Tag: Damages for Breach of Charter Rights

BC Chief Justice – Indivisible Injury Assessment Applies for Charter Damages as Well

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:

[33]        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.

[34]        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, [1996] 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.

[35]        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.

[36]        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.

[37]        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.

[38]        In Hogarth v. Rocky Mountain Slate Inc., 2013 ABCA 57, leave to appeal ref’d [2013] S.C.C.A. No. 160, the point was made even more starkly:

[164]    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.

[39]        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.  

Unreasonable Search and Seizure, the Charter of Rights, and Civil Suits for Damages


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:

[64]           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“.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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