Final Observations and Conclusions

• Author: W.H. Charles
• Pages: 123-129

123

Chapter 8

Final Observations and Conclusions

A. EFFECTIVENESS OF DAMAGES AS A CHARTER

REMEDY

The Supreme Court of Canada in Vancouver (City) v Ward1 did not attempt

an evaluation of the ef‌fectiveness of dam ages as a Canadian Charter of Right s

and Freedoms2 remedy. This is not surprisin g since such an evaluation was

not required to dispose of the legal issues before the Court. I n any event,

tryin g to measure with any degree of accuracy the pract ical ef‌fectiveness of

a Charter remedy presents a real chal lenge. One approach would be to try to

assess the perceived deterrent ef‌fect of damages remedies and the degree

of satisfaction or remedial value exper ienced by individual claimants who

have received damages awards for violations of their Char ter ri ghts. Un-

fortunately, obtaining reliable objective data relevant to these factors would

be either too expensive or impossible. It is impossible to determine the

number of potential Charte r violators who may have been deterred because

of the availability of a remedy like Ch arter damages. Successful claimants

who have received an award could be polled to establish their degree or level

of satisfaction, but such an exercise would be expensive. We can assume

that the satisfaction rate of unsuccessf ul claimants would be low.

What is possible is to measure the ef‌fectiveness of Char ter damages in

terms of (1) frequency of use, (2) the success rate, and (3) the amount of

damages awarded. Fortunately, these types of data have been captured by

1 2010 SCC 27, var’g (sub nom Ward v Vancouver (City)) 2009 BCCA 23, var’g

2007 BCSC 3 [ Ward].

2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982

(UK), 1982, c 11 [Charte r].