In my last blog I spoke about the arrest, search, and susbsequent release of Jessie Sansone, without search, as a result of his four year-old daughter drawing a picture of him with a gun.  No doubt this was a harrowing ordeal for Sansone.  There has since been much criticism levied towards the Waterloo Regional Police Service for how this matter was handled.

From the criminal justice standpoint the matter is over.  Since there is no charge there will be no court process.  Sansone will never be “vindicated” in a criminal courtroom.  For many charged with criminal offences and found not guilty either based on the facts or by way of evidence being tossed due to a Charter breach, or those who have their charges stayed due to reasons such as excessive delay or an improper strip search, the court’s finding will not be able to return them to the position they were in prior to the charge.

Unlike a civil court the role of a criminal court is not to make the accused person “whole” but rather to properly resolve the matter in accordance with criminal law.  I note however that courts of inherent jurisdiction (Superior Courts) do have the power to award damages in criminal cases.  This was seen in R. v. Ward where the Supreme Court upheld an award of damages resulting from an illegal strip search.  (Provincial courts do not have this power to award damages so one wishing to make the claim would have to file an action in Superior Court after the provincial court decision is rendered).  Claims for damages are made pursuant to s. 24(1) of the Charter.  It is also possible to make a claim in tort.  This was done in Ward alongside the claim for Charter damages.

Even if some damages are awarded, either pursuant to a Charter claim or in tort, the costs of litigation may never actually make an individual whole.  In addition to lawyer fees, which may be covered by the opposing side but never in their entirety, there is the stress and uncertainty of a court proceeding which adds to the overall “cost”.  Additionally there is the possibility of being unsuccessful.  Litigation is never a guarantee.

This blog post was written by lawyer Adam Goodman.  Adam is a criminal lawyer in Toronto who blogs regularly about legal subjects.  Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.