Dulude v. Canada, docket T-2497-88

Date: 19971107

Docket: T-2497-88

BETWEEN:

     CLAUDE DULUDE

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN

     IN RIGHT OF CANADA

     Defendant

     REASONS FOR JUDGMENT

NADON J.

INTRODUCTION:

[1]      On June 29, 1988, the plaintiff, while a member of the Canadian Armed Forces (the "Armed Forces"), was arrested by the military police at his house in Trenton, Ontario.

[2]      The plaintiff alleges that he was injured during the course of the arrest which, according to him, was unlawful. Specifically, the plaintiff alleges that his right knee was injured during the arrest. He further alleges that, as a consequence of his arrest, he suffered psychological and emotional distress.

[3]      Consequently, the plaintiff claims general damages in the amount of $50,000.00 and special damages in the sum of $10,000.00. He also claims punitive and exemplary damages.

[4]      The plaintiff alleges that his arrest was unlawful in the following respects:

7.      The Plaintiff states that his arrest by the agents of the Defendant was unlawful in that:

(a)      The Defendant"s agents refused to inform the Plaintiff of the reason for his arrest;

(b)      The Defendant"s agents refused to allow the Plaintiff to consult a lawyer at the time of his arrest;

(c)      The agents of the Defendant had no jurisdiction to arrest the Plaintiff on civilian territory;

(d)      The Plaintiff had committed no offence for which he was subject to arrest.

[5]      The Deputy Attorney General, on behalf of the defendant, takes the position that the plaintiff'"s arrest was lawful in all respects. The Deputy Attorney General denies that the plaintiff was injured during the course of the arrest and states that, in any event, the arresting officers only used as much force as was reasonably necessary to arrest the plaintiff.

FACTS:

[6]      The relevant facts are as follows. The plaintiff was a member of the Armed Forces from January 1976 to the fall of 1988. From March 1985 to June 29, 1988, the plaintiff was posted to Canadian Forces Base Trenton ("CFB Trenton"). From March to June 1988, the plaintiff was assigned to Global Resupply. The head of this section was Captain Peterson ("Cpt. Peterson").

[7]      In April 1988, the plaintiff received a counselling and probation notice for a period of six months by reason of his "unacceptable attitude to military authority" and his "failure to follow orders". On June 9, 1988, a recommendation was made by the plaintiff"s commanding officer, Lieutenant-Colonel Jensen ("Lt.-C. Jensen"), that the plaintiff be released from the Armed Forces for violation of his counselling and probation. The Commander of CFB Trenton, Colonel Diamond ("Col. Diamond"), concurred with Lt.-C. Jensen"s recommendation.

[8]      Although ordered by Cpt. Peterson to report for work during the weekend of June 25 and 26, 1988, the plaintiff did not show up. Further, the plaintiff did not report for work on June 27 and 28, 1988. There is a dispute between the plaintiff and the defendant as to whether the plaintiff was on sick leave during those days. I will shortly return to this dispute.

[9]      At the relevant time, Major Don Caldwell was the Base Personnel Administrative Officer at CFB Trenton. He reported to the Base Administrative Officer, Lt.-C. Jensen. Whenever Lt.-C. Jensen was absent from the base, it was Major Caldwell that replaced him.

[10]      On June 28 and 29, 1988, Lt.-C. Jensen was on holidays. Thus, during that time, Major Caldwell was the plaintiff"s commanding officer. On June 28, 1988, Major Caldwell was informed by Cpt. Peterson that the plaintiff had not shown up for work and that he was absent without authority. Major Caldwell, allegedly out of concern for the plaintiff"s safety, ordered the military police to go to the plaintiff"s house to investigate the matter. Major Caldwell then examined the plaintiff"s file.

[11]      In reviewing the file, Major Caldwell took note of the fact that a recommendation had been made to release the plaintiff from the Armed Forces and that the plaintiff had not objected to this recommendation. According to Major Caldwell, the recommendation to release the plaintiff had been made because he was not a good team player.

[12]      The military police reported to Major Caldwell that they could not find the plaintiff. He then requested them to continue their search of the plaintiff and to bring him back to the base, should they find him. Around 8:00 a.m. on June 29, 1988, the plaintiff presented himself at the base for the purpose of his release and to obtain his severance pay. Major Caldwell, upon being advised of the plaintiff"s presence on the base, ordered that he be brought immediately to his office. When asked by Major Caldwell why he had not reported for work since June 25, the plaintiff informed Major Caldwell that he had been on sick leave. However, according to Major Caldwell, the plaintiff could not produce a sick leave pass as required by military regulations.

[13]      Major Caldwell ordered the plaintiff to go to the lobby of the building and to wait there for further instructions. Major Caldwell then consulted with the Judge Advocate"s staff and, based on their advice, concluded that the best course of action was to release the plaintiff from the Armed Forces as soon as possible. Major Caldwell then telephoned National Defence Headquarters ("NDHQ") in Ottawa and was informed that a decision had been made to release the plaintiff but that no release instructions had yet been issued.

[14]      While Major Caldwell was seeking the advice of the Judge Advocate"s staff and speaking to Ottawa, the plaintiff, contrary to the express orders given to him by Major Caldwell, left the base. Major Caldwell, upon being so informed, ordered the military police to arrest the plaintiff and to bring him back to the base.

[15]      This now takes us to the specific events which constitute the basis of the plaintiffs action. In paragraphs 3, 4 and 5 of his amended statement of claim, the plaintiff makes the following allegations:

3.      On or about the 29th day of June, 1988 at approximately 10:00 o"clock a.m., two agents of the Defendant, namely, Military Police Officer Anthony Neil Wanamaker [sic] and Military Police Officer Heather Louise Ball, entered the Plaintiff"s civilian residence at 296 Dufferin Avenue, Trenton, Ontario, and forcibly arrested him.

4.      The Plaintiff resisted arrest, whereupon Military Officers Anthony Neil Wanamaker [sic] and Heather Louise Ball assaulted the Plaintiff, causing him substantial personal injury.

5.      Military Officers Anthony Neil Wanamaker [sic] and Heather Louise Ball subsequently transported the Plaintiff to Canadian Forces Base at Trenton, Ontario and imprisoned the Plaintiff until shortly after 12:00 noon, causing the Plaintiff physical discomfort and severe psychological and emotional distress.

[16]      Four officers presented themselves, on the morning of June 29, 1988, at the plaintiff"s house situated on Dufferin Street in Trenton. Two of these officers were Trenton police officers and the two others were members of the military police.

[17]      The four officers testified before me at the trial. The story which emerges from their testimony is that they arrived at the plaintiff"s house around 10:00 a.m. on June 29. They identified themselves and requested to speak to the plaintiff. The plaintiff was advised by the military police officers that they had orders to bring him back to the base because he was absent without authority. The plaintiff made it clear that it was not his intention to leave his house in the company of police officers. He would only go to the base when he was ready to go.

[18]      An attempt was made to mediate the situation. Constable Davis ("Cst." Davis) of the Trenton Police Force entered the defendant"s house and attempted to convince the plaintiff that he should leave "peacefully" with the military police. It was obvious to Cst. Davis that the plaintiff had considerable anger towards the Armed Forces. Cst. Davis stated that the plaintiff"s wife urged her husband to go with the military police to the base. However, according to Cst. Davis, the plaintiff flatly refused. The discussion between Cst. Davis and the plaintiff lasted some fifteen to twenty minutes. During that time, the military police and Cst. Hall, the other Trenton Police Officer, waited outside.

[19]      While Cst. Davis was negotiating with the plaintiff, the military police officers, Anthony Wannamaker and Heather Ball, communicated with their superior at CFB Trenton, Major-Corporal Rushton ("Major-Cpl." Rushton), for further instructions. They were ordered to immediately arrest the plaintiff. Shortly thereafter, the two military police officers and Cst. Hall entered the plaintiff"s house and proceeded to arrest him.

[20]      According to all four officers, the plaintiff was very aggressive and kept shouting at them. Officer Wannamaker grabbed the plaintiff by the arm and forced him to the ground at which point the plaintiff was handcuffed by Officer Ball. As the plaintiff refused to stand up, the three male officers lifted him up and carried him out of the house. According to Cst. Davis, the plaintiff was "kicking quite a lot".

[21]      The plaintiff was then placed in a caged military police car. Because the plaintiff threatened to break the car windows, Officer Wannamaker sat in the back seat with him. The plaintiff was taken to the base and placed in a cell. According to Officer Ball, the plaintiff voluntarily got out of the military police car and walked into the cell area.

[22]      After entering his cell, the plaintiff refused to speak. The military police officers asked a French speaking officer, Cpl. Lafontaine, to read to the plaintiff, in French, his rights and also Major Caldwell"s order to arrest him. Officer Ball testified that an attempt had been made to read to the plaintiff his rights at the time of his arrest but that had not been possible because the plaintiff kept shouting. The plaintiff refused to speak to Cpl. Lafontaine.

[23]      A medical officer, Dr. Brent Moloughney, was asked by the military police to see the plaintiff. Dr. Moloughney saw the plaintiff in the detention cell but was unable to communicate with the plaintiff who continued to refuse to speak. Dr. Moloughney did not examine the plaintiff because, as he testified, the plaintiff appeared aggressive. Dr. Moloughney left the detention cell and met with Major Caldwell and Col. Diamond who wanted to release the plaintiff as soon as possible. It was agreed that Col. Diamond would make an attempt to speak to the plaintiff. Dr. Moloughney returned to the detention cell with Col. Diamond. Col. Diamond spoke to the plaintiff and, according to Dr. Moloughney, had a "calm conversation" with him. Dr. Moloughney then concluded that the plaintiff was not a risk to himself nor to others and he then left. During the time that he spent in the detention cell, Dr. Moloughney did not observe nor notice any physical injury to the plaintiff. Dr. Moloughney advised Col. Diamond that he had no objection to the plaintiff being released. Upon being informed that the plaintiff was fit for release, Major Caldwell ordered that the plaintiff be released immediately from the Armed Forces. He asked the military police to escort the plaintiff during the release process "because of his propensity to disobey". Shortly thereafter, the plaintiff completed the release procedure and left the base.

[24]      On June 28, 1988, telex instructions had been sent by NDHQ in Ottawa to CFB Trenton to inform them that it had been decided to release the plaintiff from the Armed Forces under RMO-15.01(D). The telex further advised CFB Trenton that the release instructions would be shortly sent. These instructions, which were received on the following day, indicated that the effective release date would be October 30, 1988, by reason of the plaintiff"s accumulated leave (71 days) and annual leave (11 days).

[25]      As I indicated earlier, the plaintiff alleges that his arrest on June 29, 1988, was unlawful. Further, the plaintiff alleges that Officers Wannamaker and Ball assaulted him, causing him "substantial personal injury".

ISSUES:

[26]      The issues which must be determined are the following:

1.      Whether, in all of the circumstances, the arrest of the plaintiff on June 29, 1988, was lawful.

2.      Whether, in all of the circumstances, the military police used more force than was reasonably necessary to arrest the plaintiff.

ANALYSIS:

[27]      The first issue to be decided is whether the plaintiff"s arrest was lawful. The answer to that question is, in my view, yes. I am satisfied that on June 29, 1988, the plaintiff was absent from the base without authority, contrary to military regulations. As a result, the order given by Major Caldwell to the military police to arrest the plaintiff and his arrest by Officers Wannamaker and Ball were, in the circumstances, lawful.

[28]      It will be recalled that the plaintiff was absent from work from June 25 through June 28, 1988. The plaintiff takes the position that he was on sick leave during those days. According to Major Caldwell, the plaintiff was absent without authority during those days as he did not have a sick leave pass as required by military regulations.

[29]      Article 16.16 of the Queen"s Regulations and Orders for the Canadian Forces ("QR & O") deals with "sick leave" and provides as follows:

16.16 - SICK LEAVE

(1)      An officer or non-commissioned member may be granted sick leave not exceeding:

(a)      thirty continuous calendar days by the member"s commanding officer on the recommendation of a medical officer; or

(b)      ninety-one continuous calendar days, including any sick leave granted under subparagraph (a) of this paragraph, by an officer commanding a command on the recommendation of a medical board; or

(c)      183 continuous calendar days, including any sick leave granted under subparagraphs (a) and (b) of this paragraph, by the Chief of the Defence Staff on the recommendation of the Surgeon General.

(2)      An officer or non-commissioned member who has been on sick leave shall report to the medical officer immediately on return to his unit.

[30]      Also of relevance, is Canadian Forces Administrative Order 16-1 - Section 4 which provides at paragraphs 67, 68 and 69(a) thereof:

67.      Sick leave supplements the medical treatment provided to members of the Canadian Forces and is granted for that period of time during which a member is unfit for duty but is not required to convalesce in an infirmary or hospital.

68.      Sick leave is reckoned in calendar days and is accounted for in accordance with paragraph 10. Where a member is discharged from hospital and granted sick leave, the sick leave commences the day after discharge from hospital.

69.      On the recommendation of an appropriate medical authority as specified in QR & O 16.16, Sick Leave, sick leave may be granted to a member as follows:

a.      up to 30 continuous calendar days by the member"s CO or by an authority designated by the CO;

[31]      Article 16.16 of the QR & O and Section 4 of CFAO-16-1 make it crystal clear that for a member to obtain sick leave, up to thirty continuous calendar days, he requires the recommendation of a medical officer to that effect and the approval of his commanding officer. In the present instance, as we shall shortly see, the plaintiff obtained a recommendation from a medical officer that he be allowed two days of sick leave but he never obtained, nor attempted to obtain, the approval of his commanding officer.

[32]      Section 90 of the National Defence Act, R.S., c. N-4, is also relevant and it provides that:

90. (1)      Every person who absents himself without leave is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

(2)      A person absents himself without leave who

(a)      without authority leaves his place of duty;

(b)      without authority is absent from his place of duty; or

(c)      having been authorized to be absent from his place of duty, fails to return to his place of duty at the expiration of the period for which the absence of that person was authorized.

[33]      Thus, a member who is absent without leave is guilty of an offence and, upon conviction, is liable to imprisonment. Leaving one"s place of duty or being absent from one"s place of duty without authority constitutes absence without leave within the meaning of Section 90.

[34]      In order to decide whether the plaintiff was validly on sick leave from June 25 to June 28 and whether he disobeyed Major Caldwell"s order of June 29, 1988, it is necessary to begin our inquiry on June 23, 1988.

[35]      Firstly, on that day, the plaintiff sought Cpt. Peterson"s authorization for leave for the following day. Leave was denied by Cpt. Peterson. On June 24, 1988, the plaintiff visited Donald C. Maybin D.C., a chiropractor practising in Trenton at the Chiropractic Centre on Dundas Street. Following his visit, Mr. Maybin wrote a letter addressed to the Medical Officer, CFB Trenton wherein he informed the medical officer that in his opinion the plaintiff "requires at least a week off work ...". The letter states:

Cpl. Du Lude [sic] sought treatment at this office for a cervico-thoracic syndrome characterized by myalgia and reduced mobility.

This problem abated in a short period of time but has been exacerbated lately by severe emotional pressure.

I have ordered him to avoid all aggravating situations, especially those he has been encountering at his place of employment as they are having a severe detrimental effect on his condition.

This man requires at least a week off work and will be treated over that period of time.

I would appreciate any assistance that you could offer in this ongoing situation.

If further details are required, please do not hesitate to advise this office.

[36]      On June 24, 1988, the plaintiff was seen by Dr. Moloughney, a medical officer, at CFB Trenton. According to Dr. Moloughney, the plaintiff "came in after hours expecting me to issue a sick report". According to Dr. Moloughney, there was nothing wrong with the plaintiff, that is the plaintiff had no physical ailment which would justify the granting of sick leave.

[37]      Dr. Moloughney examined the plaintiff"s medical file and observed that the plaintiff had difficulties with his workplace. After due consideration, Dr. Moloughney decided to recommend two days of sick leave for the plaintiff. Dr. Moloughney signed the sick report and stated that the plaintiff should have taken the report to his superior officer for his approval, as required by the regulations.

[38]      The plaintiff did not go to his superior officer to obtain his approval. He simply did not show up for work on June 25, 26, 27 and 28, 1988. The plaintiff testified that on June 27, 1988, he visited his family doctor, Dr. S. Wiesenberg-Smith, M.D.. Dr. Wiesenberg-Smith signed a document which reads:

Date:      June 27/88

Re:      Claude Simo-Dulude

This is to certify that the above patient was off work from June 27/88 to June 30/88 for medical reasons.

Sincerely,

[39]      On June 28, 1988, Cpt. Peterson informed Major Caldwell that the plaintiff was absent without authority. Accordingly, Major Caldwell directed the military police to investigate the plaintiff"s absence. As I have already indicated, the military police went to the plaintiff"s house in Trenton but he was not there. The plaintiff appeared on the base on the morning of June 29 and Major Caldwell was advised of his presence. After discussing with him his absence from work since June 25, Major Caldwell ordered the plaintiff to wait in the lobby for further instructions. Notwithstanding Major Caldwell"s clear instructions, the plaintiff left CFB Trenton and proceeded to his bank. Thereafter, he visited a friend and returned to his house, allegedly to change his clothing from civilian to army.

[40]      The plaintiff explained his failure to obey Major Caldwell"s order as follows. He arrived at CFB Trenton on the morning of June 29 shortly before 8:00 a.m.. He was in civilian clothing. He proceeded to Headquarters, and more particularly to the Release Department, headed by a Mrs. Wallace. Mrs. Wallace was not in the plaintiff"s chain of command. The plaintiff testified that Mrs. Wallace informed him that he could not be released unless he was in military clothing.

[41]      After taking leave of Mrs. Wallace, the plaintiff met Cpt. Peterson in the hallway who ordered him to wait while he reported his presence on the base to Major Caldwell.

[42]      When Major Caldwell was informed that the plaintiff had left the base, he immediately ordered the military police to arrest him. Officers Wannamaker and Ball were instructed by their superior, Major-Cpl. Rushton, to proceed to the plaintiff"s house to make the arrest.

[43]      In these circumstances, I have no difficulty concluding that the plaintiff was, within the meaning of Section 90 of the National Defence Act, absent without leave and that, as a result, Major Caldwell issued a valid order for his arrest. The plaintiff had received a clear and direct order from Major Caldwell to wait in the lobby for further instructions. The plaintiff then proceeded to disobey that order. There can also be no doubt that the plaintiff was absent without leave from the base from June 25 to June 28, 1988. Although he obtained from Dr. Moloughney a recommendation that he be allowed two days of sick leave, the plaintiff failed to obtain the approval of his commanding officer.

[44]      I now turn to the second issue. Did Officers Wannamaker and Ball exercise more force than was reasonably necessary to arrest the plaintiff? I should point out that the plaintiff conceded in his pleadings that he had resisted arrest. On the evidence, that fact cannot be doubted. Upon their arrival at the plaintiff"s house, the police officers identified themselves and explained why they were there. Because of the plaintiff"s lack of cooperation and his obvious resistance to go peacefully, it was agreed amongst the police officers, military and Trenton, that Cst. Davis would attempt to convince the plaintiff that he should depart "peacefully" with the military police. Cst. Davis" attempt lasted some fifteen to twenty minutes but was to no avail. It was only then that the military police, upon instructions from their commanding officer, entered the house and proceeded to arrest the plaintiff by the use of force. I am entirely satisfied that the arresting officers did not use more force than was reasonably necessary in the circumstances. The plaintiff was simply forced to the ground and handcuffed. Because he would not get up, three of the officers lifted him up and carried him into the police car parked in front of his house. He was then taken to the base and placed in a detention cell.

[45]      If, during the course of his arrest, the plaintiff suffered any injuries, these cannot, in my view, be imputed to the police officers who, under difficult circumstances, attempted to avoid the use of physical force. When that attempt failed, the police officers only used reasonable force to apprehend the plaintiff. In any event, the plaintiff failed to make proof of his injuries, physical or otherwise.

[46]      Section 154 of the National Defence Act constitutes ample authority for Major Caldwell"s decision to order the arrest of the plaintiff. This section also authorizes the military police to use "such force as is reasonably necessary" to effect an arrest. Section 154 provides:

154. (1)      Every person who has committed, is found committing or is believed on reasonable grounds to have committed a service offence, or who is charged with having committed a service offence, may be placed under arrest.

(2)      Every person authorized to effect arrest under this Part may use such force as is reasonably necessary for that purpose.

[47]      Section 156 of the National Defence Act authorizes the military police to detain and arrest the plaintiff. This section provides:

156. Such officers and non-commissioned members as are appointed under regulations for the purposes of this section may

(a)      detain or arrest without a warrant any person who is subject to the Code of Service Discipline, regardless of the rank or status of that person, who has committed, is found committing, is believed on reasonable grounds to have committed a service offence or who is charged with having committed a service offence;

(b)      exercise such other powers for carrying out the Code of Service Discipline as are prescribed in regulations made by the Governor in Council.

[48]      Thus, in the circumstances, it is my view that the conduct of Major Caldwell and of Officers Wannamaker and Ball is beyond reproach. They simply carried out the duties which were theirs in the circumstances.

[49]      For these reasons, the plaintiff"s action must be dismissed. I see no reason why the defendant should not have its costs.

     "MARC NADON"

     JUDGE

Ottawa, Ontario

November 7, 1997