Ward v. Vancouver (City) et al., 2009 BCCA 23

• Judge: Finch, C.J.B.C., Saunders and Low, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 27, 2009
• Jurisdiction: British Columbia
• Citations: 2009 BCCA 23;(2009), 265 B.C.A.C. 174 (CA)

Ward v. Vancouver (2009), 265 B.C.A.C. 174 (CA);

    446 W.A.C. 174

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. FE.010

Alan Cameron Ward (respondent/plaintiff) v. Her Majesty the Queen in Right of the Province of British Columbia (appellant/defendant)

(CA034766)

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

(CA034785; 2009 BCCA 23)

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

British Columbia Court of Appeal

Finch, C.J.B.C., Saunders and Low, JJ.A.

January 27, 2009.

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, dismissed the appeals and cross-appeals.

Civil Rights - Topic 1216

Security of the person - Lawful or reasonable search - Strip searches - [See second and third Civil Rights - Topic 8375 ].

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - In August 2002, the Prime Minister of Canada appeared at an outdoor dedication ceremony in the city of Vancouver - Ward attended the ceremony - He was detained by police because his physical appearance was fairly close to that of a person who was suspected of planning an assault on the Prime Minister and because Ward was seen running and appeared to be avoiding interception - When he protested the initial detention, Ward was arrested for breach of the peace - He 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 - Tysoe, J., 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) - Damages were assessed against the city at $5,000 for the detention - Ward appealed, asserting that the court erred in finding that the arrest was lawful and in awarding damages for wrongful imprisonment that were inordinately low - The British Columbia Court of Appeal dismissed the appeal - The court rejected Ward's argument that, after the initial detention, the dissimilarities between his appearance and that of the suspect should have allayed any reasonable suspicion that he was the suspect and that he, therefore, should have been released - The investigating officer could not conclude that the description of the suspect was completely accurate - Ward was in the right place at the right time and was running and appeared to be avoiding the police - The continued detention was reasonable and justified - Ward's arrest for breach of the peace for protesting that detention was lawful - Ward's argument regarding the quantum of damages relied on cases in which more substantial damages were assessed in more egregious circumstances and for quite different wrongs - There was no basis on which to interfere with the trial court's assessment of damages - See paragraphs 9 to 27.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - [See Civil Rights - Topic 1262 ].

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - In August 2002, the Prime Minister of Canada appeared at an outdoor dedication ceremony in the city of Vancouver - Ward attended the ceremony - He was detained by police because his physical appearance was fairly close to that of a person who was suspected of planning an assault on the Prime Minister and because Ward was seen running and appeared to be avoiding interception - When he protested the initial detention, Ward was arrested for breach of the peace - He 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 - Tysoe, J., found the arrest to be lawful - However, because the arrest was for breach of the peace, seizing Ward's car was unreasonable and an infringement of Ward's Charter rights - Damages assessed against the city included $100 for the vehicle seizure - Further, provincial corrections officers conducted the strip search contrary to the province's written policy - This rendered the search unreasonable and an infringement of Ward's Charter rights - Damages were assessed against the province at $5,000 - On Ward's appeal, the city cross-appealed the $100 damage award, asserting that the remedy should have been limited to a declaration - 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 - The British Columbia Court of Appeal dismissed the cross-appeal and the appeal - For the kind of Charter breach that occurred here (a past wrong, rather than an offending law or policy), a declaration of breach had no ongoing benefit and was not a remedy at all - A declaration was really nothing more than a finding of fact that might not, by itself, effectively redress the past wrong - To require that the breach be accompanied by a tort or by bad faith to justify an award of damages would, in many cases, give to the victim only a pyrrhic victory - Here, particularly regarding the strip search, a declarative remedy was neither responsive nor effective - This was not to say that a damages award was appropriate in all cases where a government actor had breached a person's Charter right - However, here there was no basis on which to interfere with the trial court's exercise of discretion to award damages for the unreasonable search or for the unreasonable seizure of Ward's vehicle - See paragraphs 28 to 34 and 46 to 66.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - In August 2002, the Prime Minister of Canada appeared at an outdoor dedication ceremony in the city of Vancouver - Ward attended the ceremony - He was detained by police because his physical appearance was fairly close to that of a person who was suspected of planning an assault on the Prime Minister and because Ward was seen running and appeared to be avoiding interception - When he protested the initial detention, Ward was arrested for breach of the peace - He was strip searched and held in custody in the city jail for over four hours - Ward brought an action against a number of defendants - Tysoe, J., found the arrest to be lawful - However, provincial corrections officers breached Ward's Charter rights by conducting the strip search - Damages were assessed against the province at $5,000 - On the province's appeal, 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 dismissed the cross-appeal - The claim for punitive damages was without merit - See paragraphs 67 to 70.

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - The British Columbia Court of Appeal stated that "there is a significant difference between breach of a Charter right that results in the striking down of a law enacted by a legislature, or by the executive branch of government, and breach of a Charter right by the actions of government agents. Declaratory relief is the obvious remedy for the former. It is an end in itself because it strikes down or, in some cases, reads down the offending law or policy to the extent that the law or policy breaches Charter rights. This means that those affected by the law are not disadvantaged by it or denied its benefits ... The remedy does not just redress a past wrong. It also affects rights and liabilities in the future." - However, where only a past wrong was under consideration, "[a] declaration of breach ... has no ongoing benefit and is not a remedy at all." - See paragraphs 62 and 63.

Civil Rights - Topic 8380.25

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of rights - [See second Civil Rights - Topic 8375 and Civil Rights - Topic 8380.2 ].

Damage Awards - Topic 630

Torts - Injury to the person - False or unlawful imprisonment - [See Civil Rights - Topic 1262 ].

Damages - Topic 1332.1

Exemplary or punitive damages - Liability of Crown - [See third Civil Rights - Topic 8375 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised (incl. new theory of the case) - In August 2002, the Prime Minister of Canada appeared at an outdoor dedication ceremony in the city of Vancouver - Ward attended the ceremony - He was detained by police because his physical appearance was fairly close to that of a person who was suspected of planning an assault on the Prime Minister and because Ward was seen running and appeared to be avoiding interception - When he protested the initial detention, Ward was arrested for breach of the peace - He 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 - Tysoe, J., found the arrest to be lawful - However, provincial corrections officers conducted the strip search contrary to the province's written policy - This rendered the search unreasonable and an infringement of Ward's Charter rights - Damages were assessed against the province at $5,000 - The province appealed, 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 - Ward asserted that the court should have found that the unreasonable search by the corrections officers constituted a civil assault as well as a Charter violation - The British Columbia Court of Appeal held that it could not give effect to Ward's argument - The issue of assault by the provincial corrections officers was not before the trial court - The amended statement of claim pled claims against the city and the province separately - Paragraph 34 asserted that the actions of the city police officers constituted assault - There was no such pleading regarding the provincial employees - Tysoe, J., had not canvassed the issue - The issue was raised for the first time on the appeal - The appeal court had not been asked to further amend the statement of claim and were not able to determine on the material at hand the extent to which the province would be prejudiced by dealing with the issue in the first instance - See paragraphs 35 to 45.

Cases Noticed:

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 14].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 22].

Nance v. British Columbia Electric Railway Co., [1951] 3 D.L.R. 705 (P.C.), refd to. [para. 24].

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, consd. [para. 49]; appld. [para. 81].

Mackin v. New Brunswick - see Rice, P.C.J. v. New Brunswick.

Wynberg et al. v. Ontario (2006), 213 O.A.C. 48; 82 O.R.(3d) 561; 269 D.L.R.(4th) 435 (C.A.), leave to appeal refused (2007), 369 N.R. 397; 234 O.A.C. 397 (S.C.C.), refd to. [paras. 49, 84].

Welbridge Holdings Ltd. v. Greater Winnipeg, [1971] S.C.R. 957, refd to. [para. 54].

D.E. et al. v. British Columbia, [2003] B.C.T.C. 1013; 2003 BCSC 1013, revd. in part (2005), 209 B.C.A.C. 298; 345 W.A.C. 298; 2005 BCCA 134, refd to. [para. 54].

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, consd. [para. 60].

R. v. Briggs (W.) (2001), 149 O.A.C. 244; 55 O.R.(3d) 417; 157 C.C.C.(3d) 38 (C.A.), leave to appeal refused (2002), 292 N.R. 193; 165 O.A.C. 45 (S.C.C.), refd to. [para. 73].

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. 73].

Auton et al. v. British Columbia (Minister of Health) et al. (2002), 173 B.C.A.C. 114; 283 W.A.C. 114; 6 B.C.L.R.(4th) 201; 2002 BCCA 538, revd. [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1; 2004 SCC 78, refd to. [para. 84].

Auton v. British Columbia (Attorney General) - see Auton et al. v. British Columbia (Minister of Health) et al.

Stenner v. British Columbia Securities Commission et al., [1993] B.C.T.C. Uned. E42; 23 Admin. L.R.(2d) 247 (S.C.), affd. (1996), 82 B.C.A.C. 124; 133 W.A.C. 124; 141 D.L.R.(4th) 122 (C.A.), leave to appeal refused (1997), 219 N.R. 160; 94 B.C.A.C. 319; 152 W.A.C. 319 (S.C.C.), refd to. [para. 87].

McGillivary v. New Brunswick (1994), 149 N.B.R.(2d) 311; 381 A.P.R. 311; 116 D.L.R.(4th) 104 (C.A.), leave to appeal refused (1995), 188 N.R. 319; 164 N.B.R.(2d) 317; 421 A.P.R. 317 (S.C.C.), refd to. [para. 87].

Authors and Works Noticed:

British Columbia, Royal Commission of Inquiry into the Alleged Injuries Sustained by Michael Albert Jacobsen During his Detention in the Vancouver City Police Jail (Matheson, Saunders and Edgar Commission Report) (1988), generally [para. 77].

Matheson, Saunders and Edgar Commission Report - see British Columbia, Royal Commission of Inquiry into the Alleged Injuries Sustained by Michael Albert Jacobsen During his Detention in the Vancouver City Police Jail.

Counsel:

J.E. Gouge, Q.C., and B.A. Mackey, for the appellant (CA034766), Province of British Columbia;

B. Samuels, for the respondent/appellant, A.C. Ward;

T. Zworski, for the respondent (CA034785), City of Vancouver;

K. Roach, for the intervenor, B.C. Civil Liberties Association.

These appeals and cross-appeals were heard at Vancouver, British Columbia, on March 13 and 14, 2008, by Finch, C.J.B.C., Saunders and Low, JJ.A., of the British Columbia Court of Appeal. On January 27, 2009, the court delivered its reasons for judgment with the following opinions:

Low, J.A. (Finch, C.J.B.C., concurring) - see paragraphs 1 to 71;

Saunders, J.A., dissenting - see paragraphs 72 to 96.