Limiting Charter Damages – Ernst v. Alberta Energy Regulator, 2017 SCC 1

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In its first decision of the year, Ernst v. Alberta Energy Regulator, 2017 SCC 1, the Court released its reasons for dismissing the appeal of Jessica Ernst, an Albertan who was suing, amongst others, the Alberta Energy Regulator for breaching her Charter-protected freedom of expression and seeking Charter damages for that alleged breach. At issue before the Supreme Court was whether the immunity clause in s. 43 of the Alberta Energy Resources Conservation Act had the effect of barring her claim for Charter damages. In a strange 4:1:4 split, a majority of the Court held that it did.
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Henry v British Columbia (Attorney General), 2016 BC 1038 – $7.5 million in Charter damages

 

Today, in Henry v. British Columbia (Attorney General), 2016 BCSC 1038 Chief Justice Chris Hinkson of the BC Supreme Court awarded Ivan Henry Charter damages of $7.5 million for the violation of his Charter rights resulting in his wrongful conviction and imprisonment for 27 years. He also awarded about half a million dollars for compensation as compensation for past loss of income and special damages of about $50,000. But after considering the “cap” on non-pecuniary damages and deciding that it was not applicable in this case, the Chief Justice sought to “vindicate” the wrongs of the British Columbian government.

Bearing in mind the direction of Chief Justice McLachlin in Ward that just as private law damages must be fair to both the plaintiff and the defendant, so s. 24(1) damages must be fair — or “appropriate and just” — to both the claimant and the state, and weighing the social burden of a large award to Mr. Henry against his suffering and loss of amenities, I find that an appropriate award to vindicate the violation of Mr. Henry’s Charter rights is the sum of $7.5 million. 

I will expand on this case in a later post. In the interim, I wanted to let you know of this important decision.  Click here to go directly to the decision.

Constitutionally yours,

 

Arthur Grant

BC Supreme Court certifies Charter claims by penetentiary inmates as a class action

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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.

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Nova Scotia’s Cyber-safety Act declared unconstitutional: Crouch v. Snell, 2015 NSSC 340

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On Friday, Justice McDougall of the Nova Scotia Supreme Court ruled that Nova Scotia’s Cyber-Safety Act is unconstitutional, violating both s. 2(b) and s. 7 of the Charter.  The Cyber-safety Act was passed in 2013 in response to the public outcry over the suicide death of a young woman, Rehtaeh Parsons, linked to her having been bullied on-line. In his 66 page judgment in Crouch v. Snell, 2015 NSSC 340, Justice McDougall held that the Nova Scotian legislature had gone too far in its attempt to address the dangers of cyberbullying.

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“I forgot” – no excuse for infringing an accused’s right to counsel

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An innocent omission, a slip of the mind, an honest mistake of an arresting police officer is not sufficient to prevent the Court from excluding evidence obtained following a violation of an accused person’s right to counsel. Last Friday, the Supreme Court of Canada reinforced that right and determined that, notwithstanding the inadvertent nature of the police’s behaviour, the correct remedy was to exclude the evidence subsequently obtained.

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