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Supreme Court upholds damage awards for Charter Rights breaches

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Uploaded on Jul 27, 2010

In 2002, Vancouver lawyer Alan Cameron Ward was arrested and strip-searched after police mistakenly believed he intended to throw a pie at then-Prime Minister Jean Chretien. Ward sued the city and provincial governments. The trial judge ruled that the city and province violated Ward's charter right to be free from unreasonable search and seizure. After a lengthy appeals process by the governments, the case went to the Supreme Court of Canada.

On July 23, 2010 -- about eight years after the initial incident occurred -- the Supreme Court ruled that Canadians can receive monetary damages when their Charter Rights are violated, even if there has been no misconduct by authorities.

Victoria-based personal injury lawyer Erik Magraken is a partner at The MacIsaac Group. He explains how Ward v. British Columbia will affect the public.

Erik Magraken: What the Ward case does is it creates a new type of lawsuit: it permits people to sue the government and be awarded financial damages for constitutional wrongs. That's something that's unique. There's nothing new about being able to sue the government, but being awarded money simply for having your Charter rights violated is what's new. What it means is that there's a new avenue for people who've had their Charter rights breeched; there's a new recovery for them. It also means that the government has more incentive to take peoples' Charter rights seriously because it could hit them in the pocketbook.

In the ruling, Chief Justice Beverley McLachlin wrote that damages may be awarded for a charter wrong where appropriate and just, and they must be proportional to the seriousness of the breach. Erik explains what this means.

Erik Magraken: What the Supreme Court said was that the damages do have to be proportional and generally the damages -- if they're awarded, because they're not automatically awarded -- but if they are awarded, they need to be modest. So unless you have an extraordinary case or an exceptional case, the Supreme Court of Canada says modest awards are appropriate awards. There's a few safeguards actually if you read through the judgment, it's quite well put together because this new avenue is created, but I don't think the floodgates are going to open with this kind of a decision. I don't think we're going to see a tremendous number of lawsuits generated or a significant amount of government exposure to these claims because what the Supreme Court said is while you do have this new course of recovery, you can be awarded damages, it's not automatic and once you establish a Charter breach, you have to jump through a few more hoops before damages are awarded. From there, the government can take away or could make submissions as to why there's more appropriate remedies besides the financial award. Once you get through all of those hoops, then the Court said the award shouldn't be too high in any event. It's an interesting system the Court set up -- it's an interesting test where people do have this new avenue and this new course of recovery, but it's pretty balanced in its approach. I think it's fair both to the people who are victimized and to the government as well.

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