The British Columbia Court of Appeal recently upheld the denial of certification of a proposed class action involving routine strip searches at a Vancouver city jail. Thorburn v. British Columbia (Public Safety and Solicitor General) illustrates the difficulty of certification in cases that require an individual inquiry into the facts and circumstances unique to each class member.
On April 1, 2003, Vancouver students Elise Thorburn and Christopher Jacob were arrested on charges of mischief for peacefully protesting outside the U.S. Consulate in Vancouver. Thorburn and Jacob were taken to a city jail (the “Jail”) where they received a pat-down search and a strip search for contraband. After their bail hearing, they were released on their own undertaking to attend court on a specified date and on the condition that they would not attend within a two block radius of the U.S. Consulate. The charges against Thorburn and Jacob were later stayed.
In June 2003, Thorburn and Jacob initiated a class action under the B.C. Class Proceedings Act. They sought damages against the provincial Crown, the City of Vancouver and the Vancouver Police Board pursuant to s. 24(1) of the Charter for the alleged violation of their s. 8 Charter rights to be free from unreasonable search and seizure. The proposed class included all persons who were not remanded into pre-trial custody at the Jail but were subjected to routine strip searches.
The plaintiffs relied heavily on the Supreme Court of Canada’s decision in R. v. Golden. In Golden, the Supreme Court held that strip searches incidental to arrest required reasonable grounds and could not be performed as a matter of routine. In order to be constitutionally valid, a strip search must be conducted as an incident to a lawful arrest and the police must have reasonable and probable grounds for both the search and the arrest.
The plaintiffs argued that the policy in effect at the Jail regarding routine strip searches was contrary to Golden. Between December 2001 and April 2006, the Jail mandated routine strip searches of all new arrivals except: (1) individuals who had been arrested for being in a state of intoxication in a public place; and (2) individuals who had been arrested for a bylaw or traffic violation. Both groups were subjected to pat-down searches only because there was no possibility of them being admitted into the general prison population at the Jail. The plaintiffs argued that subjecting all individuals who fell outside of these two groups – including the proposed class members – to strip searches as a matter of course was unconstitutional.
Writing for a unanimous Court, Smith J.A. upheld the motion judge’s decision to deny certification. The plaintiffs failed to satisfy the common issues requirement. Individual assessments would be necessary to determine if reasonable grounds existed for the arrest and the search incidental to the arrest of each class member. Those circumstances would include a consideration of the likelihood that a detainee might be remanded into custody and would mingle with the general prison population. Accordingly, an individual inquiry into the multifarious circumstances of each class member (e.g. the reason for the arrest, their prior criminal record, previous acts of violence, possession of weapons and the extent of the possibility of a remand into custody) would be required. As Smith J.A. stated, “[a]n unreasonable policy alone could not provide the foundation for determining each class member’s cause of action of an unreasonable search; only an individual assessment of the relevant circumstances unique to each class member would allow a judge to determine if a cause of action had been established.”
Not surprisingly, the Court also concluded that the plaintiffs had failed to satisfy the preferable procedure requirement in light of the predominance of the individual issues.
The B.C. Court of Appeal’s decision in Thorburn illustrates the difficulty in proceeding by way of a class action in cases where proof of the alleged wrong depends on the individual circumstances of each class member. In this regard, the decision is similar to the Ontario Court of Appeal’s denial of certification on behalf of so-called “problem gamblers” in Dennis v. Ontario Lottery and Gaming Corporation, a case relied upon in Thorburn.
Thornburn v. British Columbia (Public Safety and Solicitor General), 2013 BCCA 480
Court Docket: CA040411
Date of Decision: November 6, 2013