The Supreme Court of Canada has upheld the remedial powers of courts under the Canadian Charter of Rights and Freedoms by ruling that a person whose rights have been breached may be awarded monetary compensation.
Eight years ago, civil rights lawyer Cameron Ward was walking near Vancouver’s Chinatown when he was stopped by police and accused of planning to throw a pie at Prime Minister Chretien. Acting on an anonymous tip, the police mistakenly identified Mr. Ward. Despite the fact that he had no pie, and was nowhere near a pie, the police ignored Mr. Ward’s objections and handcuffed him, took him to the police station, strip-searched him and held him in a cramped cell for several hours. They also impounded his car. When Mr. Ward was finally released when the police realized their mistake, they refused to apologize.

Prior to his arrest, Mr. Ward was carrying on a normal day and was on his way to work. What happened to him could have happened to anyone. After his release, Mr. Ward made a complaint to the Police Complaints Commissioner, who referred it to an “independent” reviewer – a member of the Abbotsford RCMP. The reviewer not only failed to find that Mr. Ward’s rights had been breached, but also erroneously concluded that Mr. Ward had not even been strip-searched. The courts found otherwise. Such an obviously wrong conclusion by the reviewer highlights concerns about police investigating themselves or other police accused of misconduct.

Mr. Ward again offered to drop his complaint in exchange for an apology. The police refused a second time. With no option but to go to court, Mr. Ward sought compensation from the City of Vancouver, which employs the police, and the Province of B.C., which operates the jail where the strip-search took place. Rather than apologize and have the matter dropped, the City and the Province instead spent many thousands of taxpayers’ dollars for a one week trial at the BC Supreme Court. Mr. Ward was awarded $5,000 from the Province for the violation of his Charter right not to be subjected to unreasonable search and seizure, and $5,100 from the City for wrongful imprisonment and seizure of his car. The City and Province appealed to the BC Court of Appeal and, after a two day hearing, the appeal was dismissed. Both the City and Province then appealed to the Supreme Court of Canada. It may be understandable why the Province would want the Supreme Court to clarify this area of law. However, Vancouver taxpayers should question why the City chose to appeal the small judgment it was responsible for when the relevant legal issue was already being argued by the Province.

Lawyers for the City and the Province of BC (supported by the Canadian Association of Chiefs of Police and the Governments of Canada, Ontario and Quebec as interveners) argued that, in the absence of bad faith, a victim of a Charter breach should only receive a declaration of that fact, in the form of a statement by the court that the victim’s Charter rights were breached. The BC Court of Appeal had earlier described such a declaration as a “pyrrhic victory”. Lawyers for Mr. Ward argued that where Charter rights have been breached, courts should retain the power to award whatever remedies are appropriate and just in the circumstances – including, in some cases, monetary awards that can both compensate victims and emphasize the importance of respecting citizens’ Charter rights.

The Supreme Court of Canada ruled in favour of Mr. Ward and upheld the broad remedial powers of courts under the Charter. The Supreme Court’s decision reflects the value that Canadians place on their rights and freedoms, as reflected in the Charter, and ensures that judges retain the ability to craft appropriate and just remedies when those right and freedoms are breached. It is also consistent with the law in other Commonwealth countries, where monetary awards for breaches of constitutional rights are available in various circumstances. The Supreme Court’s decision has broad application, and may affect, for example, persons wrongly convicted or subjected to cruel and unusual punishment, and other abuses.

Cameron Ward was represented by Brian M. Samuels, Kieran A.G. Bridge and Jennifer W. Chan. Intervening at the Supreme Court of Canada in support of Mr. Ward were The Aboriginal Legal Service of Toronto Inc., the Canadian Civil Liberties Association, the Criminal Lawyers’ Association, the Association in Defence of the Wrongfully Convicted, the BC Civil Liberties Association and the David Asper Centre for Constitutional Rights.

For further information contact:

Cameron Ward 604-688-6881
Brian Samuels 604-602-9979
Kieran Bridge 604-687-5546

The Supreme Court of Canada will issue its reasons for judgment in Ward v. City of Vancouver on Friday, July 23, 2010 at 6:45 a.m.

The case arose out of the mistaken arrest of Vancouver lawyer Cameron Ward in August of 2002. After the Vancouver police refused to apologize, and after a complaint to the Office of the Police Complaint Commissioner was dismissed as “unsubstantiated”, Mr. Ward brought a civil case to the BC Supreme Court, which awarded him compensation of $10,100. The trial judge found that his constitutional rights had been violated by the authorities’ wrongful detention and unreasonable search and seizure.

The defendants appealed the decision to the Court of Appeal, lost and then appealed to the country’s highest court, which heard legal arguments in January. Twenty five lawyers were in attendance representing the interests of the parties and intervenors.

The Vancouver Sun has editorialized on the long-running case of R. v. Basi, Virk and Basi, suggesting that the various twists and turns in the case have not enhanced the administration of justice in the province:

Read the editorial.

Another issue troubles me; just how much has this case cost taxpayers? For some six years or so, at least three prosecutors and six defence lawyers have been working on this file…the tab must be in the many millions of dollars.

The Court of Appeal heard oral arguments from counsel on June 21 and 22, 2010 and has reserved judgment in the case of Ivan Henry, who was convicted of several sexual assault offences in 1983 and declared a dangerous offender.

Mr. Henry, who always maintained his innocence, was imprisoned for about 27 years before being released on bail by the Court of Appeal before the appeal was heard.

There has been no indication yet when the appeal judgment will be released.