September 18, 2017 By: Frances Shapiro Munn
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This article originally appeared in The Lawyers Daily on September 11, 2017, published by LexisNexis Canada Inc.

The Supreme Court of Canada opened the door in 2010 for plaintiffs to seek damages from the government based on breaches of their rights under the Canadian Charter of Rights and Freedoms (“the Charter“). In Ward v. Vancouver (City), 2010 SCC 27 [Ward], the plaintiff was detained and strip searched without cause. He pursued Charter damages against the City of Vancouver.

The Supreme Court explained that Charter damages are a “unique” remedy under the ambit of s. 24(1). An award of Charter damages must serve one or more of the following objectives:

  1. Compensation: Charter damages are to compensate the plaintiff for her personal losses and suffering as a result of the breach;
  2. Vindication: The damages are to vindicate the right by emphasizing its importance to society; and
  3. Deterrence: Charter damages may be awarded to deter state agents from future breaches.

The Supreme Court cautioned that damages for breaches of Charter rights should be developed “incrementally” and that often, other s.24(1) remedies would be more responsive to the breach (such as a dismissal of criminal charges). Although the Supreme Court did not rule out situations where a plaintiff could pursue the government for damages for personal injuries in, for instance, a tort action in addition to damages for breach of a Charter right, the Supreme Court also cautioned the courts against awarding double compensation. The Supreme Court suggested that where the plaintiff has already received compensation through general damages or some other form of tort remedy for her losses, a further award of damages for breach of a Charter right would not necessarily be appropriate in those circumstances.

In Ward, the Supreme Court considered $5,000 to be an appropriate award of damages for the plaintiff’s strip search in the circumstances.

Incremental Approach since Ward

A review of Ontario cases dealing with damages for Charter breaches over the last two years shows an increasing willingness of the court to make these awards – even in cases where a plaintiff has a concurrent tort action.

In R.C. v. Cybulski, 2017 ONSC 4331, the plaintiff was arrested without cause. A total of seven police officers were involved in detaining the plaintiff, transporting her to the police station, searching her, restraining her upper and lower limbs and leaving her naked in a cell for several hours before she was permitted to leave the Ottawa police station. The plaintiff pursued the officers and the Ottawa Police Services Board for both false arrest and false imprisonment. She also sought Charter damages.

The Superior Court of Justice awarded the plaintiff $90,000 in general damages, $120,000 for loss of earning capacity, and $37,226.84 for out-of-pocket and future expenses. In addition, the court awarded the plaintiff $7,500 in damages for the breach of her Charter rights.

In making the award of Charter damages, the court noted that it was “mindful” that the other damages awarded to the plaintiff had already, to a large extent, put her in the same position she would have been in had her Charter rights not been infringed. However, the court felt that the plaintiff’s indignity and humiliation at being left naked in a cell for two hours warranted further compensation for breach of her Charter rights.

In Elmardy v. Toronto Police Services Board, 2017 ONSC 2074, a black man was stopped by two police officers, punched, and left lying on his handcuffed hands in the cold for 20 to 25 minutes. The Divisional Court concluded that the plaintiff was a victim of racial profiling and that the conduct of the police officers was high-handed and oppressive. The Divisional Court warned that racial profiling has a serious impact on the credibility of “our police services” and that it needed to stop.

The Court concluded that a significant award was required in order to send a message about the seriousness of the conduct at issue. The Divisional Court awarded the plaintiff $50,000 in Charter damages in addition to $25,000 in punitive damage and $5,000 for the battery perpetuated against the plaintiff.

In Ogiamien v. Ontario, 2016 ONSC 3080, one of the plaintiffs, Mr. Ogiamien, was an immigrant who was detained in a maximum security institution for three years while awaiting a decision from immigration authorities. He was not charged with any offence. During his detention, he was subjected to lockdowns resulting from staff shortages. As a result of the lockdowns, he was denied access to showers, clean bed sheets, cleaning supplies, and access to exercise and recreation.

The other plaintiff, Mr. Nguyen, had been charged with an offence and was awaiting trial. He was detained at the same maximum security institution as Mr. Ogiamien and also subjected to lockdowns. The court concluded that the government breached the plaintiffs’ s.12 Charter rights to be free from cruel and unusual punishment.

In fashioning a remedy, the court noted that the Charter violations to Mr. Ogiamien occurred over a lengthy period of time and caused sustained interference with his interests. The court awarded Mr. Ogiamien $60,000 to compensate him for the breach of his Charter rights. To Mr. Nguyen, the court awarded $25,000 as he had been inside the institution for a considerably shorter period than Mr. Ogiamien. The plaintiffs did not seek or receive any other types of damages.

The Attorney General appealed this decision. In its ruling of Aug. 23, 2017, Ogiamien v. Ontario (Ministry of Community Safety and Correctional Services), [2017] O.J. No. 4401, the Ontario Court of Appeal overturned the trial judge’s finding that the plaintiffs’ treatment during the lockdowns amounted to cruel and unusual punishment.

Notably, the Court of Appeal did not disagree with the quantum of the damages awarded to the plaintiffs, but it disagreed that the lockdowns amounted to a breach of the Charter in the first place. Significantly, the court concluded that the trial judge had overstated the frequency, duration and impact of the lockdowns. It also felt that the lockdowns were a valid security response to staffing shortage in the prison context.

The Court of Appeal did allow that the effect of lockdowns in a correctional facility could give rise to cruel and unusual treatment. The court also recognized that if it agreed with the trial judge in terms of the frequency, duration and impact of the lockdowns, it may have upheld the judge’s findings on s.12. Ultimately, the court felt that while the treatment of the plaintiffs was excessive, it was not “grossly disproportionate” to their treatment under ordinary conditions and therefore did not meet the high bar to establish a violation of s.12 of the Charter.

The Appeal Court also noted that the Attorney General had been denied procedural fairness in the manner in which the Charter damages were awarded. The trial judge awarded damages, although these had not been requested by the plaintiffs, and the Attorney General was not given the opportunity to make submissions on whether Charter damages ought to be awarded. However, the Court of Appeal declined to comment on whether the trial judge’s assessment of damages was appropriate and just in the circumstances.

Based on these cases, the following principles emerge with respect to the quantum that may be awarded by a court for breaches of Charter rights:

  • Where a plaintiff has a successful claim for general damages and income losses arising from a tort claim, she may still be awarded damages for Charter breaches but the quantum of this claim will likely be low in order to avoid double compensation.
  • Where the conduct of the state agent is high-handed and oppressive or the court wishes to send a message that a particular behaviour must stop (e.g. racial profiling), a higher award of damages for breach of the Charter will likely be justified in the circumstances.
  • Notwithstanding the Court of Appeal’s decision in Ogiamien, it is conceivable that where there has been a breach of plaintiff’s Charter rights, and the breach is continuous and sustained over a long period of time (e.g. over the course of several years in the prison setting), a higher quantum of damages may be warranted.

Further, there does not appear to be a strict cap on the amount of damages that a court may award for breach of a Charter right. Although these awards are modest in comparison to what is awarded for general damages in tort cases, the door is open to a plaintiff to seek Charter damages in a range typically reserved for general damages (up to $350,000) depending on the type of state behaviour at issue.

It is conceivable that courts may increasingly view Charter damages as an appropriate and just reward to deter behaviour such as racial profiling in the future.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.