A Promising Late Spring for Charter Damages: Ward v Vancouver
(2011) National Journal of Constitutional Law 145-167
24 Pages Posted: 20 Jun 2013
Date Written: 2011
Part one of this article provides a brief overview of the Supreme Court’s decision in Ward including not only its upholding of a $5000 damages under s. 24(1) of the Charter for an unconstitutional strip search, but its overturning of a $100 award for an unconstitutional seizure as not needed to compensate, vindicate or deter Charter violations. The second part examines threshold issues such as court of competent jurisdiction of small claims courts and statutes of limitations. The remedial purposes of compensation, vindication and deterrence of Charter violations are examined in the third part and the fourth part examines how governments may discharge their burden of establishing that Charter damage claims are not appropriate or fair to the government because of good governance concerns and the availability of alternative remedies. It suggests that Ward has largely rejected concerns about the overdeterrence of individual officials. The last part suggests that the quantum of Charter damages should be driven by consideration of the remedial purposes of compensation, vindication and deterrence and that the $5,000 award should not be seen as either a starting point or a cap on Charter damages. The interrelated issues of quantum and access to justice are likely to be the most important factors in determining whether Charter damages blossom after the late spring set off by the Court’s promising decision in Ward.
Keywords: Charter damages, threshold issues, constitutional law, governance
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