Ward v. Vancouver (City) et al., (2010) 404 N.R. 1 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 18, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 404 N.R. 1 (SCC);2010 SCC 27;[2010] 9 WWR 195;404 NR 1;[2010] 2 SCR 28;EYB 2010-177090;321 DLR (4th) 1;[2010] SCJ No 27 (QL);290 BCAC 222;[2010] EXP 2331;76 CR (6th) 207;7 BCLR (5th) 203;JE 2010-1305;75 CCLT (3d) 1;[2010] CarswellBC 1947;213 CRR (2d) 166;491 WAC 222

Ward v. Vancouver (2010), 404 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] N.R. TBEd. JL.029

City of Vancouver (appellant) v. Alan Cameron Ward (respondent)

Her Majesty The Queen in Right of the Province of British Columbia (appellant) v. Alan Cameron Ward (respondent) and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Aboriginal Legal Services of Toronto Inc., Association in Defence of the Wrongly Convicted, Canadian Civil Liberties Association, Canadian Association of Chiefs of Police, Criminal Lawyers' Association (Ontario), British Columbia Civil Liberties Association and David Asper Centre for Constitutional Rights (intervenors)

(33089; 2010 SCC 27; 2010 CSC 27)

Indexed As: Ward v. Vancouver (City) et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

July 23, 2010.

Summary:

In August 2002, Ward was arrested near the location of an outdoor dedication ceremony attended by the Prime Minister of Canada. Ward was strip searched and held in custody in the city jail for over four hours. His car was impounded. Ward brought an action against a number of defendants.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. C92, found the arrest to be lawful. However, the city police officers had breached Ward's Charter rights by holding him longer than necessary (the tort of wrongful imprisonment) and by seizing his car. Damages were assessed against the city at $5,000 for the detention and $100 for the vehicle seizure. Further, provincial corrections officers breached Ward's Charter rights by conducting the strip search. Damages were assessed against the province at $5,000. Ward appealed against the city, asserting that the court erred in finding that the arrest was lawful and in awarding damages for wrongful imprisonment that were inordinately low. The city cross-appealed, asserting that the court erred in awarding damages for the vehicle seizure. The province brought a separate appeal, asserting that the court erred in awarding damages for the Charter breach in the absence of the commission of a tort, bad faith, abuse of power, negligence or wilful blindness by the corrections officers regarding their constitutional obligations to Ward. Ward cross-appealed, asserting that the damages awarded for the strip search were inadequate and should have included punitive damages.

The British Columbia Court of Appeal, Saunders, J.A., dissenting, in a decision reported at (2009), 265 B.C.A.C. 174; 446 W.A.C. 174, dismissed the appeals and cross-appeals. The city and the province appealed from the assessment of damages.

The Supreme Court of Canada allowed the appeal in part. The award against the city in the amount of $100 for the vehicle seizure was set aside.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The Supreme Court of Canada discussed when damages could be awarded for a Charter breach under s. 24(1) - Section 24(1) empowered courts of competent jurisdiction to grant "appropriate and just" remedies - The court noted that this language was broad and that it would be improper for courts to reduce this discretion by casting it in a strait jacket of judicially prescribed conditions - However, the prohibition on cutting down the ambit of s. 24(1) did not preclude judicial clarification of when it was appropriate and just to award damages - The court had previously established that an appropriate and just remedy would "(1) meaningfully vindicate the rights and freedoms of the claimants; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made" - Damages for a breach of a claimant's Charter rights could meet those conditions - Therefore, s. 24(1) was broad enough to include the remedy of damages for Charter breach - However, it was important to note that these damages were a unique public law remedy the nature of which was to require the state (or society writ large) to compensate an individual for breaches of his or her constitutional rights - See paragraphs 16 to 22.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The Supreme Court of Canada discussed when damages could be awarded for a Charter breach under s. 24(1) - The court outlined a four step analysis - The first step was to establish a Charter breach, the wrong on which the claim was based - The second step involved a functional justification of damages - Damages under s. 24(1) served three interrelated functions, the functions of compensation, which was usually the most prominent function, vindication and deterrence - In most cases, all three objects would be present - Harm to the claimant would evoke the need for compensation, while vindication and deterrence supported the compensatory function and bolstered the appropriateness of the damages award - However, even if a claimant established that damages were functionally justified, the state might establish that other countervailing considerations rendered s. 24(1) damages inappropriate or unjust - The identification of those considerations was the third step in the analysis - The state bore the evidentiary burden to show that the engaged functions could be fulfilled through other remedies - Where the state failed to negate that the award was "appropriate and just", the fourth and final step in the analysis was the quantification of damages - See paragraphs 23 to 45.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The Supreme Court of Canada discussed when damages could be awarded for a Charter breach under s. 24(1) - The court stated that applying a functional approach to damages under s. 24(1) meant that if other remedies adequately met the need for compensation, vindication and/or deterrence, a further award of damages under s. 24(1) served no function and would not be "appropriate and just" - The claimant had to establish basic functionality having regard to the objects of constitutional damages - The burden then shifted to the state to show that the engaged functions could be fulfilled through other remedies - For example, where there was a concurrent action in tort, it was open to the state to argue that a damages award from a successful tort claim would adequately address the Charter breach - While a potential tort claim did not bar a claimant from obtaining damages under the Charter, a concurrent action in tort, or other private law claim, barred s. 24(1) damages if the result would be double compensation - Or declarations of Charter breach might provide an adequate remedy where the claimant suffered no personal damage - A further concern was with good governance - It could be argued that any award of s. 24(1) damages would have a chilling effect on government conduct, negatively impacting good governance - However, insofar as s. 24(1) damages deterred Charter breach, they promoted good governance - Where the state established that s. 24(1) damages raised governance concerns, a minimum threshold, such as clear disregard for the claimant's Charter rights, might be appropriate - When appropriate, private law thresholds and defences might offer guidance in determining whether s. 24(1) damages would be appropriate and just - See paragraphs 32 to 43.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The Supreme Court of Canada discussed the assessment of damages for a Charter breach under s. 24(1) - The watchword of s. 24(1) was that the remedy had to be "appropriate and just" - Section 24(1) damages might be awarded to compensate the claimant for his or her loss, to vindicate the right or to deter future violations - These objects, the presence and force of which varied from case to case, determined not only whether damages were appropriate, but also the amount of damages awarded - Generally, compensation was the most important object - Vindication and deterrence played supporting roles - Where the objective of compensation was engaged, the concern was to restore the claimant to the position he or she would have been in had the breach not been committed - As in a tort action, any claim for compensatory damages had to be supported by evidence of the loss suffered - In some cases, the Charter breach might cause the claimant pecuniary loss, such as medical costs - Prolonged detention might result in loss of earnings - In other cases, the claimant's losses would be non-pecuniary, which were harder to measure, yet, were not by that reason to be rejected - Tort law provided assistance - Pain and suffering were compensable - When compensation was more concerned with the objectives of vindication and deterrence, tort law was less useful - Making the appropriate determinations was an exercise in rationality and proportionality and would ultimately be guided by precedent - See paragraphs 46 to 51.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The Supreme Court of Canada discussed the assessment of damages for a Charter breach under s. 24(1) - A principal guide to the determination of the quantum of damages was the seriousness of the breach, having regard to the objects of s. 24(1) damages - The breach's seriousness had to be evaluated with regard to the impact of the breach on the claimant and the seriousness of the state misconduct - Generally speaking, the more egregious the conduct and the more serious the repercussion on the claimant, the higher the award for vindication or deterrence would be - Damages had to be fair or "appropriate and just" to both the claimant and the state - In considering what was fair to the claimant and the state, the court could take into account the public interest in good governance, the danger of deterring governments from undertaking beneficial new policies and programs, and the need to avoid diverting large sums of funds from public programs to private interests - To be appropriate, an award of damages had to represent a meaningful response to the breach's seriousness and the objectives of compensation, upholding Charter values and deterring future breaches - The private law measure of damages for similar wrongs would often be a useful guide - In assessing s. 24(1) damages, the court had to focus on the breach of Charter rights as an independent wrong, worthy of compensation in its own right - At the same time, damages under s. 24(1) were not to duplicate damages awarded under private law causes of action, such as tort, where compensation of personal loss was at issue - See paragraphs 52 to 57.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The Supreme Court of Canada discussed the appropriate forum and procedure where a claimant sought damages for a Charter breach under s. 24(1) - For a tribunal to grant a Charter remedy under s. 24(1), it had to have the power to decide questions of law and the remedy had to be one that the tribunal was authorized to grant - Generally, the appropriate forum for an award of damages under s. 24(1) was a court which had the power to consider Charter questions and which by statute or inherent jurisdiction had the power to award damages - Provincial criminal courts were not so empowered and thus did not have the power to award damages under s. 24(1) - A claimant could join a s. 24(1) claim with a tort claim - In that case, it might be useful to consider the tort claim first, since if it met the objects of Charter damages, recourse to s. 24(1) would be unnecessary - This might add useful context and facilitate the s. 24(1) analysis - This said, it was not essential that the claimant exhaust his or her remedies in private law before bringing a s. 24(1) claim - See paragraphs 58 and 59.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - At an outdoor ceremony attended by the Prime Minister, police arrested Ward because he resembled a person that they had been told was planning an assault on the Prime Minister - Ward was strip searched and held in custody for four hours - His car was impounded - Tysoe, J., found that Ward's s. 8 Charter right had been violated and assessed damages under s. 24(1) at $100 for the city's unreasonable seizure of Ward's car and $5,000 for the province's unreasonable strip search - The award was upheld by the British Columbia Court of Appeal - The city and the province appealed - The Supreme Court of Canada upheld the award of $5,000 for the province's unreasonable strip search - The Charter breach significantly impacted on Ward's person and rights and the police conduct was serious - The impingement called for compensation - Combined with the police conduct, it also engaged the objects of vindication of the right and deterrence of future breaches - Compensation was required to functionally fulfill the objects of public law damages - The state had not established that alternative remedies were available to achieve the objects of compensation, vindication or deterrence - Regarding quantum, the court noted that strip searches were inherently humiliating and thus constituted a significant injury to an individual's intangible interests - However, the present search was relatively brief and not extremely disrespectful - While Ward's injury was serious, it was not at the high end of the spectrum - This suggested a moderate damages award - Further, the officers' action was not intentional, in that it was not malicious, high-handed or oppressive - An award of substantial damages was not required - Considering all the factors, including the appropriate degree of deference due to the trial judge's exercise of remedial discretion, the court concluded that the trial judge's $5,000 damage award was appropriate - See paragraphs 61 to 73.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - At an outdoor ceremony attended by the Prime Minister, police arrested Ward because he resembled a person that they had been told was planning an assault on the Prime Minister - Ward was strip searched and held in custody for four hours - His car was impounded - Tysoe, J., found that Ward's s. 8 Charter right had been violated and assessed damages under s. 24(1) at $100 for the city's unreasonable seizure of Ward's car and $5,000 for the province's unreasonable strip search - The award was upheld by the British Columbia Court of Appeal - The city and the province appealed - The Supreme Court of Canada allowed the appeal in part - The award against the city in the amount of $100 for the vehicle seizure was set aside - Damages under s. 24(1) for the vehicle seizure were not "appropriate and just" from a functional perspective - The object of compensation was not engaged by the seizure of the car - Tysoe, J., found that Ward had not suffered any injury as a result of the seizure - His car was never searched and, on his release from lockup, Ward was driven to the police compound to pick up the vehicle - Nor were the objects of vindication of the right and deterrence of future breaches compelling - While the seizure was wrong, it was not of a serious nature - A declaration under s. 24(1) that the vehicle seizure violated Mr. Ward's right to be free from unreasonable search and seizure under s. 8 of the Charter adequately served the need for vindication of the right and deterrence of future improper car seizures - See paragraphs 74 to 78.

Cases Noticed:

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 17].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 20].

Dunlea v. Attorney General, [2000] 3 N.Z.L.R. 136; [2000] NZCA 84, refd to. [para. 22].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 24].

Anufrijeva v. Southwark London Borough Council, [2003] EWCA Civ. 1406; [2004] Q.B. 1124, refd to. [para. 27].

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971), 403 U.S. 388, refd to. [para. 27].

Taunoa v. Attorney General, [2008] 1 N.Z.L.R. 429; [2007] NZSC 70, refd to. [para. 27].

Fose v. Minister of Safety and Security, 1997 (3) SA 786 (C.C.), refd to. [para. 28].

Trinidad and Tobago (Attorney General) v. Ramanoop, [2005] N.R. Uned. 103; [2006] 1 A.C. 328; [2005] UKPC 15, refd to. [para. 29].

Smith v. Wade (1983), 461 U.S. 30 (S.C.), refd to. [para. 29].

R. v. B.W.P.; R. v. B.V.N., [2006] 1 S.C.R. 941; 350 N.R. 1; 205 Man.R.(2d) 282; 375 W.A.C. 282; 227 B.C.A.C. 1; 374 W.A.C. 1; 2006 SCC 27, refd to. [para. 29].

Simpson v. Attorney General, [1994] 3 N.Z.L.R. 667 (C.A.), refd to. [para. 36].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [para. 39].

Kvello et al. v. Miazga et al., [2009] 2 S.C.R. 339; 395 N.R. 115; 337 Sask.R. 260; 464 W.A.C. 260; 2009 SCC 51, refd to. [para. 43].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 43].

Béliveau St-Jacques v. Fédération des employées et employés de services public Inc. (C.S.N.) et al. - see St. Jacques v. Fédération des employées et employés de services public Inc. (C.S.N.) et al.

St. Jacques v. Fédération des employées et employés de services public Inc. (C.S.N.) et al., [1996] 2 S.C.R. 345; 198 N.R. 1, refd to. [para. 44].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 52].

R. v. Conway (P.) (2010), 402 N.R. 255; 263 O.A.C. 61; 2010 SCC 22, refd to. [para. 58].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201; 2001 SCC 83, refd to. [para. 64].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 24(1) [para. 14].

Counsel:

Tomasz M. Zworski, for the appellant, the City of Vancouver;

Bryant Alexander Mackey and Barbara Carmichael, for the appellant, Her Majesty The Queen in Right of the Province of British Columbia;

Brian M. Samuels, Kieran A.G. Bridge and Jennifer W. Chan, for the respondent;

Mark R. Kindrachuk, Q.C., and Jeffrey G. Johnston, for the intervenor, the Attorney General of Canada;

Robert E. Charney and Josh Hunter, for the intervenor, the Attorney General of Ontario;

Isabelle Harnois and Gilles Laporte, for the intervenor, the Attorney General of Quebec;

Kimberly R. Murray and Julian N. Falconer, for the intervenor, the Aboriginal Legal Services of Toronto Inc.;

Louis Sokolov and Heidi Rubin, for the intervenor, the Association in Defence of the Wrongly Convicted;

Stuart Svonkin and Jana Stettner, for the intervenor, the Canadian Civil Liberties Association;

Vincent Westwick and Karine LeBlanc, for the intervenor, the Canadian Association of Chiefs of Police;

Sean Dewart and Tim Gleason, for the intervenor, the Criminal Lawyers' Association (Ontario);

Kent Roach and Grace Pastine, for the intervenors, the British Columbia Civil Liberties Association and the David Asper Centre for Constitutional Rights.

Solicitors of Record:

City of Vancouver, Vancouver, B.C., for the appellant, the City of Vancouver;

Attorney General of British Columbia, Victoria, B.C., for the appellant, Her Majesty The Queen in Right of the Province of British Columbia;

Samuels & Company, Vancouver, B.C., for the respondent;

Attorney General of Canada, Saskatoon, Saskatchewan, for the intervenor, the Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Attorney General of Quebec, Ste-Foy, Quebec, for the intervenor, the Attorney General of Quebec;

Aboriginal Legal Services of Toronto Inc., Toronto, Ontario; Falconer Charney, Toronto, Ontario, for the intervenor, the Aboriginal Legal Services of Toronto Inc.;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervenor, the Association in Defence of the Wrongly Convicted;

Torys, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association;

Ottawa Police Service, Ottawa, Ontario, for the intervenor, the Canadian Association of Chiefs of Police;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervenor, the Criminal Lawyers' Association (Ontario);

University of Toronto, Toronto, Ontario, for the intervenor, the British Columbia Civil Liberties Association and the David Asper Centre for Constitutional Rights.

This appeal was heard on January 18, 2010, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. On July 23, 2010, McLachlin, C.J.C., delivered the following reasons for judgment for the court in both official languages.