Charter - Charter Torts
. Francis v Ontario
In Francis v Ontario (Ont CA, 2021) the Court of Appeal set out some basics of Charter damages:
 An examination of any claim to Charter damages begins with the oft-quoted words of McLachlin C.J.C in Vancouver (City) v. Ward, 2010 SCC 27,  2 S.C.R. 28, at para. 4:. Stewart v. Toronto (Police Services Board)
I conclude that damages may be awarded for a Charter breach under s. 24(1) where appropriate and just. The first step in the inquiry is to establish that a Charter right has been breached. The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfil one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages. [Emphasis added.] The third step identified in Ward is the focus of this case. As explained in Ward, the Crown may defeat an otherwise viable claim to Charter damages by demonstrating countervailing factors, rendering damages an inappropriate or unjust remedy: at para. 33. Ward refers to the availability of alternative remedies and “concerns for good governance” as two examples of countervailing factors: at paras. 32-38. Ontario relies on “good governance” concerns in its argument that damages are an inappropriate remedy in this case.
 Ward uses the terms “good governance” and “effective governance” interchangeably. It does not offer a definition of either. Generally speaking, good governance concerns describe the potentially negative impact of Charter damage awards on the conduct of state actors charged with the responsibility of enacting laws and implementing and enforcing those duly enacted laws. The concern is that state actors will be deterred from performing those functions if they fear that, at some future point, a court will declare those duly enacted laws unconstitutional and award damages for acts done relying on the authority of the now unconstitutional laws: Ward, at paras. 39-41; Henry v. British Columbia (A.G.), 2015 SCC 24,  2 S.C.R. 214, at paras. 39-41.
 Ward makes it clear that good governance concerns do not necessarily defeat a claim for damages. State conduct that is sufficiently blameworthy will give rise to Charter damages despite good governance concerns. For example, a law passed in bad faith will not be immunized from Charter damages by good governance concerns. To the contrary, awarding Charter damages for state actions based on laws enacted in bad faith promotes good governance. The blameworthiness threshold referred to in Ward is not a single bright line but will vary with the nature of the state conduct giving rise, both to the Charter violations and the good governance claim: see Ward, at paras. 39-43; Brazeau/Reddock, at paras. 66-67.
In Stewart v. Toronto (Police Services Board) (Ont CA, 2020) the Court of Appeal set out the basics of Charter tort damages:
B. The general principles regarding Charter damages. Brazeau v. Canada (Attorney General)
 In Ward, the Supreme Court, at para. 4, set out the four-step framework for considering claims for damages for the breach of Charter rights:
1) Proof of a Charter breach: Establishing whether a Charter right has been breached;
2) Functional justification of damages: Showing why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation for the personal loss caused by a breach, vindication of the Charter right, and/or deterrence of future breaches;
3) Countervailing factors: Considering any demonstration by the state that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust; and
4) Quantum: Assessing the quantum of damages.
In Brazeau v. Canada (Attorney General) (Ont CA, 2020) the Court of Appeal reviewed the present state of Charter torts and dealt with some exotic damage issues. These are just some partial relevant quotes:
(4) Charter Damages. Henry v British Columbia (Attorney-General)
 The leading case on Charter damages is Vancouver (City) v. Ward, 2010 SCC 27,  2 S.C.R. 28. The plaintiff was strip searched following a public demonstration after he was wrongly identified as an individual the police suspected of planning to commit an assault. The Supreme Court upheld an award of $5,000 damages for breach of his s. 8 right to be free from unreasonable search and seizure.
 Writing for a unanimous court, McLachlin C.J.C. held that damages may be an appropriate and just remedy under s. 24(1). At para. 20, she adopted and applied the general principles identified in Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62,  3 S.C.R. 3, at paras. 55-58, and held that an appropriate and just remedy is one that will:
(1) meaningfully vindicate the rights and freedoms of the claimants; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made. She stated that damages “may meaningfully vindicate the claimant’s rights and freedoms” and are “a means well-recognized within our legal framework … [and] appropriate to the function and powers of a court”: at para. 21. Finally, depending upon the circumstances, the damages “can be fair not only to the claimant whose rights were breached, but to the state which is required to pay them”: at para. 21.
 The Chief Justice went on to establish a four-part test to determine whether damages are an appropriate and just remedy:
1. Has a Charter right been breached?....
2. Would damages fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches?
3. Has the state demonstrated countervailing factors that defeat the functional considerations that support a damage award and render damages inappropriate or unjust?
4. What is the appropriate quantum of damages?
 We are not persuaded that the mere existence or possibility of a tort claim precluded the motion judge from awarding Charter damages. Ward does not establish a firm rule that a court should not award Charter damages simply because there is a possible private law claim for the same damages. The concern expressed with respect to alternative remedies is the need to avoid duplication and double recovery. Ward contemplates concurrent claims for private law and Charter damages, provided an award of Charter damages is not “duplicative”: at para. 35. If there is another avenue to damages, “a further award of damages under s. 24(1) would serve no function and would not be ‘appropriate and just’” (emphasis added): at para. 34. Nor does Ward create a hierarchy of remedies with Charter remedies coming last. A claimant is not required to “show that she has exhausted all other recourses”: at para. 35. The evidentiary burden is the reverse. It is for the state “to show that other remedies are available in the particular case that will sufficiently address the breach”: at para. 35.
 The state can only complain if the award of Charter damages duplicates the available private law damages. Double recovery will not occur in this case. The motion judge made it clear, at para. 486 of Reddock that the damages he awarded were for both the Charter breach and for systemic negligence, and he ordered that “Class Members must credit the amount of their participation in the Aggregate Award against any subsequent award of damages”.
(b) Concerns for Good Governance
 The second countervailing consideration that makes a damage award inappropriate and unjust, which the Chief Justice discussed in Ward, was “concerns for good governance”. Canada, supported by the Attorney General of Ontario, argues that Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 13,  1 S.C.R. 405, provides an example of the principle that applies.
 In Mackin, the plaintiffs, two provincial court judges, complained that a statute removing their status as supernumerary judges violated the constitutional principle of judicial independence enshrined in s. 11(d) of the Charter. The Supreme Court agreed that the statute had to be struck down but refused to award the plaintiffs the damages they claimed for the loss they suffered by virtue of the statute. There is, said the court, a limited immunity that protects government “against actions in civil liability based on the fact that a legislative instrument is invalid”: Mackin, at para. 78.
 Ward, at paras. 39-40, explains the rationale for this limited immunity:
The rule of law would be undermined if governments were deterred from enforcing the law by the possibility of future damage awards in the event the law was, at some future date, to be declared invalid. Thus, absent threshold misconduct, an action for damages under s. 24(1) of the Charter cannot be combined with an action for invalidity based on s. 52 of the Constitution Act, 1982: Mackin, at para. 81. The Chief Justice added, at para. 42 of Ward, that Mackin was not exhaustive and that other situations might arise where “the state might seek to show that s. 24(1) damages would deter state agents from doing what is required for effective governance”.
The Mackin principle recognizes that the state must be afforded some immunity from liability in damages resulting from the conduct of certain functions that only the state can perform. Legislative and policy-making functions are one such area of state activity. The immunity is justified because the law does not wish to chill the exercise of policy-making discretion. As Gonthier J. explained [in Mackin, at para. 79]:
The limited immunity given to government is specifically a means of creating a balance between the protection of constitutional rights and the need for effective government.
 The Chief Justice held that the Mackin principle did not apply in Ward as the case did not concern action taken pursuant to a valid statute that had subsequently been struck down as invalid: Ward, at para. 41.
(c) Appropriate Fault Threshold
 This brings us to what appears to be the real issue at the third stage of the inquiry. It is the issue that lies at the heart of this case. Ward states, at para. 39, that where an award of Charter damages would interfere with good governance, “damages should not be awarded unless the state conduct meets a minimum threshold of gravity.” The issue is whether the imposition of administrative segregation meets the minimum threshold of gravity.
 Care must be taken at stage three of Ward not to simply repeat the analysis that led to the finding of a Charter breach. The imposition of administrative segregation that exceeded the stipulated time caps in both cases has to be found not only to breach ss. 7 and 12 of the Charter, but also to be sufficiently “wrong” to warrant Charter damages. The question at stage three of Ward is whether the state is sufficiently at fault to warrant lifting its prima facie good governance immunity.
 The plaintiff in Mackin was not entitled to damages “merely because the enactment of [the impugned law] was unconstitutional”: at para. 82. The court in Mackin used various terms to describe the fault threshold required to trigger liability. At one point, the court referred to the general public law principle that in such cases, there is no liability unless the enactment of the law was “clearly wrong, in bad faith or an abuse of power”: at para. 78. The court also said the government and its representatives will not be liable “if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional”: at para. 79. At three other points in the judgment, the court refers to “negligence”: at para. 82 (“negligently, in bad faith or by abusing its powers” and “negligence, bad faith or wilful blindness”) and at para. 83 (“a negligent or unreasonable attitude on the part of government”).
 The earlier decision in Guimond v. Quebec (Attorney General), 1996 CanLII 175 (SCC),  3 S.C.R. 347, at para. 17, cites similar language: “no cause of action exists for the conduct of [government actors] when acting within the authority of the legislation in the absence of any allegation of wrongful conduct, bad faith, negligence or collateral purpose.” Subsequent cases have similarly included negligence as an appropriate fault threshold. One such case is Wynberg v. Ontario (2006), 2006 CanLII 22919 (ON CA), 82 O.R. (3d) 561 (C.A.), leave to appeal refused,  S.C.C.A. No. 441, in which this court held, at para. 202, that “[a]bsent bad faith, abuse of power, negligence or wilful blindness in respect of its constitutional obligations, damages are not available as a remedy in conjunction with a declaration of unconstitutionality” (emphasis added). Another is Sagharian v. Ontario (Education), 2008 ONCA 411, 172 C.R.R. (2d) 105, leave to appeal refused,  S.C.C.A. No. 350, which summarized Mackin as holding that “the respondents were not entitled to damages merely because the enactment of the legislation at issue was unconstitutional, finding no evidence that the government acted negligently, abusively, or in bad faith” (emphasis in original): at para. 34.
 In Ward, the Chief Justice said that where good governance concerns arise, “a minimum threshold, such as clear disregard for the claimant’s Charter rights, may be appropriate”: at para. 43. However, “[d]ifferent situations may call for different thresholds” in a manner analogous to private law, ranging from malice for malicious prosecution to negligence for claims based on inadequate police investigation: at para. 43.
 As we are dealing with a regulatory regime premised on administrative segregation of indeterminate duration rather than legislation requiring that result, we consider it appropriate to apply the minimum threshold of fault described in Ward, namely, “a clear disregard for the claimant’s Charter rights”: at para. 43.
 As we have stated, in this case the minimum fault threshold required to overcome the claim of good governance immunity is “clear disregard” for Charter rights. Drawing on criminal law principles, we view the Ward fault standard of “clear disregard” for Charter rights as analogous to recklessness or wilful blindness. In Sansregret v. The Queen, 1985 CanLII 79 (SCC),  1 S.C.R. 570, at pp. 584-85, the court defined those standards by explaining that “[t]he culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.” A “clear disregard” for Charter rights connotes either proceeding with a course of action in the face of a known risk that the Charter will be violated or by deliberately failing to inquire about the likelihood of a Charter breach when the state knows that there is a good reason to inquire.
In Henry v British Columbia (Attorney-General) (SCC, 2015) the Supreme Court of Canada canvassed the law of Charter damages (lawsuits against government for violating of Charter rights) in the context of a prolonged wrongful incarceration. The plaintiff alleged that the Crown wrongfully withheld evidence from him that might have been applied to exonerate him. The case focussed on whether malice is a necessary element to make out such a case (akin to that requirement in malicious prosecution claims). In holding that malice was not an element in charter damage claims, the court elaborates usefully on the general nature of civil claims for Charter violations:
Does s. 24(1) of the Canadian Charter of Rights and Freedoms authorize a court of competent jurisdiction to award damages against the Crown for prosecutorial misconduct absent proof of malice?
 In the context of Mr. Henry’s claims, I would answer this question in the affirmative. Where a claimant seeks Charter damages based on allegations that the Crown’s failure to disclose violated his or her Charter rights, proof of malice is not required. Instead, a cause of action will lie where the Crown, in breach of its constitutional obligations, causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence. This represents a high threshold for a successful Charter damages claim, albeit one that is lower than malice.
 I will discuss the legal basis and precise scope of this threshold in greater detail below. Briefly, it recognizes that while malice does not provide a useful or workable framework for dealing with allegations of wrongful non-disclosure by prosecutors, the policy underpinnings of this Court’s malicious prosecution jurisprudence inform the proper scope of Crown liability for Charter damages in this context.
 I emphasize “this context” because, in my view, it is neither prudent nor necessary to decide whether a similar threshold would apply in circumstances not involving wrongful non-disclosure. Mr. Henry’s claim against the AGBC is rooted in allegations that Crown counsel failed to disclose certain relevant information. It would be unwise to speculate about other types of prosecutorial misconduct that might violate the Charter, or to fix a blanket threshold that governs all such claims against the Crown. The threshold established in this case may well offer guidance in setting the applicable threshold for other types of misconduct, but the prudent course of action is to address new situations in future cases as they arise, with the benefit of a factual record and submissions.
B. Ward Provides the Governing Legal Framework
 Under s. 24(1) of the Charter,
[a]nyone whose rights or freedoms . . . 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 Ward, this Court recognized that the language of s. 24(1) is broad enough to encompass damage claims for Charter breaches. Such claims are brought by an individual as a public law action directed against the state for violations of the claimant’s constitutional rights.
 Charter damages are a powerful tool that can provide a meaningful response to rights violations. They also represent an evolving area of the law that must be allowed to “develop incrementally”: Ward, at para. 21. When defining the circumstances in which a Charter damages award would be appropriate and just, courts must therefore be careful not to stifle the emergence and development of this important remedy.
 However, Charter damages are not a silver bullet. They are just one of many remedies that may be available to individuals whose Charter rights have been breached, and their availability is not without limit. In Ward, the Chief Justice outlined a four-step framework to determine the state’s liability for Charter damages:
The first step in the inquiry is to establish that a Charter right has been breached. The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages. [para. 4] Under this framework, the claimant bears the initial burden of making out a prima facie case. The claimant must demonstrate that the state has breached one of his or her Charter rights and that an award of damages would serve a compensation, vindication, or deterrence function. Once that burden is met, the onus shifts to the state to rebut the claimant’s case based on countervailing considerations. The Chief Justice identified two important countervailing considerations, while maintaining that a “complete catalogue” of such considerations would be elaborated over time: Ward, at para. 33.
 The first countervailing consideration is the existence of alternative remedies. Section 24(1) is a broad remedial provision that provides a range of responses to Charter violations beyond a monetary award. In addition, there may be substantial overlap between private law and s. 24(1) actions against the government. Where the state can show that another remedy is available to effectively address a Charter breach — whether under the Charter or in private law — a damages claim may be defeated at the third step of Ward. For instance, if a declaration of a Charter breach would adequately achieve the objectives that would otherwise be served by a damages award, then granting damages as well as a declaration would be superfluous, and therefore inappropriate and unjust in the circumstances: Ward, at para. 37.
 The second countervailing consideration — and the one at issue in this case — relates to concerns over good governance. Ward does not define the phrase “[g]ood governance concerns” (para. 38), but it serves as a compendious term for the policy factors that will justify restricting the state’s exposure to civil liability. As the Chief Justice observed:
In some situations, . . . the state may establish that an award of Charter damages would interfere with good governance such that damages should not be awarded unless the state conduct meets a minimum threshold of gravity. [Emphasis added; para. 39.]This is precisely what the AGBC, the AGC, and the numerous intervening Attorneys General argue in this case. There is a common theme driving their submissions: if the threshold of gravity is set too low for a Charter damages claim alleging Crown misconduct, the ability of prosecutors to discharge their important public duties will be undermined, with adverse consequences for the administration of justice.
 This theme finds expression in a number of specific policy concerns. For example, the Attorneys General argue that the spectre of liability may influence the decision-making of prosecutors and make them more “defensive” in their approach. The public interest is not well served when Crown counsel are motivated by fear of civil liability, rather than their sworn duty to fairly and effectively prosecute crime. By the same token, the Attorneys General suggest that a low threshold would open up the floodgates of civil liability and force prosecutors to spend undue amounts of time and energy defending their conduct in court instead of performing their duties.
 As I will explain, these concerns are very real, and they provide compelling reasons why the availability of Charter damages should be circumscribed through the establishment of a high threshold.
 Ward provides an example of a prior case where a heightened per se liability threshold was justified by policy reasons. In Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13 (CanLII),  1 S.C.R. 405, this Court held that Charter damages were unavailable for state action taken pursuant to a law, considered valid at the time but later declared invalid, unless the state action was “clearly wrong, in bad faith or an abuse of power” (para. 78). In other words, state actors were afforded a limited immunity for actions taken in good faith under a law they believed to be valid. Citing Mackin, the Chief Justice in Ward noted that, “absent threshold misconduct”, no cause of action for Charter damages will lie in these circumstances (para. 39).
 When a heightened per se liability threshold has been imposed, this will have consequences at the pleadings stage. To survive a motion to strike, a claimant must plead sufficient facts to disclose a reasonable cause of action: see R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII),  3 S.C.R. 45. If the alleged Charter violation occurs in a context where courts have imposed a heightened per se liability threshold, the claimant must particularize facts that, if proven, would be sufficient to establish that the state conduct met the required threshold of gravity. The failure to do so will be fatal to the claim. With these principles in mind, I turn to the applicable threshold for wrongful non-disclosure by prosecutors.