under s.24(1)
Section 24(1) allows courts to grant “appropriate and just” remedies for Charter breaches and this can include damages for breaching a claimant’s Charter rights, the court ruled, but Charter damages are not private law damages; they are a distinct remedy for constitutional damages.
“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,” said Chief Justice MacLachlin, speaking for the unanimous court. “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.”
She outlined a four step process in assessing when damages under s.24(1) are available:
Step one: Proof of a Charter breach– the first step is to establish a breach on which the claim is based.
Step two: Functional justification of damages– the claimant must demonstrate damages are appropriate and just to the extent that they serve a useful function or purpose and further the general objects of the Charter:
Compensation: compensating the claimant for loss and suffering caused by the breach. Infringing an individual’s Charter rights may cause personal loss which should be remedied and compensated. This can include physical, psychological, pecuniary or harm to intangible interests such as distress, humiliation, embarrassment or anxiety.
Vindication: vindicating the right by emphasizing its importance and the gravity of the breach. Charter rights must be maintained and cannot be allowed to be whittled away by attrition. Vindication focuses on the harm the infringement causes the state and society as a whole, such as impairing public confidence or diminishing public faith in constitutional protections.
Deterrence: deterring state actors from committing future breaches. Deterrence has a societal purpose and seeks to regulate government behaviour generally, in order to achieve compliance with the constitution. Like “general deterrence” in criminal sentencing, which sends a message to others who may be inclined to engage in similar criminal activity, 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.
Step three: Countervailing factors: even if the claimant establishes that damages are functionally justified, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations supporting a damage award and render damages inappropriate or unjust. Although a complete catalogue of countervailing considerations will develop in future jurisprudence, two considerations include the existence of alternative remedies and concerns for good governance.
- Alternative remedies: If other remedies adequately meet the need for compensation, vindication and/or deterrence, a further award of damages under s.24(1), which operates concurrently with and does not replace other areas of law, would serve no function and not be “appropriate and just”. Alternatives include private law (personal injury actions), declarations under s.24(1) and legislation permitting proceedings against the Crown.
Once the claimant establishes basic functionality the evidentiary burden shifts to the state to show that the functions engaged can be fulfilled through other remedies. Claimants need not show that they have 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.
The existence of a potential claim in tort does not 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. As well, declarations of a Charter breach may provide an adequate remedy, particularly where the claimant has suffered no personal damage.
- Good governance: The concern for effective governance may negate the appropriateness of s.24(1) damages. 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 impact negatively on good governance.
On the other hand, 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. For example, state action taken under a statute 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 if the statute is later struck down. Duly enacted laws should be enforced until declared invalid unless the state conduct is clearly wrong, in bad faith or an abuse of power.
Step four: Quantum of s.24(1) damages: the amount must be “appropriate and just”. The objects of compensation, vindication and deterrence will determine the amount of damages awarded. Where the objective of compensation is engaged, the concern is to restore the claimant to the position they would have been in had the breach not been committed. Any claim for compensatory damages must be supported by evidence of the loss suffered. This may include pecuniary loss – injuries (physical and psychological) may require medical treatment, with attendant costs, while prolonged detention may result in loss of earnings.
Non-pecuniary damages, such as pain and suffering, are harder to measure but tort law can assist. Where the objectives of vindication and deterrence are engaged, the seriousness of the breach must be evaluated with regard to its impact on the claimant and the seriousness of the state misconduct. The more egregious the conduct and the more serious the repercussions on the claimant, the higher the award.
Damages must be appropriate and just to the claimant and the state. Large awards and the consequent diversion of public funds may serve little functional purpose in terms of the claimant’s needs and be inappropriate or unjust from the public perspective. In considering what is fair to both, 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.
To be “appropriate and just,” an award must represent a meaningful response to the seriousness of the breach and the objectives of compensation, upholding Charter values and deterring future breaches. 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 the section should not duplicate awards under private law causes of action, such as tort, where compensation of personal loss is at issue.
.h3 Strip search damages
The trial judge found that the strip search violated Ward’s personal rights under s.8 (step one) and his injury was serious (step two).
“He had a constitutional right to be free from unreasonable search and seizure, which was violated in an egregious fashion,” the high court said. “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.”
Ward did not commit a serious offence, wasn’t charged with an offence associated with evidence being hidden on the body, no weapons were involved and he wasn’t known to be violent or to carry them. Nor did he pose a risk of harm to himself or others.
The officers should have been familiar with settled law regarding routine strip searches and their inappropriateness. The Charter breach significantly impacted his person and rights and the police conduct was serious. The objects of compensation, vindication and deterrence of future breaches were all engaged. The state, however, did not establish any countervailing factors (step three). Alternative remedies were not available to achieve the objects of compensation, vindication or deterrence with respect to the strip search.
Ward’s claims or assault and negligence had been dismissed and no tort action was available for a breach of his s.8 right. A declaration under s.24(1) would not satisfy the need for compensation. Furthermore, the state did not establish that an award under that section was negated by good governance considerations.
As for quantum of damages (step four), although strip searches are inherently humiliating and a significant injury to an individual’s intangible interests, regardless of how they are carried out, this one was relatively brief and not extremely disrespectful. It did not involve removing Ward’s underwear nor exposing his genitals. He was not touched during the search and there was no indication he suffered any physical or psychological injury. A moderate damage award was proper and the trial judge’s award of $5,000 was appropriate.
.h3 Car seizure damages
The trial judge ruled the vehicle seizure breached s.8 (step one). However, the object of compensation (step two) wasn’t engaged by the seizure because Ward did not suffer any injury as a result of it. His car was not searched and he was subsequently driven to the police compound to pick it up. Nor were the objects of vindication and deterrence compelling.
While the vehicle seizure was wrong, it wasn’t of a serious nature. The officers did not illegally search the car, but arranged for its towing under the impression that it would be searched once a warrant had been obtained. When they determined they did not have grounds to obtain the warrant, it was made available for release. Thus, the Supreme Court concluded damages were not justified and a declaration under s.24(1) that the vehicle seizure violated s.8 adequately served the need for vindication and deterrence of future improper car seizures.
The award of $100 was set aside and a s.24(1) declaration that the seizure of the vehicle violated s.8 was substituted.