R. v. Rehman, 2016 ONSC 7549

REASONS FOR Ruling

maranger j.

1On November 4, 2016 a brief oral ruling was delivered declining to hear a Charter Application where the applicant was seeking declaratory relief and damages pursuant to section 24(1) of the Charter of Rights and Freedoms. At that time it was indicated that written reasons for the ruling would be provided in due course, what follows are those reasons.

2The applicant sought to bring a Charter Application for declaratory relief and damages pursuant to section 24(1), alleging that his rights under sections 7, 9 and 12 were violated. The application was brought in the context of a sentencing hearing.

3The applicant/accused was originally charged with second-degree murder and through his counsel negotiated a plea agreement to the lesser included offence of manslaughter with an agreed upon penalty of a period of incarceration of 8.5 years (with credit for time served of approximately three years) leaving 5.5 years to be served. The applicant was held in custody for 18 months pending the resolution of the case.

4Following the plea but prior to the completion of the sentencing hearing, and presumably as part of it, counsel representing the accused sought to bring a Charter Application for declaratory relief and damages. The applicant is alleging that his charter rights were violated by reason of the "degrading and inhuman treatment that he was subjected to during his detention in solitary confinement/segregation at the Ottawa Carleton Detention Centre". Furthermore it was alleged that this detention caused the applicant "extreme psychological harm to the point that he was diagnosed with a psychotic disorder rendering him unfit to stand trial".

5A sentencing hearing, whereby counsel have negotiated a plea agreement (including the amount of credit for pre-trial custody and ultimate period of incarceration) is not the appropriate forum for the adjudication of this type of a Charter claim. It is a matter that should be dealt by way of a claim in the civil courts. I come to this conclusion based upon the following analysis:

• A criminal court does not lend itself well to the determination of damages. A hearing of this type would needlessly delay the completion of the criminal matter. i.e. the sentencing of the applicant.

• The claim here extends well beyond a declaration; the applicant is seeking damages for a personal injury, as his counsel put it 'what is the loss of someone's mind worth' when I asked about the level of damages. The fact is in this case there are competing interests that will no doubt require the exchange of information to properly assess such issues as causation, and damages. It will likely take a significant amount of court time.

• Once a Charter breach is established the issue of the quantification of damages can be a complicated process. The issue of s. 24 (1) damages for a Charter breach was discussed by The Supreme Court of Canada in the decision of Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 the Court set out the three objectives of a damage award as compensation, vindication and deterrence at paragraphs 30 and 31 the Court indicated:

  [30] In most cases, all three objects will be present. Harm to the claimant will evoke the need for compensation. Vindication and deterrence will support the compensatory function and bolster the appropriateness of an award of damages. However, 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. Indeed, the view that constitutional damages are available only for pecuniary or physical loss has been widely rejected in other constitutional democracies: see, e.g., Anufrijeva; Fose; Taunoa;Smith; and Ramanoop.

  [31] In summary, damages under s. 24(1) of the Charter are a unique public law remedy, which may serve the objectives of: (1) compensating the claimant for loss and suffering caused by the breach; (2) vindicating the right by emphasizing its importance and the gravity of the breach; and (3) deterring state agents from committing future breaches. Achieving one or more of these objects is the first requirement for "appropriate and just" damages under s. 24(1) of the Charter.

• Compensation for the loss will be a significant issue in this case.

• Rule 14.05 (3) g.1 provides that a remedy under the Canadian Charter of Rights and Freedoms may be brought by application. It seems here that the declaratory relief could be pursued in this manner using the same or similar evidence (affidavit evidence) sought to be filed in the criminal proceeding. The damage component may be more complicated and may well require that the application be converted to an action.

• Finally, the breaches and damages claimed are in some measure disconnected to the criminal charges. The alleged charter violation relates to how the accused was held (solitary confinement) pending the completion of his criminal trial. The allegation does not involve the Crown prosecutors or the police. It is a claim against the institution for how they held him pending his trial.

6This ruling was not an adjudication on the merits of the Charter claim. It should be taken simply as a ruling concerning the appropriate forum to institute such a claim. The simple truth is that the final phase of a negotiated homicide sentencing hearing is not the appropriate forum to hear this kind of application.