Ward v. Vancouver (City): The Birth of Charter Damages

By
Anthony Price
Barrister & Solicitor
adp@murdymcallister.com
August 5, 2010

The Charter of Rights and Freedom is now, more than ever, about basic dollars and cents.  In the recent case of Ward v. City of Vancouver, 2010 SCC 27, the Supreme Court of Canada has confirmed that governments (federal, provincial, and municipal) may be required to pay monetary damages when they breach the Charter of Rights and Freedoms.

The case arose when the Vancouver Police Department mistakenly identified Mr. Ward as someone intending to throw a pie at then Prime Minister Jean Chretien.  After detaining Mr. Ward, the police, with no valid reason, conducted a strip search of Mr. Ward and impounded his car.  Both the strip search and the car seizure were held to be breaches of Mr. Ward’s rights under the Charter.  The main issue was whether the breaches meant that damages could be awarded to Mr. Ward, even though the police had not acted in bad faith or committed a tort.

The Court held that damages could be awarded, and then set out a lengthy analysis to determine when an award of damages would be “appropriate and just”.  The following points can be taken from the decision.

First, the conduct of government employees will play an important role in determining Charter damages.  The Court justified Charter damages for the strip search by emphasizing that the officers were unreasonably insensitive to the fact that the strip search was obviously unnecessary and would result in indignity to Mr. Ward.  In contrast, the Court held that the seizure of Mr. Ward’s car did not give rise to any Charter damages, in part because the car was made available for pick up when the officers determined there was no basis to search it.

Second, Charter damages will not be awarded if the government can show that such damages undermine “good governance”.  For instance, if a government takes action under a statute (or by-law) which is subsequently declared unconstitutional, that action will not normally give rise to Charter damages.  Good governance requires public officials to carry out their duties without the fear that an otherwise valid statute may in the future be determined to be invalid.

Third, the Court approved $5,000 as being an appropriate amount of damages for the strip search.  The Court noted that Mr. Ward was allowed to keep his underwear on during the strip search and that there was no indication that he had suffered any physical or psychological injury.  It is likely that subsequent courts will use the $5,000 amount as a guideline, and determine if a different type of Charter breach calls for more (or less) in the way of damages.

Finally, there will not be an obvious “yes or no” answer to the question of whether damages arise from a Charter breach.  The courts will always have a broad discretion to determine, based on the unique circumstances of each case, when Charter damages should be awarded.  Further, this uncertainty will be amplified for the next few years as courts grapple with having to apply what is a new legal analysis.  One should expect complainants (and perhaps governments) to make novel arguments that have yet to be considered by the courts.