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regional wrap-up Class action goes forward after lawyer's strip-search win T he July Supreme Court of Canada decision that affirmed a $5,000 award to Vancouver lawyer Cameron Ward for violation of his s. 8 Charter rights after a strip search is now a pivotal aspect in a pending class action suit. "The class action was placed in abeyance pending the results in Ward," says Jason Gratl of Gratl & Co., which is handling the class action. "The test laid out in [Vancouver (City) v.] Ward neatly frames our commission issues." Gratl, who is a former B.C. Civil Liberties Association president and has handled high-profile civil rights cases, says the certification motion is in draft and is now moving forward. The pend- ing class action also helps to explain why the provincial government would fight for eight years and all the way to the SCC to attempt to overturn Ward, when the lower court award was only $5,000. Ward's case has become a flashpoint igniting changes to corrections policies at the Vancouver Jail. "One of the reasons I pursued the lawsuit was to try to end the Vancouver Jail's unlawful and unconstitutional practice of routinely strip-searching everyone. I hope that has occurred," says Ward. But the path to change has been long and bumpy. Ward's incident started in August 2002, when he was apprehended as a mistaken suspect alleged to be plan- ning to throw a pie at then-prime min- ister Jean Chrétien, in Vancouver to open a new Chinatown facility. Ward, who fit the suspect's description sans pie, was apprehended and allegedly made a noisy protest, causing him to be arrested, taken to the Vancouver Jail, strip-searched, and held for 4.5 hours. His vehicle was also seized, but not searched, and Ward was never charged. Ward subsequently sued the B.C. government and the City of Vancouver, winning damages of $5,000 for wrong- ful detention by the Vancouver Police Department, $5,000 for violation of his Charter search rights from the province, and $100 for the seizure of his vehicle from the police. At issue was the strip- search policy in place at the Vancouver Jail, which was a provincial jurisdiction jointly managed by the B.C. corrections service and the police. B.C. Supreme Court Justice David Tysoe in his 2007 reasons for judgment said, "The practice actually in effect at the Jail was that all new entrants into the Jail were strip searched with the exception of bylaw offenders and severely intoxicated persons in a public place who were brought to the Jail to sober up (who I will refer to as 'drunken persons')." Yet, the corrections services policy maintained strip searches were only warranted in serious offences, charges related to evidence hidden on the body, the arrest involved weapons, the accused is known to be violent and carry weapons, and there is a possible danger to personnel and prisoners. Tysoe stated that Ward's "strip search was not in accordance with the Corrections Branch's written policy or, if it was conducted in accordance with it, the policy was unreasonable to permit strip searches of persons being held for a breach of the peace in the absence of any threat to the safety and security of the Jail." Tysoe, instead, relied upon the SCC decision in R. v. Golden, which stated that police needed reasonable grounds (weapons offences or evidence) to carry out strip searches and routine strip searches could not be carried out. But between the time of Ward initiating his own suit and a decision in 2007, Ward was instrumental in lending support to a class action suit. In Thorburn v. British Columbia (Ministry of Public Safety), Ward represented two plaintiffs who wanted the court to determine whether Golden applied to a shared facility under s. 13.1(1) of the Correction Act (repealed 2004). The City of Vancouver and Province of British Columbia had argued that as co-managers they were not bound by 12 OC T O BER 2010 www. C ANADIAN Law ye rmag.com Golden. The judge ruled in favour of the plaintiffs, thus clearing the way for the class action suit to move forward. The July decision in favour of Ward discussed damages, stating that Ward had disrobed to his underwear, refused to go further stating the search violated his rights, and he had been allowed to dress again. The ruling said, "the pres- ent search was relatively brief and not extremely disrespectful, as strip search- es go" and did not involve "the exposure of his genitals" and Ward was "never touched." "While Mr. Ward's injury was seri- ous, it cannot be said to be at the high end of the spectrum. This suggests a moderate damages award," the SCC judgment stated. However, not all searches at the jail have been as moderate. In 2004's R. v. Drury, Ward represented one of the defendants who obtained a stay of proceedings for violation of his search rights, which included having to lift his genitals, although he was not touched. George Feenstra, an Anglican minister, who was arrested in a clash between police and protesters in 2002 was also strip-searched and told the CBC he was asked to lift his genitals for a search. In 2006, the problems with the Vancouver Jail eventually caused the province to turn over the operation to the VPD. After the Ward SCC deci- sion, the VPD issued a statement: "We cannot speak to the award Mr. Ward received for being strip-searched at the jail, since at the time, the jail was under the jurisdiction of the province. We can say that since the control of the jail has reverted to the VPD that we have clearly defined policy around strip searches. They are now only conducted in the jail when there are reasonable grounds to justify it," the police department said in a statement. The web site contains a link to the policy governing the jail and procedures on strip searches. — JS