2009 BCCA 23 Ward v. British Columbia

COURT OF APPEAL=20 FOR BRITISH COLUMBIA

Citation:

Ward v. British=20 Columbia,

2009=20 BCCA 23

Date: 20090127

No.: CA034766; = CA034785

Docket: = CA034766

Between:

Alan=20 Cameron Ward

Respondent
(Plaintiff)

And

Her=20 Majesty The Queen In Right Of The Province Of British = Columbia

Appellant

(Defendant)

and

Docket: = CA034785

Between:

Alan Cameron=20 Ward

Appellant
(Plaintiff)

And

City of=20 Vancouver

Respondent
(Defendant)

Before:

The=20 Honourable Chief Justice Finch

The=20 Honourable Madam Justice Saunders

The=20 Honourable Mr. Justice = Low

J.E.=20 Gouge Q.C. and B.A. Mackey

Counsel for the = Appellant=20 (CA034766),
Province of British Columbia =

B.=20 Samuels

Counsel for the=20 Respondent/Appellant,
A.C. Ward

T.=20 Zworski

Counsel for the=20 Respondent (CA034785),
City of = Vancouver

K.=20 Roach

Counsel for the=20 Intervenor,
B.C. Civil Liberties = Association

Place=20 and Date of Hearing:

Vancouver, British = Columbia=20

13 and 14 March=20 2008

Place=20 and Date of Judgment:

Vancouver, British = Columbia=20

27 January=20 2009

Written Reasons by:

The=20 Honourable Mr. Justice Low

Concurred in = by:

The=20 Honourable Chief Justice Finch

Dissenting Reasons = by:

The=20 Honourable Madam Justice Saunders (p. 33, para.=20 72)

Reasons for Judgment of the Honourable Mr. = Justice=20 Low:

[1] = ; =20 Cameron Ward, a Vancouver lawyer, brought an action against = several=20 defendants arising out of his arrest on 1 August 2002 near the location = of an=20 outdoor dedication ceremony attended by the Prime Minister of Canada in = the=20 Chinatown section of this city.

[2] = ; =20 The trial judge, Mr. Justice Tysoe (as he then was), found the = arrest to=20 be lawful but he also found that police officers employed by the City of = Vancouver breached Mr. Ward=92s rights under the Canadian Charter = of Rights=20 and Freedoms by keeping him in the police lockup longer than was = necessary (the tort of wrongful imprisonment), and by seizing his = car. He=20 assessed damages for the detention at $5,000 and for the seizure of the = car at=20 $100. He further found that corrections officers employed by the = Province=20 of British Columbia breached Mr. Ward=92s Charter rights = by=20 conducting a strip search of his person. This resulted in an award = of=20 damages in the amount of $5,000 against the Province.

[3] = ; =20 The action was dismissed as against the individual police = officers and=20 corrections officers named or described as defendants. =

[4] = ; =20 The neutral citation for the trial judgment is 2007 BCSC 3. It is = reported at (2007) 63 B.C.L.R. (4th) 399.

[5] = ; =20 Mr. Ward brought an appeal against the City of Vancouver in which = he=20 contends that the trial judge erred in finding that the arrest was = lawful and in=20 awarding damages for wrongful imprisonment that were = inordinately=20 low.

[6] = ; =20 In a cross appeal the City argues that the judge erred in = awarding=20 damages in the amount of $100 for seizure by the police of Mr. Ward=92s = car. =20

[7] = ; =20 The Province brought a separate appeal in which it accepts that = the strip=20 search was unreasonable and therefore a breach of Mr. Ward=92s = Charter=20 rights but contends that the trial judge erred in law in = awarding=20 damages for the breach in the absence of commission of a tort, bad = faith, abuse=20 of power, negligence or wilful blindness on the part of the corrections = officers=20 with respect to their constitutional obligations toward Mr. Ward. =20

[8] = ; =20 Mr. Ward cross appealed. He asserts that the damages = awarded for=20 the strip search were inadequate and should have included punitive=20 damages.

Mr. Ward=92s appeal

[9] = ; =20 On 1 August 2002, Prime Minister Chr=E9tien participated in a = ceremony to=20 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=20 in the area. At some point they received information that someone = intended=20 to attempt to throw a pie at the prime minister, an event that had = occurred=20 elsewhere a year earlier. This report had to be taken = seriously. It=20 was not a trivial matter.

[10] = ;=20 The trial judge summarized the events leading to Mr. Ward=92s = arrest as=20 follows:

[5] =20 On August 1, 2002, = Mr. Ward=20 decided to attend the ceremony for the opening of the Millennium Gate by = Prime=20 Minister Chr=E9tien. He parked his car on Keefer Street, which is = the street=20 running parallel and to the south of East Pender Street, near the = intersection=20 with Taylor Street. Mr. Ward walked to East Pender Street, where = he=20 listened to the beginning of Prime Minister Chr=E9tien=92s speech. = He then=20 traveled south on Taylor Street. This occurred shortly after the = following=20 broadcast over the police radio made by Sergeant Huffsmith, a Vancouver = police=20 officer assigned as a liaison with the R.C.M.P. for the purpose of the = Prime=20 Minister=92s visit:

There=92s a, uh, white male overheard, uh, = planning to,=20 uh, throw a pie at the Prime Minister. I=92ll just give you a=20 description. He was last seen in the area of the King Kong Kit = Kat, uh,=20 sign, uh, on the corner of, uh, Pender and Taylor. Break. = =85 He=92s=20 described as a white male, 30 to 35 years, 5 9, dark shorter hair = wearing a=20 white golf shirt or t-shirt with some red on it. Break. =85 = He, uh,=20 was wearing, uh, either jeans or shorts, they weren=92t sure, and I = guess he was,=20 uh, overheard planning to, uh, throw a pie at the Prime Minister. = If=20 anybody locates this individual, can you let us know.

At the time, Mr. Cameron, who is a white male, = was=20 wearing jeans and a t-shirt with some red on it, but his t-shirt was=20 predominately grey, his hair was grey or silver in colour and collar = length, and=20 he was in his mid-40s.

[6] = Shortly=20 thereafter, there was another radio broadcast from an unidentified = officer to=20 the effect that a male matching the description was running southbound = on Taylor=20 Street, from Pender Street. Mr. Ward was arrested on Taylor Street = and=20 taken away in a paddy wagon within the next few minutes, but the = testimony with=20 respect to the events occurring on Taylor Street varied greatly. = Mr. Ward=20 testified on his own behalf, and Sergeant Cope, Sergeant Kelly and = Constable=20 Prasobsin testified on behalf of themselves and the City of Vancouver = about=20 these events.

[11] = ;=20 The judge went on to detail the testimony of Mr. Ward and of the = three=20 police witnesses who were also defendants in the action. He = resolved the=20 conflicts in the evidence of these four witnesses as follows: =20

[40] In = assessing the=20 testimony of Mr. Ward and the police officers, I looked to evidence = outside=20 their testimony in order to determine whether it was more consistent = with the=20 testimony of Mr. Ward or the testimony of the police officers. I = have=20 concluded that Mr. Ward is mistaken in his recollection of the disputed = events=20 which occurred on Taylor Street. The evidence which has led me to = prefer=20 the testimony of the police officers on the major discrepancies in the = evidence=20 includes the following:

1. = ; =20 Mr. Ward testified that he was not running down Taylor Street, = while=20 Constable Cope testified that he was running. On the police radio=20 broadcast, Constable Cope had reported that he thought he had the male = referred=20 to in the broadcast from the unidentified officer that a male matching = the=20 description was running southbound on Taylor. The operator then = asked if=20 Constable Cope had the guy that was threatening to throw the pie. =20 Constable Cope responded that he didn=92t know if it was the guy, but = =93this is the=20 guy that was running down Taylor Street and he kinda matches the=20 description=94. Although prior consistent statements are generally = inadmissible as evidence of the truth of the contents of the statements, = Constable Cope=92s answer falls within the res gestae exception = because it=20 was made contemporaneously with little or no opportunity for = fabrication: =20 see Sopinka, Lederman and Bryant, The Law of Evidence in Canada, = 2nd ed.=20 (Butterworths: Toronto and Vancouver, 1999) at p. 323. =

2. = ; =20 Unless Constable Cope was yelling for Mr. Ward to stop, the = R.C.M.P.=20 officer at the Prime Minister=92s motorcade would not have known to stop = Mr.=20 Ward.

3. = ; =20 Constable Cope asked on the police radio broadcast for another = unit to=20 come to the scene. There would have been no need to call for a = backup unit=20 if Mr. Ward was not presenting difficulties for Constable=20 Cope.

4. = ; =20 Mr. Ward would have had his hands cuffed behind his back (as = Constable=20 Prasobsin testified was the preferred practice) if he was not making it=20 difficult for the police to handcuff him.

5. = ; =20 Unless Mr. Ward was yelling and creating a disturbance, it is = unlikely=20 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=20 the police officers beside Constable Cope=92s motorcycle, the location = where=20 Constable Cope had his dealings with Mr. Ward. Mr. Ward testified = that he=20 did not raise his voice until he was moved down Taylor Street towards = Keefer=20 Street, but he must have been yelling or screaming at an earlier point = in time=20 (as the police officers testified) in order to have drawn the attention = of the=20 camera crew to him and for the crew to have gotten in a position to have = started=20 their camera while Mr. Ward was still beside Constable Cope=92s=20 motorcycle.

6. = The Global=20 TV broadcast showed that Mr. Ward had a very agitated look on his face, = that he=20 appeared to be yelling for the benefit of the onlookers and that he was = holding=20 back as he was being escorted from Constable Cope=92s motorcycle down = Taylor=20 Street.

[12] = ;=20 After further detailing some of the police evidence concerning = the=20 reasons for the arrest of Mr. Ward, the judge concluded (paras. 45 and = 46) that,=20 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=20 attempted assault. On the basis of Mr. Ward=92s conduct in loudly = protesting=20 his detention and drawing attention to himself, the judge found that the = arrest=20 was lawful.

[13] = ;=20 Mr. Ward argues that his arrest was unlawful. He says that = he did=20 not match the description of the person sought; that although his = initial=20 detention was lawful, his continued detention was not lawful; and that = his=20 protest of his continued detention did not begin until it must have been = clear=20 to Cst. Cope that Mr. Ward did not match the description. He says = that he=20 could not be seen to have committed a breach of the peace by protesting = an=20 unlawful detention and arrest.

[14] = ;=20 Mr. Ward agrees that the police could stop him or delay him for a = short=20 time without breaching his right under s. 9 of the Charter = =93not to=20 be arbitrarily detained=94: see R. v. Mann, 2004 SCC 52, = [2004] 3=20 S.C.R. 59, at paras. 19 and 20. The police had =93reasonable = grounds=94 or=20 =93articulable cause=94 to stop him for investigative purposes. = But, he=20 contends, it had to have been very quickly known to Cst. Cope that he = did not=20 fit the description broadcast and that there was no reason to detain him = any=20 further. Therefore, the grounds for detention quickly evaporated = and the=20 constable was obliged to let him go on his way.

[15] = ;=20 In my opinion, this argument does not take into account = everything that=20 was known to Cst. Cope. Nor does it take into account all of Mr. = Ward=92s=20 conduct. The trial judge expressed his conclusion on this issue as = follows:

[55] In my view, = the=20 detention of Mr. Ward by Constable Cope was not arbitrary. = Constable Cope=20 had articulable cause to [detain] Mr. Ward for investigative purposes = or, in=20 other words, he had reasonable grounds to suspect that Mr. Ward was = connected to=20 a particular crime and to believe that his detention was = necessary. Based=20 on (i) the police radio broadcasts, (ii) the facts that Mr. Ward was = running and=20 appeared to be avoiding Constable Cope, and (iii) Mr. Ward=92s clothing = more or=20 less matched the clothing described in the first police radio broadcast, = it is=20 my opinion that Constable Cope had reasonable grounds for suspecting = that Mr.=20 Ward was connected to an assault or attempted assault of the Prime=20 Minister.

[56] I conclude = that the=20 initial detention of Mr. Ward by Constable Cope did not represent a = breach of s.=20 9 of the Charter. I also conclude that Constable Cope and = the other=20 officers did not commit the torts of assault or battery when they = handcuffed him=20 because Constable Cope had reasonable grounds to believe that Mr. Ward = may=20 attempt to escape or assault him.

[16] = ;=20 In para. 63 of his reasons, while discussing the grounds for the = arrest=20 of Mr. Ward, the trial judge observed that although Mr. Ward=92s = clothing was=20 =93fairly close=94 to the description of the suspect=92s clothing, = =93his height, hair=20 colour and length, and age were all different =85=94. Mr. Ward = contends that=20 this finding should have led the judge to conclude that there was no = reasonable=20 basis for his continued detention before he protested in such a manner = that=20 would otherwise amount to a breach of the peace.

[17] = ;=20 I disagree. The argument ignores the second factor taken = into=20 account by the judge in reaching the above conclusion =96 Mr. Ward was = running and=20 appeared to be avoiding interception. (The trial judge noted earlier in = his=20 reasons that Cst. Cope yelled at Mr. Ward to stop but Mr. Ward kept = running.)=20 These facts are not disputed on appeal and the evidence certainly = gives=20 support to them. Dissimilarities between a suspect=92s physical = description=20 and the physical appearance of the person being detained are not = necessarily=20 enough to allay reasonable suspicion. The investigating officer = could not=20 safely conclude that the broadcast description was completely = accurate. =20 The dissimilarities between description and appearance no doubt would = have been=20 enough to eliminate most people encountered by Cst. Cope after he = received the=20 broadcast. But Mr. Ward was not most people. He was in the = right=20 place at the right time, he was running and he appeared to be taking = avoiding=20 action.

[18] = ;=20 In my opinion, the trial judge did not err in finding that Cst. = Cope=92s=20 continued detention of Mr. Ward was reasonable and = justified.

[19] = ;=20 Mr. Ward=92s assertion that his arrest was unlawful is predicated = on this=20 court finding that his continued detention was unlawful. He does = not=20 contend that the trial judge erred in finding that he committed a breach = of the=20 peace by protesting a lawful detention. It follows that effect = should not=20 be given to his contention that his arrest for breach of the peace was = unlawful.=20

[20] = ;=20 Whether successful or not on the arrest issue, Mr. Ward submits = that=20 damages of $5,000 for unlawful detention were inordinately low. In = addition, he says that the trial judge erred in not awarding punitive = damages=20 against the City.

[21] = ;=20 These arguments were presented largely on the assumption that = this court=20 would find that the arrest of Mr. Ward was unlawful, but counsel made it = clear=20 in oral submissions that the argument was not limited to that = outcome. =20

[22] = ;=20 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=20 Minister left the downtown area would attract punitive damages on the = principles=20 enunciated in Hill v. Church of Scientology of Toronto, = [1995] 2=20 S.C.R. 1130. Their conduct was not egregious.

[23] = ;=20 The argument we received with respect to quantum of damages that = should=20 be paid by the City is essentially the same argument that was presented = to the=20 trial judge. This argument depends on cases in which more = substantial=20 damages were assessed in more egregious circumstances and for quite = different=20 wrongs than in the present case.

[24] = ;=20 We can interfere with the damage assessment against the City only = if the=20 trial judge applied a wrong principle of law such as taking an = irrelevant factor=20 into account or failing to consider a relevant factor, or if the damages = are so=20 inordinately low as to be a wholly erroneous estimate: see = Nance v.=20 British Columbia Electric Railway Co., [1951] 3 D.L.R. 705 = (P.C.).=20

[25] = ;=20 In assessing damages against the City, Tysoe J. (as he then was)=20 considered similar cases. He said this:

[120] Counsel for the City = of=20 Vancouver relies on decisions with more modest awards: Hewer v. = Paquette,=20 [1990] B.C.J. No. 1549 (QL) (S.C.), Forster v. MacDonald (1993), = 108=20 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=20 v. Ontario (Ministry of Attorney General), [2002] O.J. No. 4766 (QL) = (Ont.=20 Sup. Ct. of Jus.). The judgments in these cases awarded general = damages=20 for wrongful imprisonment in the amounts of $1,000, $8,000, $5,000 and = $2,500,=20 respectively.

. .=20 .

[123] The police were entitled to imprison Mr. Ward = when he=20 was arrested for breach of the peace. The commission of the tort = of=20 wrongful imprisonment arose from the failure of the police to release = him within=20 a reasonable time after the Prime Minister had left the area of the=20 ceremony. In assessing damages for wrongful imprisonment, = therefore, I am=20 not assessing damages for the imprisonment itself, but for the length of = the=20 imprisonment. In all of the circumstances, I award Mr. Ward the = sum of=20 $5,000 as general damages for the wrongful = imprisonment.

[26] = ;=20 I am not persuaded that there is any basis for this court to = interfere=20 with the assessment of damages against the City. The judge took = all the=20 arguments into account and applied reasonably similar cases in an area = in which=20 there is not much jurisprudence. No error has been = demonstrated. =20

[27] = ;=20 I would dismiss Mr. Ward=92s appeal.

City of Vancouver cross = appeal

[28] = ;=20 The City does not appeal the award of $5,000 for the extended = stay of Mr.=20 Ward in the City police lockup. The City committed the tort of = wrongful=20 imprisonment and there can be no argument that damages were not an = appropriate=20 remedy.

[29] = ;=20 The City asserts, however, that there should have been no damage = award=20 flowing from the finding of the trial judge that the seizure by the = police of=20 Mr. Ward=92s car was unreasonable and infringed Mr. Ward=92s rights = under s. 8 of=20 the Charter =93to be secure against unreasonable =85 = seizure=94. =20 The car was towed to the police compound to secure it until it could be=20 searched. However, the police officers later decided that they = lacked=20 sufficient grounds to obtain a search warrant.

[30] = ;=20 The trial judge found that if Mr. Ward had been lawfully arrested = for=20 assault or attempted assault, it would have been reasonable for the = police to=20 seize his vehicle to look for physical incriminating evidence. = Because the=20 arrest was for a breach of the peace the seizure was unreasonable. =

[31] = ;=20 The judge limited damages for this breach to $100. He found = that=20 Mr. Ward suffered no =93substantive damage as a result of the = seizure=94. He=20 described the damages as nominal. Mr. Ward does not contend that = these=20 damages should have been higher.

[32] = ;=20 In its cross appeal, the City contends that the remedy should = have been=20 limited to a declaration that there was a breach of Mr. Ward=92s=20 Charter right. This is the same point taken by the = Province=20 in its appeal and it will be convenient to determine the City=92s cross = appeal=20 within the discussion of the Province=92s appeal.

[33] = ;=20 Mr. Ward argues that the impounding of his car by the police, in = addition=20 to being a breach of his Charter right, also amounted to = the tort=20 of unlawful conversion for which, like the tort of wrongful = imprisonment, the=20 awarding of damages was an appropriate remedy. He pleaded the tort = of=20 unlawful conversion in his statement of claim but the trial judge did = not=20 discuss that aspect of the claim in his reasons. It will be = necessary to=20 consider this alternative argument only if the appeal of the Province is = successful.

Province of British=20 Columbia appeal

[34] = ;=20 The Province argues that, as a matter of law, no damages can be = assessed=20 against a government for breach of a person=92s Charter = rights by a=20 government actor absent a concurrent tort, abuse of power, negligence or = wilful=20 blindness.

[35] = ;=20 Provincial corrections officers managed the police lockup in = Vancouver at=20 the relevant time, apparently under a contractual arrangement between = the City=20 and the Province. It was the duty of the corrections officers to = secure=20 prisoners turned over to them by City police officers. They took = charge of=20 Mr. Ward=92s person while he was in custody and they subjected him to a = strip=20 search. The trial judge found this search to be=20 unreasonable.

[36] = ;=20 The trial judge noted in para. 2 that Mr. Ward =93was required to = remove=20 all of his clothes except for his underwear =85=94. Much later in = his reasons=20 he addressed the assertion made on behalf of Mr. Ward that the = unreasonable=20 strip search amounted to a civil assault:

Assault by Sergeant = Gatto

[87] Counsel for = Mr. Ward=20 submits that when Sergeant Gatto responded to Mr. Ward=92s request to = speak with=20 his lawyer by saying =93we can do this the hard way or the easy way, = you=92re not=20 helping things=94, he was threatening to use force against Mr. Ward and = thereby=20 committed an assault. He also submits that Sergeant Gatto is = liable for=20 assault and battery because the strip search of Mr. Ward by the = corrections=20 staff was done at his direction. I do not agree with either of = these=20 submissions.

[88] In order = for words=20 alone to constitute an assault, the words must create an apprehension of = imminent harm: see Linden & Feldthusen, Canadian Tort Law, at = p.=20 48. If Sergeant Gatto=92s words had been spoken in response = to Mr.=20 Ward refusing to disrobe at the time of the strip search, they may have = been=20 sufficient to create an apprehension of imminent harm. However, = the words=20 were spoken in response to Mr. Ward=92s request to speak to his lawyer, = and there=20 was no inference that Mr. Ward would be harmed if he continued to ask = for his=20 lawyer.

[89] There is no = evidence=20 that anyone assaulted or battered Mr. Ward in connection with the strip=20 search. He was asked to remove his clothes and he complied until = all of=20 his clothes other than his underwear were taken off. When he = refused to=20 take off his underwear, there was no threat of harm and, indeed, he was = told=20 that he did not have to take them off. He was never touched during = the=20 strip search. In addition, the strip search was done pursuant to = the=20 Corrections Branch=92s policy and was not done under Sergeant Gatto=92s=20 direction. During his examination for discovery, Sergeant Gatto = stated=20 that he did not know if he had the authority to make the decision to = stop the=20 strip search. In his cross examination, Mr. Coulson disagreed that = the=20 officer in charge was in charge of the Jail and said that the persons in = charge=20 of the Jail were the corrections supervisor and the officer in=20 charge.

[37] = ;=20 In this part of his reasons, the judge appears to have been = addressing=20 only the claim that Sergeant Gatto, a City employee, committed an = assault of Mr.=20 Ward by saying =93we can do this the hard way or the easy way =85=94. = There is=20 no basis for interfering with the conclusion that the words spoken by = Sargeant=20 Gatto did not amount to an assault in the context in which the court = found that=20 they were used. The opening sentence of para. 89 above amounts to = a=20 finding that the employees of the Province, the corrections officers, = did not=20 commit a civil assault during the strip search.

[38] = ;=20 Mr. Ward contends that the judge should have found that the = unreasonable=20 search by the corrections officers constituted a civil assault as well = as a=20 Charter violation. He relies mainly on the following = passage=20 from his evidence that was not mentioned by the trial judge in his=20 reasons:

Q Which=20 is the room that you were strip searched in?

A =20 Again, I=92m not sure whether I was held in the cell with the drain in = the floor=20 before I was taken into the search room, or whether I went into that = room after=20 I was searched. But they=92re separate rooms, and the room I was = searched in=20 was a rectangular room with a door at each end, windows in the door, a = table=20 along one wall, and a CCTV, closed circuit television camera in the = corner in=20 the top.

Q What=20 were your feelings or your reaction when you are about to be strip=20 searched?

A =20 Apprehension, primarily. Again, circumstances were that at this = point I=20 knew that I had been arrested; I was told it had been for breach of the = peace,=20 or for some sort of a attempted assault on the Prime Minister. = This is now=20 in August of 2002, in the post-September 11th, 2001 era; so I was = immediately=20 very concerned. And then when these two large men put the rubber = gloves on=20 and told me to take off my clothes, I was very apprehensive and I felt = worried.=20 And as I took off my clothes, I could sense I was trembling, = whether from=20 the cold or from apprehension, I'm not sure which. And I got very, = very=20 concerned when they wanted me to strip completely naked, because it was = already=20 quite demeaning and undignified, to say the least, to be standing there = in the=20 company of these strange, large men wearing blue rubber gloves in those=20 circumstances. It was most uncomfortable.

[39] = ;=20 The Province in reply says that the issue of assault by employees = of the=20 Province was not before the court. There is a pleading that the = City=20 employees, the police officers, assaulted Mr. Ward. This would = explain why=20 there was an attempt to prove that Sergeant Gatto committed an assault = during=20 the strip search. But there is no pleading in the statement of = claim that=20 employees of the Province assaulted Mr. Ward. The Province says = that it=20 relied on this absence of pleading in determining how to present its = case. =20 In particular, counsel for the Province did not call as witnesses the=20 corrections officers who instigated the strip search and then abandoned=20 it. In addition, relying on the absence of a pleading, counsel did = not=20 cross examine Mr. Ward with respect to the issue. The Province = relied on=20 the evidence of Peter Coulson to attempt to justify, in = Charter=20 terms, the strip search and the policy under which it was carried=20 out.

[40] = ;=20 Was the issue of assault by employees of the Province before the = trial=20 court and, if it was, did the trial judge err in not finding that they = committed=20 a civil assault of Mr. Ward in conducting the strip search? = Although an=20 argument can be made that the evidence of Mr. Ward reproduced above = could form=20 the basis for a finding of civil assault by the corrections officers, a = review=20 of the pleadings and the presentation of counsel=92s opening at trial = makes it=20 clear that he did not alert the Province or the court that Mr. Ward was = claiming=20 that there had been an assault by the corrections officers in conducting = the=20 unconstitutional strip search.

[41] = ;=20 The further amended statement of claim pleads the claims against = the City=20 and the Province separately and distinctly. Paragraph 34 asserts = that the=20 actions of the police officers =93constituted assault, battery and = wrongful=20 imprisonment.=94 There is no such pleading with respect to = employees of the=20 Province. The pleading against them and the Province is restricted = to=20 Charter infringement and negligence. =

[42] = ;=20 Counsel for Mr. Ward at trial provided the court with a written = opening=20 statement. Paragraph three reads: =93This case is about the = wrongful=20 arrest and treatment of Mr. Ward by the Vancouver Police staff at the = Vancouver=20 Jail. The treatment constitutes assault, battery, breach of his = Charter=20 rights, and false imprisonment.=94 There is no specific assertion = in the=20 document that the strip search constituted an assault by the employees = of the=20 Province and I am unable to find anything in paragraph three that would = bring to=20 the attention of the defence or the court that Mr. Ward was alleging a = tort not=20 pleaded. In addition, in his oral opening to the court, Mr. = Ward=92s counsel=20 specifically alleged an assault by the police officers during the arrest = but did=20 not allege an assault by the corrections officers during the strip = search. =20 This was consistent with the pleading.

[43] = ;=20 Counsel and the court conducted this trial with careful regard = for what=20 had been pleaded. This is illustrated by an objection taken by = counsel for=20 the Province to one aspect of the oral opening of counsel for Mr. = Ward. =20 Counsel told the court that it was alleged that the City and the = Province were=20 jointly and severally liable for what took place in the lockup. = This=20 assertion is also found in the written opening. The objection was = that=20 joint and several liability had not been pleaded. After hearing = argument,=20 Tysoe J. ruled that the issue could not be pursued absent a further = amendment to=20 the statement of claim. Counsel later told the court that he had=20 instructions not to seek an amendment to plead joint and several=20 liability. In this refreshingly correct procedural atmosphere, it = would be=20 inconsistent to consider a cause of action with respect to which the = parties=20 never joined issue.

[44] = ;=20 There was no suggestion during the hearing of this appeal that = there was=20 a claim of civil assault against the Province or the corrections = officers argued=20 in closing submissions at trial. We must assume that it was not = raised at=20 that time. Had it been raised, there can be no doubt that counsel = for the=20 Province would have objected. The trial judge did not canvas the = issue in=20 his reasons for judgment and referred to it only incidentally as I have=20 indicated. That can only be because the issue was not before = him. =20

[45] = ;=20 From all of this it is apparent that the issue was raised in this = court=20 for the first time. We have not been asked to further amend the = statement=20 of claim and are not able to determine on the material before us the = extent to=20 which the Province would be prejudiced if we dealt with the issue in the = first=20 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=20 addition to an infringement of his s. 8 Charter = right. =20

[46] = ;=20 The issue, therefore, is as stated by the Province: under = s. 24(1)=20 of the Charter, are damages an available remedy when the=20 Charter breach was not accompanied by a tort and was not = the=20 product of bad faith?

[47] = ;=20 The Province does not dispute the finding that the search was=20 unreasonable and a breach of Mr. Ward=92s rights under s. 8 of the=20 Charter. But it does hinge its argument as to remedy = on two=20 findings of the trial judge: first, with respect to the strip search, = =93that none=20 of the pleaded torts was committed=94 (para. 105); and, second, that the = actions=20 of the employees of the Province who conducted the strip search =93were = not=20 malicious, high-handed or oppressive=94 and that the implementation of = the=20 strip-search policy was based on legal advice (para. 128). The = judge=20 clearly concluded that the Charter breach was not = committed by the=20 employees of the Province in bad faith or through indifference to Mr. = Ward=92s=20 Charter rights. Nor was there any suggestion in this = case=20 that the policy under which the strip search was conducted was the = product of=20 institutional bad faith or was created for any improper purpose. = These are=20 conclusions that are explicitly stated in the reasons for judgment or = are=20 implicit therein. In my opinion, they are not assailable by Mr. = Ward on=20 appeal. They form the basis of the issue raised by the = Province. =20

[48] = ;=20 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,=20 as guaranteed by this Charter, have been infringed or denied may apply = to a=20 court of competent jurisdiction to obtain such remedy as the court = considers=20 appropriate and just in the circumstances.

[49] = ;=20 There are appellate cases that deal with the availability of = damages as a=20 remedy when the court strikes down legislation because the legislation = breaches=20 the Charter rights of a segment of society (Mackin = v. New=20 Brunswick, 2002 SCC 13, [2002] 1 S.C.R. 405), or strikes down=20 articulated government policy (Wynberg v. Ontario (2006), = 82 O.R.=20 (3d) 561, 269 D.L.R. (4th) 435). Generally speaking, in those=20 circumstances, a declaration of breach is the only available remedy in = the=20 absence of bad faith, abuse of power or negligence. But there do = not=20 appear to be any cases at the appellate level that determine whether = damages are=20 an appropriate remedy under s. 24(1) when, without bad faith and without = the=20 commission of any other civil wrong, direct actions by agents of = government,=20 while exercising statutory powers or duties or implementing government = policy,=20 breach a person=92s Charter rights. I would think = that, as in=20 the present case, such a situation would arise most often in the context = of=20 detention, arrest and confinement by government agents charged with = criminal=20 investigation and public safety duties.

[50] = ;=20 The trial judge relied upon four cases at the trial level in = which civil=20 damages were awarded under s. 24(1) for Charter breaches = arising=20 out of direct action by agents of government. He said this:=20

[111] There have been a = number of=20 judgments which have granted damages for violations of the = Charter=20 without proof of malice, bad faith or negligence: see, for example, = Morin v.=20 Prince Edward Island Regional Administrative Unit No. 3 School Board = (2005),=20 254 D.L.R. (4th) 410 (P.E.I.S.C.A.D.), Hawley v. Bapoo (2005), 76 = O.R.=20 (3d) 649 (Ont. Sup. Ct.) and Bevis v. Burns (2006), 269 D.L.R. = (4th)=20 696 (N.S.C.A.). With specific reference to strip searches = where no=20 tort has been committed, the Federal Court held in Blouin v. R. = (sub.=20 nom. Blouin v. Canada) (1991), 51 F.T.R. 194 (T.D.) at =B6 24 that a = person=20 who was unreasonably strip searched was entitled to damages in addition = to a=20 declaration. If the Ontario Court of Appeal had intended in = Wynberg=20 to disapprove of these and other decisions, one would have expected = more=20 than a single paragraph of obiter dicta making no reference to = any of the=20 contrary decisions.

[51] = ;=20 As of the date of Mr. Ward=92s arrest, the legal power to search = a prisoner=20 in the provincial corrections system was found in s. 19 of the=20 Correctional Centre Rules and Regulations, B.C. Reg. = 284/78, which=20 was in force pursuant to the Correction Act, R.S.B.C. = 1996, c.=20 74. The section then read:

19 (1) On admission of an inmate to a = correctional=20 centre the person of the inmate and his possessions shall be searched by = an=20 officer of the same gender as the inmate.

(2) Once an inmate has been = admitted to=20 a correctional centre an officer shall only conduct such further = searches=20 where

(a) the director so authorizes,=20 or

(b) an officer has reasonable and = probable grounds=20 to believe that the inmate is in possession of any contraband, in which = case the=20 officer shall search the inmate and provide a written report to the = director=20 within 12 hours.

[52] = ;=20 There was no specific statutory authorization to conduct strip=20 searches. However, it is common ground that it is necessary for = the=20 security of the lockup and for the safety of the prisoners and staff = that such=20 searches must be done in certain circumstances. At the police = lockup in=20 Vancouver, a written policy was in place on the date of Mr. Ward=92s = arrest. =20 Peter Coulson was then employed by the Province as the director of = operations at=20 the lockup. He testified that strip searches were conducted of all = new=20 prisoners other than persons arrested for drunkenness and for bylaw=20 offences. The former were held separately from the general = population of=20 the lockup and the latter were booked and released. The trial = judge found=20 that this practice was contrary to the written policy of the Corrections = Branch=20 for this particular lockup. He reproduced the policy at para. 83 = of his=20 reasons and then continued with his analysis:

[83] = =85

A strip search will be done for = new=20 prisoners; it is deemed necessary because of the = following:

=B7 = ; =20 the = seriousness of the=20 offence

=B7 = ; =20 charges = against the=20 prisoner are associated with evidence hidden on the = body

=B7 = ; =20 at the time = of the=20 arrest, weapons were involved

=B7 = ; =20 the accused = is known to=20 be violent and/or to carry weapons

=B7 = ; =20 there is = possible danger=20 to personnel and prisoners in the Jail

A strip search will not usually = be done on a=20 Bylaw offender unless there is a threat to the safety and security of = the=20 Jail.

In my view, the policy is ambiguous. It = begins by=20 stating that strip searches will be done for new prisoners, which one = would=20 assume, without reading more, meant all new prisoners. It = then=20 lists the reasons for the policy, but they are more in the nature of = factors to=20 be considered when deciding whether to strip search a new = prisoner. The=20 policy concludes by stating that strip searches will not usually be done = on=20 bylaw offenders, which suggests that the opening words of the policy did = not=20 mean that all new prisoners are to be strip searched. The policy = does not=20 mention drunken persons.

[84] On reading = the policy=20 as a whole, it is my view that the =93reasons=94 are actually factors to = be=20 considered in deciding whether a strip search should be conducted. = However, it appears that Mr. Coulson or someone else decided that all = new=20 entrants to the Jail, other than bylaw offenders and drunken persons, = represent=20 a possible danger to personnel and prisoners in the = Jail.

[85] If the = factors are=20 applied to Mr. Ward, he would not fit the criteria for a strip search = any more=20 than bylaw offenders and drunken persons. He did not commit a = serious=20 offence, he was not charged with an offence associated with evidence = being=20 hidden on the body, no weapons were involved and Mr. Ward was not known = to be=20 violent or to carry weapons. Constable Prasobsin testified that = Mr. Ward=20 had calmed down by the time he reached the Jail, and there was no reason = to=20 believe that Mr. Ward represented a danger to the personnel and = prisoners in the=20 Jail. As there was no threat to the safety and security of the = Jail, I=20 conclude that the strip search of Mr. Ward was not in accordance with = the=20 Corrections Branch=92s written policy.

[86] I conclude = that Mr.=20 Ward=92s Charter right under s. 8 to be secure against = unreasonable search=20 was infringed because his strip search was not in accordance with the=20 Corrections Branch=92s written policy or, if it was conducted in = accordance with=20 it, the policy was unreasonable to permit strip searches of persons = being held=20 for a breach of the peace in the absence of any threat to the safety and = security of the Jail.

[Italics in=20 original]

[53] = ;=20 Thus the Charter breach arose out of the improper=20 implementation of written policy. There was a failure by those=20 implementing it to understand that the policy did not warrant a strip = search of=20 Mr. Ward. This rendered the search unreasonable and a breach of = Mr. Ward=92s=20 rights under s. 8. As I have said, the Province does not contest = this=20 finding.

[54] = ;=20 The argument of the Province begins with the general proposition = that=20 there is no remedy in law for an exercise of statutory discretion that = is=20 wrongly but honestly exercised: see, for example, Welbridge = Holdings Ltd.=20 v. Greater Winnipeg, [1971] S.C.R. 957, and D.E. v. = British=20 Columbia, 2003 BCSC 1013, rev=92d 2005 BCCA 134. To = succeed, the=20 plaintiff must prove bad faith on the part of the government = actor. =20 Neither of these cases is a Charter case and neither = involved a=20 broad discretion as to remedy as is found in s. 24(1) thereof. =20

[55] = ;=20 The Province contends, however, that the Charter is = a=20 statute to which the same rule must apply. Public officials are = faced with=20 competing demands and should not be faulted for favouring one of those = demands=20 over others in the exercise of their discretion, even if the unintended = result=20 is a breach of a Charter right of an individual affected = by the=20 exercise of discretion. The present case is an example. The=20 corrections officers had to choose between invading Mr. Ward=92s privacy = and the=20 safety of other prisoners and staff. Making the other choice, the = argument=20 continues, might have exposed them to liability to others if, not having = been=20 strip searched, Mr. Ward later produced a weapon and caused injury to = somebody=20 else in the lockup.

[56] = ;=20 To attempt to make its argument applicable to a = Charter=20 case, the Province relies on Mackin and=20 Wynberg,

[57] = ;=20 In Mackin, the court was concerned with the = constitutional=20 validity of legislation affecting the supernumerary status of Provincial = Court=20 judges. The court declared the legislation invalid. The = court went=20 on to hold that the Crown enjoys a qualified immunity from an award of = damages=20 for a Charter breach when its representatives, without = acting=20 negligently or in bad faith, apply legislation that is subsequently = declared to=20 be invalid. Gonthier J. said this:

Damages

78 = According=20 to a general rule of public law, absent conduct that is clearly wrong, = in bad=20 faith or an abuse of power, the courts will not award damages for the = harm=20 suffered as a result of the mere enactment or application of a law that = is=20 subsequently declared to be unconstitutional (Welbridge Holdings Ltd. = v.=20 Greater Winnipeg, [1971] S.C.R. 957; Central Canada Potash Co. v. = Government of Saskatchewan, [1979] 1 S.C.R. 42). In other = words=20 "[i]nvalidity of governmental action, without more, clearly should not = be a=20 basis for liability for harm caused by the action" (K. C. Davis,=20 Administrative Law Treatise (1958), vol. 3, at p. 487). In = the=20 legal sense, therefore, both public officials and legislative bodies = enjoy=20 limited immunity against actions in civil liability based on the = fact=20 that a legislative instrument is invalid. With respect to the = possibility=20 that a legislative assembly will be held liable for enacting a statute = that is=20 subsequently declared unconstitutional, R. Dussault and L. Borgeat = confirmed in=20 their Administrative Law: A Treatise (2nd ed. 1990), vol. 5, at = p. 177,=20 that:

= =20 In our parliamentary system of government, Parliament or a legislature = of a=20 province cannot be held liable for anything it does in exercising its=20 legislative powers. The law is the source of duty, as much for = citizens as=20 for the Administration, and while a wrong and damaging failure to = respect the=20 law may for anyone raise a liability, it is hard to imagine that either=20 Parliament or a legislature can as the lawmaker be held accountable for = harm=20 caused to an individual following the enactment of legislation. = [Footnotes=20 omitted.]

79 = However, as=20 I stated in Guimond v. Quebec (Attorney General), supra, since = the=20 adoption of the Charter, a plaintiff is no longer restricted to = an action=20 in damages based on the general law of civil liability. In theory, = a=20 plaintiff could seek compensatory and punitive damages by way of = "appropriate=20 and just" remedy under s. 24(1) of the Charter. The limited = immunity given to government is specifically a means of creating a = balance=20 between the protection of constitutional rights and the need for = effective=20 government. In other words, this doctrine makes it possible to = determine=20 whether a remedy is appropriate and just in the circumstances.=20 Consequently, the reasons that inform the general principle of = public law=20 are also relevant in a Charter context. Thus, the = government and=20 its representatives are required to exercise their powers in good faith = and to=20 respect the "established and indisputable" laws that define the = constitutional=20 rights of individuals. However, if they act in good faith and = without=20 abusing their power under prevailing law and only subsequently are their = acts=20 found to be unconstitutional, they will not be liable. Otherwise, = the=20 effectiveness and efficiency of government action would be excessively=20 constrained. Laws must be given their full force and effect as long as = they are=20 not declared invalid. Thus it is only in the event of conduct that is = clearly=20 wrong, in bad faith or an abuse of power that damages may be awarded = (Crown=20 Trust Co. v. The Queen in Right of Ontario (1986), 26 D.L.R. (4th) = 41 (Ont.=20 Div. Ct.)).

80 = Thus, it is=20 against this backdrop that we must read the following comments made by = Lamer=20 C.J. in Schachter, supra, at p. 720:

= =20 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,=20 1982. Ordinarily, where a provision is declared = unconstitutional and=20 immediately struck down pursuant to s. 52, that will be the end of = the=20 matter. No retroactive s. 24 remedy will be available. = [Emphasis=20 added.]

81 = In short,=20 although it cannot be asserted that damages may never be obtained = following a=20 declaration of unconstitutionality, it is true that, as a rule, an = action for=20 damages brought under s. 24(1) of the Charter cannot be combined = with an=20 action for a declaration of invalidity based on s. 52 of the = Constitution=20 Act, 1982.

[58] = ;=20 The Province argues that this is the law that applies = categorically to=20 Charter breaches of all kinds, with the resulting = conclusion that=20 damages are not an available remedy to Mr. Ward for the strip = search. I do=20 not read Mackin as standing for such a broad = proposition. =20 Although the above passage includes a discussion of the actions of = government=20 agents, it is in the context of their actions being under legislation=20 subsequently declared to be in breach of a Charter = right. =20 The constitutional validity of legislation is not in issue here. = Mr. Ward=20 did not combine his claim for damages with a claim under s. 52 of the=20 Constitution Act, 1982. I do not read = Mackin=20 in such a way as to preclude a claim for damages in cases like the one = before=20 us.

[59] = ;=20 The Ontario Court of Appeal applied Mackin in=20 Wynberg. That case arose out of ministerial policy=20 formulated under a statutory provision that gave the provincial Minister = of=20 Child and Family Services a broad discretion to provide services and = establish=20 programs. The policy provided for intensive behavioural = intervention=20 for autistic children from ages two to five but not for school-aged = autistic=20 children. The trial judge found that the policy was discriminatory = under=20 s. 15 of the Charter and made a declaratory order to that=20 effect. He also awarded damages to the parents of 35 autistic = children who=20 had brought the proceedings. The appeal court overturned the = finding of a=20 Charter breach. After stating the general principle = found in=20 Mackin, the court dealt with the remedy issue, in = obiter=20 dictum, as follows:

[194] While=20 the rule against combining damages with declaratory relief has been = articulated=20 in cases where the declaration of invalidity is sought against = legislation, we=20 see no principled basis on which to limit the application of this rule = to cases=20 where a statute, rather than some other government action, is declared=20 unconstitutional. Support for this view can be found in the above = quoted=20 passage from Mackin, in which the Supreme = Court=20 refers to the "exercise of their powers" and "government action", rather = than=20 legislation per = se. Moreover, the reasons underlying the general = prohibition=20 against damages where declaratory relief is granted apply with equal = force=20 whether the declarations are made as a result of a challenge to = legislation=20 under s. 52 of the Constitution Act, 1982 or, as = in this=20 case, where the challenge is to some action taken under legislation that = is said=20 to infringe a Charter right and relief is = sought=20 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=20 conduct of government agents. Striking down government policy on=20 Charter grounds is more akin to striking down legislation = than it=20 is to the circumstances of the present case.

[60] = ;=20 I take more instruction on the issue at hand from = Doucet-Boudreau=20 v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 = S.C.R. 3,=20 than I do from Mackin. Judgment in that case was = given a=20 year after Mackin and before Wynberg. = In=20 Doucet-Boudreau, the issue was whether a trial judge, = having found=20 a breach of language rights under s. 23 of the Charter, = could=20 retain jurisdiction to receive reports on government efforts to = ameliorate the=20 breach within the provincial secondary school system. The Court of = Appeal=20 of Nova Scotia had struck down that provision in the order. The = majority=20 in the Supreme Court of Canada restored the provision and commented on = the scope=20 of the available remedy. Although their comments were made in the = context=20 of a s. 24(1) remedy for a breach of s. 23 (minority language = educational=20 rights), I think they are properly seen to be of more general = application than=20 the comments quoted above from Mackin. Iacobucci and = Arbour=20 J.J. wrote this:

23 = It is well accepted that the Charter should be given a = generous and=20 expansive interpretation and not a narrow, technical, or legalistic one = (Hunter v. Southam=20 Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., = [1985] 1=20 S.C.R. 295; Re = B.C. Motor=20 Vehicle Act, [1985] 2 S.C.R. 486 ; Reference re Prov. Electoral Boundaries=20 (Sask.), [1991] 2 S.C.R. 158; Vriend v. Alberta, [1998] 1 = S.C.R.=20 493). The need for a generous interpretation flows from the = principle that=20 the Charter=20 ought to be interpreted purposively. While courts must be careful = not to=20 overshoot the actual purposes of the Charter's guarantees, they = must avoid a=20 narrow, technical approach to Charter interpretation which = could=20 subvert the goal of ensuring that right holders enjoy the full benefit = and=20 protection of the Charter. = ...

24 = The requirement of a generous and expansive = interpretive=20 approach holds equally true for Charter remedies as for Charter = rights=20 (R. v.=20 Gamble, [1988] 2 S.C.R. 595; R. v. Sarson, [1996] 2 S.C.R. = 223;=20 R. v. 974649 = Ontario=20 Inc., [2001] 3 S.C.R. 575, 2001 SCC 81 ("Dunedin")).=20 ...

25 = Purposive interpretation means that remedies = provisions=20 must be interpreted in a way that provides "a full, effective and = meaningful=20 remedy for Charter violations" since "a = right, no=20 matter how expansive in theory, is only as meaningful as the remedy = provided for=20 its breach" (Dunedin,=20 supra, at paras. 19-20). A purposive approach to = remedies in=20 a Charter=20 context gives modern vitality to the ancient maxim ubi jus, ibi remedium: = where=20 there is a right, there must be a remedy. More specifically, a = purposive=20 approach to remedies requires at least two things. First, the = purpose of=20 the right being protected must be promoted: courts must craft responsive=20 remedies. Second, the purpose of the remedies provision must be = promoted:=20 courts must craft effective=20 remedies.

[Emphasis in=20 original]

[61] = ;=20 I consider that neither the Supreme Court of Canada decision in=20 Mackin nor the Ontario Court of Appeal decision in=20 Wynberg stands for the broad proposition stated by the=20 Province. Neither of those cases purports to determine the = availability of=20 damages in law for Charter breaches of the sort that = occurred in=20 the present case. Indeed, I think the language of each was = probably=20 crafted to leave for later consideration the issue that is now before = this=20 court.

[62] = ;=20 In my opinion, there is a significant difference between breach = of a=20 Charter right that results in the striking down of a law = enacted=20 by a legislature, or by the executive branch of government, and breach = of a=20 Charter right by the actions of government agents. =20 Declaratory relief is the obvious remedy for the former. It is an = end in=20 itself because it strikes down or, in some cases, reads down the = offending law=20 or policy to the extent that the law or policy breaches = Charter=20 rights. This means that those affected by the law are not = disadvantaged by=20 it or denied its benefits, as the case may be. The remedy does not = just=20 redress a past wrong. It also affects rights and liabilities in = the=20 future.

[63] = ;=20 For the kind of breach that occurred in the present case, = however, only a=20 past wrong is under consideration. A declaration of breach, = therefore, has=20 no ongoing benefit and is not a remedy at all. It is really = nothing more=20 than a finding of fact that may not, by itself, effectively redress the = past=20 wrong. To require that the breach be accompanied by a tort or by = bad faith=20 to justify an award of damages in many cases will give to the victim of = the=20 breach only a pyrrhic victory, not a true remedy. Because the = breach would=20 not usually affect anybody other than the party directly involved, = limiting the=20 available remedy as suggested by the Province would render the = individual rights=20 provisions in the Charter less than purposive in many = cases. =20 Depending on the circumstances of the particular case, the remedy might = be=20 neither responsive nor effective. This is the case with respect to = the=20 strip search of Mr. Ward because it amounted to a significant=20 Charter breach.

[64] = ;=20 I do not suggest that an award of damages is the appropriate = remedy in=20 all cases in which a government actor has breached a person=92s=20 Charter rights. Section 24(1) vests the court with a = broad=20 judicial discretion to grant =93such remedy as the court considers = appropriate and=20 just in the circumstances.=94 Appropriate and just remedies must = be=20 determined judicially from case to case. In the present case, I = would not=20 interfere with the trial judge=92s exercise of discretion to award = damages for the=20 unreasonable search.

[65] = ;=20 I also would not interfere with the discretionary decision to = award=20 nominal damages for the seizure of Mr. Ward=92s car. Likewise I = would not=20 have interfered had the trial judge decided to simply acknowledge the=20 unreasonable seizure and award no damages for it. =

[66] = ;=20 I would dismiss the Province=92s appeal and the City=92s cross = appeal.=20

Mr. Ward=92s cross = appeal

[67] = ;=20 Mr. Ward=92s cross appeal is based on the assertion that the = award of=20 damages of $5,000 for the strip search was inordinately low. He = also says=20 that he should have recovered punitive damages.

[68] = ;=20 The claim for punitive damages is without = merit.

[69] = ;=20 In assessing damages against the Province, the trial judge said=20 this:

[125] I turn next to the matter of damages for the = strip=20 search. Phillips v. Nagy [2005 ABQB 26, aff=92d 2006 ABCA = 227], where=20 $150,000 in general damages were awarded, involved egregious=20 circumstances. The plaintiff suffered the indignity of body cavity = searches, three enemas and induced vomiting. She suffered = psychological=20 injuries, and became a dependent adult who was unlikely to experience a = full=20 recovery. This is a far cry from the manner and effect of the = strip search=20 of Mr. Ward.

[126] In addition to the = authorities=20 relied upon by counsel, I have considered the amounts of the damages = awarded in=20 Blouin and Ilnicki. In Blouin [(1991) 51 = F.T.R. 194=20 (T.D.)], the Federal Court granted general damages in the amount = of=20 $5,000 for a strip search conducted of a penitentiary guard by his=20 superiors. The plaintiff had been required to take off all of his = clothes=20 and do a full turn in front of two superiors. In Illnicki, = the=20 plaintiff had refused to co-operate with the strip search, and the = police used=20 force in taking off all of his clothes, including his underwear. = As a=20 result of the force used by the police, the plaintiff sustained injuries = to his=20 arm and shoulder. The Alberta Queen=92s Bench (whose decision is = cited as=20 2003 ABQB 465) awarded the plaintiff $5,000 damages for the breach of = his s. 8=20 rights and $6,000 damages for pain and suffering. The quantum of = the=20 damages was not cross-appealed when the police appealed the finding of = their=20 liability to the Alberta Court of Appeal.

[127] In the present case, = the strip=20 search of Mr. Ward did not involve the removal of his underwear and = exposure of=20 his genitals. While the Supreme Court of Canada commented at =B6 = 90 of=20 Golden [2001 SCC 83] that strip searches are inherently=20 humiliating and degrading for detainees, a strip search which does not = involve=20 the removal of the detainee=92s underwear is less humiliating and = degrading than=20 searches involving the removal of all clothing such as the strip = searches=20 conducted in Blouin and Ilnicki. Although Mr. Ward = testified=20 that the whole experience shook his core beliefs about the rule of law, = he did=20 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=20 search, I award Mr. Ward the sum of $5,000 against the Provincial = Government for=20 the infringement of his right under s. 8 of the Charter to be = secure=20 against unreasonable search. =20

[70] = ;=20 Mr. Ward has not presented a persuasive argument for this court = to=20 interfere with the damage award against the Province. =

Conclusion

[71] = ;=20 I would dismiss both appeals and both cross = appeals.

=93The=20 Honourable Mr. Justice Low=94

I agree:

=93The = Honourable Chief=20 Justice Finch=94

Reasons for Judgment of the Honourable Madam = Justice=20 Saunders:

[72] = ;=20 I have had the privilege of reading the draft reasons for = judgment of Mr.=20 Justice Low. I agree with him that Mr. Ward=92s appeal and cross = appeal=20 should be dismissed. Respectfully, however, I have reached a = different=20 conclusion on the appeal by the Province of British Columbia and the = cross=20 appeal by the City of Vancouver of the awards of damages in favour of = Mr. Ward=20 for breach of his rights under s. 8 of the Charter of Rights and=20 Freedoms. I would allow that appeal and cross=20 appeal.

[73] = ;=20 I turn first to the appeal of the Province of British = Columbia. Any=20 discussion of this appeal must start with an acknowledgement the strip = search of=20 Mr. Ward was, in the circumstances, an affront to Mr. Ward=92s privacy = and=20 personal dignity, as well as a breach of his right under s. 8 of the=20 Charter, and is to be viewed as a serious matter: see, for = example,=20 R. v. Briggs (2001), 55 O.R. (3d) 417 at para. 35, = 157 C.C.C. (3d)=20 38 (Ont. C.A.), leave to appeal ref=92d [2002] S.C.C.A. No. 31; = R. v. Golden,=20 2001 SCC 83, [2001] 3 S.C.R.=20 679.

[74] = ;=20 The search of Mr. Ward was conducted by corrections officers, but = just as=20 the trial judge viewed the reasonableness of the search with reference = to the=20 basis of the arrest (breach of the peace), so do I see the = responsibility of=20 those corrections officers to Mr. Ward as influenced by the proper = attitude of=20 the police to him.

[75] = ;=20 The fundamental role of a police officer, referred to by the = historic=20 common law appellation =93constable=94 in the organizing statute for = municipal=20 police forces (of which the Vancouver Police Department is the largest = in the=20 province), the Police Act, R.S.B.C. 1996, c. 367, is revealed in = the oath=20 required by s. 70 of each officer, which reads in = part:

I = will, to the=20 best of my power, cause the peace to be kept and prevent all offences = against=20 the persons and properties of Her Majesty's subjects;

(Police Oath/Solemn=20 Affirmation Regulation, B.C. Reg. = 136/2002,=20 s.1.)

[76] = ;=20 The =93constable=94 municipal policing model is not one in which = the officer=20 is primarily the instrument of the state; rather, it is fashioned to = emphasize=20 the officer=92s pre-eminent responsibility as a peace officer, and his = dual but=20 equal duties to keep the peace and to prevent offences. This model = promotes the exercise of independent judgment taken on behalf of the = community=20 as a whole. That community, by definition, includes the person=20 arrested.

[77] = ;=20 The actions of the police led to Mr. Ward=92s detention and = brought him to=20 the city jail. By a contract between the City of Vancouver and the = Province of British Columbia, the jail is staffed by corrections = officers=20 employed by the Province and one called the officer in charge. = This=20 arrangement is relatively new. Historically, the jail was staffed = by=20 members of the Vancouver Police Department without the assistance of = corrections=20 officers, a situation that led to several reports and recommendations = for=20 change: see, for example, British Columbia, Royal Commission of = Inquiry=20 into the Alleged Injuries Sustained by Michael Albert Jacobsen During = his=20 Detention in the Vancouver City Police Jail, Commissioner=92s Report=20 (Vancouver: The Commission, 1988).

[78] = ;=20 Given this background, I consider the context in which these = corrections=20 officers work engages their individual responsibility to apply their = judgment in=20 the performance of their duties even more so than may usually be the = case, in=20 addition to their employment obligation to have an eye to existing = policies of=20 their employer.

[79] = ;=20 Liability was not found, however, on the basis of any individual = errors=20 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=20 alternative either the search was not in accordance with the = employer=92s written=20 policy, or, if it was in accordance with this policy, =93the policy was=20 unreasonable to permit strip searches of persons being held for a breach = of the=20 peace in the absence of any threat to the safety and security of the=20 Jail=94.

[80] = ;=20 The question is whether either of these alternatives should lead = to=20 damages against the Province as an =93appropriate and just=94 remedy = under s. 24 of=20 the Charter. In my view, given the trial judge did not find = wilful=20 malice or bad faith, the answer is no.

[81] = ;=20 I will deal first with the second alternative for finding the = search was=20 unreasonable, namely that the policy itself was unreasonable. = While this=20 case was not framed as an action for a declaration as to the = constitutionality=20 of the policy, in my view, by seeking a declaration of infringement of = Mr.=20 Ward=92s Charter = rights, it had that = effect. In such cases, I = understand=20 damages are not usually the preferred remedy. I consider the words = of=20 Justice Gonthier in Mackin v. New Brunswick (Minister of = Finance), 2002=20 SCC 13, [2002] 1 S.C.R. 405, replicated by Mr. Justice Low, equally = applicable=20 to a case in which policy (governmental) is the basis for the impugned=20 behaviour:

[79] . . . Thus, the government and its = representatives=20 are required to exercise their powers in good faith and to respect the=20 =93established and indisputable=94 laws that define the constitutional = rights of=20 individuals. However, if they act in good faith and without = abusing their=20 power under prevailing law and only subsequently are their acts found to = be=20 unconstitutional, they will not be liable . . .

[82] = ;=20 I turn now to the trial judge=92s first alternative for finding = that the=20 search was unreasonable, namely that the search was not in accordance = with the=20 policy. On this reasoning, liability turned on a mistake made by = the=20 corrections officers as to the meaning of the policy, rather than on a = faulty=20 policy. Although the trial judge did not frame it in this fashion, = it=20 appears to me he approached this issue as an honest but mistaken belief = on the=20 part of the corrections officers as to the correct search procedure to=20 employ. If this is so, I do not consider that damages should lie, = given=20 the trial judge did not conclude there was wilful malice or bad faith, = and=20 instead found the corrections officers =93were not malicious, = high-handed or=20 oppressive=94, and given the claim in tort against the Province, framed = in=20 negligence, did not succeed.

[83] = ;=20 At this time the subject of damages as a s. 24 remedy for = Charter breach lacks a = framework of=20 principles for both liability and quantum unlike many other areas of = Charter=20 jurisprudence and unlike the law of damages in other fields in which = principles are well developed. I consider it salutary that = principles be=20 developed, both as to liability and quantum, so as to allow members of = the=20 community, with confidence, to predict liability and quantum, and, with=20 confidence, to settle disputes knowing they are within the likely = parameters of=20 a judicial decision.

[84] = ;=20 The general objective of damages at common law is compensation = for=20 loss. Where, as here, the wrong did not cause pecuniary loss, = (unlike, for=20 example, Auton v. British Columbia (Attorney General), 2002 BCCA = 538, 6=20 B.C.L.R. (4th) 201, rev=92d on the issue of liability 2004 SCC 78, = [2004] 3 S.C.R.=20 657, and Wynberg v. Ontario (2006), 82 O.R. (3d) 561, 269 = D.L.R.=20 (4th) 435 (Ont. C.A.), leave to appeal ref=92d [2006] S.C.C.A. No. 441) = the basis=20 for the award is less than apparent.

[85] = ;=20 For damages under s. 24 of the Charter, one basis may be, = as with=20 other Charter remedies, to =93correct=94 behaviour of the persons = who have=20 caused the Charter infringement, or to provide rebuke. On = this=20 theory, damages are not so much intended to compensate the wronged = individual as=20 to censure the persons who have breached his or her rights. Where, = as=20 here, neither malice nor bad faith is found, and where, as the trial = judge seems=20 to hold, the individuals conducting the search thought they were acting = in=20 accordance with a policy, there seems to me to be little accomplished by = an=20 award of damages that is not already accomplished by a trial process = calling=20 attention to their error. In other words, on the findings of the = trial=20 judge as to the state of mind of the corrections officers, I do not = consider=20 =93correction=94 a sound basis on which to award damages. Nor = would an=20 objective of punishment or sanction be appropriate absent a finding of a = faulty=20 state of mind.

[86] = ;=20 An alternative basis for an award of damages under s. 24 of the=20 Charter may be as compensation for loss from injury, much as in = the law=20 of negligence. But here, I would suggest, the incremental = development of=20 the law of negligence, particularly with respect to persons fulfilling = public=20 responsibilities, is instructive. The caution applied by courts = where=20 compensation comes from the public purse and where the official=92s = actions are=20 committed in the exercise of discretion on behalf of the public, without = malice=20 or bad faith, soundly establishes that not every loss arising from a = mistake=20 made by a public official is compensable.

[87] = ;=20 A conclusion that non-pecuniary damages may be awarded absent = negligence=20 or another tort in these circumstances, I suggest, would create two = classes of=20 wrongs, with a s. 24 action for damages available as a =93fall-back=94 = to an action=20 in tort in the event a tort cannot be established. In this, I = agree with=20 Mr. Justice Spencer in Stenner v. British = Columbia=20 (Securities Commission) (1993), 23 Admin. = L.R. (2d)=20 247 at para. 78 (B.C.S.C.), aff=92d 141 D.L.R. (4th) 122 (B.C.C.A.), = leave to=20 appeal ref=92d [1996] S.C.C.A. No. 595. See also McGillivary v. = New=20 Brunswick (1994), 149 N.B.R. = (2d) 311,=20 116 D.L.R. (4th) 104 (C.A.), leave to appeal ref=92d [1994] S.C.C.A. No. = 408.

[88] = ;=20 A third basis for a Charter damages award under s. 24 may = be=20 simply as a marker =96 a recognition =96 of the Charter = breach.=20 In that sense nominal damages may be appropriate. = However, this=20 appears to me to be a form of strict liability. Such an approach = seems to=20 me problematic given the number of occasions in which such damages are = not=20 awarded, and would carry the potential for = arbitrariness.

[89] = ;=20 Here no tort was committed by the corrections officers, and the = question=20 becomes whether there should be strict liability for damages for a = Charter=20 breach. In my view, the answer is no. I consider, absent = a tort,=20 that something more is required, whether it is a degree of deliberation = in the=20 Charter breach, wilful blindness, or bad faith. In other = words, I=20 do not consider damages should be awarded for a Charter breach = where the=20 trial judge is satisfied the individuals in question, without = mala = fides, simply made a mistake as to the proper course = of=20 action.

[90] = ;=20 In conclusion, I consider that the general theory of the law of = damages=20 does not support an award of damages pursuant to s. 24 of the = Charter=20 against corrections officers who, in the course of their employment and = without=20 malice or bad faith, made a mistake and misinterpreted a government = policy as=20 requiring the search in issue.

[91] = ;=20 In other words, neither of the alternative conclusions of the = trial judge=20 support an award of damages against the Province of British Columbia, in = my=20 view.

[92] = ;=20 As to the quantum of damages, if damages there must be, I would = not=20 disagree that any award of damages, given the conclusions of the trial = judge as=20 to the state of mind of the corrections officers, should be modest, = although, as=20 I have said, I would go further and say this is not an appropriate case = for such=20 an award.

[93] = ;=20 While the failure to award damages for a Charter = breach may be = criticized as=20 discouraging vigilance of constitutional rights, I do not see this = shrinking=20 attitude displayed either by litigants in the court, or by the bar, and = I do not=20 consider damages are required to ensure vigilant Charter=20 compliance.

[94] = ;=20 Without contradicting at all the fact of insult to Mr. Ward, who = is well=20 known to the courts as a lawyer who is willing to carry cases engaging = important=20 issues of public policy and to extend representation in the courts to = needy=20 members of the community, but given the trial judge=92s findings of fact = as to the=20 state of mind of the corrections officers in this case, I would allow = the appeal=20 of the Province of British Columbia.

[95] = ;=20 The City of Vancouver has cross appealed the award of nominal = damages=20 against it for seizure of Mr. Ward=92s vehicle. The seizure was = effected by=20 members of the Vancouver Police Department. Mr. Ward submits a = damage=20 award is appropriate for breach of his Charter = right to be free of unreasonable seizure, and = was=20 justified in any event as damages for the tort of = conversion.

[96] = ;=20 The trial judge found that none of the torts pleaded against the = City of=20 Vancouver were committed. That conclusion encompasses Mr. Ward=92s = claim in=20 conversion. Thus, if it is to stand, the nominal damages award = must do so=20 on the basis of a Charter breach. Again, the trial judge did not = find a=20 faulty state of mind on the part of the officers involved with the = vehicle=92s=20 seizure, and no tort was established. For the reasons expressed = above, I=20 do not consider damages for the = Charter breach should have been awarded in these=20 circumstances. I would allow the City=92s cross = appeal.

=93The = Honourable Madam=20 Justice Saunders=94