Bad faith is no longer a necessary requirement for awarding monetary damages for the breach of a Charter right following a recent Supreme Court of Canada decision, Blaney McMurtry LLP reported in its Insurance Observer.
In Vancouver (City) v Ward, a unanimous Supreme Court of Canada upheld a damages award for an unconstitutional strip search and vehicle seizure, absent bad faith on the part of the police, wrote Rafal Szymanski, a member of Blaney McMurty's insurance defence group, in the article Absense of Malice: Charter Damages Redefined.
In Ward, Vancouver police acted on a tip that an unknown individual planned to throw a pie at then Prime Minister Jean Chretien during a public appearance.
Ward was mistakenly identified as the suspect and arrested. In custody, police strip searched him, but did not as him to remove his underwear, not was he touched by the officers. His car was impounded, with the intention of obtaining a search warrant.
When it was determined that there were no grounds for a warrant and there was insufficient evidence to support a charge, he was released, wrote Szymanski.
Ward brought an action in tort and for breach of his Charter right. The lower court held that there was no tort liability, but that his section 8 Charter right to be free from unreasonable search and seizure had indeed been violated. Damage for the breach was set in the amount of $100 for the seizure of the car and $5,0000 for the strip search.
The Supreme Court of Canada confirmed the trial judge's award, deeming them to be "appropriate and just both from the perspective of the plaintiff and the defendant," wrote Szymanski.
"With Ward, the Supreme Court of Canada has provided plaintiffs with an avenue to prosecute government entities for monetary relief, even where such entities were not acting in bad faith," wrote Szymanski. "This will no doubt lead to an increase in litigation.