Sunday, August 1, 2010

Supreme Court of Canada upholds Charter damages for unconstitutional strip search of lawyer

In Vancouver (City) v. Ward, 2010 SCC 27, the Supreme Court of Canada addressed, for the first time, when damages are an appropriate section 24(1) remedy. Cameron Ward, a Vancouver lawyer, was mistakenly arrested following the police receipt of information that an individual intended to throw a pie at the Prime Minister. Following his arrest, Ward was strip searched. The Court, in affirming the decision of the lower courts, held that he was entitled to damages of $5,000 as the search violated section 8 of the Charter.

McLachlin C.J., writing for the Court, determined that the language of section 24(1) is broad enough to include constitutional damages for Charter breaches. The Supreme Court developed a four step test. First, the claimant must first demonstrate that a Charter right has been breached. The next step assesses whether damages will further an identified purpose including compensation, vindication of the right and deterrence. Compensation refers to the objective of restoring a claimant to the position he would have been in had the Charter breach not occurred. Vindication of a right is meant to underscore the severity of a constitutional breach, and the objective of deterrence is to prevent future breaches.

The third step gives the state an opportunity to rebut the award of damages by demonstrating that countervailing factors exist to defeat the functional objectives rendering damages “inappropriate or unjust”. One countervailing consideration is the availability of other remedies such as private law remedies and declarations. For instance, if a claimant received damages resulting from concurrent tort action, the state could argue that that remedy addressed the constitutional breach. Importantly, the Court held that a person seeking Charter damages need not have exhausted all other legal remedies available, as long as the claimant can demonstrate damages would satisfy one of the objectives mentioned. The last step is to determine the quantum of the damages. Damages must be fair to both the claimant, which takes into consideration a number of factors such as the seriousness of the Charter breach and the risk of diverting resources from public programs to settle private matters.

As for the application of the facts to the case, the Court determined that damages should be awarded. First, there was no issue that the applicant had his section 8 right to be free from unreasonable search violated by the strip search. Second, compensation was necessary because the applicant suffered a serious injury. The Court reiterated that strip searches are inherently humiliating and degrading. Moreover, Ward posed no threat to himself or others, and had the police been more sensitive to his Charter rights the search would have been deemed unnecessary. In addition, the serious violation warranted damages to further satisfy the objectives of vindication and prevent future abuses of these rights. With regards to the third step, the state did not provide countervailing factors to the awarding of damages.

Finally, in assessing the quantum of damages, the Chief Justice stated that the claimant, having been strip searched, suffered significant injury to his intangible interests. However, the search was brief and not “extremely” disrespectful since Mr. Ward was not forced to remove his underwear, he was not touched, and it did not appear as if he suffered any physical or psychological injury. With respect to vindication and deterrence, while the officers’ conduct was insensitive to Mr. Ward’s Charter rights, the strip search was neither malicious nor intentional and, therefore, substantial damages are not necessary. Therefore, damages in the amount of $5,000 was appropriate.

Do you think that the Court’s recognition of damages as a constitutional remedy will help deter and prevent abuse of Charter rights?

Posted by Kenny Leung (Windsor Law II)

1 comment:

  1. There is an argument to be made that it should. By imposing a potential monetary cost upon the State, theoretically the state will have an impetus to force its servants to behave constitutionally.

    Whether or not this has been effective is perhaps a dubious question. You might compare with 42 USC 1983 in the United States, which permits everyone who has had their rights infringed by a servant of the state to sue for damages or other remedies, which has been used in a similar manner about 1960.

    I do believe I've seen a book on this exact topic, but I do not have it to hand, unfortunately- specifically referring to American police and the application of section 1983 damages.