Section 24 of Charter increasingly used to seek civil damages
By Rob Lamberti, AdvocateDaily.com Contributor
Toronto personal injury lawyer Gary Will says there’s a growing trend to use s. 24 of the Charter to seek remedies in civil cases.
Will, managing partner with Will Davidson LLP, says it is usually sought when rights are infringed in a criminal case by excluding evidence in the trial, but “the s. 24 remedy is now being used in the civil context to obtain damages.”
Section 24, or the enforcement section, of the Charter, states: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. ... Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
The section provides financial compensation, but also a mechanism to “punish state actors for having denied a person their Charter rights,” Will tells AdvocateDaily.com. He says he believes the section is being used in the way it was intended when crafted by the writers.
“It’s surprising it took that long to be used in the civil context,” Will says. “I think it’s totally appropriate if a Charter right has been infringed, that there be a remedy for that. I think it’s perfectly appropriate that it’s being used in the way the courts are allowing it to be used.”
He says it’s a growing area of litigation, noting three Supreme Court of Canada (SCC) cases laid the foundation for s. 24 to provide a financial remedy in civil cases where Charter rights have been breached.
The first case before the SCC in 2010, involved a man who was wrongly arrested when Vancouver police believed a man intended on hitting then-prime minister Jean Chrétien with a pie.
The man, whose arrest was based on a general description, was strip-searched and later released without charges.
“So, he starts an action against the Vancouver police, and the plaintiff says his Charter rights were denied,” Will says. The case rested on s. 8, protection from unreasonable search and seizure, and s. 24 provided the grounds for an appropriate remedy, he says.
“It had never been used in a civil context until this case,” Will says. “It went to trial, and a lower court judge found the man’s Charter rights had been infringed.”
The plaintiff was awarded $100 for the unlawful search of his car and $5,000 for the strip search.
The case made its way to the Supreme Court, where the nine justices dismissed the claim of the wrongful seizure of the vehicle but upheld the $5,000 in damages for wrongful imprisonment, Will says.
“It was the first time a court used s. 24 to award damages for a breach of the Charter in a civil matter,” he says.
Will notes the SCC heard another case about the same time, where Omar Khadr was seeking a judicial review while being subjected to “a process contrary to Canada’s international human rights obligations” which contributed to the deprivation of his rights to liberty and security of the person under s. 7 of the Charter.
“Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects,” the court ruled.
The court further ruled the state decides “whether and how to exercise its powers, but the courts clearly have the jurisdiction and the duty to determine whether a prerogative power asserted by the Crown does in fact exist and, if so, whether its exercise infringes the Charter or other constitutional norms.”
Will says a third case in 2015 cemented the role of s. 24 in civil cases. It involves a plaintiff who was wrongfully convicted, declared a dangerous offender and served 27 years in jail.
The trial judge allowed the plaintiff in the 2015 case to maintain an action against the Attorney General of British Columbia, among others, Will says.
“The compensatory damages were assessed at $530,000, special damages in the amount of $56,691, and the trial judge set damages at $7.5 million to serve both the vindication and the deterrence function of s. 24 of the Charter,” he says. “That then set a new precedent in terms of the amount of damages that could be available for a Charter breach in very significant circumstances.
“The British Columbia Court of Appeal affirmed the decision of the trial judge allowing the claim for damages for breach of the Charter.”
That had an effect on Khadr’s settlement in 2017 for $10.5 million, where the federal government argued a court case could have resulted in a higher award, Will says.
“There was controversy in the Khadr settlement, but it really flowed from that previous jurisprudence,” he says. “This certainly provides the springboard for some very substantial damages, particularly in cases involving persons who are wrongfully imprisoned for a long time.
“They can now use this new Charter remedy to make it easier to receive compensation for what they’ve gone through,” Will says.