For many years now, section 24(1) of the Charter of Rights and Freedoms (the “Charter”) has provided criminal trial courts with the jurisdiction to award costs to defendants against the Crown when their Charter rights have been infringed. The justification for costs has been to discipline the Crown for acts that infringe a defendant’s Charter rights and needlessly compound the costs of the litigation. Vancouver v. Ward goes one very large step further, in that the Supreme Court upholds damages as a just and appropriate remedy under subsection 24(1) when state action has injured an individual.

In Ward, the plaintiff was arrested and strip searched in 2002 on the suspicion that he intended to assault then-Prime Minister Chrétien during a civic ceremony in Vancouver. His car was also seized without a warrant. After spending close to 5 hours in custody, the police released him after concluding that there was no evidentiary basis on which the plaintiff could be charged with attempted assault and no grounds to seize his car. The plaintiff subsequently sued the City for damages. At trial, the B.C. Supreme Court found that the plaintiff’s section 9 right (his right not to be arbitrarily detained) had been infringed by his arrest and strip search. Moreover, his section 8 right (to be free from unreasonable search and seizure) had been infringed by the seizure of his car. He was awarded $5,000 in damages for the strip search and $100 for the seizure of his car. The B.C. Court of Appeal and the Supreme Court subsequently upheld this decision.

For a unanimous court, Supreme Court Chief Justice McLachlin found that damages are a just and appropriate remedy for a Charter breach when:

  • the plaintiff has established a Charter breach;
  • the damages award is necessary to fulfil one or more of the objects of compensation, the vindication of the Charter right, or the deterrence of future Charter breaches;
  • the state has failed to establish any factors which render section 24(1) damages inappropriate or unjust in the circumstances (for example, that there are alternative remedies which fit the circumstances); and
  • the quantum of damages equals the purposes of the damages award (compensation, vindication and/or deterrence).

The Court found that although the plaintiff’s detention was brief and did not appear to cause any pecuniary loss, the strip search was inherently humiliating and constituted a significant injury to him. The damages award of $5,000 was justified. On the other hand, a modest award of $100 for the seizure of the plaintiff’s car was appropriate in that it met the need to vindicate the right against unreasonable search and seizure and deter further improper car seizures.

By way of jurisdiction, the Court found that provincial criminal courts are without jurisdiction to award damages at the end of a criminal trial. It is unclear whether the Court intended to restrict this finding to the lower or provincial courts, or if a superior or high court hearing a criminal matter would also be so restricted. (There is no issue that the latter in a purely civil proceeding have the jurisdiction to award damages as a remedy under subsection 24(1)). In at least the situation of the lower courts, however, after a criminal trial which revealed that a defendant was charged, arrested, detained and/or tried in contravention of one or more Charter rights, the defendant would have to commence a separate civil proceeding to obtain damages.

What remains unanswered by Ward is whether access to damages is restricted to injured individuals or whether they are available to corporations as well. Many Charter rights have been found by definition to be available to individuals alone, such as those in sections 7, 9, 11(c) and 13. Other rights, such as those found in section 8, are available to corporations. Presumably, therefore, a corporation which has been damaged by an illegal search or seizure could rely on Ward to commence a claim under subsection 24(1) for damages.