The recent unanimous Supreme Court of Canada decision in Vancouver (City) v. Ward will have a significant impact in cases where damages are sought for alleged breaches of Charter rights. The case involved a Vancouver lawyer, Alan Ward, who was mistakenly identified as a suspect in a potential pie attack during a ceremony attended by former Prime Minister Jean Chrétien. Mr. Ward was arrested, detained, strip searched and ultimately released. The issue raised on appeal by the Province of British Columbia was whether damages could be awarded under section 24(1) of the Charter, for Charter breaches, in the absence of a finding of bad faith, abuse of power or tortious conduct. The full Court agreed with most of the findings made in the lower Courts and concluded that if “appropriate and just”, an award of Charter damages may be warranted without proof of bad faith. This marks a significant departure from prior case law on the issue.
Facts and Procedural History
In August 2002, the Vancouver Police Department received information that an unknown individual intended to throw a pie at Prime Minister Jean Chrétien during a ceremony in Vancouver’s Chinatown. A description of the suspect matched Mr. Ward. The police observed Mr. Ward at the ceremony; he was running and was thought to be avoiding interception. The police then chased Mr. Ward and placed him under arrest for disturbing the peace, as he was loudly protesting his detention and creating a disturbance. Mr. Ward was strip-searched and placed in a cell for several hours. His car was also impounded pending a search warrant. The detectives subsequently determined that they did not have grounds to obtain the required search warrant for his car or evidence to charge Mr. Ward for attempted assault. He was ultimately released.
Mr. Ward brought an action in tort and for breach of his Charter rights, alleging wrongful imprisonment and unreasonable search and seizure, against the City of Vancouver, the Province and individual police and corrections officers. Both the B.C. Supreme Court and Court of Appeal found that although the police officers involved did not act in bad faith and were not liable in tort, the strip search and vehicle seizure violated Mr. Ward’s section 8 and section 9 Charter rights. He was awarded damages under section 24(1) – $100 for the seizure of the car and $5,000 for the strip search - in the face of the defendants’ argument that damages were an inappropriate remedy for Charter breaches unless a plaintiff could prove bad faith, abuse of power or tortious conduct. On this issue, the Province appealed the award of damages for the unreasonable search and seizure to the Supreme Court of Canada.
The appeal was allowed in part. The award against the City of $100 was set aside and substituted by a declaration that the seizure violated Mr. Ward’s right to be free from unreasonable search and seizure. However, the $5,000 award against the Province was upheld.
The Court set out a four-part test to determine when damages may be awarded under section 24(1) of the Charter, but emphasized the overriding principle of the phrase “appropriate and just” contained in the section itself. While section 24(1) was deemed “broad enough to include the remedy of damages for Charter breach”, the Court cautioned that it was but one remedy under section 24(1) that was available, and that often other remedies would be more responsive to the breach. The Court noted a damages award should only be made if a Court, in exercising its discretion, considered the facts and circumstances of a particular case, and deemed an award of damages “appropriate and just”.
At paragraph 4 of the decision, the Chief Justice summarized the four-part test as follows:
“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.”
In the Court’s discussion of “countervailing factors”, the existence of alternative remedies, such as private law remedies for actions for personal injury, were noted as an avenue to sufficiently address a Charter breach. However, and of significance, the Court held that a claimant’s tort claim did not necessarily bar him/her from obtaining damages under the Charter, unless “the result would be double compensation”. A Charter claim is not intended to take the place of a tort claim. Therefore, a claimant could concurrently have a tort claim and a Charter claim, but may not get an award under section 24(1) if the successful tort claim had already adequately compensated for the Charter breach.
Implications of Vancouver v. Ward
Unfortunately, the S.C.C.’s decision in Vancouver v. Ward, did not directly refer to recent decisions of provincial Courts of Appeal which have held bad faith needed to be proven to obtain damages for breaches of Charter rights. Following Ward, it would now appear that claimants can obtain awards for Charter damages without having to establish malice, bad faith, or any tortious conduct. This may result in a greater number of claims where such damages are sought, and in which there may be greater exposure for police agencies. Notwithstanding, the test is open and remains flexible, and triers of fact are to proceed with caution and exhaust all other avenues before awarding Charter damages. It also appears that such damages, if awarded, are likely to be relatively modest.