Vancouver (City) v Ward: An Evolutionary Milestone?

• Author: W.H. Charles
• Pages: 77-99

77

Chapter 6

Vancouver (City) v Ward

An Evolutionary Milestone?

A. INTRODUCTION

The latest, and perhaps the most important, stage in the evolution of Can-

adian Charter of Rights and Freedoms1damages as a constitutional remedy

occurred in 2010 with t he decision of the Supreme Court of Canada in Van-

couver (City) v Ward.2 In this case, the Court was required to address the

question of “when damages may be awarded under s. 24(1) of the Charter,

and what the amount of such damages should be.”3 A decision of a unani-

mous Court, writ ten by McLachlin CJ, it represents a major milestone in our

understanding of the natu re and purpose of Charter da mages.4 Additiona lly,

the decision provides an analytical framework for lower courts faced with

claims for compensation for Charter v iolations.

The factual situation in Ward involved the detention and arrest of a

Vancouver lawyer suspected of planning to throw a pie at the prime minis-

ter. The police, acting upon information describing the suspected potential

1 Part I of the Constitution Act, 1982, being Schedule B to the Cana da Act 1982

(UK), 1982, c 11 [Charter].

2 2010 SCC 27 [Ward].

3 Ibid at para 3.

4 Linden describes the Ward decision as a signi f‌icant development that ranks

as “a historic milestone for Cha rter litigation” and one that is “a welcome,

comforting, needed, overdue, but I must sa y largely symbolic advance in our

legal system.” In his opi nion, the decision is “a charming orna ment in an

already well-developed civ il justice and Charter world, gently enh ancing to

some degree the accountabilit y of government for Charter breaches”: Allen

M Linden, “Charter Damage C laims: New Dawn or Mirage?” (2012) 39:4 The

Advocates’ Quarte rly 426 at 438 & 439.

Understanding Charter Damages78

pie thrower, arrested Mr Ward for breach of the peace when he became loud

and aggressive during questioning. He was held in police custody pending

further investigation, and while in detention, he was strip-searched, and

his car was seized . Upon release, Mr Ward sued the city police and the prov-

ince for violation of his Charter r ights under sections 7, 8, and 9. He alleged

wrongfu l detention, unreasonable strip search, and w rongful seizure of his

car, actions that he claimed were tortious.

An examination of the trial court,5 British Columbia Court of Appeal,6

and Supreme Court decisions shows a considerable uniformity of result

but with some dif‌ferences. All three courts agreed that Charter damages

in the amount of $5,000 were warranted for the unreasonable strip search.

As for the claim of wrongful imprisonment, the trial judge and the Court

of Appeal agreed that an award of an additional $5,000 was appropriate.

However, this particular head of da mages was not part of the appeal to the

Supreme Court.7 The trial judge also awarded Mr Ward $100 as compensa-

tion for the wrongful seiz ure of his car. This award was upheld by the Court

of Appeal but rejected by the Supreme Court. Chief Justice McLachlin ex-

plained that a declaration of Charter violation was suf‌f‌icient to vindicate

the Charter right involved and to deter similar future conduct.8 Counsel

for the Crown had argued that da mages should not be awarded for Charter

violations not involving tortious acts, citing the Ontario Court of Appeal

decision in Wynberg v Ontario.9

B. A NEW ANALYTICAL FRAMEWORK

In reaching its conclusions in Ward, t he Supreme Court of Canada employed

a new analyt ical framework to determine whether Charter damages were an

appropriate and just remedy and the quantum of damages. This develop-

ment, coming perhaps in response to the most recent plea for such a frame-

work from Saunders J, dissenting, in the Court of Appea l in Ward,10 as well

as the many earlier observations and expressed desires for such Supreme

Court direction from other lower courts, represents the most important

part of the Ward decision. As described by McLachlin CJ, the analytical

framework involves six considerations or issues that are relevant to the ap-

5 Ward v Vancouver (City), 2007 BCSC 3, Ty soe J [Ward SC].

6 Ward v Vancouver (City), 2009 BCCA 23, a f‌f’g 2007 BCSC 3 [Ward CA] .

7 Ward, above note 2 at para 11.

8 Ibid at para 78.

9 (2006), 82 OR (3d) 561 (CA).

10Ward CA, above note 6 at para 83.