Why Charter lawsuits won’t stop

When Sen. Mike Duffy launched his $7.8-million lawsuit against the government last week for allegedly breaching his Charter rights, the move elicited comparisons to Canada’s recent settlement with Omar Khadr. There, the government paid out Khadr a reported $10.5 million, settling a lawsuit where he sought damages over government officials contributing to his detention at Guantanamo Bay in a manner that violated his Charter rights.

While the cases do share some similarities, they should not be overstated. In Khadr’s case, the Supreme Court had previously ruled his Charter right had been violated, lending support to his suit; one earlier case — Maher Arar’s $10.5-million award from the government for aiding in his imprisonment in Syria — offered guidance on the magnitude of the award Khadr could be entitled to; and the settlement is now complete.

By comparison, many of Duffy’s Charter claims are tenuous at best; many experts say he’s seeking a preposterous sum; and his claim is nowhere near finished.

But Duffy and Khadr’s cases — taken together with two other recent Supreme Court rulings — do portend an important trend: the rise of claims for Charter damages. Canadians should brace themselves for a lot more of these in the years to come.

The Charter of Rights and Freedoms has been upending Canada’s legal landscape from the moment it took effect in 1982. So it’s a bit surprising that it took nearly three decades for the Supreme Court to weigh in on a fundamental question: can the government be ordered to compensate individuals for violating their Charter rights?

The 2010 case that finally decided the question involved a relatively minor issue. Vancouver police had strip-searched a man, Alan Ward, whom they believed planned to throw a pie at then prime minister Jean Chrétien. Not only did police target the wrong guy, he happened to be a lawyer, who turned around and sued them. The judge ruled the strip search was unconstitutional, not least because it was humiliating and unnecessary. Fair enough: it’s hard to imagine how police thought they’d find a pie in the man’s pants.

The more important question, though, was whether Ward was entitled to $5,000 for enduring this undignified search. According to some articles, all Ward wanted was a government apology, which was never forthcoming. So instead, the case went all the way to the Supreme Court, where Canadians were delivered a ruling with repercussions that will cost us a whole lot more than $5,000 in the long run. In effect, the Ward case confirmed the Charter is not merely a shield against government abuse, but also, in some cases, a sword with which individuals can go after government for Charter violations.

Since then, the Supreme Court has clarified in two subsequent cases the circumstances in which damages can be pursued: a 2015 case involving a man who served 27 years for a wrongful conviction as a result of the prosecution’s woeful misconduct; and a decision this year over whether a woman, Jessica Ernst, could seek compensation for the Alberta Energy Regulator’s alleged violation of her freedom of expression.

While these rulings resolved minor points of law, each also made clear there will need to be a lot more litigation before the law of Charter damages becomes settled. Indeed, the court effectively acknowledged this in its Ward decision, noting this new area of law “should develop incrementally,” and that courts could not properly “reduce their discretion by casting it in a straitjacket of judicially prescribed conditions.”

It also remains unclear whether government has the ability to introduce laws to limit its own liability, such as immunity clauses or a schedule that outlines compensation for different levels of rights infringements. In the Ernst case, Alberta’s legislation included a clause meant to immunize the regulator from damages, but the Supreme Court’s confused ruling in the case did little to clarify whether such provisions are legitimate.

So, when faced with these Charter lawsuits, the government currently faces two unpalatable options: settle—as with Khadr — for sums the public finds hard to swallow; or fight a case to its finish, at great expense and potentially considerable reputational damage, which could be what happens with Duffy.

Neither sounds very satisfying, but it’s not obvious we have better alternatives. Cash awards have long been one of the ways we right wrongs. Even if money rarely remedies actual suffering, attaching a value to rights violations demonstrates they have meaning.

In many cases, though, Canadians might see the justice in some compensation, but disagree with the size of an award. That surely fed much of the anger over Khadr’s settlement; now imagine if Duffy got millions. And there is undoubtedly something absurd about the idea of law-abiding taxpayers handsomely compensating individuals who we know committed immoral acts, even if they’re not legally culpable for them.

But it’s helpful to remember the purpose of such cash remedies. They’re supposed to help make whole what individuals lost in having their rights violated. So ask yourself: would you take $10 million to spend a decade languishing in a cell while denied your legal rights? Would you accept $5,000 for a humiliating strip search? Would you tolerate two years without senatorial pay in exchange for a couple million dollars?

Okay, maybe that last one. But you get the drift: the hypothetical price you’d put on many of these experiences would be significant, if not beyond measure. That’s how the court will see some of these Charter cases, and that’s why they’ll likely keep being eye-poppingly expensive.