Court File and Parties

CITATION: HMTK, et al. v. Sergovich, 2025 ONSC 3971

DIVISIONAL COURT FILE NOS.: DC-24-00000001-0000 DC-24-00000002-0000

DATE: 2025-07-10

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: HIS MAJESTY THE KING IN RIGHT OF ONTARIO, AS REPRESENTED BY THE MINISTRY OF THE SOLICITOR GENERAL, SGT. NIGEL HEELS, CST. JASON SIBLEY, and CST. MATTHEW HALL, Appellants

AND:

DANIEL SERGOVICH, Respondent

BEFORE: Justice A.K. Mitchell

COUNSEL: Claudia Brabazon and Alice (Yun) Liu, for the Appellants Philip Cornish, for the Respondent

HEARD: June 18, 2025 via videoconference.

Endorsement

Overview of the Appeal

[1] This is an appeal by the defendants, His Majesty the King in Right of Ontario, as represented by the Ministry of the Solicitor General (Ontario Provincial Police) and three (3) individually-named Ontario Provincial Police (“OPP”) officers (collectively, the “Appellants”), from the February 13, 2024 decision of Deputy Judge Ferguson (the “Decision”).

[2] In prior criminal proceedings prosecuted in the Ontario Court of Justice, the Honourable Justice MacDonald found that the conduct of the OPP violated the rights of the plaintiff, Daniel Sergovich (the “Respondent”), under s. 10(b) of the Canadian Charter of Rights and Freedoms (the “Charter”)[^1] and granted a stay of the criminal proceedings pursuant to his authority under s. 24(1) of the Charter.

[3] Pursuant to the Decision rendered in the civil proceedings, the trial judge dismissed the Respondent’s tort claims alleging false arrest, wrongful detention and negligent investigation. However, the trial judge awarded the Respondent damages arising from the Appellants’ breach of his s. 10(b) Charter rights. The Respondent was awarded $10,000 in general damages and $5,270 in special damages pursuant to s. 24(1) of the Charter.

[4] On this appeal, the Appellants submit that the trial judge committed a palpable and overriding error by awarding damages as a remedy under s. 24(1) of the Charter in addition to the stay of the criminal proceedings earlier granted by Justice MacDonald in connection with the criminal proceedings. Furthermore, the Appellants submit the trial judge committed an error in law by awarding the Respondent special damages for legal fees and expenses incurred to defend the criminal proceedings.

[5] In the alternative, should Deputy Judge Ferguson be found not to have erred in awarding damages under s. 24(1) of the Charter, such award of damages is excessive and should be reduced.

[6] During oral argument, the Appellants also challenged the decision of Deputy Judge Ferguson released March 11, 2024 pursuant to which the Respondent was awarded costs of the trial totaling $6,194.40 inclusive of HST (the “Costs Decision”).

[7] The Appellants do not appeal the findings of fact made by Deputy Judge Ferguson. Specifically, the Appellants concede (as they did at trial) that they violated the Respondent’s s. 10(b) Charter rights.

Factual Background

[8] The material facts are not in dispute.

The Criminal Proceedings

[9] On March 2, 2018, the Respondent attended at the emergency room at Alexandra Marine General Hospital (“AMGH”) in Goderich, Ontario seeking pain medication. The Respondent raised his voice when speaking to staff at the admission desk and the staff called Dr. Alexander Radan to assist.

[10] Dr. Radan attended the waiting area and spoke with the Respondent. During this discussion, the Respondent used erratic and alarming language which caused Dr. Radan to become concerned for the safety of his staff. He contacted the OPP requesting their assistance in dealing with the Respondent.

[11] OPP constables, Sibley and Hall, were dispatched to AMGH. Upon arrival, the officers observed the Respondent speaking with a doctor, one or two nurses and a security guard. Constable Sibley requested the Respondent to calm down. He then spoke with Dr. Radan who informed him that the Respondent had been at AMGH two days earlier complaining of neck and back pain and seeking pain medication. At that time, nothing was found to be medically wrong with the Respondent. The Respondent was noted as having been previously treated with morphine and as suffering from mental health issues, including psychosis.

[12] Because the Respondent did not “de-escalate” his behaviour when asked, Dr. Radan requested that the OPP to remove him from the hospital premises. The officers asked the Respondent to leave, but he refused claiming his neck was broken. The officers noted that the Respondent was able to move his arms freely and did not appear to be in pain. The officers again asked the Respondent to exit the hospital. Again, he refused. The Respondent told police that if he was removed, he would go to other area hospitals seeking pain medication. The officers attempted to reason with the Respondent to no avail. They warned the Respondent that he would be charged with trespassing if he refused to leave. He refused to leave.

[13] During his discussions with the officers, the Respondent took a “fighting stance” and the officers responded by taking him slowly to the ground. Constable Sibley advised the Respondent that he was being arrested for trespass and breach of the peace. The Respondent was not provided with rights to counsel or cautioned at the time of his arrest.

[14] The officers decided to take the Respondent to the Bluewater OPP detachment for the night to give him time to calm down and to prevent him from returning to AMGH or attending other area hospitals seeking opioid medication. The Respondent was taken to the detachment and placed in a cell. He was detained for a total of nine (9) hours. His detention was videotaped.

[15] At 10:33 PM, the Respondent began hitting his head against the cell bars and rattling the door to the cell. Moments later, Sargent Heels attended at the cell to check on the Respondent. The Respondent was yelling and demanding to speak to a lawyer. Sargent Heels asked the Respondent if he wished to speak to a lawyer or duty counsel. The Respondent provided no response and continued yelling.

[16] At approximately 10:37 PM on the video surveillance, Sargent Heels is observed facing the Respondent and wiping something from his face. Sargent Heels alleges the Respondent had spat in his face. Following this incident, Sargent Heels informed the Respondent he was under arrest for assaulting a police officer. Sargent Heels did not advise the Respondent of his right to speak with counsel or provide a caution. At no time during his period of detention was the Respondent advised of his right to speak with a lawyer or provided with an opportunity to speak with a lawyer. The Respondent was released from custody at approximately 7 AM after being charged with assault.

[17] At the criminal trial, Justice MacDonald found that the Respondent’s s. 10(b) Charter rights had been breached twice – once for failing to advise the Respondent of his right to counsel following his arrest for trespassing and a second time for failing to advise the Respondent of his right to counsel following his arrest for assault. Justice MacDonald found that the new assault charge was a significant change in Mr. Sergovich’s jeopardy.

[18] Justice McDonald weighed the three R. v. Grant[^2] factors and found that the s. 10(b) breaches were extremely serious and the appropriate remedy was a stay of the criminal proceedings/charge against Mr. Sergovich.

The Civil Proceedings

[19] The Statement of Claim was issued on January 22, 2020. The Respondent claimed $35,000 in damages for false arrest, unlawful detention, breach of statutory authority, negligent conduct of an investigation and violation of his Charter rights.

[20] In the Decision, the trial judge found that the arrest was lawful, the officers did not use excessive force, the detention was lawful and the investigation was not negligent. He dismissed the Respondent’s tort claims.

[21] At trial, the Appellants conceded a violation of the Respondent’s s. 10(b) Charter rights. The trial judge awarded general damages in the amount of $10,000 and special damages in the amount of $5,270, as well as prejudgment interest from March 2, 2018 pursuant to s. 24(1) of the Charter. The Respondent was further awarded costs of the trial in the amount of $6,194.40.

Standard of Review on Appeal

[22] The standards of review on appeal are well-established. Questions of law are to be reviewed on a standard of correctness. Questions of fact or of mixed fact and law are to be reviewed on a standard of palpable and overriding error.[^3]

[23] The Appellants submit that Deputy Judge Ferguson erred in applying, or failed to apply, the legal test and principles for Charter damages established in Vancouver (City) v. Ward[^4]. Such an error raises issues of mixed fact and law. However as noted in Housen[^5], where the error arises from a failure to consider a required element of a legal test or similar error in principle, such an error can be characterized as an error of law and is, therefore, subject to a standard of correctness.

[24] The Appellants further submit that Deputy Judge Ferguson erred in granting special damages for legal fees incurred by the Respondent in defending the criminal proceedings which raises a question of law and is to be reviewed on a standard of correctness.

Issues

1. Did Deputy Judge Ferguson err in applying (or failing to apply) the legal test and principles for Charter damages established in Ward?

2. Did Deputy Judge Ferguson err in granting special damages for legal fees incurred by the Respondent in defending the criminal proceedings?

The Applicable Legal Principles

[25] Section 24(1) of the Charter allows for anyone whose rights or freedoms have been infringed or denied, to apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Such remedies include a declaration of breach; a stay of (criminal) proceedings; a reduction in sentence[^6] or an award of damages.[^7] However, an award of damages is not a remedy available to an accused under the Criminal Code. Damages must be pursued by way of civil proceedings.[^8]

[26] In Ward, the Supreme Court established the test and principles for determining when an award of damages under s. 24(1) is an appropriate remedy.

[27] For damages to be awarded, they must further the general objects of the Charter. Damages are available in cases where they would serve a “functional” purpose in remedying a Charter violation. The three functional purposes are: (i) compensation; (ii) vindication; and (iii) deterrence.[^9]

[28] The Supreme Court established a four-part test for determining whether damages are an appropriate and just remedy for a Charter breach:

1. The plaintiff must establish that a Charter right or freedom has been breached.

2. If 1. is met, the plaintiff must demonstrate that damages are a just and appropriate remedy in the particular case. That is, an award of damages would serve a “functional” purpose.

3. If 1. and 2. are met, the defendants (the state) may point to countervailing considerations which defeat the functional considerations supporting a damage award thereby rendering damages inappropriate or unjust in the circumstances.

4. If the state does not meet its burden under 3., the court must then assess the quantum of damages to which the plaintiff is entitled having regard to the seriousness of the Charter breach.

[29] At all stages of the Ward test, the focus is on what is “appropriate and just”. It must not only be “appropriate and just” to award damages but the quantum of the damages must also be “appropriate and just” from the perspective of both the claimant and the state.[^10]

The Decision

[30] After dismissing the Respondent’s tort claims (for private law damages) against the Appellants for false arrest, wrongful detention; and negligent investigation, Deputy Judge Ferguson proceeded to consider the Respondent’s claim for constitutional (public law) damages pursuant to s. 24(1) of the Charter.

[31] After quoting extensively from Ward[^11], Deputy Judge Ferguson purported to apply the Ward principles, writing:

In the case of Mr. Sergovich, there were two charter breaches, being the failure to informed (sic) of his right to counsel following the arrest, and again after being charged with assaulting a police officer, followed by the subsequent failure to allow Mr. Sergovich to contact a lawyer. In his 2019 oral reasons on the criminal charge against Mr. Sergovich Justice MacDonald stated on pages 10–11:

You cannot deny the liberty of the person for nine hours… After the breach, not allowing to speak to counsel or even advising that they have the right to speak to counsel, when it’s been settled for years that this should occur, without a clear reason. The stay of proceedings is the remedy.

I do feel that this is the clearest of cases and it would undermine the integrity of the justice system to allow the police, this to proceed in the face of allowing the police to hold someone overnight, not read their right to counsel, not allowed to speak to counsel, lock up in the cell with a simple blanket, then subject to an officer’s release until trial.

Even if I were to accept Sgt. Heels’ contention that Mr. Sergovich was too overwrought to speak to counsel at around 10:35 PM, efforts should have been made (sic) give Mr. Sergovich an opportunity to speak to counsel shortly thereafter. This was not done.

Turning to the factors set out in Ward to assess damages, Mr. Sergovich has already received one remedy in the form of vindication: the stay of the criminal charge. However, this is not sufficient. He is entitled to compensation in the form of special damages for his legal fees for defending the criminal charge in the amount of $4,520.00. He is also entitled to special damages for his personal expenses in attending the criminal trial. Mr. Sergovich did not provide any receipts, but testified he had hotel bills in the amount of $500.00 – 600.00, plus mileage to Goderich from Wallaceburg. These figures appear reasonable. I set these damages at $750.

No medical evidence was provided to the court regarding non-pecuniary damages for Mr. Sergovich’s pain and suffering during and following the incident; there is only the oral evidence of Mr. Sergovich. In light of his medical history, it is not possible for me to determine on a balance of probabilities whether the increased pain he suffered after March 2 was due to withdrawal symptoms or from the conditions in the cell during his night in detention.

The final factor for my consideration is deterrence. It is an essential part of our justice system that police officers comply with the Charter of Rights and Freedoms, particularly s. 10. The breaches here were egregious and must be treated accordingly. I award general damages to the plaintiff in the amount of $10,000.

Analysis

[32] For the reasons which follow, I would allow the appeal.

[33] Those portions of the Decision reproduced above demonstrate that the trial judge erred by failing to assess the threshold issue, namely, whether an award of damages was an appropriate and just remedy in the circumstances of this case. The trial judge was required to consider the first 3 prongs of the Ward test and only once satisfied that damages were an appropriate and just remedy, was he permitted to undertake an assessment of the quantum of damages.

Failing to apply the second and third prongs of the Ward test

[34] The first prong of the test was conceded by the Appellants at trial. The trial judge noted this acknowledgement of liability at the outset of the “Analysis” section of the Decision, stating:

Based on issue estoppel, the defendants acknowledged the breach and thereby accepted liability.

[35] Later in his analysis[^12], the trial judge stated:

I have found that the plaintiff has succeeded on one ground, namely, the violation of his rights under s. 10(b) of the Charter of Rights and Freedoms. I turn now to assess his “appropriate and just” damages under s. 24(1) of the Charter.

[36] It is clear from this statement that the trial judge improperly equated the Appellants’ admission of liability with a finding that damages under s. 24(1) of the Charter were an appropriate and just remedy. The trial judge by-passed the second and third prongs of the Ward test and, in so doing, failed to properly apply the Ward test.

[37] Without any analysis, the trial judge concluded that an award of damages was an appropriate remedy to address the violations of the Respondent’s Charter rights and then proceeded to conduct a functional purpose test within the context of the fourth prong for purposes of assessing the quantum of damages.

[38] Notwithstanding his self-instruction to examine countervailing factors (the third prong), the trial judge failed to do so. The trial judge acknowledged that Mr. Sergovich had already received a stay of the criminal charge and found such remedy “not sufficient”. The trial judge gave no explanation for his conclusion in this regard. In particular, the trial judge did not consider such factors as the adequacy of the stay of the criminal proceedings as redress for one or more functional purposes, or public policy considerations relating to good governance.

[39] Respondent’s counsel argued that the trial judge was not required to consider countervailing considerations because the Crown failed to put any evidence of such considerations before the court. I do not accept this submission. Evidence of countervailing considerations included the stay of proceedings imposed by Justice MacDonald, the absence of evidence of bad faith on the part of the OPP officers and the absence of any nexus between the Charter breaches and reasonable and probable grounds to arrest and charge the Respondent with assault.

[40] The trial judge was not absolved from conducting the proper legal analysis and having to expressly consider all relevant countervailing factors. As was noted in R. v. Henry[^13]:

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 the declaration would be superfluous, and therefore inappropriate and unjust in the circumstances. [references omitted]

[41] The trial judge was required to consider, in the specific circumstances of this case, whether the stay of proceedings adequately achieved the objectives that would otherwise be served by a damages award. The trial judge failed to do so.

Failing to properly assess the quantum of damages – fourth prong

[42] With respect to his assessment of the quantum of damages, the trial judge erred in two respects:

(i) the trial judge concluded, without explanation, that Mr. Sergovich was entitled to monetary compensation/reimbursement in the form of special damages for his legal fees to defend the criminal charge as well as his out-of-pocket expenses to attend his criminal trial; and

(ii) the trial judge awarded general damages in the amount of $10,000 without conducting his own assessment of the seriousness of the Charter breaches having regard to his factual findings based on the evidence at trial. Instead, the trial judge relied on the findings of Justice MacDonald supporting the imposition of a stay of proceedings.

[43] Deputy Judge Ferguson awarded compensatory damages notwithstanding:

(a) the absence of any Charter breach relating to Mr. Sergovich’s 9-hour detention;

(b) the absence of evidence connecting the legal fees and out of pocket expenses incurred by Mr. Sergovich to the Charter violations;

(c) the absence of medical evidence to support a finding that Mr. Sergovich suffered physical and/or psychological injuries associated with the Charter violations and/or his period of detention;

(d) the absence of bad faith on the part of the OPP officers; and

(e) the absence of any inculpatory evidence elicited from Mr. Sergovich as a result of the Charter violations.

[44] The trial judge awarded general damages in the amount of $10,000 to address the “final factor … [of] deterrence”. The trial judge does not explain why the s. 24(1) stay of proceedings imposed by Justice MacDonald does not sufficiently deter the state. He describes the state conduct as “egregious” without referring to the evidence or absence of evidence, as the case may be, upon which he relies in making such finding.

[45] Respondent’s counsel argues that Deputy Judge Ferguson was bound to accept Justice MacDonald’s finding that the state conduct was “egregious” by virtue of the application of the common law doctrine of issue estoppel.[^14] I disagree.

[46] In the Decision, the trial judge quotes with approval a passage from the oral reasons of Justice MacDonald wherein he lists the facts upon which he relies to find that the case was the “clearest of cases” thereby justifying a stay of proceedings. It must be remembered that Justice MacDonald was required to apply the Grant test based on the evidence presented at the criminal trial which he accepted, to determine whether a stay of proceedings was appropriate. In contrast, Deputy Judge Ferguson was required to apply the test in Ward based on the evidence presented at the civil trial which he accepted, to determine the “appropriate and just” quantum of damages. Different evidence. Different issue. Different test.[^15]

[47] My view in this regard is supported by the approach taken in Ward. The Supreme Court adopted the trial judge’s finding of a Charter breach. However, the Supreme Court did not adopt the trial judge’s analysis of the seriousness of that breach; rather, the Court conducted its own independent assessment of the issue.[^16]

[48] Having found that the trial judge failed to properly apply the Ward test, thereby committing a palpable and overriding error[^17], the appeal is allowed. It is unnecessary to remit this case for a retrial given the nature of the errors made. Accordingly, I will now proceed to apply the Ward test having regard to the evidence (or lack of evidence) available to the trial judge.

Application of the Ward Test

[49] A useful starting point is to consider and compare the facts and findings in Ward.

[50] In Ward, the plaintiff was attending a demonstration when he was detained by police for breach of the peace and for purposes of an investigative detention. His motor vehicle was impounded. Upon arriving at the police station he was strip-searched and left in his cell wearing only his underwear. He was released from custody approximately 4 ½ hours later. No charges were laid.

[51] The Supreme Court found that constitutional damages were an appropriate and just remedy with respect to the strip search of Mr. Ward because the Charter breach impacted on the plaintiff’s personal rights of privacy and dignity and the police conduct was serious. However, the damage award with respect to impoundment of the plaintiff’s vehicle was set aside because the court found that Mr. Ward did not suffer any injury as no search of the vehicle had been conducted and the vehicle was returned to him upon his release.

[52] Mr. Ward’s award of constitutional damages pursuant to s. 24(1) of the Charter was supported by a strikingly dissimilar set of facts. In Ward there were no criminal proceedings. Mr. Ward was never arrested nor was he charged. The breach of Mr. Ward’s Charter rights occurred during his period of investigative detention which was found to be arbitrary and a breach of s. 9 of the Charter. No such finding was made in this case. In considering countervailing factors at step three, the court was not faced with a remedy having already been granted pursuant to s. 24(1) of the Charter.

[53] As an aside, I find it notable that counsel were unable to refer me to a single Ontario decision where the court was asked to consider awarding damages pursuant to s. 24(1) for a Charter breach in circumstances where a stay of proceedings had been previously granted in related criminal proceedings. More notable is that counsel were unable to provide caselaw where the court awarded damages pursuant to s. 24(1) in circumstances where a stay of proceedings had previously been granted pursuant to s. 24(1) for the same Charter violation.[^18]

[54] Turning now to a consideration of the Ward factors.

(i) Did the Respondent suffer a breach of a Charter right?

[55] As noted earlier in these reasons, the first prong of the test has been conceded by the Appellants. The Appellants violated the s. 10(b) Charter rights of the Respondent on two separate occasions. Police failed to advise Mr. Sergovich of his right to speak with counsel following his arrest for trespass and again following his arrest for assault and did not provide an opportunity to speak with a lawyer at any time during his period of detention.

(ii) Are damages an appropriate and just remedy?

[56] In Ward, writing for the court, Chief Justice McLachlin found that a damage award may be an appropriate and just remedy in circumstances where it furthers the general objects of the Charter. Damages may serve three interrelated functions: compensation, vindication, and deterrence.[^19]

[57] Here, there is no evidence that the Respondent suffered any personal losses as a result of the breaches of his s. 10(b) rights. The trial judge found that the officers had reasonable grounds to detain the Respondent in a detachment cell because “he was in the throes of serious morphine withdrawal symptoms” and had threatened to return to AMGH or attend at other nearby hospitals to obtain pain medication. Although the Respondent was detained in custody for nine (9) hours, neither Justice MacDonald nor the trial judge found that the Respondent’s arrest and/or detention was unlawful. The failure to advise the Respondent of his right to speak with a lawyer and failure to implement the right to receive legal advice did not adversely impact the Respondent. Police did not attempt to question the Respondent or obtain information from him regarding the trespass and/or assault charges. I find that because of the concerns for the Respondent’s and the public’s safety, the Respondent would have remained in custody even if he was given the opportunity to speak with counsel.

[58] Moreover, there is no evidence to support a finding that the Respondent’s anxiety, distress and psychological pain while detained was caused, in whole or in part, by his inability to speak with a lawyer and receive legal advice. Finally, the Respondent’s pecuniary loss relating to legal fees and out-of-pocket expenses incurred to defend the assault charge did not arise from the Charter breaches. The Crown’s case has no nexus to the Charter breaches. Rather, the assault charge was supported by independent evidence not connected to the Charter breaches. That is, the Respondent would have incurred the same costs to defend these proceedings whether or not the Charter breaches occurred.

[59] I find that the Respondent is unable to establish a compensatory purpose for an award of damages. Consequently, the Respondent is required to establish that a damage award would serve the function of vindication and/or deterrence.

[60] With respect to the function of vindication, there is no evidence to support a finding that the failure to provide rights to counsel and to implement those rights was a systemic issue. Each of the three police officers who engaged with the Respondent failed to advise him of his right to speak to a lawyer and more importantly to implement that right. Later, in the detachment cell following his arrest for assaulting a police officer, Sargent Heels failed to advise the Respondent of his right to speak to a lawyer. No effort was made by any of the officers with whom he interacted, to put the Respondent in contact with a lawyer during the nine hours he was detained in custody. I find the Charter breaches to be serious in the circumstances and deserving of vindication. However, the stay of the assault charge, a Charter remedy granted only in the clearest of cases, adequately delivers vindication for the Charter breaches.

[61] With respect to the function of deterrence, having regard to the stay of proceedings, a damage award is not needed to adequately deter state actors. The stay of the assault charge sends a message to the individual police officers involved that Charter rights and, specifically, the right of a detainee to speak with a lawyer and receive advice, cannot be ignored or delayed. The stay of the charge for assaulting a police officer provides significant incentive for these police officers to facilitate the right to counsel going forward. Of note, there is no evidence of bad faith on the part of any of the three officers involved. Therefore, a further remedy in the form of an award of damages would provide no additional deterrent effect.

[62] Having found that a damage award would serve no functional purpose, it is unnecessary to consider countervailing factors. However, I will do so in the interests of completeness.

(iii) Do countervailing considerations exist which defeat the functional considerations supporting a damage award thereby making such an award inappropriate and unjust?

[63] The countervailing factors at play in this case are (i) the adequacy of remedies imposed by Justice MacDonald pursuant to s. 24(1), namely, the declaration of Charter breach and imposition of the stay of proceedings; and (ii) public policy considerations. The Nova Scotia Supreme Court in Rudolph appears to entertain (at least conceptually) that an award of constitutional damages in addition to a stay of proceedings pursuant to s. 24(1) may be appropriate and just in certain circumstances.

[64] In the circumstances of a routine criminal case such as this one where state actors do not engage in intentional, bad faith conduct, an award of constitutional damages cannot be sustained where a constitutional remedy in the form of a stay of proceedings addressing vindication and deterrence of the unlawful state conduct has already been granted.

[65] Sound policy reasons dictate that state actors should not be diverted from discharging their public duties by having to defend civil claims for constitutional damages in response to every criminal court’s declaration of a Charter breach. Such would have a chilling effect on law enforcement and prosecutions in this province. I find that a stay of criminal proceedings and an award of constitutional damages both granted pursuant to s. 24(1) of the Charter cannot co-exist in the absence of a finding of bad faith and the absence of compensatory loss caused by the Charter breach. Those who have suffered mistreatment by state actors maintain the right to bring tort claims seeking redress by way of an award of private damages. This remedy remains available regardless of the imposition of a stay of proceedings pursuant to s. 24(1) of the Charter.

[66] In this case, the constitutional remedy most appropriate and just to provide redress for the Charter breaches was the stay of the criminal proceedings. No further remedy is appropriate or justified.

(iv) What is an appropriate and just quantum of damages?

[67] Having found that an award of damages is not an appropriate and just remedy, it is unnecessary to consider the appropriate quantum of damages in this case. However, I wish to address the trial judge’s decision to award special damages for the Respondent’s costs to defend the criminal proceedings.

[68] The trial judge provided no authority to support an award of costs of the criminal proceedings as part of the constitutional damages awarded in these civil proceedings. Without such authority, I find that the trial judge was without jurisdiction to award costs of defending the criminal proceedings as part of a public damage award pursuant to s. 24(1) of the Charter. Such a claim for special damages may be pursued as redress for torts advanced against state actors on a private basis, but not a public basis.

Disposition

[69] Appeal allowed. Respondent’s claim for damages pursuant to s. 24(1) of the Charter is hereby dismissed.

Costs

[70] Having allowed the appeal and dismissed the action, the appeal of the Costs Decision is rendered moot. In accordance with the direction of counsel for the Appellants, there shall be no costs of the trial or this appeal.

Justice A.K. Mitchell

Date: July 10, 2025

[^1]: The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11. [^2]: 2009 SCC 32 (“Grant”). [^3]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 3; see also Housen v. Nikolaisen 2002 SCC 33 at paras. 8, 10 (“Housen”). [^4]: 2010 SCC 27 (“Ward”). [^5]: Housen, supra, at para. 36. [^6]: See R. v. Marincic, 2024 ONSC 5671 (“Marincic”). [^7]: Section 24(2) allows, as an alternative remedy, the exclusion of evidence at trial where it was obtained in a manner which violated an accused’s Charter rights. [^8]: Marincic, supra, at para. 70. [^9]: Ibid., at para. 25. [^10]: Ibid. at paras. 46 and 57. [^11]: Paragraphs 20, 25, 27, 35, 47 and 50 are reproduced in the Decision. [^12]: In the paragraph of the Decision immediately following the heading “Damages”. [^13]: 2015 SCC 24 at para 38. [^14]: Danylik v. Ainsworth Technologies Inc., [2001] S.C.J. 460 at para. 25 quoting with approval Dickson J. in Angle, supra, at p. 254. [^15]: See DoCouto v. Ontario (Attorney General), [2001] O.J. No. 2736. (Div. Ct.) at para. 7. [^16]: Ward, supra, at paras. 64-66. [^17]: Arguably, the standard of review is “correctness”. [^18]: In Rudolph v. Canada (Attorney General), 2022 NSSC 127, the court considered a stay of the related criminal proceedings to be an adequate remedy having regard to the Ward factors and dismissed the plaintiff’s claim for constitutional damages. [^19]: Ward, supra, at para. 25.