CHARTER DAMAGES

INTRODUCTION TO CHARTER DAMAGES

The Canadian Charter of Rights and Freedoms, a cornerstone of Canadian constitutional law, ensures the protection and enforcement of fundamental rights and freedoms. When these rights are infringed, individuals have the recourse to seek remedies through the courts. One such remedy is the awarding of monetary damages, commonly referred to as Charter damages. This web page will provide an extensive overview of the foundations that lead to the enforcement of Charter rights and remedies, with a particular focus on how monetary damages are awarded in Charter cases.

FOUNDATION OF CHARTER RIGHTS AND REMEDIES

The Canadian Charter of Rights and Freedoms

The Charter, entrenched in the Constitution Act, 1982, outlines the rights and freedoms guaranteed to every individual in Canada. These rights include fundamental freedoms (such as freedom of expression, assembly, and religion), democratic rights, mobility rights, legal rights, equality rights, and language rights. The Charter aims to protect individuals from government actions that could infringe upon these rights, ensuring that everyone in Canada enjoys the same protections and freedoms.

Enforcing Charter Rights

Enforcement of Charter rights involves ensuring that any violation of these rights by governmental action is addressed appropriately. The primary mechanisms for enforcement are found in sections 24 and 52 of the Charter:

  • Section 24(1) allows individuals whose rights have been infringed to apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. This section provides a broad range of potential remedies, ensuring that courts can tailor their decisions to the specific circumstances of each case.

  • Section 52(1) establishes that any law inconsistent with the Constitution is of no force or effect, allowing courts to invalidate such laws. This section underlines the supremacy of the Constitution and ensures that all laws must conform to the Charter’s protections.

PROCEDURE FOR ENFORCING CHARTER RIGHTS

Standing

To bring a Charter claim, the claimant must have standing, meaning they must be directly affected by the alleged violation. Standing ensures that the courts are used by those genuinely impacted by a breach of rights, preventing the judicial system from being overwhelmed by speculative or abstract claims. There are two main types of standing in Charter cases:

  • Private Interest Standing: This is granted to individuals who are directly affected by the alleged Charter violation. They must show that their rights have been infringed in a manner different from the general public.

  • Public Interest Standing: The courts may grant this to individuals or organizations acting on behalf of the public interest. This is especially relevant in cases where broad societal issues are at stake, and the claimant can effectively bring the matter before the court.

Jurisdiction and Notice

Charter claims can be brought before various courts, depending on the nature of the case. Claimants must ensure they bring their case to a court with the appropriate jurisdiction to hear Charter matters. Furthermore, proper notice must be provided to the relevant governmental bodies. This procedural step is crucial as it allows the government to prepare and respond to the allegations of Charter violations adequately.

Timing of Claims

There are specific timeframes within which Charter claims must be filed, similar to other civil or criminal proceedings. These timeframes, known as limitation periods, ensure that claims are brought forward in a timely manner, preserving the integrity of evidence and ensuring fair hearings. Failure to adhere to these timelines can result in the dismissal of the claim, barring exceptional circumstances where extensions may be granted.

REMEDIES FOR CHARTER VIOLATIONS

Types of Remedies

Courts have broad discretion to fashion remedies that are appropriate and just. These remedies can include:

  • Declarations: Statements by the court recognizing that a law or action is unconstitutional. Declarations serve to affirm the rights of individuals and can guide future government conduct.

  • Injunctions: Orders preventing a party from acting in a certain way. Injunctions are particularly useful in stopping ongoing or imminent violations of Charter rights.

  • Exclusion of Evidence: In criminal cases, evidence obtained in violation of the Charter can be excluded. This remedy ensures that the judicial process remains fair and respects the rights of individuals.

  • Monetary Damages: Financial compensation awarded to individuals whose Charter rights have been violated. This remedy aims to compensate for the harm suffered and deter future violations.

MONETARY DAMAGES IN CHARTER CASES

Purpose and Principles

Monetary damages serve to compensate individuals for the harm suffered due to a Charter violation. They also serve to deter future violations by governmental bodies. The awarding of damages is guided by principles established by the Supreme Court of Canada, which emphasize the need for remedies to be appropriate and just in the circumstances.

Leading Case Law

The Supreme Court of Canada has established key principles for awarding Charter damages in cases such as Vancouver (City) v. Ward. The Court outlined that damages can be awarded if:

  1. A Charter right has been violated.

  2. Damages are an appropriate and just remedy.

  3. There are no effective alternative remedies.

  4. The state has not demonstrated that damages should be limited or excluded.

In Vancouver (City) v. Ward, the Supreme Court emphasized that damages are not automatic but must be justified based on the specific circumstances of each case. The decision established a framework for lower courts to follow, ensuring consistency and fairness in the awarding of Charter damages.

FACTORS INFLUENCING THE AWARD OF DAMAGES

Severity of the Violation

The severity of the Charter violation plays a critical role in determining the amount of damages. More egregious violations typically result in higher awards. For example, cases involving physical harm, significant psychological distress, or prolonged periods of rights infringement are likely to attract substantial damages.

Impact on the Individual

Courts consider the impact of the violation on the individual, including physical, emotional, and financial harm. The assessment includes the immediate effects and long-term consequences of the violation. For instance, a violation that causes lasting psychological trauma or disrupts an individual’s livelihood will be compensated more generously than a minor, transient infringement.

Conduct of the State

The behaviour of the state actors involved in the violation is also considered. Malicious or reckless conduct can increase the award of damages. Conversely, if the state can show that the violation occurred despite good faith efforts to comply with the Charter, this may mitigate the damages awarded.

Deterrence and Vindication

Damages can serve both to deter future violations and to vindicate the rights of the individual. Courts balance these objectives to ensure a fair and just outcome. Deterrence aims to prevent similar violations by other government actors, while vindication affirms the importance of the Charter rights and the harm suffered by the claimant.

PROCEDURE FOR SEEKING CHARTER DAMAGES

Filing a Claim

Individuals seeking Charter damages must file a claim in the appropriate court, detailing the alleged violation and the harm suffered. The claim should include a clear statement of the facts, the specific Charter rights that were infringed, and the damages sought. Legal representation is highly recommended to navigate the complexities of Charter litigation effectively.

Burden of Proof

The claimant bears the burden of proving that their Charter rights were violated and that damages are warranted. This involves presenting evidence and legal arguments to support their case. Evidence can include witness testimony, medical reports, financial records, and expert opinions. The standard of proof is typically on a balance of probabilities, meaning that it is more likely than not that the violation occurred.

Government’s Defence

The government can present defences, such as arguing that the violation was justified under section 1 of the Charter, which allows for reasonable limits on rights. The government must demonstrate that the limit is prescribed by law and can be demonstrably justified in a free and democratic society. This involves a proportionality analysis, weighing the benefits of the limit against the severity of the rights infringement.

SPECIAL CONSIDERATION IN CHARTER DAMAGES CASES

Section 24(2) Exclusion of Evidence

In addition to seeking damages, claimants in criminal cases may request the exclusion of evidence obtained in violation of the Charter under section 24(2). This remedy aims to preserve the integrity of the judicial process and prevent courts from being complicit in unconstitutional conduct. The exclusion of evidence is considered when its admission would bring the administration of justice into disrepute.

Declaratory Relief

Declaratory relief is another important remedy in Charter litigation. A declaration that a law or government action is unconstitutional can have a significant impact beyond the immediate parties involved, prompting legislative or policy changes. This remedy is particularly valuable in cases involving systemic issues affecting a broader segment of society.

EXAMPLES OF CHARTER DAMAGES CASES

Wrongful Detention and Arrest

Cases of wrongful detention and arrest often involve significant Charter violations, such as breaches of the right to liberty and security of the person (section 7) and the right not to be arbitrarily detained or imprisoned (section 9). In Vancouver (City) v. Ward, the claimant was awarded damages for being wrongfully detained and strip-searched by police without justification, highlighting the court’s role in addressing such egregious violations.

Unreasonable Search and Seizure

Unreasonable search and seizure cases involve violations of section 8 of the Charter, which protects against unreasonable searches and seizures. Damages may be awarded when government authorities conduct searches without proper authorization or justification, intruding on an individual’s privacy rights. These cases emphasize the importance of lawful conduct by law enforcement agencies.

Discrimination and Equality Rights

Cases involving discrimination and equality rights under section 15 of the Charter often result in significant damages. Discriminatory practices by government actors, such as denial of services or benefits based on race, gender, disability, or other protected grounds, can have profound impacts on individuals and attract substantial compensation.

CONCLUSION: CHOOSE GRIGORAS LAW FOR YOUR CHARTER DAMAGES CASE

Understanding the complexities of Charter damages is essential for protecting your constitutional rights and seeking appropriate remedies for violations. If you are facing issues related to Charter infringements, having the right legal representation can make all the difference. For individuals in Toronto and throughout Ontario, Grigoras Law is the premier choice for handling Charter damages cases.

Why Choose Grigoras Law for Your Charter Damages Case?

Expertise in Charter Law: Our legal team, led by seasoned lawyers Denis Grigoras and Rachelle Wabischewich, brings extensive knowledge and experience to every case. Charter damages is a highly technical area of law that requires in-depth understanding and expertise. We navigate its complexities with precision, ensuring comprehensive legal guidance and effective advocacy across Ontario.

Client-Centric ApproachAt Grigoras Law, your needs and well-being come first. We offer personalized legal solutions tailored to your unique situation, ensuring peace of mind and steadfast support throughout your legal journey. Our approach is centred on you; we listen, understand your concerns, and develop strategies that best suit your specific needs. Your peace of mind and satisfaction are our foremost priorities.

Proven Track RecordOur history of successful outcomes speaks to our ability to effectively represent clients in Charter damages cases. We have consistently helped clients secure the justice and compensation they deserve. Our reputation as constitutional litigation lawyers in Toronto is built on a solid foundation of successful cases. We consistently achieve favourable outcomes for our clients, demonstrating our commitment to excellence.

Holistic Legal Understanding: We integrate Charter law with other areas of litigation, allowing us to approach cases from a comprehensive perspective. Charter violations often overlap with other legal issues, which Grigoras Law is adept at handling. Our multifaceted expertise ensures no stone is left unturned, whether you are asserting your rights or defending against allegations. Our team possesses in-depth knowledge across various areas of law, enabling us to provide holistic and nuanced legal support.

Convenient and Accessible: Based in the heart of Toronto, Grigoras Law is your local legal partner, easily accessible to clients throughout the GTA and Ontario. We are dedicated to providing expert legal support right when you need it most. Our central location ensures that you can easily reach us, and we are committed to serving clients from all corners of Ontario with the same level of dedication and expertise.

A Team You Can Trust: Our exceptional legal team, led by Denis Grigoras and Rachelle Wabischewich, is committed to your success. We pay close attention to every detail, respond promptly to your needs, and work tirelessly to find unique and effective solutions. With us, you’re not just getting legal support; you’re gaining partners who genuinely care about your situation. Our team is known for its dedication, professionalism, and unwavering commitment to our clients’ well-being.

Tailored Legal StrategiesAt Grigoras Law, we understand that every Charter damages case is unique. We take the time to understand the specifics of your situation and tailor our legal strategies accordingly. Whether you are dealing with wrongful detention, unreasonable search and seizure, or discrimination, we develop a customized approach to achieve the best possible outcome for you.

Comprehensive Support: We provide comprehensive support for all aspects of your Charter damages case. From gathering evidence and building a strong case to representing you in court, we are with you every step of the way. Our thorough and strategic approach ensures that all bases are covered, giving you the confidence that your case is in capable hands.

Protecting Your RightsIn today’s complex legal landscape, protecting your Charter rights is vital. We understand the importance of safeguarding your fundamental freedoms and take a proactive approach to protect them. Our team works diligently to address any Charter violations promptly and effectively, minimizing the impact on your life and future.

Navigating Complex Legal Challenges: Charter damages cases can be complex, often involving multiple legal issues. Our team’s holistic understanding of the law allows us to navigate these challenges with ease. We are adept at handling cases where Charter violations intersect with other areas of litigation, ensuring that no detail is overlooked.

Take Control of Your Legal Situation

Protecting your constitutional rights is crucial in today’s world. When facing Charter damages issues, seek the guidance of Grigoras Law, your trusted ally in constitutional litigation. We are here to represent you, ensuring you have the advocacy and expertise needed to navigate your legal challenges. Take control of your legal situation with confidence, knowing that you have a dedicated and skilled legal team by your side.

Contact Grigoras Law Today

If you believe your Charter rights have been violated, don’t hesitate to reach out to our qualified Toronto constitutional litigation lawyers. We proudly represent clients across Ontario. Our team is dedicated to offering bespoke solutions, attentively crafted to suit your distinct needs. Choose Grigoras Law for a dedicated and skilled legal team ready to stand by your side every step of the way. We prioritize delivering a high standard of professional service, ensuring every aspect of your case receives focused and expert attention.

At Grigoras Law, we understand the profound impact that Charter violations can have on your life. Our commitment to excellence, client-centric approach, and proven success make us the ideal partner for your Charter damages case. Trust us to protect your rights and provide the robust legal support you need.

F.A.Q.

Disclaimer: The answers provided in this FAQ section are general in nature and should not be relied upon as formal legal advice. Each individual case is unique, and a separate analysis is required to address specific context and fact situations. For comprehensive guidance tailored to your situation, we welcome you to contact our expert team.

The amount one can get from a successful Charter Damages claim varies greatly, and is determined based on several factors, as outlined in the Ward framework. This fourth step of the framework assesses the quantum of Charter damages, which must be “appropriate and just” as required by 24(1) of the Charter.

The first determinant is the degree to which an award of damages serves the three core purposes of Charter damages: compensation, vindication, and deterrence. Compensation refers to the financial reparation for a plaintiff’s personal loss suffered due to the state’s violation of their constitutional rights. Such compensable loss can include pecuniary loss, physical and psychological injuries, cost of medical treatment, and any financial losses, including loss of earnings. Non-pecuniary losses, which are not directly quantifiable in financial terms, are also compensable and are typically set at a fairly modest rate, with adjustments made based on the degree of suffering in each specific case. In catastrophic injury cases, the Andrews cap applies.

Several additional factors may limit the quantum of damages. For instance, awards can be significantly reduced if the violation of the plaintiff’s Charter rights was trivial or momentary, if there was minimal personal loss or no physical injury suffered, or if the state action was carried out lawfully, in good faith, and for a valid public purpose. The seriousness of the state misconduct and the impact of the violation on the claimant is also instructive. In cases where Charter violations arose from state action taken in bad faith or without lawful basis, the awards could be higher.

To provide a practical example, in Vancouver (City) v. Ward, the plaintiff was awarded $5,000 in Charter damages for being mistakenly identified and arrested, wrongfully strip-searched, and held for several hours. His car was also impounded. A similar amount was awarded in Fleming v. Ontario, where the plaintiff was wrongfully arrested, prevented from attending a peaceful protest, seriously injured, and held in a police van and jail cell for two and a half hours.

In a more extreme case, Henry v. British Columbia (Attorney General), the plaintiff successfully sued the Attorney General and received about $8 million in damages. The Crown failed to disclose a significant amount of evidence that was relevant to his defence, which led to his convictions for sexual assaults being set aside.

It’s important to understand that Charter damages must be appropriate and just not only to the plaintiff but also to the state. This implies that Charter damages should not disproportionately divert large sums of public funds to private interests, nor should they deter governments from experimenting with new policies and programs. However, these concerns may be less pronounced in class proceedings where a multitude of individual claims are aggregated. Also, substantial Charter damages awards can be attracted for violations of collective rights, such as minority language education rights under s. 23 of the Charter.

In conclusion, while there is no fixed sum for Charter damages claims, the quantum is decided based on a variety of factors, including the nature of the rights violation, the seriousness of the state misconduct, the personal loss suffered by the plaintiff, and the effect of the award on the state. A legal professional would be best equipped to assess the potential award in any given case based on the specific circumstances and precedents.

Yes, you may have the ability to sue for Charter damages if you believe the Crown prosecutor intentionally withheld evidence in your case.

Charter damages are a unique remedy recognized under Canadian law to compensate for violations of Charter rights. A specific instance of this cause of action applies to the wrongful non-disclosure of evidence by Crown prosecutors during criminal proceedings.

The relevant Charter rights in this scenario are your rights under ss. 7 and 11(d) to make full answer and defence. Section 7 protects your life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 11(d) guarantees your right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

Charter damages for wrongful non-disclosure differ from private law damages for malicious prosecution. Unlike malicious prosecution, which requires a finding of malice, Charter damages for wrongful non-disclosure can be claimed where the Crown prosecutor knew, or ought to have known, that the undisclosed information was material to the defence and that the failure to disclose would likely affect your ability to make full answer and defence.

The framework for seeking Charter damages for wrongful non-disclosure is an application of step (3) of the Ward framework, a legal test derived from the Supreme Court of Canada’s decision in Vancouver (City) v. Ward, which sets out the methodology for assessing claims for Charter damages.

The level of fault required for prosecutorial liability for Charter damages is designed to account for good governance concerns that may otherwise bar an award of Charter damages. Unless the state can present other countervailing considerations that would warrant not awarding Charter damages, liability attaches, and the court proceeds to assess the quantum (amount) of Charter damages.

However, please note that this is a complex area of law, and the success of your claim for Charter damages would depend on a number of factors, including the specifics of your case. Therefore, it is highly recommended to consult with a lawyer experienced in constitutional and criminal law to fully explore your options and potential remedies.

When initiating a lawsuit, it is indeed possible to sue not only for Charter damages but also for other types of damages or claims under private law. In fact, it is relatively common for claimants to combine a claim for Charter damages with an ordinary private law tort claim, which could seek general and special damages.

This is possible because Charter damages are considered “a distinct and autonomous remedy,” separate from private law tort claims. These damages are characterized as “public law” claims, recognizing a violation of a Charter right as a distinct harm that merits compensation independent of any other cause of action under private law.

Importantly, it should be noted that there is no legal requirement necessitating a plaintiff to exhaust their private law remedies before initiating a claim for Charter damages. This allows you to seek both types of remedies concurrently, thus providing a more comprehensive approach to legal recourse.

When both Charter and tort claims are presented together, the analysis usually begins with the private law tort claim. This is because the context and details of the tort claim can often add valuable insights that can aid in the Section 24(1) Charter damages analysis.

In the case of class action proceedings, Charter damage claims can also be asserted in conjunction with private law causes of action. This allows for a broad and robust legal strategy in these particularly complex cases.

Therefore, suing for Charter damages does not exclude the possibility of also suing for other types of damages or causes of action under private law. When building your case, it can be beneficial to consider all potential avenues for recourse, including both Charter damages and private law tort claims. However, the specifics of each case may vary, so it’s advisable to consult with an experienced legal professional to understand the best course of action for your unique circumstances.

Based on legal precedents in Canadian law, it is not generally possible to sue for Charter damages if you are disciplined by your regulatory body. Two key cases, Madadi v. British Columbia (“Madadi”) and Ouellette v. Law Society of Alberta, (“Ouellette”) clarify this stance.

In the case of Madadi, complaints were made against Mr. Madadi to the College of Teachers in 2001 and he was disciplined in 2011. The decision was set aside on appeal in 2014. Madadi subsequently claimed damages for breach of section 7 of the Charter. However, the court struck the claim for damages. They reasoned that section 7 of the Charter, which primarily pertains to life, liberty, and security of the person, does not include the right to practice a profession. Therefore, the claim was bound to fail as it was not within the scope of Section 7’s protection.

Similarly, in Ouellette, Mr. Ouellette, who was disbarred in 2016, brought an action alleging breaches of his Charter rights and malicious, fraudulent, and deceitful actions by the Law Society. The court, in this case, struck his claim for Charter damages. It concluded that neither Section 7 (which, as explained earlier, pertains to life, liberty, and security of the person) nor Section 11 (which deals with rights in relation to legal proceedings) applied in the circumstances. This was because the disciplinary proceedings did not involve penal consequences and consequently, section 11 did not apply.

Moreover, even if a Charter right had been engaged, the court suggested that damages would not be an appropriate remedy under section 24 of the Charter, as referenced in the decision in Ernst v. Alberta Energy Regulator. Section 24 provides remedies when rights or freedoms, as guaranteed by the Charter, are infringed or denied.

Additionally, the court held that the Law Society did not owe a private duty of care to an individual member of the profession in negligence in connection with a discipline hearing. This is because such a duty would be contrary to the Law Society’s primary obligation of regulating the profession as a whole. The court noted that if every time a disciplined member disagreed with a decision it could give rise to a new claim for damages, the Law Society would not be able to effectively regulate the profession.

Therefore, the likelihood of succeeding in a claim for Charter damages, based on disciplinary action from a professional regulatory body, appears to be very low, given these legal precedents. If you find yourself in such a situation, it is advisable to seek legal counsel to understand the best course of action.

Yes, there is a limitation period when suing for Charter damages. Charter damages, akin to private law damage claims, are subjected to the same limitations rules and periods. This means that a person seeking Charter damages, a personal remedy for a violation of constitutional rights, must adhere to the same timeframes as established by law for other private damage claims.

The constitutional nature of a Charter claim does not, in itself, enact a special limitation period, unless it is explicitly provided by applicable legislation. The rules of limitation periods apply because Charter damages are invoked by a party alleging an interference with their own legal interests or constitutional rights, essentially making it a personal claim, much like private law damage claims.

If Charter claims are brought forward in conjunction with tort claims, they will follow the same limitation periods as the tort claims. It is worth noting that limitation periods can vary depending on the jurisdiction and the nature of the legal claim, so it is crucial to consult with a legal professional to fully understand the time constraints related to filing a claim for Charter damages.

It’s important to keep in mind that exceeding the limitation period may result in the claim being barred regardless of its merit. Therefore, to protect your legal rights, it is advised to seek legal advice as soon as possible when considering a claim for Charter damages.

The potential for suing for Charter damages in situations like this is a complex and nuanced area of law. In the case of N. (J.) v. Durham (Regional Municipality) Police Service, the plaintiff encountered a similar situation. She had a withdrawn criminal charge that appeared in a vulnerable persons search result, which hampered her ability to find work as a social worker.

In that case, the Ontario Superior Court found that the inclusion of the withdrawn charge in the search results was an administrative act, and did not initially infringe upon the plaintiff’s Section 7 Charter rights. However, the court also found that the lack of an effective mechanism to review the plaintiff’s request to have the withdrawn charge removed did infringe on these rights.

Section 7 of the Charter guarantees everyone the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. In this case, the court interpreted the inability to get a job due to the withdrawn charge showing up on a background check as a deprivation of the plaintiff’s liberty and security, not in accordance with the principles of fundamental justice.

Therefore, the court determined that a remedy should be fashioned that was both appropriate and just, including the ability to direct that future certificates not include the withdrawn charges. The court also examined the circumstances leading to the charges and ordered that future certificates should not include the withdrawn charges.

However, it’s crucial to note that this decision was overturned by the Ontario Court of Appeal. The appeal court stated that the application should have been brought as a judicial review application to the Divisional Court, rather than as a lawsuit for damages in the Superior Court. The Court of Appeal did not rule on the actual merits of the application.

Given the intricacy of these legal matters, your situation might be different and may necessitate a different approach. It’s crucial to seek the counsel of a qualified lawyer to understand your rights and potential legal strategies in detail.

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