In a recent decision of the Supreme Court of British Columbia, Ewert v. Canada (Attorney General), 2016 BCSC 962,  Mr. Justice Blok certified as a class action certain aspects of a lawsuit brought by an inmate for, amongst other things, damages for violations of Charter rights. The inmate in question, Jeffery Ewert, claimed that, during a lockdown at the Kent Correctional Institution that occurred between January 7 and 18, 2010, his rights and the rights of other inmates under ss. 7, 8 and 12 of the Charter were violated and that they were accordingly entitled to damages.

While there were other claims in addition to the Charter damages claims (for example, unlawful imprisonment, negligence and misfeasance in a public office), what I find interesting is that Mr. Justice Blok found it appropriate to certify aspects of the ss. 7 and 12 claims, but not the s. 8 claims. Mr. Justice Blok outlined the Plaintiff’s basis for the Charter claims as follows:

[63]         The plaintiff alleges that various acts detailed in his claim
constituted breaches of the inmates’ rights under ss. 7, 8 and 12 of the
Charter.  As to s. 7, the right to life, liberty and security of the person, the
plaintiff refers to: (1) his allegations of the pointing of firearms, the
threats to the inmates that they would be shot (all to do with the right to
“life”); (2) the deprivations of their residual liberty in confining them to
their cells, the denial of basic needs such as exercise and access to counsel
and visitors, and the denial of medication and supplies for basic hygiene
(“liberty”); and (3) those same threats and deprivations, plus the strip
searches, which the plaintiff submits caused serious harm to the psychological
integrity of the inmates (“security of the person”).

[64]         As to s. 8 of the Charter (the right to be secure against
unreasonable search or seizure), the plaintiff submits that the strip searches
breached s. 8 in addition to being breaches of s. 7.  The plaintiff said,
however, that it does not rely on the s. 8 breaches as separate breaches for
which damages are sought but rather that the fact the strip searches also
breached s. 8 is an aggravating factor in determining the seriousness of the s.
7 breaches.  The plaintiff noted that even while in prison, inmates retain
certain privacy rights and expectations: R. v. Major (2004), 186 C.C.C. (3d) 513
(Ont. C.A.).

[65]         The plaintiff invokes s. 12 of the Charter on the basis that the
ss. 7 and 8 breaches constitute cruel and unusual treatment or punishment.

The learned justice found that the Notice of Civil Claim outlined the elements for claims for the violations of all three sections of the Charter [paras. 70-72]. He found that there was an identifiable class [being “all persons who were inmates of Kent Institution during the Lockdown that occurred from January 7, to January 18, 2010” [para. 83].

As to whether there were common issues relating to the Charter claims, he found that there were for ss. 7 and 12 but not for s. 8. The common issue for s. 7 that he certified was dealt with in this manner:

[97]         The final category of claims relates to the Charter claims.  I
conclude that the ss. 7 and 12 claims have sufficient commonality about them,
although the drafting of two of the questions could be improved by referring to
a “breach”.  In the case of the s. 7 claim, the wording of question (b) would
be:

(b) If yes, did the actions of the Defendant’s Agents during the Lockdown
constitute a breach of s. 7 of the Charter in that they were arbitrary and/or
resulted in grossly disproportionate effects and therefor impacted life, liberty
and the security of the class members in a manner contrary to the principles of
fundamental justice?

He found that the claim for s. 12 would have to be similarly reworded [para. 98].

Section 8, however, posed different issues for him. He held:

[99]         The claim for breaches of s. 8 of the Charter stands on a different
footing because the allegation is that strip searches were conducted without
adequate privacy barriers and, in some cases, with female correctional officers
present.  This necessarily requires an inquiry into the nature of the
interference with each inmate’s privacy rights or personal integrity.

[100]     In Thorburn v. British Columbia, 2013 BCCA 480, a plaintiff brought a
proposed class action against the province for its policy of requiring strip
searches for all new jail arrivals.  The court said:

[41] As the litigation progressed it became apparent that the appellants could
not rely merely on their claim that the policy for strip searching all new
arrivals (with the exception of the SIPPS and Bylaw offenders) was unreasonable
in order to establish a cause of action for the proposed class members. While a
warrantless search is presumptively unreasonable, a Charter right is individual
in nature. Individual assessments would be necessary to determine if reasonable
grounds existed (based on the objectively-justifiable subjective belief of the
arresting officer or staff member conducting the search) for the arrest and the
search incidental to the arrest of each class member, and whether the manner of
the search was reasonable in all of the circumstances unique to each proposed
class member. …

[Emphasis added.]

[101]     Although in this case there is no challenge to the validity of the
strip searches, as there was in Thorburn, the manner in which the search was
carried out is still an individual question.  I conclude that the s. 8 Charter
claim does not have the requisite commonality.

Thus, the section 8 claims were too individual-based to be susceptible of common treatment.

I suspect that the Attorney General will be appealing this decision. But in the interim, for those looking at situations where Charter rights have been violated on a mass or common basis, this decision offers a path for global resolution of such claims.

I remain

Constitutionally yours,

Arthur Grant