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

AuthorRegan S Christensen
Pages201-243

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 question 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 class actions
could potentially play in strengthening police accountability
and in compensating, denounci ng, and deterring violations of
Charter rights. The author begins with an exploration of how
civil litigation has driven police reform in the United States,
and the barriers preventing civilians from seeking similar re-
dress in Canada. He then examines how the innovative use
of class actions could potentially overcome these barriers and
incentivize governments 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 that have been heard thus far in com-
mon law Canada — Thorburn v British Columbia and Good v
Toronto Police Services Board — and discuss es the implications
these decisions may have for the future use of class actions
to strengthen police accountabil ity and defend Charter rights.
ccar 11-2.indb 2013/8/2016 2:27:21 PM
ccar 11-2.indb 2023/8/2016 2:27:21 PM

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 CIVILIAN 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 given a fair trial in a court of jus-
tice. While many of Canada’s police off‌icers exercise these powers hon-
ourably and in full compliance with 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.
ccar 11-2.indb 2033/8/2016 2:27:21 PM

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