The Lawyers Weekly - August 6, 2010

COPYRIGHT BILL

Lawyer gets $5,000 for strip search under new constitutional remedy

ARNOLD CEBALLOS TORONTO

The Supreme Court of Canada
has ruled that financial damages
can be awarded for breaches of
Charter rights, though it has left
it open for future courts to estab-
lish limits on this new constitu-
tional remedy.
In a unanimous ruling, the high
court upheld a trial decision that
awarded Vancouver lawyer Alan
Cameron Ward $5,000 for a strip
search that violated his s. 8 Charter
right to be free from unreasonable
search and seizure.
Ward had been detained on
August 1, 2002 when Vancouver
police mistakenly thought that he
was an individual whom they had
been tipped off planned to throw a
pie at then Prime Minister Jean
Chrétien during a public ceremony.
Ward was detained and partially
strip searched, while his car was
also impounded, though not
searched. He was ultimately
released after the ceremony.
At trial, the judge found that,
although the police did not act in

bad faith and were not liable in tort,
the province’s strip search and the
city’s vehicle seizure nonetheless
violated Ward’s s. 8 rights. Ward
was awarded $5,000 for the strip
search and $100 for the car seizure.
He was also awarded $5,000 in
damages for the wrongful imprison-
ment, but this award was not an
issue in the appeal before the

Vancouver lawyer Brian Samuels (l) represented lawyer Cameron Ward (r) who was detained when police mistakenly thought that Ward was planning to throw a pie at then Prime Minister Jean Chrétien.

ALISTAIR EAGLE FOR THE LAWYERS WEEKLY

Supreme Court.
Writing for the Supreme Court of
Canada, Chief Justice Beverley
McLachlin held that damages may
be awarded for a Charter breach
under s. 24(1) where “appropriate
and just”.
“The nature of the remedy is to
require the state (or society writ
large) to compensate an individual
for breaches of the individual’s con-
stitutional rights,” wrote McLachlin.
“An action for public law dam-
ages — including constitutional
damages — lies against the state and
not against individual actors.
Actions against individual actors
should be pursued in accordance
with existing causes of action.” The
court, however, emphasized that
such damages should not duplicate
damages awarded under private law
causes of action.
In establishing the new remedy,
the court set out a four part test,
which first requires establishing
that a Charter right has been
breached. The second step is to
show why damages are a just and
appropriate remedy, taking into
consideration whether they would
fulfill one or more of the functions
of compensation, vindication of a
right, and/or deterrence of future
breaches. At the third step, the state
can try to demonstrate, if it can, that

See Ward Page 28

Digital lock
circumvention
triggers liability
PAGE 9
PENSION REFORM
Retirees lobby for
greater involvement
in plan governance
PAGE 15
TEAM BUILDING

Court-scheduling software developer sues Ontario Attorney General
Law firms work on
building strong teams
PAGE 22
Suit filed after ministry
nixes expansion of
pilot program
THOMAS CLARIDGE TORONTO

A software developer is suing Ontario’s Ministry of the Attorney General for breach of contract, alleging that the ministry reneged on a promise to let it expand a pilot court-scheduling program in Toronto to serve courts throughout the province.

The ministry denies any such
breach and attributes its decision
against the expansion to a belief
that it would require massive
“double booking” with the court
system’s existing electronic case
management system.

COMPENSATION
Associate compensation
and the merit system
PAGE 23
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