No Right Without a Remedy? the Potential Role of Class Actions in Police Accountability and Defending Charter Rights

• Author: Regan S Christensen
• Pages: 201-243

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NO RIGHT WITHOUT A

REMEDY? THE POTENTIAL

ROLE OF CLASS ACTIONS IN

POLICE ACCOUNTABILITY AND

DEFENDING

CHARTER

RIGHTS

Regan S Christensen

Abstract: Recent high-prof‌ile events have led the public to in-

creasingly quest ion the role and conduct of Canada’s police

forces and have drawn attent ion to the limited impact ex isting

oversight bodies are able to have on reforming police policies

and practices. This paper discusses the role that clas s actions

could potentially play in strengthening police accountability

and in compensating, denounci ng, and deterring violations of

Charter right s. The author begins with an exploration of how

civil litigation has driven police reform in t he United States,

and the barriers preventing civilians from seek ing simila r re-

dress in Can ada. He then examines how the innovative use

of class actions could potentially overcome these barriers and

incentivize govern ments and police service boards to imple-

ment needed changes in policies and governance. The paper

concludes by considering the two major police accountability

certif‌ication motions t hat have been heard t hus far in com-

mon law Canada — Thorburn v British Columbia and Good v

Toronto Police Services Board — and discuss es the implications

these decisions m ay have for the future use of cla ss actions

to strengthen police accountabil ity and defend Charter rights.

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NO RIGHT WITHOUT A REMEDY?

THE POTENTIAL ROLE OF CLASS

ACTIONS IN POLICE ACCOUNTABILITY

AND DEFENDING

CHARTER

RIGHTS

Regan S Christensen*

[A] right, no matter how expansive in theory, is only as meaning ful as the remedy

provided for its breach.

— Chief Justice Beverley McLachlin1

A. THE LIMITS OF CIVILI AN OVERSIGHT OF THE

POLICE

A well-functioning police force is vital to any society committed to the

rule of law; for laws to have meaning, they must be enforced. Of neces-

sity, Canada’s police off‌icers are granted broad discretion and powers

that far exceed what the average citizen is authorized to do under law.

These policing powers are essential to ensuring that those who violate

the law are investigated, arrested, and g iven a fair tri al in a court of jus-

tice. While many of Can ada’s police off‌icers exercise the se powers hon-

ourably and in full compliance w ith the laws of the land, what happens

when off‌icers abuse their powers or break the very laws t hey have sworn

to uphold? In a free and democratic society like Ca nada, who is in charge

of policing the police?

Sir Robert Peel, the former prime minister of the United Kingdom

and the father of modern polici ng, famously declared, “The police are the

public and the public are the police.”2 The second of the nine “Peelian

* HBA, with Di stinction (Ivey Business Sc hool, Western Univer sity), JD (Faculty

of Law, Western University). The author is a student-at-law at McKe nzie Lake

Lawyers L LP in London, Ontario, where he ha s worked on a variety of class

actions wit h the f‌irm’s class action practic e group.

1 Ontario v 974649 Ontario Inc, 2001 SCC 81 at para 20 [974649 Ontario].

2 Charles Reith, Th e Blind Eye of History: A Study of the Origins of the Present

Police Era (Montclair, NJ: Patterson Smith , 1975) at 163.

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