COURT OF APPEAL FOR BRITISH COLUMBIA
|
Citation: |
Ward v. British Columbia, |
|
|
2009 BCCA 23 |
Date: 20090127
No.: CA034766; CA034785
Docket: CA034766
Between:
Alan Cameron Ward
Respondent
(Plaintiff)
And
Her Majesty The Queen In Right Of The Province Of British Columbia
Appellant
(Defendant)
and
Docket: CA034785
Between:
Alan Cameron Ward
Appellant
(Plaintiff)
And
City of Vancouver
Respondent
(Defendant)
| Before: |
The Honourable Chief Justice Finch |
| The Honourable Madam Justice Saunders |
|
| The Honourable Mr. Justice Low |
| J.E. Gouge Q.C. and B.A. Mackey |
Counsel for the Appellant (CA034766), |
|
| B. Samuels |
Counsel for the Respondent/Appellant, |
|
| T. Zworski |
Counsel for the Respondent (CA034785), |
|
| K. Roach |
Counsel for the Intervenor, |
|
|
Place and Date of Hearing: |
Vancouver, British Columbia |
|
|
13 and 14 March 2008 |
||
|
Place and Date of Judgment: |
Vancouver, British Columbia |
|
|
27 January 2009 |
||
| Written Reasons by: |
| The Honourable Mr. Justice Low |
| Concurred in by: |
| The Honourable Chief Justice Finch |
| Dissenting Reasons by: |
| The Honourable Madam Justice Saunders (p. 33, para. 72) |
Reasons for Judgment of the Honourable Mr. Justice Low:
[1] Cameron Ward, a Vancouver lawyer, brought an action against several defendants arising out of his arrest on 1 August 2002 near the location of an outdoor dedication ceremony attended by the Prime Minister of Canada in the Chinatown section of this city.
[2] The trial judge, Mr. Justice Tysoe (as he then was), found the arrest to be lawful but he also found that police officers employed by the City of Vancouver breached Mr. Ward’s rights under the Canadian Charter of Rights and Freedoms by keeping him in the police lockup longer than was necessary (the tort of wrongful imprisonment), and by seizing his car. He assessed damages for the detention at $5,000 and for the seizure of the car at $100. He further found that corrections officers employed by the Province of British Columbia breached Mr. Ward’s Charter rights by conducting a strip search of his person. This resulted in an award of damages in the amount of $5,000 against the Province.
[3] The action was dismissed as against the individual police officers and corrections officers named or described as defendants.
[4] The neutral citation for the trial judgment is 2007 BCSC 3. It is reported at (2007) 63 B.C.L.R. (4th) 399.
[5] Mr. Ward brought an appeal against the City of Vancouver in which he contends that the trial judge erred in finding that the arrest was lawful and in awarding damages for wrongful imprisonment that were inordinately low.
[6] In a cross appeal the City argues that the judge erred in awarding damages in the amount of $100 for seizure by the police of Mr. Ward’s car.
[7] The Province brought a separate appeal in which it accepts that the strip search was unreasonable and therefore a breach of Mr. Ward’s Charter rights but contends that the trial judge erred in law in awarding damages for the breach in the absence of commission of a tort, bad faith, abuse of power, negligence or wilful blindness on the part of the corrections officers with respect to their constitutional obligations toward Mr. Ward.
[8] Mr. Ward cross appealed. He asserts that the damages awarded for the strip search were inadequate and should have included punitive damages.
Mr. Ward’s appeal
[9] On 1 August 2002, Prime Minister Chrétien participated in a ceremony to mark the opening of a gate at the entrance to the Chinatown area of this city. As was necessary and proper, police authorities heightened security in the area. At some point they received information that someone intended to attempt to throw a pie at the prime minister, an event that had occurred elsewhere a year earlier. This report had to be taken seriously. It was not a trivial matter.
[10] The trial judge summarized the events leading to Mr. Ward’s arrest as follows:
[5] On August 1, 2002, Mr. Ward decided to attend the ceremony for the opening of the Millennium Gate by Prime Minister Chrétien. He parked his car on Keefer Street, which is the street running parallel and to the south of East Pender Street, near the intersection with Taylor Street. Mr. Ward walked to East Pender Street, where he listened to the beginning of Prime Minister Chrétien’s speech. He then traveled south on Taylor Street. This occurred shortly after the following broadcast over the police radio made by Sergeant Huffsmith, a Vancouver police officer assigned as a liaison with the R.C.M.P. for the purpose of the Prime Minister’s visit:
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.
[6] Shortly thereafter, there was another radio broadcast from an unidentified officer to the effect that a male matching the description was running southbound on Taylor Street, from Pender Street. Mr. Ward was arrested on Taylor Street and taken away in a paddy wagon within the next few minutes, but the testimony with respect to the events occurring on Taylor Street varied greatly. Mr. Ward testified on his own behalf, and Sergeant Cope, Sergeant Kelly and Constable Prasobsin testified on behalf of themselves and the City of Vancouver about these events.
[11] The judge went on to detail the testimony of Mr. Ward and of the three police witnesses who were also defendants in the action. He resolved the conflicts in the evidence of these four witnesses as follows:
[40] In assessing the testimony of Mr. Ward and the police officers, I looked to evidence outside their testimony in order to determine whether it was more consistent with the testimony of Mr. Ward or the testimony of the police officers. I have concluded that Mr. Ward is mistaken in his recollection of the disputed events which occurred on Taylor Street. The evidence which has led me to prefer the testimony of the police officers on the major discrepancies in the evidence includes the following:
1. Mr. Ward testified that he was not running down Taylor Street, while Constable Cope testified that he was running. On the police radio broadcast, Constable Cope had reported that he thought he had the male referred to in the broadcast from the unidentified officer that a male matching the description was running southbound on Taylor. The operator then asked if Constable Cope had the guy that was threatening to throw the pie. Constable Cope responded that he didn’t know if it was the guy, but “this is the guy that was running down Taylor Street and he kinda matches the description”. Although prior consistent statements are generally inadmissible as evidence of the truth of the contents of the statements, Constable Cope’s answer falls within the res gestae exception because it was made contemporaneously with little or no opportunity for fabrication: see Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (Butterworths: Toronto and Vancouver, 1999) at p. 323.
2. Unless Constable Cope was yelling for Mr. Ward to stop, the R.C.M.P. officer at the Prime Minister’s motorcade would not have known to stop Mr. Ward.
3. Constable Cope asked on the police radio broadcast for another unit to come to the scene. There would have been no need to call for a backup unit if Mr. Ward was not presenting difficulties for Constable Cope.
4. Mr. Ward would have had his hands cuffed behind his back (as Constable Prasobsin testified was the preferred practice) if he was not making it difficult for the police to handcuff him.
5. Unless Mr. Ward was yelling and creating a disturbance, it is unlikely that the attention of the Global TV camera crew would have been drawn to him. The beginning of the six second clip showing Mr. Ward filmed him and the police officers beside Constable Cope’s motorcycle, the location where Constable Cope had his dealings with Mr. Ward. Mr. Ward testified that he did not raise his voice until he was moved down Taylor Street towards Keefer Street, but he must have been yelling or screaming at an earlier point in time (as the police officers testified) in order to have drawn the attention of the camera crew to him and for the crew to have gotten in a position to have started their camera while Mr. Ward was still beside Constable Cope’s motorcycle.
6. The Global TV broadcast showed that Mr. Ward had a very agitated look on his face, that he appeared to be yelling for the benefit of the onlookers and that he was holding back as he was being escorted from Constable Cope’s motorcycle down Taylor Street.
[12] After further detailing some of the police evidence concerning the reasons for the arrest of Mr. Ward, the judge concluded (paras. 45 and 46) that, following an initial detention for investigation of assault or attempted assault, the arrest was for breach of the peace and not for either assault or attempted assault. On the basis of Mr. Ward’s conduct in loudly protesting his detention and drawing attention to himself, the judge found that the arrest was lawful.
[13] Mr. Ward argues that his arrest was unlawful. He says that he did not match the description of the person sought; that although his initial detention was lawful, his continued detention was not lawful; and that his protest of his continued detention did not begin until it must have been clear to Cst. Cope that Mr. Ward did not match the description. He says that he could not be seen to have committed a breach of the peace by protesting an unlawful detention and arrest.
[14] Mr. Ward agrees that the police could stop him or delay him for a short time without breaching his right under s. 9 of the Charter “not to be arbitrarily detained”: see R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 19 and 20. The police had “reasonable grounds” or “articulable cause” to stop him for investigative purposes. But, he contends, it had to have been very quickly known to Cst. Cope that he did not fit the description broadcast and that there was no reason to detain him any further. Therefore, the grounds for detention quickly evaporated and the constable was obliged to let him go on his way.
[15] In my opinion, this argument does not take into account everything that was known to Cst. Cope. Nor does it take into account all of Mr. Ward’s conduct. The trial judge expressed his conclusion on this issue as follows:
[55] In my view, the detention of Mr. Ward by Constable Cope was not arbitrary. Constable Cope had articulable cause to [detain] Mr. Ward for investigative purposes or, in other words, he had reasonable grounds to suspect that Mr. Ward was connected to a particular crime and to believe that his detention was necessary. Based on (i) the police radio broadcasts, (ii) the facts that Mr. Ward was running and appeared to be avoiding Constable Cope, and (iii) Mr. Ward’s clothing more or less matched the clothing described in the first police radio broadcast, it is my opinion that Constable Cope had reasonable grounds for suspecting that Mr. Ward was connected to an assault or attempted assault of the Prime Minister.
[56] I conclude that the initial detention of Mr. Ward by Constable Cope did not represent a breach of s. 9 of the Charter. I also conclude that Constable Cope and the other officers did not commit the torts of assault or battery when they handcuffed him because Constable Cope had reasonable grounds to believe that Mr. Ward may attempt to escape or assault him.
[16] In para. 63 of his reasons, while discussing the grounds for the arrest of Mr. Ward, the trial judge observed that although Mr. Ward’s clothing was “fairly close” to the description of the suspect’s clothing, “his height, hair colour and length, and age were all different …”. Mr. Ward contends that this finding should have led the judge to conclude that there was no reasonable basis for his continued detention before he protested in such a manner that would otherwise amount to a breach of the peace.
[17] I disagree. The argument ignores the second factor taken into account by the judge in reaching the above conclusion – Mr. Ward was running and appeared to be avoiding interception. (The trial judge noted earlier in his reasons that Cst. Cope yelled at Mr. Ward to stop but Mr. Ward kept running.) These facts are not disputed on appeal and the evidence certainly gives support to them. Dissimilarities between a suspect’s physical description and the physical appearance of the person being detained are not necessarily enough to allay reasonable suspicion. The investigating officer could not safely conclude that the broadcast description was completely accurate. The dissimilarities between description and appearance no doubt would have been enough to eliminate most people encountered by Cst. Cope after he received the broadcast. But Mr. Ward was not most people. He was in the right place at the right time, he was running and he appeared to be taking avoiding action.
[18] In my opinion, the trial judge did not err in finding that Cst. Cope’s continued detention of Mr. Ward was reasonable and justified.
[19] Mr. Ward’s assertion that his arrest was unlawful is predicated on this court finding that his continued detention was unlawful. He does not contend that the trial judge erred in finding that he committed a breach of the peace by protesting a lawful detention. It follows that effect should not be given to his contention that his arrest for breach of the peace was unlawful.
[20] Whether successful or not on the arrest issue, Mr. Ward submits that damages of $5,000 for unlawful detention were inordinately low. In addition, he says that the trial judge erred in not awarding punitive damages against the City.
[21] These arguments were presented largely on the assumption that this court would find that the arrest of Mr. Ward was unlawful, but counsel made it clear in oral submissions that the argument was not limited to that outcome.
[22] This is not a case in which the conduct of the police officers in detaining Mr. Ward in the lockup for more than four hours after the Prime Minister left the downtown area would attract punitive damages on the principles enunciated in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130. Their conduct was not egregious.
[23] The argument we received with respect to quantum of damages that should be paid by the City is essentially the same argument that was presented to the trial judge. This argument depends on cases in which more substantial damages were assessed in more egregious circumstances and for quite different wrongs than in the present case.
[24] We can interfere with the damage assessment against the City only if the trial judge applied a wrong principle of law such as taking an irrelevant factor into account or failing to consider a relevant factor, or if the damages are so inordinately low as to be a wholly erroneous estimate: see Nance v. British Columbia Electric Railway Co., [1951] 3 D.L.R. 705 (P.C.).
[25] In assessing damages against the City, Tysoe J. (as he then was) considered similar cases. He said this:
[120] Counsel for the City of Vancouver relies on decisions with more modest awards: Hewer v. Paquette, [1990] B.C.J. No. 1549 (QL) (S.C.), Forster v. MacDonald (1993), 108 D.L.R. (4th) 690 (Alta. Q.B.), Nolan v. Toronto (Metropolitan) Police Force, [1996] O.J. No. 1764 (QL) (Ont. Ct. of Jus. (Gen. Div.)) and King v. Ontario (Ministry of Attorney General), [2002] O.J. No. 4766 (QL) (Ont. Sup. Ct. of Jus.). The judgments in these cases awarded general damages for wrongful imprisonment in the amounts of $1,000, $8,000, $5,000 and $2,500, respectively.
. . .
[123] The police were entitled to imprison Mr. Ward when he was arrested for breach of the peace. The commission of the tort of wrongful imprisonment arose from the failure of the police to release him within a reasonable time after the Prime Minister had left the area of the ceremony. 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.
[26] I am not persuaded that there is any basis for this court to interfere with the assessment of damages against the City. The judge took all the arguments into account and applied reasonably similar cases in an area in which there is not much jurisprudence. No error has been demonstrated.
[27] I would dismiss Mr. Ward’s appeal.
City of Vancouver cross appeal
[28] The City does not appeal the award of $5,000 for the extended stay of Mr. Ward in the City police lockup. The City committed the tort of wrongful imprisonment and there can be no argument that damages were not an appropriate remedy.
[29] The City asserts, however, that there should have been no damage award flowing from the finding of the trial judge that the seizure by the police of Mr. Ward’s car was unreasonable and infringed Mr. Ward’s rights under s. 8 of the Charter “to be secure against unreasonable … seizure”. The car was towed to the police compound to secure it until it could be searched. However, the police officers later decided that they lacked sufficient grounds to obtain a search warrant.
[30] The trial judge found that if Mr. Ward had been lawfully arrested for assault or attempted assault, it would have been reasonable for the police to seize his vehicle to look for physical incriminating evidence. Because the arrest was for a breach of the peace the seizure was unreasonable.
[31] The judge limited damages for this breach to $100. He found that Mr. Ward suffered no “substantive damage as a result of the seizure”. He described the damages as nominal. Mr. Ward does not contend that these damages should have been higher.
[32] In its cross appeal, the City contends that the remedy should have been limited to a declaration that there was a breach of Mr. Ward’s Charter right. This is the same point taken by the Province in its appeal and it will be convenient to determine the City’s cross appeal within the discussion of the Province’s appeal.
[33] Mr. Ward argues that the impounding of his car by the police, in addition to being a breach of his Charter right, also amounted to the tort of unlawful conversion for which, like the tort of wrongful imprisonment, the awarding of damages was an appropriate remedy. He pleaded the tort of unlawful conversion in his statement of claim but the trial judge did not discuss that aspect of the claim in his reasons. It will be necessary to consider this alternative argument only if the appeal of the Province is successful.
Province of British Columbia appeal
[34] The Province argues that, as a matter of law, no damages can be assessed against a government for breach of a person’s Charter rights by a government actor absent a concurrent tort, abuse of power, negligence or wilful blindness.
[35] Provincial corrections officers managed the police lockup in Vancouver at the relevant time, apparently under a contractual arrangement between the City and the Province. It was the duty of the corrections officers to secure prisoners turned over to them by City police officers. They took charge of Mr. Ward’s person while he was in custody and they subjected him to a strip search. The trial judge found this search to be unreasonable.
[36] The trial judge noted in para. 2 that Mr. Ward “was required to remove all of his clothes except for his underwear …”. Much later in his reasons he addressed the assertion made on behalf of Mr. Ward that the unreasonable strip search amounted to a civil assault:
Assault by Sergeant Gatto
[87] Counsel for Mr. Ward submits that when Sergeant Gatto responded to Mr. Ward’s request to speak with his lawyer by saying “we can do this the hard way or the easy way, you’re not helping things”, he was threatening to use force against Mr. Ward and thereby committed an assault. He also submits that Sergeant Gatto is liable for assault and battery because the strip search of Mr. Ward by the corrections staff was done at his direction. I do not agree with either of these submissions.
[88] In order for words alone to constitute an assault, the words must create an apprehension of imminent harm: see Linden & Feldthusen, Canadian Tort Law, at p. 48. If Sergeant Gatto’s words had been spoken in response to Mr. Ward refusing to disrobe at the time of the strip search, they may have been sufficient to create an apprehension of imminent harm. However, the words were spoken in response to Mr. Ward’s request to speak to his lawyer, and there was no inference that Mr. Ward would be harmed if he continued to ask for his lawyer.
[89] There is no evidence that anyone assaulted or battered Mr. Ward in connection with the strip search. He was asked to remove his clothes and he complied until all of his clothes other than his underwear were taken off. When he refused to take off his underwear, there was no threat of harm and, indeed, he was told that he did not have to take them off. He was never touched during the strip search. In addition, the strip search was done pursuant to the Corrections Branch’s policy and was not done under Sergeant Gatto’s direction. During his examination for discovery, Sergeant Gatto stated that he did not know if he had the authority to make the decision to stop the strip search. In his cross examination, Mr. Coulson disagreed that the officer in charge was in charge of the Jail and said that the persons in charge of the Jail were the corrections supervisor and the officer in charge.
[37] In this part of his reasons, the judge appears to have been addressing only the claim that Sergeant Gatto, a City employee, committed an assault of Mr. Ward by saying “we can do this the hard way or the easy way …”. There is no basis for interfering with the conclusion that the words spoken by Sargeant Gatto did not amount to an assault in the context in which the court found that they were used. The opening sentence of para. 89 above amounts to a finding that the employees of the Province, the corrections officers, did not commit a civil assault during the strip search.
[38] Mr. Ward contends that the judge should have found that the unreasonable search by the corrections officers constituted a civil assault as well as a Charter violation. He relies mainly on the following passage from his evidence that was not mentioned by the trial judge in his reasons:
Q Which is the room that you were strip searched in?
A Again, I’m not sure whether I was held in the cell with the drain in the floor before I was taken into the search room, or whether I went into that room after I was searched. But they’re separate rooms, and the room I was searched in was a rectangular room with a door at each end, windows in the door, a table along one wall, and a CCTV, closed circuit television camera in the corner in the top.
Q What were your feelings or your reaction when you are about to be strip searched?
A Apprehension, primarily. Again, circumstances were that at this point I knew that I had been arrested; I was told it had been for breach of the peace, or for some sort of a attempted assault on the Prime Minister. This is now in August of 2002, in the post-September 11th, 2001 era; so I was immediately very concerned. And then when these two large men put the rubber gloves on and told me to take off my clothes, I was very apprehensive and I felt worried. And as I took off my clothes, I could sense I was trembling, whether from the cold or from apprehension, I'm not sure which. And I got very, very concerned when they wanted me to strip completely naked, because it was already quite demeaning and undignified, to say the least, to be standing there in the company of these strange, large men wearing blue rubber gloves in those circumstances. It was most uncomfortable.
[39] The Province in reply says that the issue of assault by employees of the Province was not before the court. There is a pleading that the City employees, the police officers, assaulted Mr. Ward. This would explain why there was an attempt to prove that Sergeant Gatto committed an assault during the strip search. But there is no pleading in the statement of claim that employees of the Province assaulted Mr. Ward. The Province says that it relied on this absence of pleading in determining how to present its case. In particular, counsel for the Province did not call as witnesses the corrections officers who instigated the strip search and then abandoned it. In addition, relying on the absence of a pleading, counsel did not cross examine Mr. Ward with respect to the issue. The Province relied on the evidence of Peter Coulson to attempt to justify, in Charter terms, the strip search and the policy under which it was carried out.
[40] Was the issue of assault by employees of the Province before the trial court and, if it was, did the trial judge err in not finding that they committed a civil assault of Mr. Ward in conducting the strip search? Although an argument can be made that the evidence of Mr. Ward reproduced above could form the basis for a finding of civil assault by the corrections officers, a review of the pleadings and the presentation of counsel’s opening at trial makes it clear that he did not alert the Province or the court that Mr. Ward was claiming that there had been an assault by the corrections officers in conducting the unconstitutional strip search.
[41] The further amended statement of claim pleads the claims against the City and the Province separately and distinctly. Paragraph 34 asserts that the actions of the police officers “constituted assault, battery and wrongful imprisonment.” There is no such pleading with respect to employees of the Province. The pleading against them and the Province is restricted to Charter infringement and negligence.
[42] Counsel for Mr. Ward at trial provided the court with a written opening statement. Paragraph three reads: “This case is about the wrongful arrest and treatment of Mr. Ward by the Vancouver Police staff at the Vancouver Jail. The treatment constitutes assault, battery, breach of his Charter rights, and false imprisonment.” There is no specific assertion in the document that the strip search constituted an assault by the employees of the Province and I am unable to find anything in paragraph three that would bring to the attention of the defence or the court that Mr. Ward was alleging a tort not pleaded. In addition, in his oral opening to the court, Mr. Ward’s counsel specifically alleged an assault by the police officers during the arrest but did not allege an assault by the corrections officers during the strip search. This was consistent with the pleading.
[43] Counsel and the court conducted this trial with careful regard for what had been pleaded. This is illustrated by an objection taken by counsel for the Province to one aspect of the oral opening of counsel for Mr. Ward. Counsel told the court that it was alleged that the City and the Province were jointly and severally liable for what took place in the lockup. This assertion is also found in the written opening. The objection was that joint and several liability had not been pleaded. After hearing argument, Tysoe J. ruled that the issue could not be pursued absent a further amendment to the statement of claim. Counsel later told the court that he had instructions not to seek an amendment to plead joint and several liability. In this refreshingly correct procedural atmosphere, it would be inconsistent to consider a cause of action with respect to which the parties never joined issue.
[44] There was no suggestion during the hearing of this appeal that there was a claim of civil assault against the Province or the corrections officers argued in closing submissions at trial. We must assume that it was not raised at that time. Had it been raised, there can be no doubt that counsel for the Province would have objected. The trial judge did not canvas the issue in his reasons for judgment and referred to it only incidentally as I have indicated. That can only be because the issue was not before him.
[45] From all of this it is apparent that the issue was raised in this court for the first time. We have not been asked to further amend the statement of claim and are not able to determine on the material before us the extent to which the Province would be prejudiced if we dealt with the issue in the first instance. Accordingly, in my opinion, we cannot give effect to the argument made on behalf of Mr. Ward that the strip search amounted to a tort in addition to an infringement of his s. 8 Charter right.
[46] The issue, therefore, is as stated by the Province: under s. 24(1) of the Charter, are damages an available remedy when the Charter breach was not accompanied by a tort and was not the product of bad faith?
[47] The Province does not dispute the finding that the search was unreasonable and a breach of Mr. Ward’s rights under s. 8 of the Charter. But it does hinge its argument as to remedy on two findings of the trial judge: first, with respect to the strip search, “that none of the pleaded torts was committed” (para. 105); and, second, that the actions of the employees of the Province who conducted the strip search “were not malicious, high-handed or oppressive” and that the implementation of the strip-search policy was based on legal advice (para. 128). The judge clearly concluded that the Charter breach was not committed by the employees of the Province in bad faith or through indifference to Mr. Ward’s Charter rights. Nor was there any suggestion in this case that the policy under which the strip search was conducted was the product of institutional bad faith or was created for any improper purpose. These are conclusions that are explicitly stated in the reasons for judgment or are implicit therein. In my opinion, they are not assailable by Mr. Ward on appeal. They form the basis of the issue raised by the Province.
[48] The court awarded damages to Mr. Ward by applying s. 24(1) of the Charter. That section reads:
24(1) 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.
[49] There are appellate cases that deal with the availability of damages as a remedy when the court strikes down legislation because the legislation breaches the Charter rights of a segment of society (Mackin v. New Brunswick, 2002 SCC 13, [2002] 1 S.C.R. 405), or strikes down articulated government policy (Wynberg v. Ontario (2006), 82 O.R. (3d) 561, 269 D.L.R. (4th) 435). Generally speaking, in those circumstances, a declaration of breach is the only available remedy in the absence of bad faith, abuse of power or negligence. But there do not appear to be any cases at the appellate level that determine whether damages are an appropriate remedy under s. 24(1) when, without bad faith and without the commission of any other civil wrong, direct actions by agents of government, while exercising statutory powers or duties or implementing government policy, breach a person’s Charter rights. I would think that, as in the present case, such a situation would arise most often in the context of detention, arrest and confinement by government agents charged with criminal investigation and public safety duties.
[50] The trial judge relied upon four cases at the trial level in which civil damages were awarded under s. 24(1) for Charter breaches arising out of direct action by agents of government. He said this:
[111] There have been a number of judgments which have granted damages for violations of the Charter without proof of malice, bad faith or negligence: see, for example, Morin v. Prince Edward Island Regional Administrative Unit No. 3 School Board (2005), 254 D.L.R. (4th) 410 (P.E.I.S.C.A.D.), Hawley v. Bapoo (2005), 76 O.R. (3d) 649 (Ont. Sup. Ct.) and Bevis v. Burns (2006), 269 D.L.R. (4th) 696 (N.S.C.A.). With specific reference to strip searches where no tort has been committed, the Federal Court held in Blouin v. R. (sub. nom. Blouin v. Canada) (1991), 51 F.T.R. 194 (T.D.) at ¶ 24 that a person who was unreasonably strip searched was entitled to damages in addition to a declaration. If the Ontario Court of Appeal had intended in Wynberg to disapprove of these and other decisions, one would have expected more than a single paragraph of obiter dicta making no reference to any of the contrary decisions.
[51] As of the date of Mr. Ward’s arrest, the legal power to search a prisoner in the provincial corrections system was found in s. 19 of the Correctional Centre Rules and Regulations, B.C. Reg. 284/78, which was in force pursuant to the Correction Act, R.S.B.C. 1996, c. 74. The section then read:
19 (1) On admission of an inmate to a correctional centre the person of the inmate and his possessions shall be searched by an officer of the same gender as the inmate.
(2) Once an inmate has been admitted to a correctional centre an officer shall only conduct such further searches where
(a) the director so authorizes, or
(b) an officer has reasonable and probable grounds to believe that the inmate is in possession of any contraband, in which case the officer shall search the inmate and provide a written report to the director within 12 hours.
[52] There was no specific statutory authorization to conduct strip searches. However, it is common ground that it is necessary for the security of the lockup and for the safety of the prisoners and staff that such searches must be done in certain circumstances. At the police lockup in Vancouver, a written policy was in place on the date of Mr. Ward’s arrest. Peter Coulson was then employed by the Province as the director of operations at the lockup. He testified that strip searches were conducted of all new prisoners other than persons arrested for drunkenness and for bylaw offences. The former were held separately from the general population of the lockup and the latter were booked and released. The trial judge found that this practice was contrary to the written policy of the Corrections Branch for this particular lockup. He reproduced the policy at para. 83 of his reasons and then continued with his analysis:
[83] …
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.
In my view, the policy is ambiguous. It begins by stating that strip searches will be done for new prisoners, which one would assume, without reading more, meant all new prisoners. It then lists the reasons for the policy, but they are more in the nature of factors to be considered when deciding whether to strip search a new prisoner. The policy concludes by stating that strip searches will not usually be done on bylaw offenders, which suggests that the opening words of the policy did not mean that all new prisoners are to be strip searched. The policy does not mention drunken persons.
[84] On reading the policy as a whole, it is my view that the “reasons” are actually factors to be considered in deciding whether a strip search should be conducted. However, it appears that Mr. Coulson or someone else decided that all new entrants to the Jail, other than bylaw offenders and drunken persons, represent a possible danger to personnel and prisoners in the Jail.
[85] If the factors are applied to Mr. Ward, he would not fit the criteria for a strip search any more than bylaw offenders and drunken persons. He did not commit a serious offence, he was not charged with an offence associated with evidence being hidden on the body, no weapons were involved and Mr. Ward was not known to be violent or to carry weapons. Constable Prasobsin testified that Mr. Ward had calmed down by the time he reached the Jail, and there was no reason to believe that Mr. Ward represented a danger to the personnel and prisoners in the Jail. As there was no threat to the safety and security of the Jail, I conclude that the strip search of Mr. Ward was not in accordance with the Corrections Branch’s written policy.
[86] 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.
[Italics in original]
[53] Thus the Charter breach arose out of the improper implementation of written policy. There was a failure by those implementing it to understand that the policy did not warrant a strip search of Mr. Ward. This rendered the search unreasonable and a breach of Mr. Ward’s rights under s. 8. As I have said, the Province does not contest this finding.
[54] The argument of the Province begins with the general proposition that there is no remedy in law for an exercise of statutory discretion that is wrongly but honestly exercised: see, for example, Welbridge Holdings Ltd. v. Greater Winnipeg, [1971] S.C.R. 957, and D.E. v. British Columbia, 2003 BCSC 1013, rev’d 2005 BCCA 134. To succeed, the plaintiff must prove bad faith on the part of the government actor. Neither of these cases is a Charter case and neither involved a broad discretion as to remedy as is found in s. 24(1) thereof.
[55] The Province contends, however, that the Charter is a statute to which the same rule must apply. Public officials are faced with competing demands and should not be faulted for favouring one of those demands over others in the exercise of their discretion, even if the unintended result is a breach of a Charter right of an individual affected by the exercise of discretion. The present case is an example. The corrections officers had to choose between invading Mr. Ward’s privacy and the safety of other prisoners and staff. Making the other choice, the argument continues, might have exposed them to liability to others if, not having been strip searched, Mr. Ward later produced a weapon and caused injury to somebody else in the lockup.
[56] To attempt to make its argument applicable to a Charter case, the Province relies on Mackin and Wynberg,
[57] In Mackin, the court was concerned with the constitutional validity of legislation affecting the supernumerary status of Provincial Court judges. The court declared the legislation invalid. The court went on to hold that the Crown enjoys a qualified immunity from an award of damages for a Charter breach when its representatives, without acting negligently or in bad faith, apply legislation that is subsequently declared to be invalid. Gonthier J. said this:
Damages
78 According to a general rule of public law, absent conduct that is clearly wrong, in bad faith or an abuse of power, the courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional (Welbridge Holdings Ltd. v. Greater Winnipeg, [1971] S.C.R. 957; Central Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42). In other words "[i]nvalidity of governmental action, without more, clearly should not be a basis for liability for harm caused by the action" (K. C. Davis, Administrative Law Treatise (1958), vol. 3, at p. 487). In the legal sense, therefore, both public officials and legislative bodies enjoy limited immunity against actions in civil liability based on the fact that a legislative instrument is invalid. With respect to the possibility that a legislative assembly will be held liable for enacting a statute that is subsequently declared unconstitutional, R. Dussault and L. Borgeat confirmed in their Administrative Law: A Treatise (2nd ed. 1990), vol. 5, at p. 177, that:
In our parliamentary system of government, Parliament or a legislature of a province cannot be held liable for anything it does in exercising its legislative powers. The law is the source of duty, as much for citizens as for the Administration, and while a wrong and damaging failure to respect the law may for anyone raise a liability, it is hard to imagine that either Parliament or a legislature can as the lawmaker be held accountable for harm caused to an individual following the enactment of legislation. [Footnotes omitted.]
79 However, as I stated in Guimond v. Quebec (Attorney General), supra, since the adoption of the Charter, a plaintiff is no longer restricted to an action in damages based on the general law of civil liability. In theory, a plaintiff could seek compensatory and punitive damages by way of "appropriate and just" remedy under s. 24(1) of the Charter. The limited immunity given to government is specifically a means of creating a balance between the protection of constitutional rights and the need for effective government. In other words, this doctrine makes it possible to determine whether a remedy is appropriate and just in the circumstances. Consequently, the reasons that inform the general principle of public law are also relevant in a Charter context. Thus, the government and its representatives are required to exercise their powers in good faith and to respect the "established and indisputable" laws that define the constitutional rights of individuals. However, if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable. Otherwise, the effectiveness and efficiency of government action would be excessively constrained. Laws must be given their full force and effect as long as they are not declared invalid. Thus it is only in the event of conduct that is clearly wrong, in bad faith or an abuse of power that damages may be awarded (Crown Trust Co. v. The Queen in Right of Ontario (1986), 26 D.L.R. (4th) 41 (Ont. Div. Ct.)).
80 Thus, it is against this backdrop that we must read the following comments made by Lamer C.J. in Schachter, supra, at p. 720:
An individual remedy under s. 24(1) of the Charter will rarely be available in conjunction with an action under s. 52 of the Constitution Act, 1982. Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s. 52, that will be the end of the matter. No retroactive s. 24 remedy will be available. [Emphasis added.]
81 In short, although it cannot be asserted that damages may never be obtained following a declaration of unconstitutionality, it is true that, as a rule, an action for damages brought under s. 24(1) of the Charter cannot be combined with an action for a declaration of invalidity based on s. 52 of the Constitution Act, 1982.
[58] The Province argues that this is the law that applies categorically to Charter breaches of all kinds, with the resulting conclusion that damages are not an available remedy to Mr. Ward for the strip search. I do not read Mackin as standing for such a broad proposition. Although the above passage includes a discussion of the actions of government agents, it is in the context of their actions being under legislation subsequently declared to be in breach of a Charter right. The constitutional validity of legislation is not in issue here. Mr. Ward did not combine his claim for damages with a claim under s. 52 of the Constitution Act, 1982. I do not read Mackin in such a way as to preclude a claim for damages in cases like the one before us.
[59] The Ontario Court of Appeal applied Mackin in Wynberg. That case arose out of ministerial policy formulated under a statutory provision that gave the provincial Minister of Child and Family Services a broad discretion to provide services and establish programs. The policy provided for intensive behavioural intervention for autistic children from ages two to five but not for school-aged autistic children. The trial judge found that the policy was discriminatory under s. 15 of the Charter and made a declaratory order to that effect. He also awarded damages to the parents of 35 autistic children who had brought the proceedings. The appeal court overturned the finding of a Charter breach. After stating the general principle found in Mackin, the court dealt with the remedy issue, in obiter dictum, as follows:
[194] While the rule against combining damages with declaratory relief has been articulated in cases where the declaration of invalidity is sought against legislation, we see no principled basis on which to limit the application of this rule to cases where a statute, rather than some other government action, is declared unconstitutional. Support for this view can be found in the above quoted passage from Mackin, in which the Supreme Court refers to the "exercise of their powers" and "government action", rather than legislation per se. Moreover, the reasons underlying the general prohibition against damages where declaratory relief is granted apply with equal force whether the declarations are made as a result of a challenge to legislation under s. 52 of the Constitution Act, 1982 or, as in this case, where the challenge is to some action taken under legislation that is said to infringe a Charter right and relief is sought pursuant to s. 24(1) of the Charter.
The court expanded on this view in the ensuing paragraphs and clearly restricted it to government policy as opposed to specific conduct of government agents. Striking down government policy on Charter grounds is more akin to striking down legislation than it is to the circumstances of the present case.
[60] I take more instruction on the issue at hand from Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, than I do from Mackin. Judgment in that case was given a year after Mackin and before Wynberg. In Doucet-Boudreau, the issue was whether a trial judge, having found a breach of language rights under s. 23 of the Charter, could retain jurisdiction to receive reports on government efforts to ameliorate the breach within the provincial secondary school system. The Court of Appeal of Nova Scotia had struck down that provision in the order. The majority in the Supreme Court of Canada restored the provision and commented on the scope of the available remedy. Although their comments were made in the context of a s. 24(1) remedy for a breach of s. 23 (minority language educational rights), I think they are properly seen to be of more general application than the comments quoted above from Mackin. Iacobucci and Arbour J.J. wrote this:
23 It is well accepted that the Charter should be given a generous and expansive interpretation and not a narrow, technical, or legalistic one (Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 ; Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; Vriend v. Alberta, [1998] 1 S.C.R. 493). The need for a generous interpretation flows from the principle that the Charter ought to be interpreted purposively. While courts must be careful not to overshoot the actual purposes of the Charter's guarantees, they must avoid a narrow, technical approach to Charter interpretation which could subvert the goal of ensuring that right holders enjoy the full benefit and protection of the Charter. ...
24 The requirement of a generous and expansive interpretive approach holds equally true for Charter remedies as for Charter rights (R. v. Gamble, [1988] 2 S.C.R. 595; R. v. Sarson, [1996] 2 S.C.R. 223; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81 ("Dunedin")). ...
25 Purposive interpretation means that remedies provisions must be interpreted in a way that provides "a full, effective and meaningful remedy for Charter violations" since "a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach" (Dunedin, supra, at paras. 19-20). A purposive approach to remedies in a Charter context gives modern vitality to the ancient maxim ubi jus, ibi remedium: where there is a right, there must be a remedy. More specifically, a purposive approach to remedies requires at least two things. First, the purpose of the right being protected must be promoted: courts must craft responsive remedies. Second, the purpose of the remedies provision must be promoted: courts must craft effective remedies.
[Emphasis in original]
[61] I consider that neither the Supreme Court of Canada decision in Mackin nor the Ontario Court of Appeal decision in Wynberg stands for the broad proposition stated by the Province. Neither of those cases purports to determine the availability of damages in law for Charter breaches of the sort that occurred in the present case. Indeed, I think the language of each was probably crafted to leave for later consideration the issue that is now before this court.
[62] In my opinion, there is a significant difference between breach of a Charter right that results in the striking down of a law enacted by a legislature, or by the executive branch of government, and breach of a Charter right by the actions of government agents. Declaratory relief is the obvious remedy for the former. It is an end in itself because it strikes down or, in some cases, reads down the offending law or policy to the extent that the law or policy breaches Charter rights. This means that those affected by the law are not disadvantaged by it or denied its benefits, as the case may be. The remedy does not just redress a past wrong. It also affects rights and liabilities in the future.
[63] 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.
[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.
[65] 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.
[66] I would dismiss the Province’s appeal and the City’s cross appeal.
Mr. Ward’s cross appeal
[67] Mr. Ward’s cross appeal is based on the assertion that the award of damages of $5,000 for the strip search was inordinately low. He also says that he should have recovered punitive damages.
[68] The claim for punitive damages is without merit.
[69] In assessing damages against the Province, the trial judge said this:
[125] I turn next to the matter of damages for the strip search. Phillips v. Nagy [2005 ABQB 26, aff’d 2006 ABCA 227], where $150,000 in general damages were awarded, involved egregious circumstances. The plaintiff suffered the indignity of body cavity searches, three enemas and induced vomiting. She suffered psychological injuries, and became a dependent adult who was unlikely to experience a full recovery. This is a far cry from the manner and effect of the strip search of Mr. Ward.
[126] In addition to the authorities relied upon by counsel, I have considered the amounts of the damages awarded in Blouin and Ilnicki. In Blouin [(1991) 51 F.T.R. 194 (T.D.)], the Federal Court granted general damages in the amount of $5,000 for a strip search conducted of a penitentiary guard by his superiors. The plaintiff had been required to take off all of his clothes and do a full turn in front of two superiors. In Illnicki, the plaintiff had refused to co-operate with the strip search, and the police used force in taking off all of his clothes, including his underwear. As a result of the force used by the police, the plaintiff sustained injuries to his arm and shoulder. The Alberta Queen’s Bench (whose decision is cited as 2003 ABQB 465) awarded the plaintiff $5,000 damages for the breach of his s. 8 rights and $6,000 damages for pain and suffering. The quantum of the damages was not cross-appealed when the police appealed the finding of their liability to the Alberta Court of Appeal.
[127] 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] 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.
[70] Mr. Ward has not presented a persuasive argument for this court to interfere with the damage award against the Province.
Conclusion
[71] I would dismiss both appeals and both cross appeals.
“The Honourable Mr. Justice Low”
I agree:
“The Honourable Chief Justice Finch”
Reasons for Judgment of the Honourable Madam Justice Saunders:
[72] I have had the privilege of reading the draft reasons for judgment of Mr. Justice Low. I agree with him that Mr. Ward’s appeal and cross appeal should be dismissed. Respectfully, however, I have reached a different conclusion on the appeal by the Province of British Columbia and the cross appeal by the City of Vancouver of the awards of damages in favour of Mr. Ward for breach of his rights under s. 8 of the Charter of Rights and Freedoms. I would allow that appeal and cross appeal.
[73] I turn first to the appeal of the Province of British Columbia. Any discussion of this appeal must start with an acknowledgement the strip search of Mr. Ward was, in the circumstances, an affront to Mr. Ward’s privacy and personal dignity, as well as a breach of his right under s. 8 of the Charter, and is to be viewed as a serious matter: see, for example, R. v. Briggs (2001), 55 O.R. (3d) 417 at para. 35, 157 C.C.C. (3d) 38 (Ont. C.A.), leave to appeal ref’d [2002] S.C.C.A. No. 31; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679.
[74] The search of Mr. Ward was conducted by corrections officers, but just as the trial judge viewed the reasonableness of the search with reference to the basis of the arrest (breach of the peace), so do I see the responsibility of those corrections officers to Mr. Ward as influenced by the proper attitude of the police to him.
[75] The fundamental role of a police officer, referred to by the historic common law appellation “constable” in the organizing statute for municipal police forces (of which the Vancouver Police Department is the largest in the province), the Police Act, R.S.B.C. 1996, c. 367, is revealed in the oath required by s. 70 of each officer, which reads in part:
I will, to the best of my power, cause the peace to be kept and prevent all offences against the persons and properties of Her Majesty's subjects;
(Police Oath/Solemn Affirmation Regulation, B.C. Reg. 136/2002, s.1.)
[76] The “constable” municipal policing model is not one in which the officer is primarily the instrument of the state; rather, it is fashioned to emphasize the officer’s pre-eminent responsibility as a peace officer, and his dual but equal duties to keep the peace and to prevent offences. This model promotes the exercise of independent judgment taken on behalf of the community as a whole. That community, by definition, includes the person arrested.
[77] The actions of the police led to Mr. Ward’s detention and brought him to the city jail. By a contract between the City of Vancouver and the Province of British Columbia, the jail is staffed by corrections officers employed by the Province and one called the officer in charge. This arrangement is relatively new. Historically, the jail was staffed by members of the Vancouver Police Department without the assistance of corrections officers, a situation that led to several reports and recommendations for change: see, for example, British Columbia, Royal Commission of Inquiry into the Alleged Injuries Sustained by Michael Albert Jacobsen During his Detention in the Vancouver City Police Jail, Commissioner’s Report (Vancouver: The Commission, 1988).
[78] Given this background, I consider the context in which these corrections officers work engages their individual responsibility to apply their judgment in the performance of their duties even more so than may usually be the case, in addition to their employment obligation to have an eye to existing policies of their employer.
[79] Liability was not found, however, on the basis of any individual errors in judgment by the corrections officers. As I read the reasons for judgment, the trial judge focused on the contents of the policy and found in the alternative either the search was not in accordance with the employer’s written policy, or, if it was in accordance with this policy, “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”.
[80] The question is whether either of these alternatives should lead to damages against the Province as an “appropriate and just” remedy under s. 24 of the Charter. In my view, given the trial judge did not find wilful malice or bad faith, the answer is no.
[81] I will deal first with the second alternative for finding the search was unreasonable, namely that the policy itself was unreasonable. While this case was not framed as an action for a declaration as to the constitutionality of the policy, in my view, by seeking a declaration of infringement of Mr. Ward’s Charter rights, it had that effect. In such cases, I understand damages are not usually the preferred remedy. I consider the words of Justice Gonthier in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405, replicated by Mr. Justice Low, equally applicable to a case in which policy (governmental) is the basis for the impugned behaviour:
[79] . . . Thus, the government and its representatives are required to exercise their powers in good faith and to respect the “established and indisputable” laws that define the constitutional rights of individuals. However, if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable . . .
[82] I turn now to the trial judge’s first alternative for finding that the search was unreasonable, namely that the search was not in accordance with the policy. On this reasoning, liability turned on a mistake made by the corrections officers as to the meaning of the policy, rather than on a faulty policy. Although the trial judge did not frame it in this fashion, it appears to me he approached this issue as an honest but mistaken belief on the part of the corrections officers as to the correct search procedure to employ. If this is so, I do not consider that damages should lie, given the trial judge did not conclude there was wilful malice or bad faith, and instead found the corrections officers “were not malicious, high-handed or oppressive”, and given the claim in tort against the Province, framed in negligence, did not succeed.
[83] At this time the subject of damages as a s. 24 remedy for Charter breach lacks a framework of principles for both liability and quantum unlike many other areas of Charter jurisprudence and unlike the law of damages in other fields in which principles are well developed. I consider it salutary that principles be developed, both as to liability and quantum, so as to allow members of the community, with confidence, to predict liability and quantum, and, with confidence, to settle disputes knowing they are within the likely parameters of a judicial decision.
[84] The general objective of damages at common law is compensation for loss. Where, as here, the wrong did not cause pecuniary loss, (unlike, for example, Auton v. British Columbia (Attorney General), 2002 BCCA 538, 6 B.C.L.R. (4th) 201, rev’d on the issue of liability 2004 SCC 78, [2004] 3 S.C.R. 657, and Wynberg v. Ontario (2006), 82 O.R. (3d) 561, 269 D.L.R. (4th) 435 (Ont. C.A.), leave to appeal ref’d [2006] S.C.C.A. No. 441) the basis for the award is less than apparent.
[85] For damages under s. 24 of the Charter, one basis may be, as with other Charter remedies, to “correct” behaviour of the persons who have caused the Charter infringement, or to provide rebuke. On this theory, damages are not so much intended to compensate the wronged individual as to censure the persons who have breached his or her rights. Where, as here, neither malice nor bad faith is found, and where, as the trial judge seems to hold, the individuals conducting the search thought they were acting in accordance with a policy, there seems to me to be little accomplished by an award of damages that is not already accomplished by a trial process calling attention to their error. In other words, on the findings of the trial judge as to the state of mind of the corrections officers, I do not consider “correction” a sound basis on which to award damages. Nor would an objective of punishment or sanction be appropriate absent a finding of a faulty state of mind.
[86] An alternative basis for an award of damages under s. 24 of the Charter may be as compensation for loss from injury, much as in the law of negligence. But here, I would suggest, the incremental development of the law of negligence, particularly with respect to persons fulfilling public responsibilities, is instructive. The caution applied by courts where compensation comes from the public purse and where the official’s actions are committed in the exercise of discretion on behalf of the public, without malice or bad faith, soundly establishes that not every loss arising from a mistake made by a public official is compensable.
[87] A conclusion that non-pecuniary damages may be awarded absent negligence or another tort in these circumstances, I suggest, would create two classes of wrongs, with a s. 24 action for damages available as a “fall-back” to an action in tort in the event a tort cannot be established. In this, I agree with Mr. Justice Spencer in Stenner v. British Columbia (Securities Commission) (1993), 23 Admin. L.R. (2d) 247 at para. 78 (B.C.S.C.), aff’d 141 D.L.R. (4th) 122 (B.C.C.A.), leave to appeal ref’d [1996] S.C.C.A. No. 595. See also McGillivary v. New Brunswick (1994), 149 N.B.R. (2d) 311, 116 D.L.R. (4th) 104 (C.A.), leave to appeal ref’d [1994] S.C.C.A. No. 408.
[88] A third basis for a Charter damages award under s. 24 may be simply as a marker – a recognition – of the Charter breach. In that sense nominal damages may be appropriate. However, this appears to me to be a form of strict liability. Such an approach seems to me problematic given the number of occasions in which such damages are not awarded, and would carry the potential for arbitrariness.
[89] Here no tort was committed by the corrections officers, and the question becomes whether there should be strict liability for damages for a Charter breach. In my view, the answer is no. I consider, absent a tort, that something more is required, whether it is a degree of deliberation in the Charter breach, wilful blindness, or bad faith. In other words, I do not consider damages should be awarded for a Charter breach where the trial judge is satisfied the individuals in question, without mala fides, simply made a mistake as to the proper course of action.
[90] In conclusion, I consider that the general theory of the law of damages does not support an award of damages pursuant to s. 24 of the Charter against corrections officers who, in the course of their employment and without malice or bad faith, made a mistake and misinterpreted a government policy as requiring the search in issue.
[91] In other words, neither of the alternative conclusions of the trial judge support an award of damages against the Province of British Columbia, in my view.
[92] As to the quantum of damages, if damages there must be, I would not disagree that any award of damages, given the conclusions of the trial judge as to the state of mind of the corrections officers, should be modest, although, as I have said, I would go further and say this is not an appropriate case for such an award.
[93] While the failure to award damages for a Charter breach may be criticized as discouraging vigilance of constitutional rights, I do not see this shrinking attitude displayed either by litigants in the court, or by the bar, and I do not consider damages are required to ensure vigilant Charter compliance.
[94] Without contradicting at all the fact of insult to Mr. Ward, who is well known to the courts as a lawyer who is willing to carry cases engaging important issues of public policy and to extend representation in the courts to needy members of the community, but given the trial judge’s findings of fact as to the state of mind of the corrections officers in this case, I would allow the appeal of the Province of British Columbia.
[95] The City of Vancouver has cross appealed the award of nominal damages against it for seizure of Mr. Ward’s vehicle. The seizure was effected by members of the Vancouver Police Department. Mr. Ward submits a damage award is appropriate for breach of his Charter right to be free of unreasonable seizure, and was justified in any event as damages for the tort of conversion.
[96] The trial judge found that none of the torts pleaded against the City of Vancouver were committed. That conclusion encompasses Mr. Ward’s claim in conversion. Thus, if it is to stand, the nominal damages award must do so on the basis of a Charter breach. Again, the trial judge did not find a faulty state of mind on the part of the officers involved with the vehicle’s seizure, and no tort was established. For the reasons expressed above, I do not consider damages for the Charter breach should have been awarded in these circumstances. I would allow the City’s cross appeal.
“The Honourable Madam Justice Saunders”