Anoquot v. Toronto Police Services Board et al.
[Indexed as: Anoquot v. Toronto Police Services Board]
Ontario Reports
Ontario Superior Court of Justice,
Perell J.
January 26, 2015
124 O.R. (3d) 312 | 2015 ONSC 553
Case Summary
Charter of Rights and Freedoms — Remedies — Damages — Aboriginal plaintiff seeking damages under s. 24(1) of Charter for violation of her rights under ss. 7, 8 and 15 of Charter based on unreasonable strip search — Plaintiff pleading that Toronto police had strip searched her on numerous past occasions and that disproportionate number of those strip searched by Toronto police were aboriginal — Defendants' motion to strike those paragraphs of statement of claim dismissed — Impugned paragraphs pleading material facts which were relevant to claim of discrimination under s. 15 of Charter — Plaintiff not attempting to bring disguised class action — Canadian Charter of Rights and Freedoms, ss. 7, 8, 15, 24(1).
The plaintiff, who was a member of the Saugeen First Nations, was unreasonably strip searched after being arrested for theft under $5,000 in September 2011. She brought an action for damages under s. 24(1) of the Canadian Charter of Rights and Freedoms, alleging that her rights under ss. 7, 8 and 15 of the Charter were violated by the strip search. The defendants brought a motion to strike paragraphs of the statement of claim which pleaded that the Toronto police had conducted numerous strip searches of the plaintiff in the past, that the Toronto police strip searched 60 per cent of all people arrested in 2010 and that a disproportionate number of people strip searched were aboriginal. The defendants claimed that the impugned paragraphs pleaded evidence and were scandalous, frivolous and vexatious.
Held, the motion should be dismissed.
The impugned paragraphs pleaded material facts which were relevant to the claim of discrimination under s. 15 of the Charter. Unlike the plaintiff's claims under ss. 7 and 8 of the Charter, which were based on the September 2011 strip search, the discrimination claim was inherently tied to the treatment of the collective of which she was a member. The plaintiff was not attempting to bring a disguised class action. The complexity of the discrimination claim was not a reason for striking the impugned paragraphs.
Thorburn v. British Columbia (Public Safety and Solicitor General), [2013] B.C.J. No. 2412, 2013 BCCA 480, 346 B.C.A.C. 130, 52 B.C.L.R. (5th) 223, 47 C.P.C. (7th) 322, 234 A.C.W.S. (3d) 36, distd
Iovate Health Sciences Inc. v. NxCare Inc., [2007] O.J. No. 4498, 161 A.C.W.S. (3d) 870 (S.C.J.), consd
Other cases referred to
876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd. (1997), 1997 CanLII 12196 (ON SC), 37 O.R. (3d) 70, [1997] O.J. No. 4722, 49 O.T.C. 356, 17 C.P.C. (4th) 78, 75 A.C.W.S. (3d) 426 (Gen. Div.); Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6, 56 D.L.R. (4th) 1, 91 N.R. 255, [1989] 2 W.W.R. 289, J.E. 89-259, 34 B.C.L.R. (2d) 273, 25 C.C.E.L. 255, 36 C.R.R. 193, 10 C.H.R.R. D/ 5719, 13 A.C.W.S. (3d) 347; Dalex Co. v. Schwartz Levitsky Feldman (1994), 1994 CanLII 7290 (ON SC), 19 O.R. (3d) 463, [1994] O.J. No. 1388, 23 C.C.L.I. (2d) 294, 48 A.C.W.S. (3d) 1117 (Gen. Div.); [page313] Duryea v. Kaufman (1910), 21 O.L.R. 161, [1910] O.J. No. 118, 16 O.W.R. 57 (H.C.J.); Moore v. British Columbia (Education), [2012] 3 S.C.R. 360, [2012] S.C.J. No. 61, 2012 SCC 61, 38 B.C.L.R. (5th) 1, 328 B.C.A.C. 1, 2012EXP-3940, J.E. 2012-2104, 436 N.R. 152, 351 D.L.R. (4th) 451, [2012] 12 W.W.R. 637, 75 C.H.R.R. D/369, 220 A.C.W.S. (3d) 390; Ontario (Attorney General) v. Dieleman (1993), 1993 CanLII 8536 (ON SC), 14 O.R. (3d) 697, [1993] O.J. No. 1792, 41 A.C.W.S. (3d) 1108 (Gen. Div.); Peel Law Assn. v. Pieters (2013), 116 O.R. (3d) 81, [2013] O.J. No. 2695, 2013 ONCA 396, 363 D.L.R. (4th) 598, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, 77 C.H.R.R. D/177, 228 A.C.W.S. (3d) 204 (C.A.); R. v. Kapp, [2008] 2 S.C.R. 483, [2008] S.C.J. No. 42, 2008 SCC 41, 175 C.R.R. (2d) 185, EYB 2008-135098, J.E. 2008-1323, [2008] 8 W.W.R. 1, 294 D.L.R. (4th) 1, 232 C.C.C. (3d) 349, [2008] 3 C.N.L.R. 347, 376 N.R. 1, 256 B.C.A.C. 75, 37 C.E.L.R. (3d) 1, 58 C.R. (6th) 1, 78 W.C.B. (2d) 343; Shaw v. Phipps, [2012] O.J. No. 2601, 2012 ONCA 155, 289 O.A.C. 163, 35 Admin. L.R. (5th) 167, 347 D.L.R. (4th) 616, 75 C.H.R.R. D/246, 212 A.C.W.S. (3d) 811; Vancouver (City) v. Ward, [2010] 2 S.C.R. 28, [2010] S.C.J. No. 27, 2010 SCC 27, 213 C.R.R. (2d) 166, 321 D.L.R. (4th) 1, 290 B.C.A.C. 222, 2010EXP-2331, 76 C.R. (6th) 207, 7 B.C.L.R. (5th) 203, J.E. 2010-1305, EYB 2010-177090, [2010] 9 W.W.R. 195, 75 C.C.L.T. (3d) 1, 404 N.R. 1
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 7, 8, 15, 24(1)
Human Rights Code, R.S.O. 1990, c. H.19 [as am.]
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 25.11
MOTION for an order striking paragraphs of a statement of claim.
Najma Jamaldin, for plaintiff.
Natalie Kolos, for defendants.
[1] PERELL J.: —
Introduction
This is a narrow but nonetheless significant pleadings motion.
2In her statement of claim, Ms. Anoquot alleges that by the police subjecting her to a strip search, which euphemistically is known as a "level three search", they infringed her Canadian Charter of Rights and Freedoms rights.
3Relying on s. 24(1) of the Charter to support a claim for damages, the plaintiff, Megan Anoquot, sues the Toronto Police Services Board, Mary MacNaughton, Hannah Bartz, Robert Heitzman and Ned Durran for damages for the constitutional torts of infringing her Charter rights: under s. 7 (right to life, liberty and security of the person); under s. 8 (protection against unreasonable searches or seizures); and under s. 15 (equality).
4The defendants do not challenge that Ms. Anoquot has pleaded a reasonable cause of action for an infringement of her Charter rights and for damages; rather, they submit that two paragraphs of her 28-paragraph statement of claim should be [page314] struck pursuant to rule 25.11 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] without leave to amend because these two paragraphs do not comply with the rules of pleading.
5It is said that the two paragraphs are non-compliant because they plead evidence, bald allegations, irrelevant facts and/or conclusions of law. The defendants submit that the two paragraphs are scandalous, frivolous and vexatious.
6The two impugned paragraphs, paras. 16 and 19 of the statement of claim, state:
The Toronto Police have conducted numerous strip searches of the Plaintiff in previous arrests. To the Plaintiff's recollection, every-time she has been arrested by the Toronto Police she has been stripped searched. The only time she has been arrested and not stripped searched was when she was arrested by the police in the Kitchener area.
The data shows that in 2010, the Toronto Police Service strip searched 60% of all people arrested. Aboriginal people are overrepresented in the correctional system. This fact has been known by public institutions, including the Toronto Police Service and the Toronto Police Services Board. Aboriginal peoples, such as the Plaintiff, continue to represent a disproportionate number of those who are arrested by police and subjected to personal searches, including strip searches. This systemic issue represents institutional failures and includes the actions by the defendants.
[7]
Background
The balance of the statement of claim, which is not challenged, provides the factual context for the two challenged paragraphs. That factual background is as follows.
8Ms. Anoquot (born 1989) is a member of the Saugeen First Nations. She is single and enrolled in an employment training program. She suffers from a skin condition of which she is self-conscious and embarrassed. She has a criminal record related to petty property offences.
9On September 15, 2011, Ms. Anoquot was detained by private security staff at a Shoppers Drug Mart store in Toronto. She was searched and accused of shoplifting three bottles of perfume worth approximately $225 that were found in her possession. The perfume was taken from her by the security staff. The police were called, and after identifying herself with her Certificate of Indian Status photo card, Ms. Anoquot was pat-down searched. She was compliant and sober during the search and the subsequent arrest and detention. No weapons or contraband were discovered. She was charged with theft under $5,000, arrested, handcuffed and transported to 51 Division. At the police station, she was isolated and experienced an embarrassing, intimidating and callously conducted strip search (the level three search) by two female officers. After the search, she [page315] was left alone for one hour and then released. Subsequently, Ms. Anoquot successfully sought a stay of the criminal proceedings due to an unreasonable, warrantless search.
10With this factual background, paras. 18 and 20 of the statement of claim go on to state:
The Plaintiff states that the Supreme Court of Canada in R. v. Golden held, inter alia, that strip searches are inherently humiliating and that strip searches should not be routinely administered. In response to the ruling of the Supreme Court of Canada, the Board instituted a policy controlling the manner and circumstances under which strip searches are conducted. At the time the Plaintiff was strip searched, the policy governing policy required the Level Three searches only be undertaken after a case-by-case analysis, after consultation with an Officer in Charge or supervising officer, rejecting an approach where strip searches are undertaken whenever the arrestee is to be placed within the prison population.
The Plaintiff claims that the strip search breached her right to be equal before and under the law, and her right to the equal protection and equal benefit of the law, without discrimination based on her status as a First Nations person/ aboriginal person.
[11]
Charter Damages
With that factual background from the unchallenged portions of the statement of claim, the defendants object to paras. 16 and 19 on several grounds. However, before addressing those objections, it is necessary to say something about damages as a remedy for breaches of the fundamental rights and freedoms of all Canadians.
12Under s. 24(1) of the Charter, a court is authorized to grant such remedies to individuals for infringement of Charter rights as it "considers appropriate and just in the circumstances", and in Vancouver (City) v. Ward, [2010] 2 S.C.R. 28, [2010] S.C.J. No. 27, 2010 SCC 27, the Supreme Court of Canada held that damages may be awarded under s. 24(1) of the Charter for infringements. In that case, Chief Justice McLachlin stated, at para. 4:
I conclude that damages may be awarded for Charter breach under s. 24(1) where appropriate and just. The first step in the inquiry is to establish that a Charter right has been breached. The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages.
13In Vancouver (City) v. Ward, supra, Mr. Ward was mistakenly identified as an individual planning to throw a pie at [page316] Prime Minister Chrétien. Mr. Ward was arrested and strip searched. The Supreme Court upheld a damages award for the infringement of his Charter right to be free from unreasonable search and seizure. Chief Justice McLachlin in her judgment for the court discussed the nature of the remedy of damages under s. 24(1) of the Charter for the violation of a Charter right, and she stated, at para. 20:
The general considerations governing what constitutes an appropriate and just remedy under s. 24(1) were set out by Iacobucci and Arbour JJ. in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3. Briefly, an appropriate and just remedy will: (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: Doucet-Boudreau, at paras. 55-58.
14Later in her judgment, at para. 22, the chief justice makes the point that while damages describes a monetary remedy, damages as a remedy for an infringement of a Charter right are not private law damages but a distinct remedy for breaches of the individual's constitutional rights. At para. 25 of her judgment, Chief Justice McLachlin discusses the purposes of awarding damages under s. 24(1) of the Charter. She stated:
I therefore turn to the purposes that an order for damages under s. 24(1) may serve. For damages to be awarded, they must further the general objects of the Charter. This reflects itself in three interrelated functions that damages may serve. The function of compensation, usually the most prominent function, recognizes that breach of an individual's Charter rights may cause personal loss which should be remedied. The function of vindication recognizes that Charter rights must be maintained, and cannot be allowed to be whittled away by attrition. Finally, the function of deterrence recognizes that damages may serve to deter future breaches by state actors.
[Emphasis in original]
15In her judgment, Chief Justice McLachlin developed several principles to guide the court in determining whether to award damages and to assess the quantum of those damages if they were awarded. She discussed the compensatory function of damages, at para. 27, where she stated:
Compensation has been cited by Lord Woolf C.J. (speaking of the European Convention of Human Rights) as "fundamental". In most cases, it is the most prominent of the three functions that Charter damages may serve. The goal is to compensate the claimant for the loss caused by the Charter breach; "[t]he applicant should, in so far as this is possible, be placed in the same position as if his Convention rights had not been infringed": Anufrijeva v. Southwark London Borough Council, [2003] EWCA Civ 1406, [2004] Q.B. 1124, at para. 59, per Lord Woolf C.J. Compensation focuses on the claimant's personal loss: physical, psychological and pecuniary. To these types of [page317] loss must be added harm to the claimant's intangible interests. In the public law damages context, courts have variously recognized this harm as distress, humiliation, embarrassment, and anxiety: Dunlea; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); Taunoa v. Attorney-General, [2007] NZSC 70, [2008] 1 N.Z.L.R. 429. Often the harm to intangible interests effected by a breach of rights will merge with psychological harm. But a resilient claimant whose intangible interests are harmed should not be precluded from recovering damages simply because she cannot prove a substantial psychological injury.
16At para. 30 of her judgment, the chief justice noted that the fact that the claimant has not suffered personal loss does not preclude damages where the objectives of vindication or deterrence clearly call for an award. Thus, Charter damages have the purposes of compensation, vindication and deterrence. Assuming that Ms. Anoquot is ultimately successful in proving three discrete breaches of her Charter rights, it may be that she is entitled to only one set of compensatory damages, but each separate Charter infringement would also entail damages for the purposes of vindication and deterrence.
[17]
Analysis
Turning to the various challenges made by the defendants, first, they submit that none of the allegations in paras. 16 and 19 have anything to do with Ms. Anoquot's primary claim; namely, the strip search that was conducted on September 15, 2011 infringed her rights under s. 7 (right to life, liberty and security of the person) and s. 8 (protection against unreasonable searches or seizures) of the Charter.
18I disagree with this submission. Paragraphs 16 and 19 principally relate to Ms. Anoquot's claim that her rights under s. 15 of the Charter have been violated, and it is not for the defendants to decide what her primary claim may be.
19The defendants submit that Ms. Anoquot is purporting to bring some sort of class action which would be unmanageable and unfair to the defendants. However, this is a false accusation. She is not purporting to bring a class action on behalf of Aboriginal peoples for an infringement of s. 15 of the Charter; rather, she is bringing an individual action that connects her alleged mistreatment to the alleged mistreatment of the collective of which she is a part. She is bringing a claim similar to a discrimination claim under human rights legislation.
20Ms. Anoquot's claims of infringement of s. 7 (right to life, liberty and security of the person) and s. 8 (protection against unreasonable searches or seizures) would seem to be connected to her individual experience on September 15, 2011. However, her claim of an infringement of s. 15 (equality) is different and connects her individual experience on that day with the [page318] allegedly discriminatory experiences of the collective of which she is a part. That is in the nature of a discrimination claim.
21The nature of discrimination as a legal concept and how it is proven is a work in process.
22In the Charter context, in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, [2008] S.C.J. No. 42, the Supreme Court of Canada stated, at para. 17, that the test to be applied for determining whether discrimination exists is the two-step test set out in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6: (1) does the law create a distinction based on an enumerated or analogous ground; and (2) does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
23In the context of the Human Rights Code, R.S.O. 1990, c. H.19, and the adjudication of discrimination claims, the claimant is required to show that (1) they have a characteristic protected from discrimination; (2) they experienced an adverse impact in how they were treated; and (3) the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes, and if it cannot be justified, discrimination will be found to have occurred: Moore v. British Columbia (Education), [2012] 3 S.C.R. 360, [2012] S.C.J. No. 61, 2012 SCC 61, at para. 33; Peel Law Assn. v. Pieters (2013), 116 O.R. (3d) 81, [2013] O.J. No. 2695, 2013 ONCA 396; Shaw v. Phipps, [2012] O.J. No. 2601, 2012 ONCA 155.
24In my opinion, paras. 16 and 19 are relevant material facts for a determination of discrimination.
25In criticizing Ms. Anoquot's pleading as some sort of disguised collective claim, the defendants rely on the decision of the British Columbia Court of Appeal in Thorburn v. British Columbia (Public Safety and Solicitor General), [2013] B.C.J. No. 2412, 2013 BCCA 480. In that case, Ms. Thorburn and Mr. Jacob commenced a proposed class action on behalf of a class of individuals who were arrested on charges of mischief for their protest activities outside the United States Consulate in Vancouver. The protesters were arrested, and although never remanded into custody, they were subjected to strip searches. The Court of Appeal upheld the decision of the motion judge who refused to certify the action as a class proceeding.
[26] The British Columbia Court of Appeal concluded that the proposed class action for the alleged violation of s. 8 Charter rights and for damages under s. 24(1) of the Charter did not satisfy the common issues or the preferable procedure criterion for certification as a class proceeding because of the absence of [page319] common issues and the predominance of individual issues over any common ones. This is standard fare for class proceedings cases, but the Thorburn case does not assist the defendants' argument in the case at bar that there is something wrong with Ms. Anoquot's pleadings.
27It is undoubtedly the case that all of Ms. Anoquot's alleged Charter infringements are personal and individual to her, but she is not purporting to bring a disguised class action. While all her claims are individual claims, her s. 15 Charter claim, unlike her ss. 7 and 8 claims, is inherently and necessarily tied to the treatment of the collective of which she is a member. That said, she is not bringing a group claim; she is bringing a claim that has a group element to it because the alleged common and stereotypical treatment of a group is an inherent element of the discrimination claim.
28Moving on to other objections, the defendants submit that whether or not Ms. Anoquot has been the subject of a level three search on prior occasions has no relevance or probative value to the action because she has acknowledged that level three searches are to be conducted on a case-by-case basis to determine if reasonable grounds existed for the search incidental to an arrest. The defendants argue that whether or not a prior search was or was not reasonable has no bearing on the reasonableness of the search on September 15, 2011. With respect, the defendants seem oblivious to the nature of the claim that Ms. Anoquot is making, which is that the defendants employ a stereotypical approach and systemically strip search Aboriginals rather than engaging in a case-by-case analysis.
29In the case at bar, Ms. Anoquot alleges three discrete Charter rights have been violated and each violation is a distinct claim and not an alternative to the others. Each Charter right is worthy of independent protection. The point again is that it is not for the defendants to channel or prioritize Ms. Anoquot's claim and circumscribe her claim of an infringement of her s. 15 rights.
30Moving on to other objections to paras. 16 and 19, the defendants submit that Ms. Anoquot's allegations are vague and therefore incapable of response. And, they submit that her vague allegations are vexatious or scandalous and should be struck. I fail to see any substance to these submissions.
31In my opinion, paras. 16 and 19 plead material or relevant facts. A pleading of a material or relevant fact cannot be scandalous: 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd. (1997), 1997 CanLII 12196 (ON SC), 37 O.R. (3d) 70, [1997] O.J. No. 4722 (Gen. Div.); Dalex Co. v. Schwartz Levitsky Feldman (1994), 1994 CanLII 7290 (ON SC), 19 O.R. (3d) 463, [1994] O.J. No. 1388 (Gen. Div.); [page320] Ontario (Attorney General) v. Dieleman (1993), 1993 CanLII 8536 (ON SC), 14 O.R. (3d) 697, [1993] O.J. No. 1792 (Gen. Div.); Duryea v. Kaufman (1910), 21 O.L.R. 161, [1910] O.J. No. 118 (H.C.J.).
32Since I have concluded that the pleading is relevant, it is not necessary for me to address the defendants' somewhat presumptive and pre-emptive submission that if para. 16 is intended as a pleading of similar facts, it is improper because similar facts may be pleaded only where the added complexity arising from their pleading does not outweigh their potential probative value.
33Finally, the defendants make several arguments based on the submission that paras. 16 and 19 will unduly complicate the action, particularly the discovery stage of the action where responding to Ms. Anoquot's discrimination claim it is said will involve extensive and burdensome documentary and oral discovery. Thus, relying on Iovate Health Sciences Inc. v. NxCare Inc., [2007] O.J. No. 4498, 161 A.C.W.S. (3d) 870 (S.C.J.), at para. 28, the defendants submit that Ms. Anoquot's pleading is improper because the allegations are so broad that they will complicate the action and cause prejudice to the defendants because the discovery process will be unduly prolonged and unwieldly.
34I agree that a discrimination claim will complicate Ms. Anoquot's action, but that is because a discrimination claim is inherently complicated. Obviously, claims should not be struck out simply because they are complex or may involve extensive and burdensome documentary and oral discovery. I agree with the sentiment expressed in Iovate Health Sciences Inc. about unnecessary and tangential allegations being pleaded, but there is a difference between unnecessarily adding complexity to a claim and advancing a claim that is necessarily complex but that may be available to a plaintiff. In any event, there are procedural tools that are available to prevent Ms. Anoquot's claim from becoming unmanageable, including discovery plans, the principle of proportionality and case management if necessary. The complexity of a discrimination claim is not a reason to strike paras. 16 and 19 from Ms. Anoquot's statement of claim.
[35]
Conclusion and Costs
For the above reasons, I dismiss the defendants' motion.
36If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Ms. Anoquot within 20 days of the release of these reasons for decision followed by the defendants' submissions within a further 20 days.
Motion dismissed.
End of Document