Originally published in The Lawyers Weekly, April 17,
2009
The British Columbia Court of Appeal recently weighed in on
whether damages are available for breach of a Charter right where
no bad faith or accompanying tort is proven.
In Ward v. British Columbia, [2009] B.C.J. No. 91, the
plaintiff brought an action arising out of his arrest. He was
mistaken for someone else, detained, taken to police lockup and
subjected to a strip search. The strip search was done under a
policy found to be ambiguous. The trial judge concluded that the
plaintiff 's Charter right under s. 8 to be secure against
unreasonable search was infringed, either because the strip search
was not in accordance with the policy or the policy was
unreasonable. While the plaintiff did not prove that the
corrections officers acted in bad faith or committed an
accompanying tort, the trial judge awarded the plaintiff damages
under the Charter.
