July 23, 2010

Charter Damages (About Time) Vancouver (City) v. Ward, 2010 SCC 27

Filed under: Uncategorized — ruleswatch @ 4:43 pm

In an area that has been far less than certain, a unanimous judgement of the Supreme Court of Canada has now confirmed that damages for breach of an individual’s charter rights can be available. These “..these are not private law damages, but the distinct remedy of constitutional damages”

Under a new “functional approach to damages” constitutional damages will be directed to needs for “compensation, vindication and/or deterrence” assessed in what is supposed to be a practical way.

The section keys, of course, on s. 24(1) of the Charter and the test, for compensation at least will be measured by the tort-style test that “[t]he applicant should, in so far as this is possible, be placed in the same position as if his Convention rights had not been infringed.” Deterrence will be a key constitutional damages objective as well: “Deterrence seeks to regulate government behaviour, generally, in order to achieve compliance with the Constitution.”


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