Supreme Court awards Damages

by Gary McHale - The Regional

July 28, 2010

On Friday July 23 the Supreme Court ruled in favour of the rights of citizens to seek damages against any government agents who violate the Charter of Rights and Freedoms. Even in cases where these agents believe they have acted in good faith, they are now libel for damages if they violate the Charter.

In August 2002 Alan Cameron Ward attended a ceremony held in British Columbia in honour of Jean Chretien. During the ceremony the police overheard a white male talking about throwing a pie at Mr. Chretien. Moments later Mr. Ward was seen running down the road whereby he was stopped by the police and asked for his identification. Mr. Ward loudly protested the police stopping him and he refused to provide ID. He was handcuffed and taken to the local police station where they conducted a strip search of Mr. Ward. His car was also impounded in order to do a search but the search was never done after the police failed to have grounds to get a search warrant.

In the end there was no attempt to throw a pie at Mr. Chretien nor did the police ever find a pie. The court ruled that Mr. Ward was properly arrested due to the fact that he was running, wearing the same clothes as the alleged pie thrower and because he was disturbing the peace due to his loud protest of the police stopping him. However, the ceremony was quickly over and Mr. Chretien left the area. At that point of time the police were duty bound to release Mr. Ward but they waited an extra 3.5 hours.

The court ruled that this extra time and the strip search was a violation of Mr. Ward's Charter Rights. Historically in such cases Mr. Ward would have had to prove the police acted in bad faith in order to seek damages. This new ruling by the Supreme Court establishes that once the Charter Rights of a citizen have been violated the onus switches to the government to prove why damages should not be awarded.

The government has historically argued that police and crown act in good faith as public agents of the justice system. To punish every error would cause undue harm to the justice system. The government has also argued that good governance requires the enactment and enforcement of laws that may later be overturned as violating the Charter. Thus, in the absence of misconduct the courts should not award damages. In this case the court rejected both arguments.

While this case surrounds the event in Vancouver, the Ontario Attorney General, Attorney General of Canada, the Attorney General of Quebec and the Canadian Association of Chiefs of Police had intervener status and argued against the court awarding damages.

This ruling opens the door not only for damages for compensation but also establishes and clarifies two additional damages called vindication and deterrence cost. The compensation cost has been the historical damage awarded in civil cases. This is cost for any injury, medical treatment, lost income etc.

Regarding vindication damages the court stated, "Vindication, in the sense of affirming constitutional values, has also been recognized as a valid object of damages in many jurisdictions... Vindication focuses on the harm the infringement causes society... violations of constitutionally protected rights harm not only their particular victims, but society as a whole... While one may speak of vindication as underlining the seriousness of the harm done to the claimant, vindication as an object of constitutional damages focuses on the harm the Charter breach causes to the state and to society."

Regarding deterrence damages the court stated, "deterrence of future breaches of the right has also been widely recognized as a valid object of public law damages... Deterrence, like vindication, has a societal purpose. Deterrence seeks to regulate government behaviour, generally, in order to achieve compliance with the Constitution... deterrence as an object of Charter damages is not aimed at deterring the specific wrongdoer, but rather at influencing government behaviour in order to secure state compliance with the Charter in the future."

This ruling will have a major impact upon how all government agents conduct themselves. In Caledonia this ruling will impact current cases that are in the court system and will impact how the OPP conduct themselves in the future.

Now, when the OPP/Crown abuse the rights of people the onus is placed on them to prove why they shouldn't have to pay damages.

The residents of Haldimand need to learn a very important lesson from this ruling. This case started in 2002 and took eight years to go through all the levels of the court system up to the Supreme Court of Canada. This ruling is the final authority on the issue but it didn't happen overnight.

It wasn't one court victory, one rally, one letter to an MP or MPP that created this new standard that benefits ALL Canadians. Someone had to take the time and money to ensure the Charter Rights of all citizens were upheld by the court thereby compelling the government to obey the law or pay a price if they don't.

While the issues in Haldimand County have been ongoing for four years there has been progress through the court system as we have won victories in Superior Court and at Ontario's highest court which is the Ontario Court of Appeal.

Currently we have one case going to the Ontario Court of Appeal and are seeking leave to appeal another case to the Supreme Court of Canada. These cases take time and money. Our single out of pocket expense is transcripts followed by cost of printing and binding 3 copies - Appeals Court require 5 copies per case.

This past week we had to pay $600 in transcripts with another $500 scheduled to be ready by the end of the month. Not everyone can take the time to fight these battles in court and the hiring of lawyers would have cost millions. There are people working full time fighting for your rights and are living well below the poverty line because the issues are vital to all Canadians.

There is no government department providing money to the residents of Haldimand County to ensure the rights of non-native people are respected. Therefore, it is up to you to aid in this battle - financial help is always needed. The government relies on Canadians to forget, to move on, to become tired, to run out of money and to lose hope that there is light at the end of the tunnel.

Help fight for your rights - call Merlyn Kinrade 905-765-5131 and make cheques payable to him.