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Charter Rights Breach Decision - G20 content


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I'm no lawyer (feel free to chime in, those who are) but I'm VERY curious how this will work out for the hundreds of folks that were illegally detained and strip searched during the G20 crackdown that has caused all of the controversy.

Supreme Court upholds damages claim in charter rights breach case

The Supreme Court of Canada says people whose charter rights are breached can win damages, even if there was no misbehaviour on the part of the authorities.

The high court unanimously upheld $5,000 in damages given to Alan Cameron Ward, a Vancouver lawyer who was strip-searched in 2002 when he was wrongly suspected of plotting to pie then-prime minister Jean Chretien.

The 9-0 decision sets out a framework for when damages should be allowed, and how big the damages should be.

“I conclude that damages may be awarded for charter breach . . . where appropriate and just,†Chief Justice Beverley McLachlin wrote in her ruling.

“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 fulfil 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.â€

She said damages have to be proportional to the seriousness of the breach and overturned a $100 judgment given to Mr. Ward to compensate for having his car towed as part of the police investigation.

Mr. Ward was also given $5,000 for false imprisonment, but that wasn't at issue in the case.

The ruling marks the first time the high court looked at monetary damages for violations of rights. It means that people whose rights have been infringed can seek damages even if they suffered no actual loss and even if the authorities acted in good faith.

Mr. Ward was arrested because he partly fit the description of a man suspected of planning the pie attack. Police took him to jail, where he was strip-searched. His car was towed. He was never charged and was released after about four and a half hours.

He subsequently sued the city and the province of British Columbia for violations of his rights.

The trial judge found that the police had acted in good faith and that there was no abuse of power. But he still ordered the city to pay damages of $5,000 for false imprisonment and $100 for the search of the car.

The province was ordered to pay $5,000 for the strip search. All parties appealed the decision, with the city and the province seeking to overturn the awards and Mr. Ward asking for higher damages.

The British Columbia Court of Appeal upheld the damages in a 2-1 decision.

In their appeal to the Supreme Court, the governments argued that since Mr. Ward suffered no actual loss in the incident and there was no wrongdoing involved, there should be no damages.

“An award of damages for an infringement of a charter right in the absence of bad faith, abuse of power or tortious conduct is not fair to an innocent infringer,†the city's lawyers argued in their brief.

“Availability of damages for every breach of the charter would create a new kind of liability and would have a chilling effect on public officials.â€

The case attracted interventions from two provinces and the federal government, two civil liberties associations and a number of community and legal groups.

In its brief, the Canadian Civil Liberties Association said judges need the discretion to award damages for breaches of the charter.

“An award of damages may be necessary to vindicate a charter right, to deter similar breaches in the future or to express disapproval of unconstitutional conduct and courts must be free to craft remedies that redress the loss of dignity or moral harm associated with charter breaches.â€

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