The Development of Charter Damages Jurisprudence in Canada: Guidelines from the Supreme Court

JurisdictionSouth Africa
AuthorChuks Okpaluba
Published date16 August 2019
Date16 August 2019
Chuks Okpaluba
LLB LLM (London) PhD (West Indies)
Adjunct Professor, Nelson Mandela School of Law, University of Fort Hare
1 Introduction
Damages for violations of the Canadian Char ter of Rights and Freedoms
1982 (the “Cha rter”) are one area of contemporary Canadian constitutional
jurisprude nce t hat has been slow in its take-off. Earlier in its 30 years’
existence, Supreme Court judges expressed views ind ividually on the
availability of Charte r damages1 and, indeed, awards were made in a
handful of trial-court judgments.2 However, there was only one judgment
in which t he Supreme Court deliberated upon the award of constitutional
damages in ter ms of section 24(1) of the Charte r.3 That was in Mackin v New
Brunswick (Minister of Finance); Rice v New Bru nswick4 which concerned
the availabi lity of const itutional damages where the legislature had made a
law subsequently invalid ated by the c ourts. T he recent case of Vancouver
(City) v Ward5 is thus the rst Charter claim in which the Supreme Court
of Can ada has fully deliber ated upon the award of constitutional damages.
Consequently, it has provided Canadian constitutional adjudication with an
1 In McKinn ey v Universit y of Guelph (1990) 67 DLR (4th) 545 621, Wilson J was prepa red to award
constitut ional damages for los s of earnings and b enefits susta ined by the plainti ffs through the b reach of
their s 15 Cha rter right s in addition to the order of reinstateme nt The underly ing reasoni ng of Wilson J
was that “ the remedial s cope of s 24(1) was not inte nded to be lim ited to that ava ilable at common l aw”
See also per Go nthier J, Guimond v Quebec (Attorne y General) (1996) 138 DLR (4th) 647 (SCC) para 15
and Mack in v New Brunswick (Minister o f Finance); Ri ce v New Brunswick (2002) 209 DLR (4th) 564
(SCC) para 79
2 See for exa mple Vespoli v R (1984) 12 C RR 185; Patenua de v Roy (1994) 123 DLR (4th) 78; Dulude v
Canada [2001] 1 FC 545; (20 01) 192 DLR (4th) 714; Chr ispen v Kalinowski (1997) 148 DLR (4th) 720
(Sask QB); Persau d v Donaldson (1995) 130 DLR (4th) 701; Dix v Canada (Attor ney General) (2002) 7
Alta LR (4th) 205 (Alta QB)
3 S 24(1) of the Charter provides:
“Anyone whose rights or freedoms, as g uaranteed by this Charte r, have been infr inged or denied may
apply to a court of compete nt jurisdiction to obta in such remedy as the court con siders appropriat e and
just in the cir cumstances ”
4 (2002) 209 DLR (4th) 564 (SCC) Althoug h Mackin v New Br unswick (Min ister of Finance); Ri ce v New
Brunswick (2002) 209 DLR (4th) 564 (SCC) was decided under the Cha rter, it was an affirma tion of a line
of cases since Welbridge Holdings Ltd v G reater Winnipeg [1971] SCR 957 thr ough Roman Corpo ration
Ltd v Hudson’s Bay Oil & Co (1976) 22 DLR (3d) 470 (SCC); Ce ntral Canada Potash Co v Govern ment
of Saskatche wan [1979] 1 SCR 42 (SCC) down to Guimond v Quebe c (Attorney General) (1996) 138 DLR
(4th) 647 (SCC) where the Supreme Cou rt refra ined from holding th e legislatur e liable i n damages for
acts or omissions com mitted in the lawma king proces s where the conduct of t he State wa s not “clearly
wrong, in b ad faith or an a buse of power” - Ma ckin v New Br unswick (Mini ster of Finance); Ri ce v New
Brunswick (2002) 209 DLR (4th) 564 (SCC) para 79 See g enerally, C Okpaluba & P Osode Governm ent
Liability: Sout h Africa and the Comm onwealth (2010) para 11 2 3
(2012) 23 Stell LR 55
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exhaustive and author itative interpretation of “appropriate and just relief”6
in section 24(1) of the Charter in respect of Cha rter damages.7
In for mulating a set of principles outlining the Canadian approach to the
award of damages upon breach of a Charter right, Ward has laid a rm foundation
for claims for constit utional damages as an alte rnative cause of action to tor t
damages. To t hat extent, it is to Canad ian constitutiona l adjudication what
Maharaj v Att orney General of Trinidad and Tobago8 (“Maharaj”)/Attorney
General of Trinidad and Tobago v Ramanoop9 (“Ramanoop) are to Trinida d
and Tobago and the Caribbean constitut ional juri sprudence, what Simpson v
Attorney General10 (“Baigent’s case”)/Ta unoa v Attorney General11 (“Tau no a”)
are to New Zealand, and Fose v Minister of Safet y and Secur ity12 (“Fose”) /
Zealand v Minister of Justice and Constitutional Development13 (“Zealand”)
are to South African public law. It has gone furthe r to dene the relationship of
constitutional damages with tor t damages along the lines of the Privy Council
judgment in Maha raj v Attorney General of Trinidad and Tobago (“Maharaj
(2)” )14 as adopte d by the Court of Appeal of New Zealand in Baigent’s case
and consolidated by the Supreme Court in Taun ao . This ar ticle, therefore,
underta kes a detailed examination of the judgment in Wa rd. It starts with
the discussion of the leading Com monwealth precedents which provides a
comparative perspective to the st udy. For, in that way, the contributions of
6 Cf the equivalent but slightly differ ently worded “appropriat e relief” and “just and equit able” in ss 38 and
172(1)(b) respectively of the Const itution of the Republic So uth Africa, 1996 (“t he Constitutio n”)
7 Although there was paucity of awards of damages under s 24(1) of the Charte r, there was no correspo nding
shortage of int erpretative guideline s to that sec tion For instance, in D oucet-Boudre au v Nova Scotia
(Minister of Educa tion) [2003] 3 SCR 3 para 23, Iacobucci a nd Arbou r JJ laid down a n inter pretative
approach which has implications for Charte r dam ages. T heir Hon ours s poke of the need t o give the
Charter a generous and expansive interpret ation, rathe r than “a narrow, techn ical, or legal ist” one T he
need for such a generous interpret ation nece ssarily f lows from the p rinciple th at the Charter ought to
be inter preted pur posively See also Canada (Atto rney Genera l) v Hislop [20 07] 1 SCR 429 para 94 A
similar appro ach to the interpretat ion of the fundamental rig hts provisions is prevalent in Commonwe alth
case law: Marshall v De puty Gover nor of Ber muda [2010] UKPC 9 (PC) par a 15; Thomson v Bermuda
Dental Board [2008] UKPC 33 (PC) pa ra 29; Njoya v Attorney General [2004] 4 LRC 559 (Ken HC);
Reyes v The Qu een [2002] UKPC 11 (PC) pa ra 26; Sekoati v Pre sident, Court Ma rtial 2001 7 BCLR 750
(Les CA); PV Narsimha R ao v State AIR 1998 SC 2120 2146; S v Zuma 1995 2 SA 6 42 (CC) 651F-G; S v
Makwanyane 1995 3 SA 391 (CC) 403G-404A; Government o f Namibia v Cu ltura 2000 1994 1 SA 407
(NASC); Attorney Gener al v Momodou Jobe [1984] AC 689 (PC) 700; Minister of Home Affairs (Bermuda)
v Fisher [1980] AC 319 (PC) 328 Whi le courts must be caref ul not to overshoot the actual pur poses of
the Char ter’s guarantee s, they must avoid a narrow, techn ical approach to its interpre tation which cou ld
subvert t he goal of ensu ring that rights holders enjoy the fu ll benefit a nd protection of the Chart er The
requireme nt of a generous and expansive interpr etive approach holds equally tr ue for Charter remedie s as
for Chart er rights: Do ucet-Boudrea u v Nova Scotia (Minister o f Education) [2003] 3 SC R 3 para 24; R v
Gamble [1988] 2 SCR 595 (SCC); R v Sarson [1996] 2 SCR 223 As Iacobucci and Arbo ur JJ explained in
Doucet-Bo udreau v Nova Scotia (Mini ster of Education) [20 03] 3 SCR 3 para 25:
“Purpo sive interpretat ion means that remedies prov isions must be interpret ed in a way that provides ‘a
full, effective and mean ingful remedy for Charter violations’ since ‘a right, no matter how expansive in
theory, is only as meani ngful as the remedy provid ed for its breach’ A pur posive approach to remedies
in a Charter cont ext gives moder n vitality to the ancient max im ubi jus, ibi re medium: where t here is
a right, ther e must be a remedy ”
See also per McLa chlin J in R v 974649 Ontario Inc [20 01] 3 SCR 575 paras 19-20
10 [1994] 3 NZLR 667 (NZCA) 677, 692 and 702 per Cooke P, Casey a nd Hardie Boys JJ respe ctively
11 [2008] 1 NZLR 429 (SCNZ)
14 [1978] 2 All Er 670 (PC) 679j
56 STELL LR 2012 1
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