Charter damages as a Means of Addressing Government Wrongs in Individual and Class Action Litigation
Section 24(1) of the Charter provides that “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.”
In its landmark decision in Vancouver (City) v. Ward, 2010 SCC 27 [Ward], the Supreme Court of Canada confirmed that damages – a monetary award – may be an “appropriate and just” remedy under s. 24(1) of the Charter for individuals who have suffered breaches of their Charter rights. The Court established the following four-part framework for determining when a claimant will be entitled to Charter damages:
Step 1 – the claimant must prove a breach of a Charter right, and that the breach is not saved by s. 1 of the Charter;
Step 2 – the claimant must establish that damages are functionally justified;
Step 3 – the court must consider whether any countervailing considerations exist that would render an award of Charter damages unjust or inappropriate in the circumstances of the case; and
Step 4 – the court must determine the appropriate quantum of damages.
In relation to Step 2, the Court found that damages will be functionally justified if they serve one or more of the three related functions of compensation, vindication and deterrence:
– Compensation for personal losses caused by the breach of their rights (personal losses would include such things as physical injury, deprivation of liberty, humiliation, and insult to dignity);
– Vindication of the right that has been breached, to ensure Charter rights are maintained, rather than being “whittled away by attrition”; and
– Deterrence of future rights-breaching conduct by State
As can be seen from the three functional justifications above, underlying the rationale for the availability of damages as a remedy for breaches of Charter rights is a recognition of the broader societal interests that arise when an individual’s Charter rights are breached, as well as recognition of the fact that, if damages were not available, then in many cases those who have suffered breaches of their constitutionally protected rights would be left without a meaningful remedy. In relation to the latter, it is not difficult to see that, where a person has suffered serious consequences as a result of a breach of their Charter rights – such as personal injury or imprisonment – a mere declaration by the court that their rights were breached would be of limited remedial value.
The plaintiff in Ward was ultimately successful in establishing his entitlement to Charter damages, receiving an award of $5000 for a s. 8 Charter right breach involving an unlawful strip search down to his underwear while in police custody.
Since Ward, plaintiffs have been successful in obtaining Charter damages in diverse circumstances, including:
– breach of fair trial rights guaranteed by 7 and 11(d) of the Charter, which resulted in the plaintiff spending almost 27 years in prison – Henry v. British Columbia, 2016 BCSC 1038 (Charter damages award: $8,086,692);
– failure to protect a prisoner from a foreseeable assault, and subsequent verbal abuse by correctional officers directed at the victim of the assault, in breach of 7 and 12 of the Charter – Henebry v. Her Majesty the Queen, 2018 ONSC 6584 (Charter damages award: $20,000); and
– unlawful use of force by correctional officers and unlawful segregation placement, in breach of 7, 9 and 12 of the Charter – Richards v. Canada, 2022 FC 1763 (Charter damages award: $32,500);
– misconduct by the Province of Manitoba during contract negotiations between a university and labour union, in breach of 2(d) of the Charter – Manitoba Federation of Labour et. al. v. The Government of Manitoba, 2023 MBCA 65 (Charter damages award: $15 million).
A significant development in recent years has been the increase in the number of class proceedings involving claims for Charter damages. There are obvious synergies between the purposes of Charter damages and the purposes of class proceedings, including their shared focus on behaviour modification. This recent class action litigation seeking Charter damages takes advantage of the ability of class proceedings to efficiently deliver redress to persons who have been the subject of systemic breaches of Charter rights and who may otherwise go without any remedy for the breach of their rights. Examples of class proceedings involving Charter damages claims include:
– Good v. Toronto Police Services Board, 2016 ONCA 250: a class action arising out of police confinement of protestors during the G20 summit in Toronto;
– *Ewert v. Canada (Attorney General), 2016 BCSC 962: a class action arising from a prison lockdown at a federal institution that resulted in severely restrictive conditions of confinement and systemic mistreatment of the prisoner population;
– Brazeau v. Canada (Attorney General), 2020 ONCA 184, a class action arising out of solitary confinement in federal prisons, and similar class actions brought in respect of the use of solitary confinement in provincial prisons, including Francis v. Ontario, 2021 ONCA 197 and North v British Columbia (Attorney General), 2020 BCSC 2044;
– *Whaling v. His Majesty the King Whaling v. Canada, 2020 FC 1074 and *Kabutey v. His Majesty the King, 2020 FC 1073: two related class actions arising from federal legislation which retroactively extended the period of imprisonment of certain first-time, non-violent offenders, in breach of 11(h) and 11(i) of the Charter;
– Leroux v. Ontario, 2023 ONCA 314: a class action arising out of delays of benefits related to the operation and administration of a provincial social assistance program for developmentally disabled persons;
– Hudson v. Canada, 2025 FC 485: a class action involving allegations of systemic racism inside the RCMP; and
– *Sellars v. His Majesty the King (Federal Court File No. T-39-25): a class action involving allegations of systemic discrimination and misadministration of the sentences of Indigenous federal prisoners.
* Indicates Rice Harbut Elliott LLP is class counsel.
Given the important individual and societal functions that Charter damages serve, it is crucial that those who have experienced breaches of their Charter rights have access to the justice system to pursue such claims. Where the same State conduct results in members of our society suffering common Charter breaches, class actions can provide a unique mechanism for achieving that goal.