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, sta ge in the evolution of Can-
adian Charter of Ri ghts and Freedoms1 dama ges 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 Charte r,
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 analyt ical framework for lower courts faced with
claims for compensation for Charter v iolations.
The factual situation in Wa rd 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 [Charte r].
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, “Char ter Damage C laims: New Dawn or Mirage?” (2012) 39:4 The
Advocates’ Quarte rly 426 at 438 & 439.
Understanding Cha rter Damages78
pie thrower, arrested Mr Ward for breach of the peace when he became loud
and aggressive durin g 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 Br itish Columbia Court of Appeal,6
and Supreme Court decisions shows a considerable uniformity of result
but with some differences. All three courts agreed that Ch arter damages
in the amount of $5,000 were warranted for the unreasonable strip sea rch.
As for the claim of wrongf ul imprisonment, the tria l judge and the Court
of Appeal agreed that an award of an additional $5,0 00 was appropriate.
However, this particular head of da mages was not part of the appeal to the
Supreme Court.7 The tria l 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 McLachli n ex-
plained that a declaration of Char ter violation was sufficient to vindicate
the Charter right involved and to deter simila r 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 Onta rio 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 Charte r damages were an
appropriate and just remedy and the quantum of dama ges. 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 War d decision. As described by McLachlin C J, the analytica l
framework involves six considerations or issues that are relevant to the ap-
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).
10 Ward CA, above note 6 at para 83.
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