Civil Damages Flowing from Charter Violations
|Caselaw.Ninja, Riverview Group Publishing 2021 ©|
|CLNP Page ID:||1808|
|Page Categories:||[Constitutional Law]|
|Citation:||Civil Damages Flowing from Charter Violations, CLNP 1808, <https://caselaw.ninja/r/4k>, retrieved on 2022-01-27|
Vancouver (City) v. Ward, 2010 SCC 27 (CanLII)
-  I conclude that damages were properly awarded for the strip search of Mr. Ward, but not justified for the seizure of his car. I would therefore allow the appeal in part.
-  The issues are the following:
- A. When are damages under s. 24(1) available?
- 1. The language of s. 24(1) and the nature of Charter damages;
- 2. Step one: Proof of a Charter breach;
- 3. Step two: Functional justification of damages;
- 4. Step three: Countervailing factors;
- 5. Step four: Quantum of s. 24(1) damages;
- 6. Forum and procedure.
- A. When are damages under s. 24(1) available?
- B. Application to the Facts
- 1. Damages for the strip search;
- 2. Damages for the car seizure.
- B. Application to the Facts
-  The general considerations governing what constitutes an appropriate and just remedy under s. 24(1) were set out by Iacobucci and Arbour JJ. in Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62,  3 S.C.R. 3. Briefly, an appropriate and just remedy will: (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: Doucet‑Boudreau, at paras. 55‑58.
-  Damages for breach of a claimant’s Charter rights may meet these conditions. They may meaningfully vindicate the claimant’s rights and freedoms. They employ a means well-recognized within our legal framework. They are appropriate to the function and powers of a court. And, depending on the circumstances and the amount awarded, they can be fair not only to the claimant whose rights were breached, but to the state which is required to pay them. I therefore conclude that s. 24(1) is broad enough to include the remedy of damages for Charter breach. That said, granting damages under the Charter is a new endeavour, and an approach to when damages are appropriate and just should develop incrementally. Charter damages are only one remedy amongst others available under s. 24(1), and often other s. 24(1) remedies will be more responsive to the breach.
-  For a tribunal to grant a Charter remedy under s. 24(1), it must have the power to decide questions of law and the remedy must be one that the tribunal is authorized to grant: R. v. Conway, 2010 SCC 22,  1 S.C.R. 765. Generally, the appropriate forum for an award of damages under s. 24(1) is a court which has the power to consider Charter questions and which by statute or inherent jurisdiction has the power to award damages. Provincial criminal courts are not so empowered and thus do not have the power to award damages under s. 24(1).
-  The appeal is allowed in part. The award against the City in the amount of $100 is set aside, substituted by 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. The award of damages against the Province in the sum of $5,000 for breach of Mr. Ward’s s. 8 Charter rights is confirmed.
Lamka v Waterloo Regional Police Services Board, 2012 CanLII 98291 (ON SCSM)
72. No authority was presented which helpfully addresses this issue, and I am aware of none. What I have is Ward, supra, dealing with the general analysis applicable to claims for civil damages flowing from alleged Charter violations. And in that case the court states at para. 64 that “Strip searches are inherently humiliating and degrading regardless of the manner in which they are carried out and thus constitute significant injury to an individuals’s intangible interests” [citation omitted].
85. I find there was no lawful justification for Ms. Lamka’s detention under s. 498(1.1)(b) nor for her strip search incidental to her intended overnight detention under that provision. Moreover I am satisfied on a balance of probabilities that Detective Moreira’s decision to detain Ms. Lamka was not motivated by an assessment of her case but was motivated by his decision to use her for purposes of a separate but related investigation and to punish her for failing to cooperate with that other investigation.
86. In the result I am satisfied that Ms. Lamka has established a violation of her rights under Charter ss. 7, 8 (unreasonable search) and 9 (arbitrary detention). The first part of the Ward analysis is satisfied.
87. The second question under the Ward analysis is whether the plaintiff has established a functional justification for an award of damages based on the functions of compensation for distress, humiliation, embarrassment and anxiety, vindication of Charter values, and deterrence of future breaches. I find that the case fits squarely with the functional justification analysis mandated by Ward and all three objects are present. In addition I observe that the nature of the police power under s. 498 is such that a civil remedy may be both the most effective and the most accessible remedy for someone in the position of Ms. Ward. There is nothing she could realistically have done on January 31, 2010 to undo Detective Moreira’s illegal decision to detain her for a bail hearing the next day.
88. Step three is whether the state has established any countervailing factors. No such factors were suggested. A finding or declaration of Charter breach would appear totally inadequate in this case. I find the violation in this case easily passes the minimum threshold of seriousness to make an award of civil damages appropriate and just and I conclude that Ms. Lamka is entitled to such an award.
89. Step four is the assessment of damages. Ms. Lamka was strip searched by two female officers in a small room, the door of which was left open although no one passed by during the search. It was held in Ward that such a search is inherently demeaning and degrading regardless of how it is done. In that case the search was not particularly invasive and a “moderate” damages award of $5,000 was upheld by the Supreme Court of Canada. I see no significant difference between that search and this one. I conclude that an award to Ms. Lamka of $5,000 in damages is appropriate and just.
90. In closing submissions, Mr. Charney represented to the court that the release of Ms. Lamka at the bail hearing on February 1, 2010 was on consent of the Crown and without conditions, despite the recommendations of Detective Moreira. I accept that fact, even though I fail to see why no documentation was presented to substantiate it by evidence. In any event my decision in this case would be the same with or without my acceptance of that fact.
91. It is worthy of comment at this stage that the withdrawal of Ms. Lamka’s charge by the Crown relatively early in the process is precisely what should have happened and is in line with what Justice G. Arthur Martin recommended in his important report on criminal justice some years ago. Despite the apparent meaning of the terminology used in this case, that the withdrawal of the charge was based on there being “no reasonable prospect of conviction”, the reality is that Ms. Lamka might have been convicted of possession of stolen property. But it would not have been a just conviction because it would not have been in the public interest. The charge was properly screened early in the process and rightly withdrawn.
92. For the foregoing reasons, I grant judgment to Samantha Lamka in the amount of $5,000, plus interest and costs.
93. Based on a full-day trial with junior counsel representing the successful party and keeping in mind the amount recovered was significantly less than the amount claimed, I fix costs at $1,200 consisting of a representation fee of $1,000 and disbursements of $200.
- Vancouver (City) v. Ward, 2010 SCC 27 (CanLII),  2 SCR 28, <https://canlii.ca/t/2bq8r>, retrieved on 2021-11-15
- Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII),  3 SCR 3, <https://canlii.ca/t/4nx4>, retrieved on 2021-11-15
- R. v. Conway, 2010 SCC 22 (CanLII),  1 SCR 765, <https://canlii.ca/t/2b2ds>, retrieved on 2021-11-15
- Lamka v Waterloo Regional Police Services Board, 2012 CanLII 98291 (ON SCSM), <https://canlii.ca/t/g0lh7>, retrieved on 2021-11-15