Damage$ Flowing from Charter Breaches

Update:

This story deals with the Charter of Rights and Freedoms and the consequences of breaching those rights and the damages flowing as a result of any breach, more specifically, a breach of section 8 of the Charter.

Mr. Ward was in the wrong place at the wrong time and it was this radio transmission from Vancouver police (Sergeant Huffsmith, assigned as a liaison with the R.C.M.P)  that resulted in Mr. Ward being stopped and subsequently arrested and having his rights under the Charter breached:

There’s a, uh, white male overheard, uh, planning to, uh, throw a pie at the Prime Minister.  I’ll just give you a description.  He was last seen in the area of the King Kong Kit Kat, uh, sign, uh, on the corner of, uh, Pender and Taylor.  Break. …  He’s described as a white male, 30 to 35 years, 5 9, dark shorter hair wearing a white golf shirt or t-shirt with some red on it.  Break. …  He, uh, was wearing, uh, either jeans or shorts, they weren’t sure, and I guess he was, uh, overheard planning to, uh, throw a pie at the Prime Minister.  If anybody locates this individual, can you let us know “.

At the time, Mr. Cameron, who is a white male, was wearing jeans and a t-shirt with some red on it, but his t-shirt was predominately grey, his hair was grey or silver in colour and collar length, and he was in his mid-40s.

The event that resulted in a decision from the Supreme Court of Canada on July 23, 2010, started almost eight years before, in the City of Vancouver in the Province of British Columbia on August 1, 2002.

On that date, the Prime Minister of Canada, Mr. Jean Chrétien was attending an outdoor ceremony in a section of Vancouver`s Chinatown, for the opening of a structure called the Millennium Gate. There was a report to the police during the ceremony that someone was intending to attempt to throw a pie at the Prime Minister, as had apparently occurred two years earlier in Charlottetown, when Prime Minister Chrétien received a face full of custard.

Mr. Alan Cameron Ward, a Vancouver lawyer who had been practicing law for twenty-two (22) years, attended the opening ceremony.

The police stopped Mr. Ward. According to Mr. Ward a police officer who was behind him, was immediately aggressive or confrontational, asking whether Mr. Ward was going to throw a pie at the Prime Minster and why Mr. Ward was running away from him. The officer asked in a demanding way for Mr. Ward to produce his identification and Mr. Ward responded that he did not have to produce identification.

Mr. Ward said that he heard the officer call for backup over the police radio and, after two or three other police officers arrived, his hands were handcuffed. Mr. Ward asked if he was under arrest and for what he was under arrest. He got no response and then said that he wanted to call his lawyer. Mr. Ward pulled his cell phone out of one of his pockets but it was taken away from him by the police officers. He continued to ask whether he was under arrest and why he was arrested, but got no responsive answer. In addition to his cell phone, the police took his wallet, keys. The police believed that he was a potential “pie-thrower” and arrested him for “breach of the peace” and told him that he was under investigation for assault. As a result of Mr. Ward’s arrest, his motor vehicle was taken and impounded.

Mr. Ward said that he did not raise his voice until he was forcibly moved down Taylor Street towards Keefer Street, where he was put into a police wagon which transported him to the Jail.

The officer in charge when Mr. Ward was at the Jail was Sergeant Gatto.

The handcuffs that police had placed on Mr. Ward, were removed once he was taken into the Jail. He made requests to contact his lawyer but Sergeant Gatto responded with words to the effect that “we can do this the hard way or the easy way, you’re not helping things”. Mr. Ward was put in a holding cell for a brief period of time, and he was then escorted into a room by two of the corrections staff, who told him to remove his clothes. This request was made in accordance with the policy of the Corrections Branch in place at the time. The written policy read as follows:

A strip search will be done for new prisoners; it is deemed necessary because of the following:

  • the seriousness of the offence
  • charges against the prisoner are associated with evidence hidden on the body
  • at the time of the arrest, weapons were involved
  • the accused is known to be violent and/or to carry weapons
  • there is possible danger to personnel and prisoners in the Jail

A strip search will not usually be done on a Bylaw offender unless there is a threat to the safety and security of the Jail.

The practice actually in effect at the Jail was that all new entrants into the Jail were strip searched with the exception of bylaw offenders and severely intoxicated persons in a public place who were brought to the Jail to sober up.

Mr. Ward removed all of his clothes except his underwear. He objected to disrobing further and told the corrections staff that he was a lawyer and knew that they had no right to strip search him. The corrections staff consulted with Sergeant Gatto, who authorized a deviation from the policy, and the balance of the strip search was not conducted. Mr. Ward was allowed to put his clothes back on.

Mr. Ward was then placed in a small cell labeled “Intox”. The cell was small, only 3 feet wide and 6 feet long. It had no furnishings. With the exception of two occasions when Mr. Ward was allowed to speak on the telephone with two of his lawyers, Mr. Ward spent the next four hours and thirty minutes in this cell before he was released.

While Mr. Ward was at the Jail, his car was identified by the police, who caused it to be towed from its parking spot on Keefer Street to the police compound for the purpose of searching it once a search warrant had been obtained. The follow-up investigation was assigned to Detectives Brydon and Petit. They contacted Sergeant Huffsmith and ascertained that the source of his original radio broadcast had been a member of the Prime Minister’s entourage who could not be contacted. The Detectives decided that they did not have grounds to obtain a search warrant in respect of Mr. Ward’s car and that they should release Mr. Ward from jail because they would not have sufficient evidence to charge him within the 24 hour period following his arrest.

Detectives Brydon and Petit then went to the Jail to release Mr. Ward. They told him that he was being released pending further investigation. The Detectives drove Mr. Ward to the police compound and arranged for the release of his car. Mr. Ward was released from Jail approximately 4 ½ hours after he was arrested and several hours after the Prime Minister had left the area following the ceremony.

Mr. Ward gave press and television interviews on the next day for the purpose of demanding an apology from the Vancouver Police Department. He subsequently lodged a complaint with the Police Complaint Commissioner, but it was dismissed and Mr. Ward’s request for a public hearing was denied. Mr. Ward was never charged with the commission of an offence in connection with the events which occurred on August 1, 2002. He never received an apology from the Vancouver Police Department.

As a result, Mr. Ward sued the police officers involved in his arrest, the police officer in charge of the jail, the City of Vancouver and Her Majesty the Queen in Right of the Province of British Columbia (the “Provincial Government”). Mr. Ward sought declarations that certain of his rights under the Canadian Charter of Rights and Freedoms (the Charter) were infringed, as well as damages. In addition to infringement of his Charter rights, Mr. Ward alleged that his treatment by the police constituted assault, battery and false imprisonment. Mr. Ward submitted a Statement of Claim which plead negligence against the City of Vancouver and the Provincial Government.

The case was heard between November 6 – 10 and 22, 2006 Vancouver, B.C. before the Supreme Court of British Columbia.

THE SUPREME COURT OF BRITISH COLUMBIA (Ward v. City of Vancouver, 2007 BCSC 3, 20070102, The Honourable Mr. Justice Tysoe)

Counsel for the Plaintiff (Mr. Alan Cameron Ward): Brian M. Samuels

The following is part of what Judge Tysoe ruled:
“I conclude that an objective basis did not exist for the police officers to have reasonable and probable grounds to believe that Mr. Ward had done anything for the purpose of assaulting the Prime Minister. This is also the conclusion reached by Detectives Brydon and Petit when they decided that there were insufficient grounds to obtain a warrant to search Mr. Ward’s vehicle.”

“I conclude that Mr. Ward was unlawfully imprisoned for a period of 3½ to 4 hours after the Prime Minister left the ceremony. He was falsely imprisoned by the police during this period. His right under s. 9 of the Charter not to be arbitrarily imprisoned was infringed when he was kept in the Jail after the Prime Minister had left.”

“I have held that there was no lawful arrest of Mr. Ward for assault or attempted assault. At the time he was strip searched, Mr. Ward was being detained for a short period of time pursuant to his arrest for breach of the peace. It is even more unreasonable to strip search a person being detained for breach of the peace than it is to strip search a person who has been arrested for a substantive offence and who may be charged with the offence and placed with the general prison population. Mr. Ward was in no different position than the drunken persons who are not strip searched.”

Search or Seizure

8 Everyone has the right to be secure against unreasonable search or seizure.

“I conclude that Mr. Ward’s Charter right under s. 8 to be secure against unreasonable search was infringed because his strip search was not in accordance with the Corrections Branch’s written policy or, if it was conducted in accordance with it, the policy was unreasonable to permit strip searches of persons being held for a breach of the peace in the absence of any threat to the safety and security of the Jail.”

“I conclude that Mr. Ward’s right under s. 8 of the Charter to be secure against unreasonable seizure of his belongings was infringed.”

“The only wrongdoing I have found to have been committed by the police officers is false imprisonment as a result of the failure to release Mr. Ward for a period of 3 ½ to 4 hours after the Prime Minister left the opening ceremony for the Millennium Gate. While Sergeant Gatto, as the officer in charge at the Jail, was charged with the responsibility of releasing Mr. Ward at the appropriate time, it was Sergeant Kelly who instructed Sergeant Gatto to continue holding Mr. Ward “pending investigation” after the Prime Minister had left the area.”

“In connection with the strip search of Mr. Ward and the seizure of his car, I have found a breach of s. 8 of the Charter

“Subsection 24(1) of the Charter provides that anyone whose rights have been infringed may apply to the court to obtain such remedy as the court considers appropriate and just in the circumstances.”

“In the case at bar, I have not declared any legislative provision to be unconstitutional. I have held that the search of Mr. Ward by the corrections staff of the Provincial Government pursuant to s. 19 of the Correctional Centre Rules and Regulations and the seizure of Mr. Ward’s car were unconstitutional because they violated s. 8 of the Charter.”

“In assessing damages for wrongful imprisonment, therefore, I am not assessing damages for the imprisonment itself, but for the length of the imprisonment. In all of the circumstances, I award Mr. Ward the sum of $5,000 as general damages for the wrongful imprisonment.”

“In the present case, the strip search of Mr. Ward did not involve the removal of his underwear and exposure of his genitals. While the Supreme Court of Canada commented at ¶ 90 of Golden that strip searches are inherently humiliating and degrading for detainees, a strip search which does not involve the removal of the detainee’s underwear is less humiliating and degrading than searches involving the removal of all clothing such as the strip searches conducted in Blouin and Ilnicki. Although Mr. Ward testified that the whole experience shook his core beliefs about the rule of law, he did not suffer any physical or psychological injury as a result of the strip search. In view of all of the circumstances in relation to the strip search, I award Mr. Ward the sum of $5,000 against the Provincial Government for the infringement of his right under s.8 of the Charter to be secure against unreasonable search.”

“The final issue with respect to damages relates to the unreasonable seizure of Mr. Ward’s car. He did not suffer any substantive damage as a result of the seizure. I award him nominal damages of $100.”

Judge Tysoe’s January 2, 2007 decision was appealed by all parties to the COURT OF APPEAL FOR BRITISH COLUMBIA.

The Appeal of Judge Tysoe’s decision was heard by the Court of Appeal for British Columbia on March 13 & 14, 2008. The Court of Appeal’s decision was released on January 27, 2009. (see Ward v. British Columbia 2009 BCCA 23)

Here is part of what The Honourable Justice Low ruled on behalf of the Court of Appeal for British Columbia, in Ward v. B.C.:

“For the kind of breach that occurred in the present case, however, only a past wrong is under consideration.  A declaration of breach, therefore, has no ongoing benefit and is not a remedy at all.  It is really nothing more than a finding of fact that may not, by itself, effectively redress the past wrong.  To require that the breach be accompanied by a tort or by bad faith to justify an award of damages in many cases will give to the victim of the breach only a pyrrhic victory, not a true remedy.  Because the breach would not usually affect anybody other than the party directly involved, limiting the available remedy as suggested by the Province would render the individual rights provisions in the Charter less than purposive in many cases.  Depending on the circumstances of the particular case, the remedy might be neither responsive nor effective.  This is the case with respect to the strip search of Mr. Ward because it amounted to a significant Charter breach.”

“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.”

“I also would not interfere with the discretionary decision to award nominal damages for the seizure of Mr. Ward’s car.  Likewise I would not have interfered had the trial judge decided to simply acknowledge the unreasonable seizure and award no damages for it.”

“In the present case, the strip search of Mr. Ward did not involve the removal of his underwear and exposure of his genitals.  While the Supreme Court of Canada commented at ¶ 90 of Golden 2001 SCC 83 (CanLII), [2001 SCC 83] that strip searches are inherently humiliating and degrading for detainees, a strip search which does not involve the removal of the detainee’s underwear is less humiliating and degrading than searches involving the removal of all clothing such as the strip searches conducted in Blouin and Ilnicki. Although Mr. Ward testified that the whole experience shook his core beliefs about the rule of law, he did not suffer any physical or psychological injury as a result of the strip search.  In view of all of the circumstances in relation to the strip search, I award Mr. Ward the sum of $5,000 against the Provincial Government for the infringement of his right under s. 8 of the Charter to be secure against unreasonable search.”

Search or Seizure

8 Everyone has the right to be secure against unreasonable search or seizure.

The Court of Appeal for British Columbia’s decision was appealed to the Supreme Court of Canada. The Supreme Court of Canada heard this case On Appeal from the Court of Appeal for British Columbia on January 18, 2010 and released their unanimous decision some six months later.

The Supreme Court of Canada rendered a unanimous decision on July 23, 2010. Vancouver (City) v. Ward, 2010 SCC 27.

The highest court of the land agreed that Mr. Ward should have received damages ($5000) as a result of the breach (due to the strip search) of his section 8 Charter rights but disagreed that about the $100 for the unreasonable seizure of his car. The $5000 Mr. Ward received for his 4.5 hour wrongful imprisonment was not appealed to the Supreme Court.

Here is some of what the Supreme Court of Canada (Chief Justice Beverley McLachlin on behalf of the entire court) had to say, with respect to the appeal of the Court of Appeal for British Columbia`s decision, regarding the State`s treatment of Alan Cameron Ward:

“The language of s. 24(1) is broad enough to include the remedy of constitutional damages for breach of a claimant’s Charter rights if such remedy is found to be appropriate and just in the circumstances of a particular case. 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.”

“Once the claimant has established that damages are functionally justified, the state has the opportunity to demonstrate, at the third step, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. Countervailing considerations include the existence of alternative remedies. Claimants need not show that they have exhausted all other recourses. Rather, it is for the state to show that other remedies including private law remedies or another Charter remedy are available in the particular case that will sufficiently address the Charter breach. Concern for effective governance may also negate the appropriateness of s. 24(1) damages. In some situations, the state may establish that an award of Charter damages would interfere with good governance such that damages should not be awarded unless the state conduct meets a minimum threshold of gravity.”

“If the state fails to negate that the award is “appropriate and just”, the final step is to assess the quantum of the damages. To be “appropriate and just”, an award of damages must represent a meaningful response to the seriousness of the breach and the objectives of s. 24(1) damages. Where the objective of compensation is engaged, the concern is to restore the claimant to the position he or she would have been in had the breach not been committed. With the objectives of vindication and deterrence, the appropriate determination is an exercise in rationality and proportionality. Generally, the more egregious the breach and the more serious the repercussions on the claimant, the higher the award for vindication or deterrence will be. In the end, s. 24(1) damages must be fair to both the claimant and the state. In considering what is fair to both, a court may take into account the public interest in good governance, the danger of deterring governments from undertaking beneficial new policies and programs, and the need to avoid diverting large sums of funds from public programs to private interests. Damages under s. 24(1) should also not duplicate damages awarded under private law causes of action, such as tort, where compensation of personal loss is at issue.”

“Here, damages were properly awarded for the strip search of W.  This search violated his s. 8 Charter rights and compensation is required, in this case, to functionally fulfill the objects of constitutional damages.  Strip searches are inherently humiliating and degrading and the Charter breach significantly impacted on W’s person and rights.  The correction officers’ conduct which caused the breach was also serious.  Minimum sensitivity to Charter concerns within the context of the particular situation would have shown the search to be unnecessary and violative.  Combined with the police conduct, the impingement on W also engages the objects of vindication of the right and deterrence of future breaches.  The state did not establish countervailing factors and damages should be awarded for the breach.  Considering the seriousness of the injury and the finding that the corrections officers’ actions were not intentional, malicious, high‑handed or oppressive, the trial judge’s $5,000 damage award was appropriate.”

“With respect to the seizure of the car, W has not established that damages under s. 24(1) are appropriate and just from a functional perspective.  The object of compensation is not engaged as W did not suffer any injury as a result of the seizure.  Nor are the objects of vindication of the right and deterrence of future breaches compelling.  While the seizure was wrong, it was not of a serious nature.  A declaration under s. 24(1) that the vehicle seizure violated W’s right to be free from unreasonable search and seizure under s. 8 of the Charter adequately serves the need for vindication of the right and deterrence of future improper car seizures.”

This is a very significant decision by the Supreme Court of Canada. The message is loud and clear; damages for Charter breaches will be awarded, even if the police were following lawful orders and were acting in good faith.

It was almost an eight year struggle, but 53 year old Alan Cameron Ward and his counsel, Brian M. Samuels (Samuels & Company, Vancouver) persisted through the Supreme Court of British Columbia, the Court of Appeal for British Columbia and finally, the Supreme Court of Canada, to achieve justice and to ensure that future Canadians following, will have enhanced rights under the Charter.

Update: November 26, 2010 – Strip search of Ottawa woman ‘troubling,’ McGuinty says

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