Documentation:Torts/Constitutional torts

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Constitutional torts
A "constitutional tort" is a violation of a person's constitutional rights by a public authority that is redressable by civil action. Constitutional torts in Canada arise from breach of a claimant's rights as provided by the Charter of Rights and Freedoms.[1] A claimant who succeeds in a constitutional tort action may be awarded damages.[2]

Suing for constitutional torts

In the news
Police officer sues City of Winnipeg for violating Charter rights
A man with his hands behind his back, handcuffed.
A Winnipeg police officer is suing the city for allegedly violating his Charter rights with an unconstitutional house search and arrest in 2017.[3]

The term "constitutional tort" refers to a civil right of action that an individual may bring against a public authority for violation of a right they enjoy by virtue of a constitutional bill of rights, as opposed to a right recognized at common law.[4]

Canada

A constitutional tort in Canada proceeds against the Crown, not against individual public officers. It is considered a public law action and is distinct from common law actions that may be brought against a public authority either directly for ordinary tortious conduct or indirectly through the doctrine of vicarious liability.[2] Although distinct from common law actions, there are at least three ways in which common law principles are relevant to the determination of constitutional torts.[5]

First, where a public authority's conduct gives rise both to causes of action at common law and under the Charter, the common law claim typically takes priority in the court's analysis.[5] For example, in Canada (Attorney General) v. Richard, the plaintiff alleged he had been subjected to unlawful treatment by Correctional Services Canada during his time as an inmate.[6] The Federal Court of Canada determined the plaintiff's claims for battery, false imprisonment, and negligence before addressing his Charter claims under sections 2, 7-9, 12, and 15.[6]

In this episode of The Legal Eagle Files, the podcast hosts discuss how people can bring excessive force claims against the police in the US.[7]

Second, common law principles may guide a court in understanding whether a Charter violation has been made out.[5] In R v. Le, the Supreme Court of Canada acquitted the defendant of charges of firearm and drug possession, finding a breach of his Charter rights after officers had trespassed and unlawfully detained him.[8]

Third, a court may award damages for a constitutional tort guided by the measure of damages awarded in similar private law actions.[9] And like in private tort actions, damages should be awarded with the goal of placing the plaintiff in the position they would be in if the impugned act had not occurred.[10]

United States

Constitutional tort actions in the United States proceed against the government officer personally, as opposed to against their government employer.[11]

In the news
Man who was mistakenly beaten and arrested by police sues for justice
A man sued the US government after he was mistakenly attacked by FBI agents. SCOTUS ruled against him in a controversial 2021 decision, but the case remains ongoing.[12]

The United States Supreme Court has developed a doctrine of qualified immunity of officers from constitutional tort liability, which shields officers from civil liability unless the claimant can meet a two-pronged test: 1) the officer “violated a federal statutory or constitutional right, and 2) the unlawfulness of their conduct was ‘clearly established at the time’” they acted.[13] The second prong is particularly difficult to make out because there must usually be some existing precedent that establishes the unlawfulness of the conduct "beyond debate," and "[t]he precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply."[14]

Qualified immunity aims to balance two different interests: "the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably."[15] The doctrine is controversial and has been criticized from a number of perspectives.[16]

Constitutional tort damages

The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 24(1)
24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, 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.

The Supreme Court of Canada has elucidated the elements that make up an appropriate and just remedy under section 24.1 of the Charter. As summed up by the Court in Vancouver v. Ward, such a remedy will:[17]

  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.
In the news
$80,000 awarded to man in racial profiling case
Side view of a Toronto police card on the road.
The ruling in Elmardy v. Toronto Police Services Board[18] awarded $80,000 in damages to a man who had been racially profiled by the police, including $50,000 in Charter damages.[19]

The Court in Ward emphasized that while damages can be a remedy that meets those requirements, it is only one type of possible remedy amongst various options, and there are times at which other remedies may be more suitable.[20] Public law damages are a relatively new and unique remedy.[21] Damages for a constitutional tort are "a distinct remedy of constitutional damages", separate from private law damages.[2] They allow a wronged individual to receive compensation from the state for the breach of their constitutional rights.[2]

In addressing whether an award of constitutional damages is appropriate and just in the circumstances, the judicial analysis follows a tailored series of steps. The first step is for the claimant to establish a Charter breach.[22] The second is for the claimant to show that an award of damages achieves at least one of three functional objectives: compensation, vindication, or deterrence.[22] If the first two requirements are made out, the onus shifts to the state to prove that there are countervailing factors that negate the suitability of damages as a remedy.[22] For example, the state may wish to demonstrate that some other remedy will sufficiently address the breach in the circumstances.[23] If the claimant has established a concurrent action in common law tort, the court should avoid double compensation in assessing any constitutional tort damages.[24] Another argument that may be open to the state is that constitutional damages "would interfere with good governance such that damages should not be awarded unless the state conduct meets a minimum threshold of gravity."[25] If the state fails to establish any countervailing factors, the fourth and final step is to assess the quantum of damages.[22]

Discussion questions

  • In what ways can Canadian constitutional tort actions be understood to ‘follow’ common law tort claims?
  • In the United States, constitutional tort actions are subject to the doctrine of qualified immunity (§6.6.8). What is the rationale of this doctrine? Should constitutional tort actions in Canada be subject to qualified immunity?
  • What are the purposes of constitutional tort damages? How do they differ from the purposes of common law tort damages?
  • Prof. Varuhas has suggested that human rights violations may be better addressed through the law of intentional torts, given how public law damages awards tend to be quite modest.[26] Prof. Roach, on the other hand, argues that “there are still a number of compelling advantages to continuing to conceive of damages as a public law remedy.”[27] What are those advantages?


  1. ↑ See e.g. Pelletier v. Collins, 2012 SKQB 318 at para 24; C.H.S. v. Alberta (Child, Youth and Family Enhancement Act, Director), 2010 ABCA 15 at para 10.
  2. ↑ 2.0 2.1 2.2 2.3 Vancouver (City) v. Ward, 2010 SCC 27 (§24.2.1) at para 22.
  3. ↑ Bergen, Rachel (22 February 2023). "Winnipeg police officer accuses employer of violating his Charter rights with arrest, house search". CBC News.
  4. ↑ Beswick, Samuel (9 November 2023). "Equality Under Ordinary Law". Supreme Court Law Review. 1 (3d): 30.
  5. ↑ 5.0 5.1 5.2 Beswick, Samuel (9 November 2023). "Equality Under Ordinary Law". Supreme Court Law Review. 1 (3d): 31.
  6. ↑ 6.0 6.1 Richards v. Canada, 2022 FC 1763.
  7. ↑ The Legal Eagle Files (9 June 2020). "Suing police officers for excessive force, defunding law enforcement". Apple Podcasts.
  8. ↑ R. v. Le, 2019 SCC 34 (§2.4.5).
  9. ↑ Vancouver (City) v. Ward, 2010 SCC 27 at para 54.
  10. ↑ Vancouver (City) v. Ward, 2010 SCC 27 at para 71.
  11. ↑ Beswick, Samuel (9 November 2023). "Equality Under Ordinary Law". Supreme Court Law Review. 1 (3d): 35.
  12. ↑ Sullum, Jacob (25 February 2021). "SCOTUS Rules Against an Innocent Man Who Was Choked and Beaten by Cops, but He May Still Get His Day in Court". Reason.
  13. ↑ Beswick, Samuel (9 November 2023). "Equality Under Ordinary Law". Supreme Court Law Review. 1 (3d): 35 citing District of Columbia v. Wesby, 138 S. Ct. 577 (2018) at 589.
  14. ↑ District of Columbia v. Wesby, 138 S. Ct. 577 (2018) at 590.
  15. ↑ Pearson v. Callahan, 555 US 223 (2009) at 231.
  16. ↑ Beswick, Samuel (2022). "What is Scholarly Legal Writing? An Introduction to Different Perspectives (On US Qualified Immunity Doctrine) (Presentation Slides)". SSRN.
  17. ↑ Vancouver (City) v. Ward, 2010 SCC 27 (§24.2.1) at para 20.
  18. ↑ Elmardy v. Toronto Police Services Board, 2017 ONSC 2074.
  19. ↑ Giroday, Gabrielle (11 September 2017). "Damages awarded in racial profiling case". Law Times.
  20. ↑ Vancouver (City) v. Ward, 2010 SCC 27 (§24.2.1) at para 21.
  21. ↑ Vancouver (City) v. Ward, 2010 SCC 27 (§24.2.1) at paras 21, 31.
  22. ↑ 22.0 22.1 22.2 22.3 Vancouver (City) v. Ward, 2010 SCC 27 (§24.2.1) at para 4.
  23. ↑ Vancouver (City) v. Ward, 2010 SCC 27 (§24.2.1) at paras 33–35.
  24. ↑ Vancouver (City) v. Ward, 2010 SCC 27 (§24.2.1) at para 35.
  25. ↑ Vancouver (City) v. Ward, 2010 SCC 27 (§24.2.1) at para 39.
  26. ↑ Varuhas, Jason NE (2016). Damages and Human Rights. Oxford: Hart Publishing.
  27. ↑ Roach, Kent (2021). Remedies for Human Rights Violations: A Two-Track Approach to Supra-national and National Law. Cambridge: Cambridge University Press. p. 269.
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