Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, finding that notice under the Constitutional Questions Act is required for parties seeking Charter damages as part of a personal injury lawsuit.
In today’s case (Fong v. British Columbia) the Plaintiff was injured as a result of a “hard takedown” arrest carried out by officers of the RCMP.
Today the Chief Justice of the BC Supreme Court published reasons for judgement finding that the ‘indivisible injury’ assessment that developed under tort law is equally applicable when damages are being assessed for a Charter breach.
In today’s case (Henry v. British Columbia) the Court awarded the Plaintiff over $8 million in damages for a wrongful conviction and some 27 years of incarceration. Prior to trial the Plaintiff settled with other Defendants. The Province sought to have those settlements deducted from the awarded damages arguing they all covered a single indivisible harm. Chief Justice Hinkson agreed and in ordering that the principles of ‘indivisible injury’ assessment apply to Charter damages provided the following reasons:
 The plaintiff alleged that but for the separate actions or inactions of the City employees and provincial Crown counsel, he would not have been convicted and incarcerated for almost 27 years, and that but for the action or inaction of Canada he would have been released far sooner than he was.
 In tort law, where there are multiple causes of injuries, the Court must determine whether the injuries are divisible or indivisible when assessing whether double recovery principles will apply: Athey v. Leonati,  3 S.C.R. 458 and E.D.G. v. Hammer, 2003 SCC 52. I see no reason why such an approach is not equally applicable to an award of Charter damages.
 While the allegations against the Settling Defendants and non-settling defendants were based upon different allegations of fault, the relief sought was essentially the same: compensation for a wrongful conviction and some 27 years of incarceration. I find that the results alleged to have occurred from the causes of action pleaded against the City and the Province were indivisible.
 While the ambit of the compensation sought from the City defendants and the Province was broader than that sought from Canada, the compensation sought from Canada was in large measure subsumed in the award the plaintiff recovered against the Province. Thus, these claims are also indivisible.
 I am mindful of the fact that the plaintiff was obliged to proceed to trial by all of the original defendants and obliged by the Province to proceed to judgment before recovering any damages from it. The Alberta Court of Appeal in Bedard rejected that factor as a basis for not deducting settlement proceeds from damages awarded at trial. At para. 13, the Court confirmed the prevailing principle that the plaintiff cannot receive more in damages than the court awarded at trial.
 In Hogarth v. Rocky Mountain Slate Inc., 2013 ABCA 57, leave to appeal ref’d  S.C.C.A. No. 160, the point was made even more starkly:
 The effect of Bedard is that the risk of a Pierringer agreement falls on the plaintiff. If it settles and “under-recovers” from the settling defendant, it will not be able to make up that shortfall from the non-settling defendants. On the other hand, if it “over-recovers” from the settling defendant (as in Bedard) it will not be allowed to keep the windfall.
 I conclude that Hogarth correctly summarizes the effect of the decisions in Dos Santos and Bedard. In the result, I find that at least some of the settlement funds paid by the Settling Defendants to the plaintiff must be deducted from the damages that I have found the plaintiff is owed by the Province.
In 2010 the Supreme Court of Canada confirmed that Canadian Courts have the right to award financial damages for state actions that violate individuals rights under the Charter. In the wake of this ruling a proposed class action lawsuit was started (Thorburn v. British Columbia) seeking damages for routine strip searches at the Vancouver City jail for individuals who were not remanded into pre trial custody.
The BC Court of Appeal refused to certify the lawsuit as a class action finding that the individual circumstances of each class members strip search would need to be reviewed making the matter unsuitable for a class proceeding. In reaching this conclusion the BC Court of Appeal provided the following reasons:
 These comments from Tiemstra and Dennis are apposite to the circumstances of this case. A class action would not in my view be a fair, effective and efficient procedure for resolving the central issue of the reasonableness of each claimant’s strip search. This core issue of each class member’s cause of action, (whether the strip search of that class member was reasonable in all of the circumstances), can only be resolved by individual trials. Therefore instead of providing judicial economy and access to justice, the proposed class proceeding would simply render the litigation inefficient, unmanageable and costly.
 I also find no error in the judge’s declining to address the remaining s. 4(2) criteria, as in my view it was evident that the predominance of individual issues rendered the proposed class action inappropriate.
 In the result, I would dismiss the appeal.
Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, addressing whether the monetary penalties paid via BC’s Charter violating impaired driving scheme need to be repaid.
Last year Mr. Justice Sigurdson struck down BC’s aggressive drunk driving law finding BC’s ARP scheme unjustifiably violated individuals section 8 Charter rights. In today’s judgement (Sivia v. Superintendent of Motor Vehicles) the Petitioners asked the Court to reimburse “all penalties and other related costs such as the payment in connection with the remedial program, the payment in connection with the impoundment of the motor vehicle, the payment of a hearing fee, and the driver’s licence reinstatement fee.”
Mr. Justice Sigurdson refused to grant this remedy holding as follows:
 I have found that the petitioner’s argument that the declaration of invalidity under s. 52 should have retroactive effect, must fail. The decision in Sivia #1 that parts of the ARP regime violated s. 8 of the Charter and were, therefore, unconstitutional, represented a substantial change in the law as described in Hislop. Further, the additional Hislop factors, on balance, weigh in favour of a prospective only application of the declaration.
 Although the prospective declaration of invalidity answers the majority of the petitioner’s additional or alternative claims, I have further found that even when assessed independently, the petitioner’s additional or alternative claims must also fail.
 With respect to the petitioners’ contention that they are entitled to Charter damages under s. 24(1), I have found that it would not be “appropriate and just” to order such damages as the government, in adopting the ARP regime and applying it to the petitioners and collecting monies from them, did not engage in any misconduct or bad faith actions.
 With respect to the arguments that the monies were collected under an invalid law enacted in bad faith, and with respect to the claim for restitution of the monies collected on the basis of the principle of unjust enrichment, I have found that the doctrine of qualified immunity provides a complete defence to both of these claims.
 With respect to the argument that certain of the monies collected represent taxes which were unlawfully collected, I have found that those monies are regulatory charges, not taxes, and are not recoverable under theKingstreet decision.
 Finally, I have found that as a result of the prospective only application of the declaration of invalidity, any petitioner with any outstanding fees, penalties or suspensions is still subject to paying/serving such fees, penalties, and/or suspensions.
 For these reasons, I have concluded that the petitioners are not entitled to the personal and monetary remedies that they seek. The parties may arrange to appear before me to discuss the issue of costs, or if they agree, they may file written submissions on that issue.
Earlier this week I was asked to participate in a radio interview with Dave Rutherford where we discussed the recent Supreme Court of Canada Decision Vancouver v. Ward.
You can click here for some background information. In short the Supreme Court of Canada has acknowledged that Canadian Judges can award financial damages if the Government violates an individuals rights under the Canadian Charter of Rights and Freedoms. This decision will undoubtedly have a significant effect on the Canadian Legal landscape and I was pleased to have an opportunity to discuss this with Dave and his listeners in Alberta.
A quick correction is warranted as well. Early in the interview I speculate that criminal lawyers could potentially ask for the remedy of damage awards in the course of a criminal trial but later in the interview I point out that this is in fact not a possibility. The Supreme Court of Canada specifically notes that “Provincial criminal courts are not so empowered and thus do not have the power to award damages under s. 24(1).” For individuals to seek damages for breach of Charter rights the appropriate way to put the matter before the Courts is through a conventional lawsuit.
You can click on the following link to listen to the interview in full:
As always, any feedback is welcome!
In what is one of the most important legal decisions in the 28 year history of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada released reasons for judgement confirming that Canadian Courts have the right to award financial damages for state actions that violate individuals rights under the Charter.
This decision (Vancouver v. Ward) creates a brand new right to ‘constitutional damages’ which is distinct from typical lawsuits for compensation. The Court held that this legal remedy is important to ensure that Charter Rights are not “whittled away by attrition“.
In today’s case the Plaintiff was subjected to an unlawful strip search in 2002. At trial he was awarded $5,000 for breach of his rights under the Charter. The BC Court of Appeal upheld this award. (You can click here for more background on the judicial history) The Supreme Court of Canada concluded that this was appropriate and set out the legal framework for when damages can be awarded for Charter breaches and the factors the Court should consider in determining the amount of damages.
The Chief Justice of the Supreme Court of Canada summarized the test of when damages can be awarded as follows:
 I conclude that damages may be awarded for Charter breach under s. 24(1) where appropriate and just. The first step in the inquiry is to establish that a Charter right has been breached. The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages.
The Court then provide the following summary of the factors Courts should consider in arriving at a dollar figure for Charter breaches:
 To sum up, the amount of damages must reflect what is required to functionally serve the objects of compensation, vindication of the right and deterrence of future breaches, insofar as they are engaged in a particular case, having regard to the impact of the breach on the claimant and the seriousness of the state conduct. The award must be appropriate and just from the perspective of the claimant and the state.
I strongly urge everyone to read today’s case in full as the Court sets out extensive reasons of the justification for damage awards under the Charter, considerations when these are just, factors for when these should not be awarded, guiding principles in arriving at quantum and guidance on the form and procedure of these lawsuits.
Further to my article published last week, the Supreme Court of Canada will soon decide whether damages can be awarded in lawsuits against the Government for breach of rights under the Canadian Charter of Rights and Freedoms.
Shane Bigham of Vancouver’s News 1130 picked up on the story and ran a piece last week bringing further attention to this matter. Shane was kind enough to provide me with a clip of this story and you can listen to it by clicking on the following link( bc-injury-law-civil-lawsuits-against-police-for-charter-breaches.)
The bottom line is that actions which violate individuals rights under the Canadian Charter of Rights and Freedoms may bring rise to lawsuits for civil damages. Once the Supreme Court of Canada gives their decision in the Vancouver v. Ward appeal there will be welcome clarity in this area of the law.
While I don’t necessarily think that the floodgates will open if these types of lawsuits get the green light from the Suprene Court of Canada public institutions (police departments in particular) need to rethink the potential financial exposure their actions bring when creating policies that may violate rights under the Charter.
Mass searches at public events (such as alcohol searches at Canada Day festivities and the Celebration of Light) could give rise to numerous lawsuits. Before deciding on the protocol that will be employed by police at these types of public events the RCMP and municipal police forces ought not overlook the potential implications of civil damages for Charter breaches.
Although the Canadian Charter of Rights and Freedoms has been in force for almost 30 years the legal remedies available to Canadians for having their Charter rights violated are still developing. One question that needs to be definitively answered is whether Canadians are entitled to damages in civil suits for having their Charter Rights violated.
Reasons for judgement are expected to be delivered shortly by the Supreme Court of Canada giving guidance in this important area of law. In the soon to be released decision (Ward v. British Columbia) the Plaintiff was arrested and strip searched. He successfully sued with the trial judge finding that the strip search violated the Plaintiff’s Charter rights and awarded him damages for this. Both parties appealed and in a split decision the BC Court of Appeal upheld the award of damages for Charter Breach with the majority finding as follows:
 I do not suggest that an award of damages is the appropriate remedy in all cases in which a government actor has breached a person’s Charter rights. Section 24(1) vests the court with a broad judicial discretion to grant “such remedy as the court considers appropriate and just in the circumstances.” Appropriate and just remedies must be determined judicially from case to case. In the present case, I would not interfere with the trial judge’s exercise of discretion to award damages for the unreasonable search.
If the Supreme Court of Canada upholds this judicial discretion a very meaningful remedy will be available for individuals who have their Charter rights breached by Government bodies.
With this background in mind I want to share some thoughts on various Canadian Police Departments and their policies to conduct warrantless searches of individuals at public events.
At any large gathering (The Olympics, Canada Day celebrations, the G20, the Vancouver Celebration of Light to name a few) many people come together in one spot. Most are well intentioned, some are not. Alcohol often fuels poor behaviour. Police have the difficult job of controlling the crowds.
Sometimes the police, however well intentioned, go further than their powers allow and conduct random, warrantless and potentially unlawful searches of individuals. Such a policy was put in place by the Victoria Police Department for the 2010 Canada Day Celebrations as was recently highlighted by the BC Civil Liberties Association.
In short the police planned on conducting numerous warantless searches of individuals in an effort to control how much alcohol was being brought into the downtown core during the celebrations. While there may be mixed feelings about this by many members of the public if the Supreme Court of Canada upholds the ability of Courts to award damages for violations of Charter rights the Victoria Police Departments actions can expose the City to numerous claims.
Clarity will be welcome and I will continue to monitor this interesting area of the law as it develops. In the meantime police departments throughout Canada ought to take into serious consideration the fact that their policies when policing large events may expose them to significant lawsuits for damages if they choose not to respect individuals rights under the Canadian Charter of Rights and Freedoms.
Instead of conducting wide scale warrantless searches it may be wise to follow the recommendation of the Commission for Public Complaints Against the RCMP who in 2008 concluded that “until such time that the required legislative bases are put in place, the RCMP’s participation in preventative and early interdiction liquor strategies in BC be limited to police presence and that searches only be conducted when the RCMP members have the requisite grounds under the applicable legal authority“.