When Will Damages be a Just and Appropriate Remedy for Breach of Human Rights?
City of Vancouver v Ward 2010 SCC 27 (23 July 2010)
The Supreme Court of Canada has handed down a significant judgment on the availability of damages for a breach of human rights under the Canadian Charter of Rights and Freedom. City of Vancouver v Ward provides a four-step test for the determination of when damages are an appropriate remedy and what its quantum should be to achieve an appropriate and just result.
Facts
In 2002 the claimant, Mr Ward, attended a ceremony at which the Canadian Prime Minister was present to mark the opening of a gate to the entrance of Vancouver’s Chinatown. The police received a tip that an unknown individual would attempt to assault the Prime Minister by throwing a pie at him. Police were provided a description of the general appearance and attire of a man aged in his 30s.
The police identified Mr Ward as the would-be culprit, even though he did not match the suspect’s profile. He was chased and arrested for breach of the peace. Mr Ward strongly protested his innocence but was nonetheless taken to the police station, where he was strip searched and detained for four and a half hours in a small cell. The police also impounded his car which they intended to search once a warrant had been obtained. During the course of Mr Ward’s detention, however, police realised they did not have evidence to support a charge of attempted assault, or to obtain a search warrant. Mr Ward was not the would-be culprit. Mr Ward was subsequently released without charge.
The claimant brought an action in tort and for the breach of his human rights.
At first instance, Tyson J of the Supreme Court of British Columbia found that the State had acted in violation of Mr Ward’s Charter rights by conducting the strip search and seizing the vehicle (2007 BCSC 3). This was contrary to the right to be free from unreasonable search and seizure under s 8 of the Canadian Charter. His imprisonment also amounted to a breach of Mr Ward’s right under s 9 not to be arbitrarily detained or imprisoned and resulted in the State’s commission of the tort of wrongful imprisonment.
Justice Tyson awarded damages in the amount of $5000 for the strip search and $100 for the seizure of the vehicle pursuant to s 24(1) of the Canadian Charter. This decision was affirmed on appeal before the British Columbia Court of Appeal (2009 BCCA 23).
The City of Vancouver appealed to the Supreme Court of Canada.
Decision
Section 24(1) of the Canadian Charter provides:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
The Canadian courts have variably used this provision to issue a broad range of remedies, including declarations, injunctions and damages.
However, as McLachlin CJ stated in the introductory remarks of the Supreme Court of Canada’s ruling in this case:
Although the Charter is 28 years old, authority on this question [of awarding damages] is sparse, inviting a comprehensive analysis of the object of damages for Charter breaches and the considerations that guide their award.
The Court undertook a comprehensive analysis of the appropriateness of damages in cases of human rights breaches. The scope of section 24(1) was found to grant courts a wide discretion, which should not be placed in a ‘strait-jacket of judicially prescribed conditions’. Rather, the courts’ discretion is fettered only by the limitation that the remedy must be ‘appropriate and just’, which will be determined by the facts and circumstances of each case.
The Court affirmed that damages could be an appropriate remedy in human rights cases, in the sense that damages could satisfy the general considerations for appropriateness and justness as previously stated by the courts:
[A]n appropriate and just remedy will: (1) meaningfully vindicate the rights and freedoms of the claimants; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made.
The four-step test
In determining whether damages were an appropriate and just measure to recompense Mr Ward, the Court affirmed the decision of the lower courts with respect to the strip search, but not for the vehicle seizure. A four step analytical process was followed:
- Has a Charter breach been established?
- Will damages serve a useful function or purpose?
- Are there countervailing considerations that would render damages inappropriate or unjust?
- What quantum of damages would be appropriate and just?
With respect to step 1, there was no question that s 8 of the Canadian Charter had been breached by the conduct of the police in arresting and detaining Mr Ward.
With respect to step 2, damages should achieve compensation, vindication and deterrence. The objectives of the Charter necessarily required this; these functions also reflected the legal principles underlying public law damages for constitutional breaches. Compensation recognised and addressed any loss to the claimant caused by a human rights contravention, including physical, psychological and pecuniary losses. This might also include ‘intangible losses’ such as distress, humiliation, embarrassment and anxiety. The purpose of vindication, however, was not to remedy the loss of the individual, but rather to recognise that a Charter breach caused harm to society as a whole. Finally, deterrence invoked the task of influencing government behaviour to foster greater compliance with Charter rights and responsibilities in the future.
With respect to step 3, the Court stated:
[E]ven if the claimant establishes that damages are functionally justified, the state may establish that other considerations render s 24(1) damages inappropriate or unjust. A complete catalogue of countervailing considerations remains to be developed as the law in this area matures. At this point, however, two considerations are apparent: the existence of alternative remedies and concerns for good governance.
Alternative remedies could include other Charter remedies such as declarations, private law remedies for actions for personal injury, and remedies for actions covered by legislation permitting proceedings against the state. Declaratory relief has been seen to be sufficient in cases where a claimant has not suffered personal damage. The existence of a potential private law action (such as a tort) does not bar a claimant from seeking Charter remedies, except where it would result in double compensation.
On the issue of good governance, it was open to the state to advance that a monetary award could have an adverse impact by deterring active governance, but this was not a matter of course since damages could equally promote good governance by encouraging Charter compliance. Also, the public law context provides that the state cannot be held liable for damages arising from actions undertaken pursuant to a valid statute that is subsequently declared invalid as this would inhibit effective decision-making. ‘Practical wisdom’ and procedural requirements may also be relevant considerations.
With respect to step 4, the quantum of damages must also be ‘appropriate and just’ in the circumstances. The Court referred to existing jurisprudence which provided that the seriousness of the breach is the principal determinant of quantum. Seriousness relates to the impact on the claimant and the nature of the state’s conduct. The quantum must also be fair to both the claimant and the state. Relevant factors include public interest in good governance and not diverting (substantial) state resources away from public programs.
Application to Mr Ward’s claim
The Court found that the strip search was a serious breach of the right to be protected against unreasonable searches. Strip searches were ‘inherently humiliating and degrading’ and led to ‘significant injury to an individual’s intangible interests’. In Mr Ward’s case, the strip search was ‘unnecessary and violative’ in all the circumstances, in particular in the context of the minor nature of the alleged offence and the minimal risk of harm Mr Ward posed. This displayed the police’s insensitivity to Charter concerns. Thus an award of damages (in the amount determined at first instance) was appropriate because the strip search caused significant injury to Mr Ward, and arose from significantly inappropriate police conduct. The state was not able to convince the Court that alternative remedies were appropriate.
However, in the case of the vehicle seizure, the Court held that a declaration of Charter breach was sufficient. Important factors were that Mr Ward had suffered no loss (thus compensation was not necessary), and whist wrong, the seizure was not sufficiently serious to warrant an award of damages to vindicate the breach or to deter future breaches.
Relevance to the Victorian Charter
This decision is a landmark ruling on the availability and appropriateness of monetary compensation in instances of human rights breaches. It confirms the need to give human rights law the ‘teeth’ it requires to bring attention to the real and serious nature of rights violations.
While other remedies, such as declarations and injunctions, are and remain important powers available to the courts, financial penalties can have a much greater impact on the ‘bottom line’ by putting a price on belligerence.
In Victoria, the powers of the courts are significantly more constrained compared to the Canadian jurisdiction. Section 39(3) expressly provides that a person is not entitled to be awarded any damages because of a breach of Charter rights.
But other remedies are available pursuant to section 39(1), which permits a person to raise unlawfulness under the Charter only if they otherwise have a cause of action to seek relief or remedy against an act or decision of a public authority. In Kracke v Mental Health Review Board [2009] VCAT 646 (Justice Bell), the Tribunal had this to say about Charter remedies generally:
As to remedies, the Charter is not a toothless tiger. It confers power on the Supreme Court of Victoria to make a declaration of inconsistent interpretation. It extends the power of courts or tribunals to grant relief or remedies for unlawful acts or decisions of a public authority to a ground of unlawfulness arising under the Charter. It expressly preserves the existing powers of courts or tribunals to grant relief or remedies, including declarations of unlawfulness, in respect of the acts or decisions of public authorities. The existing powers of the tribunal to grant any remedies or relief in proceedings before it is thus in no way limited by the provisions of the Charter (except to the extent that granting any such remedy or relief itself might be incompatible with human rights).
The concepts of compensation and vindication were applied by Bell J to acknowledge the fact that a breach of human rights has both a personal dimension (to the injured individual) and a societal dimension. Therefore, while the four-step test established in City of Vancouver v Ward may not be directly applicable in the Victorian setting, the principles affirmed by the Supreme Court of Canada are relevant and instructive in the development of the Victorian approach to Charter remedies generally.
The decision is at www.canlii.org/en/ca/scc/doc/2010/2010scc27/2010scc27.html.
Sara Law is a lawyer who will soon join the Administrative Law Branch of the Victorian Government Solicitor’s Office.