in his pocket. When the appellant refused to remove his hands from his pocket,
P punched him in the face twice. The appellant was handcuffed and left lying on
an ice-covered deck for 20 to 25 minutes, and his pockets and wallet were
searched. The appellant sought damages for battery and for violations of his
rights under the Canadian Charter of Rights and Freedoms. The trial judge
found that there was no reasonable basis for the officers to suspect the appellant
of criminal behaviour. He found that the appellant’s rights under ss. 8, 9 and 10
of the Charter were violated. He declined to find that the officers discriminated
against the appellant on the basis of his race by engaging in racial profiling. He
awarded damages of $5,000 for battery, $2,000 for the s. 9 violation, and $1,000
each for the s. 8 and the s. 10 violations. He also awarded punitive damages in
the amount of $18,000 (arrived at by doubling the aggregate award for the other
heads of damages) and granted declaratory relief. The appellant appealed from
the trial judge’s failure to find racial profiling and from the damages award.
Held, the appeal should be allowed.
The trial judge erred in declining to find that the appellant was the victim of
racial profiling because there was no evidence that the decision to stop him was
based on his race. Racial profiling can rarely be proven by direct evidence. While
there may have been no direct evidence of racial profiling, there was circumstantial evidence from which one could draw a reasonable inference that it was more
probable than not that the officers’ conduct towards the appellant was motivated
by the fact that he was black. The appellant’s rights under s. 15 of the Charter
The award of general damages in the amount of $5,000 for battery did not fall
outside of the appropriate range.
The trial judge erred in deciding to deal with the objectives of deterrence and
vindication through punitive damages. He failed to recognize sufficiently that
Charter damages are awarded against the state, not the individual tortfeasor for
whose actions the state may be vicariously liable. He also failed to recognize the
important public objectives of Charter damages, which are different from the
objectives of punitive damages that may be awarded against a private individual.
Deterrence and vindication in the public law context are different from deterrence and vindication in the private law context. It is the state, not the individual, that must be deterred, and it is society’s, not the claimant’s, rights that
must be vindicated. While that would be a sufficient basis to set aside the award
of Charter damages, the trial judge’s failure to recognize that the appellant’s
rights under s. 15 of the Charter were violated provided an additional reason for
doing so. The award of Charter damages should be increased to $50,000, awarded
against the Police Services Board only. The punitive damages award should be
increased to $25,000 as against both the board and P. This amount reflected the
seriousness of P’s misconduct but was not so large as to remove any realistic possibility that P would be unable to pay it.
Ernst v. Quinonez,  O.J. No. 3781,  O. T.C. 847, 125 A.C.W.S. (3d)
923 (S.C.J.); Evans v. Sproule,  O.J. No. 4518, 176 A.C.W.S. (3d) 895
(S.C.J.); Vancouver (City) v. Ward,  2 S.C.R. 28,  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,
 9 W. W.R. 195, 75 C.C.L. T. (3d) 1, 404 N.R. 1, consd
Other cases referred to
Dunlea v. Attorney General,  NZCA 84,  3 N.Z.L.R. 136; Leclair v.
Ottawa (City) Police Services Board,  O.J. No. 1233, 2012 ONSC 1729