Bevis et al. v. CTV Inc. et al., (2004) 228 N.S.R.(2d) 31 (SC)

• Judge: Moir, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 27, 2004
• Jurisdiction: Nova Scotia
• Citations: (2004), 228 N.S.R.(2d) 31 (SC);2004 NSSC 247

Bevis v. CTV Inc. (2004), 228 N.S.R.(2d) 31 (SC);

 723 A.P.R. 31

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. DE.007

Kerry Bevis and Rasim Karela (plaintiffs) v. CTV Inc., carrying on business as ATV/CTV, Constable Rick Burns and Constable Bob Kelly (defendants)

(S.H. 177818; 2004 NSSC 247)

Indexed As: Bevis et al. v. CTV Inc. et al.

Nova Scotia Supreme Court

Moir, J.

September 27, 2004.

Summary:

Bevis and Karela sued the defendants for defamation respecting two ATV/CTV television broadcasts showing their arrests. Unknown to ATV's on-site cameraman/reporter or its 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 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.

Civil Rights - Topic 4603

Right to counsel - General - Denial of - Remedies for - Bevis and Karela sued the defendants for defamation respecting two CTV/ATV television broadcasts showing their arrests - Unknown to ATV's on-site cameraman/reporter or its editor/anchorman in Halifax, the police released Bevis and Karela within minutes with an apology for having made false arrests - The Nova Scotia Supreme Court held that damages were available against the two police officers under s. 24(1) of the Charter - The court stated that "As with the intentional torts, harm should be assumed for breach of the rights to liberty, freedom from arbitrary arrest and freedom from arbitrary detention. I do not believe that failure to advise of the right to counsel should involve presumed harm. It is the gateway to other rights but it is useful only when the person passes the gate. Here, there could have been no exercise of the right to counsel even if the advice was given as the officers contend it was." - See paragraph 9.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - Bevis and Karela sued the defendants for defamation respecting two CTV/ATV television broadcasts showing their arrests - Unknown to ATV's on-site cameraman/reporter or its editor/anchorman in Halifax, the police released Bevis and Karela within minutes with an apology for having made false arrests - The Nova Scotia Supreme Court held that malice, bad faith, recklessness or gross negligence was not a condition for an award of damages against the two police officers 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.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - [See Civil Rights - Topic 4603 ].

Cases Noticed:

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 4].

Counsel:

J. Walter Thompson, Q.C., and Warren Zimmer, for the plaintiffs;

James P. Boudreau, for the defendant, ATV/CTV Inc.;

Lori Rasmussen, for the defendants, Constables Burns and Kelly.

This case was heard on September 20-24 and 27-29, 2004, by Moir, J., of the Nova Scotia Supreme Court, who delivered the following oral decision on September 27, 2004.