The Sweet Taste of Just Desserts: Constitutional Damages for Charter Violations
On Friday the SCC set a precedent for awarding constitutional damages for Charter violations in the decision of City of Vancouver v. Ward, 2010 SCC 27. The SCC in part allowed the City of Vancouver and Province of British Columbia’s appeal of Tysoe J.’s award of damages to Alan Cameron Ward for Charter violations. Ward was wrongfully arrested because he fit the vague description of a person who was suspected of trying to throw a pie at former Prime Minister Jean Chretien. His Charter right to be free from unreasonable search and seizure was violated when the police stripped searched him and seized his car. Tysoe J. awarded Ward $100 and $5000 for the violations relating to the car and strip search, respectively. Last year I discussed the British Columbia Court of Appeal’s (BCCA) decision in the case in One Order of Just Desserts, Hold the Mala Fides Requirement.
Unlike the SCC decision, the BCCA’s decision was primarily focused on the issue of whether mala fides was required in order for damages to be awarded for a Charter violation. The City and Province argued that the police did not possess mala fides, and thus damages should not be awarded to Ward. Although the SCC did not explicitly state that mala fides is not required, its decision impliedly stands for that proposition.
Constitutional Damages are “Appropriate and Just”
McLachlin C.J., writing for the unanimous SCC, framed the issues as: (i) whether a claimant is entitled to damages as a remedy under s. 24(1) of the Charter; and (ii) if so, how should the quantum of damages be assessed? McLachlin C.J. responded to the first issue in the affirmative. According to s. 24(1) of the Charter, anyone whose rights have been violated may apply to a court of competent jurisdiction for any “appropriate and just” remedy. This provision grants courts broad discretion to award damages, though this discretion is limited by what is appropriate and just according to the facts and circumstances of a particular case.
The SCC endorsed four general considerations established in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, that inform whether a remedy is appropriate and just. An 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.
Four Step Test for Establishing Constitutional Damages
The SCC developed a four step test for awarding constitutional damages. First, the claimant must establish that a Charter right has been violated. Once a Charter violation has been established, the second hurdle that the claimant must overcome is to show why damages are an appropriate and just remedy to the extent that they serve a useful function or purpose. At least one of the following functions must be demonstrated in relation to the damages award: compensation, vindication of the right, and deterrence. The SCC departed from its counterparts in other countries by not requiring pecuniary or physical loss for constitutional damages. Accordingly, a claimant could show that a damages award functions as either vindication or deterrence, without having suffered any personal loss.
At that point, it may seem as though the claimant is deserving of the damages award. In addition to establishing a Charter violation, the claimant has shown that a damages award is appropriate and just under the circumstances, as well as serves a functional purpose. However, the SCC added a third step that gives the government the opportunity to rebut the damages award by showing that countervailing factors defeat the functional considerations that support a damages award and render damages inappropriate or unjust. At first blush, it may seem unfair that that the claimant has to jump through all these hoops and still may be denied a damages award. Before one denounces the SCC, one must bear in mind the countervailing considerations which demand that no damages award be given. These considerations recognize the harm that constitutional damages can create.
The Availability of Other “Adequate” Remedies is a Countervailing Consideration
One countervailing consideration is the availability of other remedies that would adequately satisfy the need for compensation, vindication and/or deterrence. Referring back to the second step, if the claimant establishes the function(s) of the damages, then burden will shift to the government to show that other remedies could fulfill those function(s). Other remedies include private law remedies and declarations. The SCC explained that if a claimant had a concurrent tort action, then the government could argue that any award that resulted from a successful tort action would adequately address the Charter violation. It also added that constitutional damages will be barred where a concurrent action in tort or private law would result in double recovery. This example must be distinguished from a case where the claimant does not have a concurrent tort action. The existence of a potential tort claim would not preclude a claimant from claiming constitutional damages. Such is the case because “[t]ort law and the Charter are distinct legal avenues”.
One criticism of the third step is that it is potentially inconsistent with precedent that allows concurrent actions in tort and contract law. Recall that in Central Trust Co. v. Rafuse,  2 S.C.R. 147, the SCC held that that where a given wrong prima facie supports an action in contract and tort, the party may sue in either or both, subject to any limit the parties themselves have placed on that right by their contract. It reasoned that the tort duty of care was independent of the specific obligations and duties in a contract between private parties. The corollary of this principle is significant: both tort and contract damages can be sought, despite the possibility that damages will be awarded for both types of law. Similarly, the government’s tort duty of care is independent of the negative duties of the government pursuant to the Charter. Although the present decision does not preclude concurrent actions, it does preclude damages for both the private law and Charter law actions.
Other portions of the decision illustrate this potential inconsistency regarding double recovery. At paragraph 22, the SCC distinguishes private law damages from public law damages (which includes constitutional damages). An action for public law damages is “not a private law action in the nature of a tort claim for which the state is vicariously liable, but [a distinct] public law action directly against the state for which the state is primarily liable”. Public law damages can only be claimed against a government and not individual actors. Since an action for public law damages is distinct from a private law action, one would assume that a claimant would be able to seek both public law and private law damages. The SCC seems to have only addressed this distinction in terms of who can be the subject of a claim for public law damages.
This potential inconsistency also emerged in regards to the SCC’s explanation of the quantum of damages. It stated,
In assessing s. 24(1) damages, the court must focus on the breach of Charter rights as an independent wrong, worthy of compensation in its own right. At the same time, damages under s. 24(1) should not duplicate damages awarded under private law causes of action, such as tort, where compensation of personal loss is at issue. [Emphasis added].
While is understandable that the SCC is attempting to prevent the floodgates of liability from bursting open and overburdening the public purse, a more detailed explanation would have helped explain why “an independent wrong” in contravention of the Charter does not justify separate damages. The SCC resolved this inconsistency by perfunctorily citing Simpson v. Attorney-General,  3 N.Z.L.R. 667 (C.A.), which barred double recovery in regards to concurrent actions in common law and pursuant to the New Zealand Bill of Rights Act.
Effective Governance is a Second Countervailing Consideration
A second countervailing consideration is the potential for constitutional damages to thwart effective governance. In Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, the SCC denied public law damages for government action taken under a statute which is subsequently declared invalid unless the government conduct was “clearly wrong, in bad faith or an abuse of power”. It did so because government officials would be unable to carry out their duties for fear of being held liable whenever a statute was subsequently declared invalid. Although the SCC did not directly address mala fides, this countervailing consideration indirectly does. I surmise that mala fides functions to undermine effective governance as a countervailing consideration.
If the government fails to rebut the damages award, then the final step is for the court to assess the quantum of damages. Once again, the SCC emphasized that the award should be appropriate and just. Where compensation is the function of damages, the damages must restore the claimant to its original position. Compensation for pecuniary and non-pecuniary losses is also permitted. The seriousness of the breach is the “principal guide” for determining the quantum of the damages. Accordingly, “[t]he seriousness of the breach must be evaluated with regard to the impact of the breach on the claimant and the seriousness of the state misconduct”. This type of standard reflects the relevant functions that the damages are meant to serve.
The SCC applied its new four part test to uphold Ward’s $5000 award for the strip search, but overturned the $100 award for the seizure of the car. Since the police did not search the car and Ward received it shortly after being released, the seizure was not serious.
A New Era is Upon Us
As the first chapter in a new area of Charter law, the new Ward test for constitutional damages reflects a reasoned balance between remedying Charter violations and public policy considerations. The SCC’s incremental approach demonstrates that the law can be developed in ways that balance competing interests, yet still reinvigorates the spirit of the Charter. In future decisions, greater explanation on the bar against double recovery should be provided to clarify the impact of public policy considerations on the treatment of a Charter violation as an independent wrong. This criticism does not overshadow the promising new era of greater government accountability that this decision heralds.