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SCC upholds $5k in damages for strip-searched lawyer

The facts here are pretty simple.  In 2002, Prime Minister Chretien was in Vancouver for an event in Chinatown.  Vancouver Police had received information that someone intended to “pie” him.  At some point, VPD were under the impression that the potential pie-thrower was lawyer Alan Ward.  Ward was chased down, arrested, and partially strip-searched at the police station.

It soon became apparent that Ward had nothing to do with this plot.  He just looked suspicious.

In City of Vancouver v. Alan Cameron Ward, Chief Justice McLachlan, writing for a full nine-member majority, upheld the British Columbia Court of Appeal’s decision awarding monetary damages to Ward for a Charter breach resulting from the search, as per s. 24(2) which allows a court to award a just remedy in the event of a breach.

The court explained a four-pronged test in determining whether damages should be awarded, as well as their quantum.  If is worth noting that the term “damages” was put into context:

[22]                          The term “damages” conveniently describes the remedy sought in this case. However, it should always be borne in mind that these are not private law damages, but the distinct remedy of constitutional damages. As Thomas J. notes in Dunlea v. Attorney-General, [2000] NZCA 84, [2000] 3 N.Z.L.R. 136, at para. 81, a case dealing with New Zealand’s Bill of Rights Act 1990, an action for public law damages “is not a private law action in the nature of a tort claim for which the state is vicariously liable, but [a distinct] public law action directly against the state for which the state is primarily liable”.  In accordance with s. 32 of the Charter, this is equally so in the Canadian constitutional context.  The nature of the remedy is to require the state (or society writ large) to compensate an individual for breaches of the individual’s constitutional rights.  An action for public law damages — including constitutional damages — lies against the state and not against individual actors. Actions against individual actors should be pursued in accordance with existing causes of action. However, the underlying policy considerations that are engaged when awarding private law damages against state actors may be relevant when awarding public law damages directly against the state. Such considerations may be appropriately kept in mind.

The proper test was explained as follows:

1.  Proof of a Charter breach.

2.  Functional justitfication for damages – here the court will consider whether circumstances are appropriate to award damages:

[31]                          In summary, damages under s. 24(1) of the Charter are a unique public law remedy, which may serve the objectives of: (1) compensating the claimant for loss and suffering caused by the breach; (2) vindicating the right by emphasizing its importance and the gravity of the breach; and (3) deterring state agents from committing future breaches.  Achieving one or more of these objects is the first requirement for “appropriate and just” damages under s. 24(1) of the Charter.

3.  Countervailing factors – here the court will consider whether there are factors that render any damages inappropriate or unjust.

4.  Determining quantum of damages – like the law of tort, the court’s goal is to restore the damaged party to the position they would have been in “but-for” the breach.  This particular case involved a non-pecuniary loss which is obviously more difficult to quantify with a dollar figure.  The court explained:

[50]                        In other cases, like this one, the claimant’s losses will be non-pecuniary.  Non-pecuniary damages are harder to measure.  Yet they are not by that reason to be rejected.  Again, tort law provides assistance.  Pain and suffering are compensable. Absent exceptional circumstances, compensation is fixed at a fairly modest conventional rate, subject to variation for the degree of suffering in the particular case.  In extreme cases of catastrophic injury, a higher but still conventionally determined award is given on the basis that it serves the function purpose of providing substitute comforts and pleasures: Andrews v. Grand & Toy

In applying the above test, the court found that damages were appropriate.  In considering quantum, the Chief Justice held:

[71]                          The object of compensation focuses primarily on the claimant’s personal loss: physical, psychological, pecuniary, and harm to intangible interests.  The claimant  should, in so far as possible, be placed in the same position as if his Charter rights had not been infringed.  Strip searches are inherently humiliating and thus constitute a significant injury to an individual’s intangible interests regardless of the manner in which they are carried out. That said, the present search was relatively brief and not extremely disrespectful, as strip searches go.  It did not involve the removal of Mr. Ward’s underwear or the exposure of his genitals. Mr. Ward was never touched during the search and there is no indication that he suffered any resulting physical or psychological injury. While Mr. Ward’s injury was serious, it cannot be said to be at the high end of the spectrum. This suggests a moderate damages award. 

[72]                          The objects of vindication and deterrence engage the seriousness of the state conduct.  The corrections officers’ conduct was serious and reflected a lack of sensitivity to Charter concerns.  That said, the officers’ action was not intentional, in that it was not malicious, high-handed or oppressive. In these circumstances, the objects of vindication and deterrence do not require an award of substantial damages against the state.

[73]                          Considering all the factors, including the appropriate degree of deference to be paid to the trial judge’s exercise of remedial discretion, I conclude that the trial judge’s $5,000 damage award was appropriate.

In a criminal context, the ultimate remedy for a strip-search in breach of one’s Charter rights is a complete stay of proceedings.  The leading case is R. v. Golden.  I wonder if the SCC’s latest pronouncement, although it does not seem to carve out any new areas of law, will result in criminal accused person’s who claim a breach of their rights due to a strip search will also seek monetary damages in a public law context.

This case is also quite timely given many of the allegations that have been made surrounding Toronto’s G20.  Clearly there is judicial support for damages in many of those situations, although cases are of course fact-specific and need to be considered on an individual basis.

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