Bevis et al. v. Burns et al., (2006) 244 N.S.R.(2d) 211 (CA)

• Judge: MacDonald, C.J.N.S., Bateman and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 16, 2006
• Jurisdiction: Nova Scotia
• Citations: (2006), 244 N.S.R.(2d) 211 (CA);2006 NSCA 56

Bevis v. Burns (2006), 244 N.S.R.(2d) 211 (CA);

    774 A.P.R. 211

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. MY.023

Kerry C. Bevis and Rasim Karela (appellants) v. Constable Rick Burns and Constable Bob Kelly (respondents)

(CA 234039; 234852; 2006 NSCA 56)

Indexed As: Bevis et al. v. Burns et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Bateman and Oland, JJ.A.

May 8, 2006.

Summary:

Bevis and Karela sued the defendants for defamation respecting two CTV television broadcasts showing their arrests. Unknown to the on-site cameraman/reporter or the editor/ anchorman in Halifax, the police released Bevis and Karela within minutes with an apology for having made false arrests. At issue, inter alia, was whether the evidence met the threshold for leaving a claim for aggravated damages to the jury, which required a finding of malice, and whether there was sufficient evidence from which the jury could conclude that the broadcasts were referable to Bevis.

The Nova Scotia Supreme Court, in a decision reported at 228 N.S.R.(2d) 24; 723 A.P.R. 24, held that the threshold was met with respect to both issues. Also at issue was whether damages against the two police officers under s. 24(1) of the Charter were available without proof of malice, bad faith, recklessness or gross negligence. Also at issue was whether damages under s. 24(1) could be awarded where damages were to be assessed for breach of common law rights on the same set of facts.

The Nova Scotia Supreme Court, in a decision reported at 228 N.S.R.(2d) 31; 723 A.P.R. 31, held that malice, bad faith, recklessness or gross negligence was not a condition for an award of damages under s. 24(1). Further, recovery based on liability for a Charter violation was not precluded where the same recovery might be based on liability for a violation of common law civil rights. However, these independent sources of liability did not provide independent bases for compensation. The compensation would be the same for the same harm. The jury awarded $1,500 each to Bevis and Karela for false arrest, false imprisonment and violations of constitutional rights by the two police officers. The jury found the CTV broadcast defamatory of Karela and awarded him $6,000 for damage to his reputation and $9,000 for aggravated damages. The jury dismissed Bevis' case against CTV.

The Nova Scotia Supreme Court, in a decision reported at 228 N.S.R.(2d) 34; 723 A.P.R. 34, awarded costs against Karela and Bevis jointly in the amount of $3,776 less a set-off for any disbursements incurred by the plaintiffs in the case against the police officers before their offer to settle. The court awarded Karela costs against CTV in the amount of $27,516. As regards Bevis' claim, CTV and Bevis would bear their own costs. Bevis and Karela appealed, submitting that the trial judge erred in denying them a separate award for the Charter breaches. They also took issue with his charge on aggravated damages.

The Nova Scotia Court of Appeal allowed the appeals and directed a new hearing on damages.

Civil Rights - Topic 4603

Right to counsel - General - Denial of - Remedies for - [See third Civil Rights - Topic 8375 ].

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - Police officers falsely arrested and committed other intentional torts against the plaintiffs - The Nova Scotia Court of Appeal held that the trial judge properly concluded that the Charter breaches represented a distinct source of liability worthy of damages - However, while he instructed the jury to consider the torts and the Charter breaches together with a direction to return one global award, he provided no further direction on their duty to return an "appropriate and just" remedy under s. 24(1) of the Charter - The court held that without this additional direction, the charge was incomplete - Because Charter rights were so significant, so fundamental to every Canadian, any breach warranted special consideration when assessing an appropriate remedy - It was not enough to simply add them to the mix with other common law torts without further elaboration - While double recovery was to be avoided and a global award might have been appropriate, a specific instruction was required to highlight the importance of Charter rights to all Canadians and the corresponding significance of the particular breaches - The trial judge's failure to provide this was a misdirection significant enough to warrant a new hearing - See paragraphs 1 to 68.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - Police officers falsely arrested and committed other intentional torts against the plaintiffs - The Nova Scotia Court of Appeal held that the trial judge erred in not providing a specific instruction with respect to damages for the Charter breaches - The court stated that it would not attempt to set out a strict formula for s. 24(1) directions generally, but it did provide an approach that could be considered for the s. 24(1) aspect of the charge in the case at hand - See paragraph 64.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - Police officers falsely arrested and committed other intentional torts against the plaintiffs - At trial the parties disputed whether the plaintiff had been given their s. 10 Charter right to counsel - The trial judge concluded that the question should not be put to the jury because even if there had been such a breach, it would not be considered harmful per se and on the facts it would have been inconsequential as there could have been no exercise of the right to counsel even if the advice had been given - The Nova Scotia Court of Appeal noted that the breach of the right to counsel, if it existed, would have been the only Charter violation without a corresponding common law tort - While the court acknowledged the trial judge's point that any such breach would have been of little if any consequence in these circumstances, nonetheless it should have represented one of the questions for the jury - Courts had occasionally directed modest awards for similar breaches - See paragraphs 69 and 70.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - Police officers falsely arrested and committed other intentional torts against the plaintiffs - On appeal, the plaintiffs submitted that the trial judge erred in his charge respecting aggravated damages - The Nova Scotia Court of Appeal held, inter alia, that an absence of good faith was not necessarily tantamount to bad faith - Furthermore, even if bad faith had been established, that might not necessarily be sufficient to establish an entitlement to aggravated damages - See paragraphs 72 to 83.

Practice - Topic 5197

Juries and jury trials - Charge to jury - Respecting assessment of damages - [See all Civil Rights - Topic 8375 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577; 2002 SCC 33, refd to. [para. 19].

Jessome v. Walsh (2003), 213 N.S.R.(2d) 251; 667 A.P.R. 251; 2003 NSCA 35, refd to. [para. 19].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 33].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 34].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 35].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 36].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 39].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311, refd to. [para. 40].

Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Montréal (Communauté urbaine), [2004] 1 S.C.R. 789; 319 N.R. 379; 2004 SCC 30, refd to. [para. 41].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 42].

St. Jacques v. Fédération des employées et employés de services public Inc. (C.S.N.) et al., [1996] 2 S.C.R. 345; 198 N.R. 1, refd to. [para. 55].

Du-Lude v. Canada - see Dulude v. Canada.

Dulude v. Canada, [2001] 1 F.C. 245; 264 N.R. 1 (F.C.A.), refd to. [para. 67].

Crossman v. Canada (1984), 9 D.L.R.(4th) 588 (F.C.T.D.), refd to. [para. 70].

Lafond et al. v. Purslow et al., [2003] B.C.T.C. 23; 2003 BCSC 23, affd. (2004), 196 B.C.A.C. 153; 322 W.A.C. 153; 2004 BCCA 280, refd to. [para. 70].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129, refd to. [para. 74].

R. v. Smith (L.K.) (2005), 213 B.C.A.C. 286; 352 W.A.C. 286; 2005 BCCA 334, refd to. [para. 81].

Authors and Works Noticed:

Bouck, John G., CIVJI: Civil Jury Instructions (2005 Looseleaf Update), p. 9.50-1 [para. 75].

Cooper-Stephenson, Ken D., Charter Damages Claims (1990), pp. 344, 345 [para. 48].

Magnet, Joseph Eliot, Constitutional Law of Canada: Cases, Notes and Materials (8th Ed. 2001), vol. 1, Part V, c. 2(g), generally [para. 38].

Otis, Ghislain, Constitutional Liability for the Infringement of Rights Per Se: A Misguided Theory (1992), 26 U.B.C.L. Rev. 21-39, para. 3 [para. 59].

Park, James J., The Constitutional Tort Action as Individual Remedy (2003), 38 Harv. C.R.-C.L. L. Rev. 393, p. 405 [para. 60].

Roach, Kent, Constitutional Remedies in Canada (2005 Looseleaf Update), p. 11-26.2 [para. 58].

Roach, Kent, Section 24(1) of the Charter: Strategy and Structure (1986/87), 29 Crim. L.Q. 222, p. 265 [para. 49].

Counsel:

Walter Thompson, Q.C., for the appellant Karela;

Kerry C. Bevis, the appellant in person;

Lori Rasmussen, for the respondents Burns and Kelly.

These appeals were heard in Halifax, N.S., on February 16, 2006, by MacDonald, C.J.N.S., Bateman and Oland, JJ.A., of the Nova Scotia Court of Appeal. The following decision was delivered for the court by MacDonald, C.J.N.S., on May 8, 2006.