Supreme Court of Canada
Beatty
and Mackie v. Kozak, [1958] S.C.R. 177
Date:
1958-01-28
E. A. Beatty And J. Mackie (Defendants) Appellants;
and
Doris M. Kozak (Plaintiff)
Respondent.
1957: October 21, 22, 23; 1958: January 28.
Present: Kerwin C.J. and Rand, Locke, Cartwright and Abbott
JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN.
False imprisonment—Special statutory definitions and
limitations—The Mental Hygiene Act, R.S.S. 1953, c. 309, ss. 15, 61, 64.
Mental diseases—Apprehension without
warrant—Justification for acts of police officers—Whether person
"apparently" mentally ill and behaving in disorderly manner—Bona fide
belief—The Mental Hygiene Act, R.S.S. 1953, c. 309, ss. 2(8), (11), (14), 15,
61, 61.
The plaintiff was apprehended by two police officers in
purported compliance with s. 15 of The Mental Hygiene Act. She was kept in
custody and subsequently sent to a mental hospital, from which she was
discharged after 44 days. She brought an action claiming, inter alia, damages
for false imprisonment, from the deputy chief constable who had directed her
apprehension, and a police matron who took part in the arrest. The defendants
pleaded the provisions of the statute, and particularly ss. 15, 61 and 64.
Held (Rand J. dissenting) : Both defendants were liable
in damages.
Per Kerwin C.J.: To justify the apprehension of a
person without warrant under s. 15 of the Act, two conditions must be
satisfied: (1) the person must be "apparently" mentally ill or
mentally defective, as
[Page 178]
defined in the statute, and (2) he must be conducting himself
in a manner which, in a normal person, would be disorderly. Whether or not it
could be said that it was apparent to the appellants that the plaintiff was
mentally ill, it was clear on the evidence that she was not acting in a
disorderly manner at the time of her apprehension, since she was at her own
office going about her business. It was true that s. 61 of the Act barred an
action against a person acting under the authority of s. 15, but only if that
person had acted in good faith and with reasonable care. It might be said, in
this case, that the defendants had acted in good faith but it could not be
said, on the evidence, that they had acted with reasonable care. Section 61
was, therefore, inapplicable.
Per Locke, Cartwright and Abbott JJ.: The apprehension
of the plaintiff without a warrant was not authorized under s. 15, which
envisaged, as a condition of its application, something in the nature of an
emergency. This being the case, it could not be said that the acts of the
defendants were "done under the authority of" or "done in
pursuance of" s. 15, even if those words were interpreted as equivalent to
"intended to be done under the authority of" and "done in
intended pursuance of". Lightwood, The Time Limit on Actions, p. 393,
quoted with approval. It was obvious that neither of the defendants had a bona
fide belief in facts which, if they had existed, would have afforded a
justification under s. 15, nor was there anything on which they could
reasonably found the belief that in fact the conditions prescribed by that
section existed. Therefore neither s. 61 nor s. 64 of the Act afforded any
defence to the defendants.
Per Rand J., dissenting: Section 61 of the Act
was of the widest scope in the justification it furnished and expressly mentioned
acts done under s. 15; its application should not be limited to acts that were
justified under that section. Considering the object of the statute, the extent
to which lay persons might become involved, and the safeguards mentioned, the
restricted interpretation given by the Courts below to s. 64 failed to take
into account the basic principle underlying the special conditions of bringing
action. Section 64 accordingly applied to bar the action because of the lapse
of time before its institution.
APPEAL from a judgment of the Court of Appeal for Saskatchewan, reversing a judgment of Doiron
J. Appeal dismissed, Rand J.
dissenting.
J. E. MacDermid, Q.C., for the
defendants, appellants.
Walter Tucker, Q.C., and (Miss) Shirley J.
Tucker, for the respondent.
The Chief Justice:—The
appellant Mackie was deputy-chief constable of Saskatoon and the appellant Mrs.
Beatty was a police matron. On June 16, 1953, two Saskatoon
[Page 179]
police officers, whose names the
respondent was unable to obtain, accompanied by Mrs. Beatty, took the
respondent from her office in Saskatoon to the psychiatric ward of the Saskatoon
Hospital where she was examined by two doctors on June 17 and 18 and then
transferred to the Provincial Mental Hospital in North Battleford. There she
was examined by two experts in mental illness and received treatment, but at
the end of 44 days she was discharged. Two actions brought by the respondent
were tried together by Doiron J. and dismissed.
We are not concerned with the other action, but only with the present one and
that as against the two appellants for damages for false arrest.
The Court of Appeal for Saskatchewan allowed the plaintiff's appeal
and directed judgment to be entered against Mackie for $1,000 and against Mrs.
Beatty for $100. The five members of that Court were in agreement as to Mackie,
but McNiven J.A. would have dismissed the action against Mrs. Beatty. There can
be no question as to the liability of Mackie, as admittedly he directed the
arrest of the respondent, unless he is saved by the provisions of The Mental
Hygiene Act, 1950 (Sask.), c. 74 (now R.S.S. 1953, c. 309). While Mrs.
Beatty was attached as matron to the Royal Canadian Mounted Police, she
admitted in her examination for discovery, put in at the trial, that from time
to time and on June 16, 1953, she was employed by the Saskatoon police. She
knew that the respondent was to be "picked up"; she accompanied the
officers who identified themselves as such to the respondent, and I agree with
the majority of the Court of Appeal that what she did was sufficient to make
her a party to the arrest and therefore liable in damages unless she also is
protected under the statute.
Section 2 of that Act contains the following definitions:
8. "institution" includes a mental hospital and a
school for mental defectives;
11. "mental defective" or "mentally defective
person" means a person in whom there is a condition of arrested or
incomplete development of mind whether arising from inherent causes or induced
by disease or injury, and who requires care, supervision and control for his
own protection or welfare or for the protection of others;
[Page 180]
14. "mentally ill person" means a person other
than a mental defective who is suffering from such a disorder of mind that he
requires care, supervision and control for his own protection or welfare or for
the protection of others;
Section 11 provides for admission to an institution in
various ways, such as by the certificates of two physicians or on the warrant
of the Lieutenant Governor in Council. Section 15 then provides an alternative
method of apprehension:
15. Any person, apparently mentally ill or mentally
defective and conducting himself in a manner which in a normal person would be
disorderly, may be apprehended without warrant by any constable or peace
officer and detained until the question of his mental condition is determined
under section 12.
Sections 61 and 64 enact:
61 [as amended by 1951, c. 74, s. 5]. No person who lays an
information under this Act, or who signs a certificate or does any act to cause
a certificate to be signed under the provisions of section 12 or 44, or who
otherwise acts under the authority of section 12, 15 or 44 or who commits any
person to safe custody upon the ground that such person is mentally ill or
mentally defective or who signs or carries out or does any act with a view to
signing or carrying out an order purporting to be an order for the removal of
any person to an institution, shall be liable to civil proceedings whether on
the ground of want of jurisdiction or on any other ground if the person so
acting has acted in good faith and with reasonable care.
64. All actions, prosecutions and other proceedings against
any person for anything done or omitted to be done in pursuance of this Act
shall be commenced within six months after the act or omission complained of
has been committed, and not afterwards.
Under s. 15 two things are required before a person may
be apprehended without warrant:
(1) Such person must be apparently mentally ill or
mentally defective; and
(2) He must be conducting himself in a manner which in
a normal person would be disorderly.
Whether or not it could be said that it was apparent to
the appellants that the respondent was mentally ill, the evidence is clear that
she was not acting in a disorderly manner as she was at her own office going
about her business.
It is quite true that s. 61, when applicable, performs its
function so as to bar an action against a person who acts under the authority
of s. 15, whether on the ground of want of jurisdiction or on any other ground;
but only if such person has acted (1) in good faith and (2) with reasonable
care. It is difficult to envisage how "want of jurisdiction"
[Page 181]
could apply to the appellants in the circumstances of this
case, but, however that may be, I find it impossible to say that, even if they
acted in good faith, they also acted with reasonable care.
The evidence is detailed elsewhere. There is no doubt that
Mackie had received complaints from time to time from the respondent's sister,
Mrs. McWilliams, and the latter's husband, to the effect that the respondent
was annoying them and others and undoubtedly these two told Mackie that they
considered her mentally ill. It is beyond question that she had been drinking,
but it is also clear that during the eight or nine days preceding June 16, 1953, there was no evidence that she had acted in a disorderly manner. The
evidence that Mrs. McWilliams went to see the police magistrate, who took her
to see Mackie and pointed out to him s. 15 and told Mackie that he did not need
a warrant, does not justify the stringent action of attempting to proceed under
the provisions of that section when the respondent was not disorderly in any
sense on June 16, 1953, and had not been for some time. Nor does the fact that
Mr. McWilliams furnished Mackie on June 13, 1953, with his own affidavit that
in his opinion the respondent was mentally ill and was conducting herself in a
manner which in a normal person would be disorderly bring the appellants within
the protection of s. 61. The appellants did not act with reasonable care.
Section 64 may be compared with s. 2 of The Public
Officers' Protection Act, R.S.S. 1953, c. 17, the relevant part of which
reads as follows :
2. (1) No action, prosecution, or other proceeding shall lie
or be instituted against any person for an act done in pursuance or execution
or intended execution of any statute, or of any public duty or authority, or in
respect of any alleged neglect or default in the execution of any such statute,
duty or authority, unless it is commenced …
This wording follows s. 1 of The Public Authorities
Protection Act, 1893 (Imp.), c. 61, and is the same as corresponding
provisions in some of the other Provinces of Canada. For the reasons stated at
p. 392 of Lightwood's The Time Limit on Actions (1909), I agree that the fuller
form on which the words of the 1893 Act are based is no more efficacious than
the original short form "in pursuance of the Act", as that was
interpreted by the Courts. Many of the cases cited by counsel for the
appellants and which, we
[Page 182]
were advised, were not brought to the attention of the
Courts below, are referred to in the text-book and, after a consideration of
all of them, I agree with the author's conclusion, at p. 393, that:
The necessary check upon the defendant's assumption of
statutory power was finally found in the requirement that he should have a bona
fide belief in facts which, if they had existed, would have afforded a
justification under the statute.
In the present case I find it impossible to say that
the appellants thought for a moment that the respondent was acting in a manner
which in a normal person would be disorderly. On the contrary, they knew that
at least that prerequisite for the application of s. 15 did not exist and
therefore there was not any belief in facts which, if they had existed, would
have afforded a justification.
Although possibly it might have been argued that the $100
awarded against Mrs. Beatty was part of the $1,000 awarded against Mackie, no such
question was raised and therefore nothing is said about it. The appeal should
be dismissed with costs, including the costs of the motion for leave to appeal.
Rand J. (dissenting)
:—This appeal hinges on the application to the facts of s. 64 of The Mental
Hygiene Act of Saskatchewan, now R.S.S. 1953, c. 309:
All actions, prosecutions and other proceedings against any
person for anything done or omitted to be done in pursuance of this Act shall
be commenced within six months after the act or omission complained of has been
committed, and not afterwards.
The action was brought for false imprisonment arising out of
the following circumstances: The respondent was apprehended and taken to a
hospital for examination by the appellants, members of the police force of Saskatoon,
purporting to act under the provisions of s. 15 of the Act:
Any person, apparently mentally ill or mentally defective
and conducting himself in a manner which in a normal person would be disorderly,
may be apprehended without warrant by any constable or peace officer and
detained until the question of his mental condition is determined under section
12.
They were acting in good faith and believed on
reasonable grounds that the respondent was a person mentally ill who had been
leading a life of recurrent disorderliness. The information on which they acted
was furnished by the respondent's sister who had made a complaint to a
magistrate and with the magistrate had gone to police headquarters. On the
[Page 183]
discussion there the magistrate
gave his opinion that on the facts s. 15 authorized the officers to proceed to
apprehend her. After a delay of three or four days, awaiting an available room
in the hospital, she was taken and kept there for about 40 days and then
discharged. In the opinion of the superintendent, on admittance she was
suffering from mental illness aggravated by alcoholic indulgence, and on
discharge she was a border-line case in which the risks of giving her liberty
were about in balance with the considerations in favour of freedom, a situation
which called for her release. The evidence clearly established a pattern of
behaviour extending over a period of eight or nine months exhibiting itself in
bouts of excessive drinking, disorderly conduct seriously disturbing neighbours
in nearby apartments, making annoying use of the telephone, and threats of
injury to herself and her brother-in-law. The officers believed that they were
authorized to take her into custody by s. 15, that in acting as they did they
were exercising power vested in them by that section.
At the trial Doiron J. held that the section did authorize
what was done. On appeal the language was interpreted as applying only to
occasions on which a peace officer should come upon a person apparently
mentally ill and then and there acting in a disorderly manner. On that view it
was held that the apprehension was not made "in pursuance of this
Act"; and that s. 61, which provides justification for acts done "under
the authority of section … 15", did not apply. The action was maintained
for damages of $1,000 against Mackie and $100 against Beatty, and the question
is whether the Court was right in holding that s. 64 could not be invoked.
The scope of the expressions "in pursuance of",
"pursuant to", "in the execution of", and others of like
import, in each case with the qualification of the word
"intended"—all of which are now to be treated as having the same
signification —has been the subject of a great deal of judicial effort to reach
a rule that would fit all cases; but as is virtually inevitable in such
pursuits, that object has proved to be illusory. In a series of decisions in
the early years of the 19th century the interpretation tended to put the good
faith of the public authority in acting in his official capacity as the test;
then the "reasonableness" of that faith became
[Page 184]
a question; and this was followed by modifications based
upon mistake in matters of fact as well as in those of law. A reference to a
number of them seems desirable.
In Morgan v. Palmer,
a fee was exacted by a mayor from a publican upon renewing his licence. In an
action to recover the amount back it was held that as no fee was legally
collectable the taking could not be said to have been done under colour of
authority, and the defendant was not entitled to notice of action. Three years
later Cook v. Leonard et al. applied
the same test. Bayley J. used this language :
[The words] extend to all acts done bona fide which may
reasonably be supposed to be done in pursuance of the Act. But where there is
no colour for supposing that the act done is authorized, then notice of action is
not necessary.
Wright v. Wales
followed. There it was held that a person spreading beach and shingle by order
of the magistrates but not doing malicious injury, was not liable to arrest;
but as he had exhibited no warrant for what he was doing, the defendant as a
reeve of the parish and in charge of the land could not be said to have had no
colour for supposing he ought to arrest him. In the language of Park J.,
"if he made a mistake when he had reason to suppose he was acting in
pursuance of the statute, he was entitled to the protection given". In Hopkins
v. Crowe,
where a son of the owner of a horse that had been ill-used gave the party in
charge, whereas the statute enabled only the owner to do that, clearly
excluding the son, the latter was held not entitled to notice. In Rudd v.
Scott,
an owner of a house had given in charge the plaintiff, employed by a tenant to
execute repairs, for pulling down and stealing part of the materials of the
house; and in the language of Tindal C.J. the Court could not say that the
course pursued by the owner was so wide of the mark that he could not have been
acting bona fide in the belief that the statute justified it. These were
followed by Read v. Coker, in
which the
[Page 185]
defendant, being entitled to give into custody a person
found committing the offence, was held entitled to notice if "he bona fide
believed that he was acting in pursuance of the statute", though, as in
the present case, the plaintiff was taken, not in the act of
"committing" but some hours afterwards. Maule J. used this language :
The case of Booth v. Clive [(1851), 10 C.B. 827] decides that a party is entitled to
notice of action provided he has acted bona fide in the belief that he is
pursuing the statute even though there may be no reasonable foundation for such
belief. Where the question is whether a man has acted bona fide, the
reasonableness of the ground of belief may be fit to be considered …
But as Williams J. in Cann v. Clipperton said:
It would be wild work if a party might give himself
protection by merely saying that he believed himself acting in pursuance of a
statute. … The case to which they [protecting clauses] refer must lie between a
mere foolish imagination and a perfect observance of the statute.
Hermann v. Seneschal,
lays down the test of a bona fide belief in the existence of a state of
fact which, had it existed, would have justified the action taken. This, in Roberts
v. Orchard, was
extended to a belief by the defendant that the plaintiff was "found
committing", as in Read v. Coker, supra, the pertinency of which to
the case before us is obvious. In Heath v. Brewer, a. cab proprietor, instead of
summoning one of his drivers under the statute, defaced the latter's licence by
writing on it that he had been dismissed for damaging the cab and bringing home
no money. Erle C.J. remarked: "The defendant could not honestly believe
that he was a magistrate, or that he could be justified in acting as judge in
his own case."
The test of Hermann v. Seneschal will meet many if
not most of the cases arising, but, as the history of the rule shows, we cannot
rule out all mistakes in interpreting the statute, and sooner or later special
circumstances will be met which, if injustice is to be avoided, will call for a
modification. That was exemplified in Burns v. Nowell, which held that it was sufficient if
the person acting believed that facts existed which in his honest and
reasonable belief would in law justify what he had done. There
[Page 186]
a naval officer seized a vessel, believing that an offence
had been committed under the Kidnapping Act of 1872, 35 & 36 Vict.,
c. 19. The statute authorized the detention of any vessel "suspected upon
reasonable grounds" of an offence. The circumstances which the officer
believed to exist did not, assuming them to exist, amount to an offence,
although it was his belief that they would. In the language of Baggallay L.J.,
at p. 451:
… an officer should be considered to have had reasonable
grounds for suspicion, if at the time of the seizure, he reasonably believed in
the existence of a state of circumstances which, in his honestly formed
opinion, amounted to the commission of an offence under the Act.
This harks back to the earlier requirement of some
colour of belief that the act was authorized by the statute, as in Hazeldine
v. Grove.
There the defendant, as police magistrate, in a matter brought before him over
which he had no jurisdiction, had disbelieved the evidence given by the
plaintiff as a witness and had detained him until after the case was disposed
of, as beyond his jurisdiction, when, without a charge having been made, he
informed the plaintiff that he would be committed unless he found bail to
appear on a stated day. The bail was immediately furnished and the plaintiff
discharged. The statute under which the defendant acted gave him authority to
take preliminary proceedings "on charges of misdemeanour" and, with
no charge before him, the proceedings were illegal. At p. 795 (E.R.) Lord
Denman C.J., giving the judgment of the Court, said:
That principle seems to be this: that, where the magistrate,
with some colour of reason, and bona fide, believes that he is acting in
pursuance of his lawful authority, he is entitled to protection, although he .
may proceed illegally, or exceed his jurisdiction. Whether he acts with such
colour of reason, and bonâ fide, are questions for the jury . . . .
It is true that no direct charge or information had been
laid before the defendant when he first caused the plaintiff to be removed into
another room; and he may have exceeded his authority in so doing; but there is
ample ground for believing that he thought he might himself institute the
proceeding when the offence had been committed in his presence; and all his
subsequent conduct flowed from this. …
There was a fault in the commencement, which made the whole
proceedings illegal: but these statutory protections suppose an illegality, so
that there is no defence on the merits.
[Page 187]
The importance of Burns v. Nowell lies in the
recognition that no hard and fast rule is sufficient, and that the
circumstances must issue in a result that will reasonably execute the policy
underlying the protective provision. In G. Scammell and Nephew, Limited v.
Hurley et al., Scrutton
L.J. says:
When defendants are found purporting to execute a statute,
the burden of proof in my opinion is on the plaintiffs to prove the existence
of the dishonest motives above described and the absence of any honest desire
to execute the statute, and such existence and absence should only be found on
strong and cogent evidence.
Here is an Act dealing with situations that not infrequently
arise and in which the action to be taken calls essentially and primarily for
good faith and reasonable grounds. Section 61 is of the widest scope in the
justification it furnishes when those conditions have been satisfied. In it
acts done under s. 15 are expressly mentioned but the Court of Appeal has
apparently limited its application to those that are justified, for which the
inclusion would seem to be quite unnecessary. Considering the objects of the
statute, the extent to which lay persons may become involved, and the
safeguards mentioned, the restricted interpretation given s. 64 fails to take
into account the basic principle underlying these special conditions of
bringing action; and we were told by Mr. MacDermid that none of the authorities
mentioned was brought to the Court's attention.
The special circumstance here is that s. 15, on its face, is
certainly not obvious in meaning. It was read by a magistrate to extend to
apparent mental illness accompanied by a record of past persistent disorderly
conduct, and not to be confined to those conditions as they appear to a peace
officer when about to take into custody. The same view was taken by Doiron J.,
who thought the limitation urged too narrow. When a statutory provision to be
acted upon by a peace officer lends itself to such an erroneous interpretation,
to require him to act at the risk of being found to be wrong only after the
question has been deliberated on by a superior appeal tribunal would frustrate
the intended administration of the statute and would be contrary to the
principle of the rulings from the beginning.
[Page 188]
In Norris v. Smith, Williams J, says :
The question is, not whether the defendant and the trustees
were strictly justified by the provisions of the statute, but whether there was
a semblance of acting under it.
In Selmes v. Judge et al., surveyors of highways illegally demanding a highway
rate under a repealed statute were held to be entitled to notice. Blackburn J.
said :
… it is clear that the defendants intended to act according
to the duties of their office as surveyors … it was the duty of the defendants
to collect highway rates, and they intended to act in pursuance of the statute…
There was not a semblance of statutory authority for
what was done and, whether or not the ruling would be followed to-day, it bears
the authority of a great judge. It is significant that in the Act before us s.
61 provides its justification even when the ground of liability is a want of
jurisdiction.
The circumstances here are in sharp distinction from those
in Chaput v. Romain et al. The reasons of Kellock J. were relied upon by Mr. Tucker.
But the offending act of Chaput was presumably some common law offence for a
belief in the existence of which there was not a particle of foundation; and
the act of the officers in breaking up the religious service with no
justification or excuse was itself an offence. There was no statute and no
colour of acting under their common law duty; every fact was known and any
other result would have left it to them to believe and act upon any set of
facts which they might imagine to constitute an offence.
It should be emphasized that s. 64 assumes that the persons
entitled to its benefit have been guilty of an illegal act for which they must
answer, and the requirement is only that proceedings against them be taken
within a certain period; and it is necessary to guard oneself against
unconsciously allowing this to become associated with the idea of a
justification for the act done, which it is not.
I would, therefore, allow the appeal and restore the
judgment at trial. Following the terms on which leave to appeal was granted,
the appellants must pay the party-and-party costs of the application for leave
and of the appeal in this Court. For the reason that the responsible officials
of the
[Page 189]
City refused to disclose to the respondent the names of
those who were concerned in the apprehension there should be no costs in either
the Court of Appeal or the trial Court.
The judgment of Locke, Cartwright and Abbott JJ. was
delivered by
Cartwright J.:—This
is an appeal, brought pursuant to special leave granted by this Court, from a
judgment of the Court of Appeal for Saskatchewan, allowing an appeal from a judgment
of Doiron J. and
directing that judgment be entered in favour of the respondent against the
appellant Mackie for $1,000 damages and against the appellant Beatty for $100.
While at the trial other parties and matters were before the
Court, we are now concerned only with the claim of the respondent against the
appellants for damages for false imprisonment.
The relevant facts are set out in the reasons for judgment
in the Courts below and it is not necessary to repeat them in detail.
The appellant Mackie was at all relevant times deputy chief
constable of the City of Saskatoon. On the morning of June 16, 1953, two police
officers, whose names are unknown to the respondent but who were admittedly
acting on the instructions of the appellant Mackie, arrested the respondent.
They were accompanied by the appellant Mrs. Beatty, who is also a police
officer, and a question arises as to whether she took part in the arrest. At
the time of the arrest the respondent was in her office in the city of Saskatoon
and behaving in a normal manner.
The appellant Mackie had from time to time received
complaints from the respondent's sister and brother-in-law to the effect that
the respondent was drinking excessively, was acting in a disorderly manner, was
annoying them and others by repeated telephone-calls and appeared to be
mentally ill. It is clear from the evidence, and is indeed admitted, that the
respondent had not acted in a disorderly manner during the nine days preceding
her arrest and was not showing any signs of mental illness or defect at the
time she was apprehended.
[Page 190]
The defence of the appellants was based on the provisions of
The Mental Hygiene Act, 1950 (Sask.), c. 74, as amended, and
particularly ss. 15, 61 and 64 which read as follows:
15. Any person, apparently mentally ill or mentally defective
and conducting himself in a manner which in a normal person would be
disorderly, may be apprehended without warrant by any constable or peace
officer and detained until the question of his mental condition is determined
under section 12.
61 [as amended by 1951, c. 74, s. 5]. No person who lays an
information under this Act, or who signs a certificate or does any act to cause
a certificate to be signed under the provision of section 12 or 44, or who
otherwise acts under the authority of section 12, 16 or 44 or who commits any
person to safe custody upon the ground that such person is mentally ill or
mentally defective or who signs or carries out or does any act with a view to
signing or carrying out an order purporting to foe an order for the removal of
any person to an institution, shall be liable to civil proceedings whether on
the ground of want of jurisdiction or on any other ground if the person so
acting has acted in good faith and with reasonable care.
64. All actions, prosecutions and other proceedings against
any person for anything done or omitted to be done in pursuance of this Act
shall be commenced within six months after the act or omission complained of
has been committed, and not afterwards.
It was argued, (i) that the arrest of the respondent was
authorized by s. 15, (ii) that if it was not authorized the appellants were
none the less acting under the authority of s. 15 in good faith and with
reasonable care, and so were relieved from liability by s. 61, and (iii) that
what they did was done in pursuance of s. 15 and that the action was barred by
s. 64 as admittedly it was not commenced until more than six months after the
act complained of had been committed.
As to the first of these arguments, for the reasons given by
Gordon J.A., concurred in on this point by all the other members of the Court
of Appeal, I agree with his construction of s. 15 and with his conclusion that
its terms did not authorize the apprehension of the respondent without a
warrant. I wish to add only a few brief observations as to the meaning and
apparent purpose of that section. Read, as it must be, in the context of the
whole Act, it appears to me to envisage as the condition of its application
something in the nature of an emergency. The Act contains ample provision for
the apprehension and admission to an institution by due process of law of
persons who are, or are suspected of being, mentally ill or mentally defective;
see, for example, ss. 11, 12 and 17. Section 15, on the other
[Page 191]
hand, gives to any constable or peace officer the power to
apprehend and detain a person without warrant if two conditions coexist. These
are (i) that the person is apparently "mentally ill" or
"mentally defective", each of which terms by reason of cls. 11 and 14
of s. 2 denotes such a condition that the person requires care, supervision and
control for his own protection or welfare or for the protection of others, and
(ii) that the person is conducting himself in a manner which in a normal person
would be disorderly. The coexistence of these conditions might well bring about
a situation in which any delay in placing the person concerned under restraint
would be fraught with danger. To hold that a statutory provision which
authorizes an interference with the liberty of the subject, provided two
conditions exist, could extend to a case in which neither exists would be
contrary to the well-established rule of construction referred to by Gordon
J.A.
The second and third of the arguments mentioned above may
conveniently be dealt with together, as neither can avail the appellants unless
the arrest of the respondent can be said to have been an act "done under
the authority of" or "in pursuance of" s. 15. For the purposes
of this branch of the matter I am prepared to accept Mr. MacDermid's submission
that the words quoted are equivalent to "intended to be done under the
authority of" and "done in intended pursuance of". English
statutory provisions couched in similar terms have been dealt with in many
decisions. After examining a number of these and tracing the development of the
jurisprudence on the subject, the learned author of Lightwood's The Time Limit
on Actions (1909) says at p. 393:
The necessary check upon the defendant's assumption of
statutory power was finally found in the requirement that he should have a bona
fide belief in facts which, if they had existed, would have afforded a
justification under the statute. This test, first formulated in Hermann v.
Seneschal (1862), 13 C.B.N.S.392, was repeated in Roberts v. Orchard
(1863), 2 H. & C. 769, and was adopted as a practical solution of the
difficulty: see Heath v. Brewer (1864), 15 C.B.N.S.803; Chambers v.
Reid (1866), 13 L.T.703; Downing v. Capel (1867), L.R.2 C.P.461.
After an apparent reversion to the requirement of reasonable belief in Leete
v. Hart (1868), L.R. 3 C.P.322, the new test was re-affirmed by Willes, J.,
in Chamberlain v. King (1871), L.R. 6 O.P. 474; see also Griffith v.
Taylor (1876), 2 C.P.D.194,C.A.; and it has not since been doubted.
[Page 192]
It is true that in Selmes v. Judge et al., Blackburn J. said at p. 728:
Neither in Hermann v. Seneschal nor in Roberts v.
Orchard was it decided that a defendant would not be entitled to notice of
action, because he had been mistaken in the law …
but in that case the defendants were public officers
carrying out a purpose authorized by statute and their error was a failure to
act strictly in accordance with the statute. The statute did empower them to
levy and collect a rate, and the judgment of Blackburn J. proceeds on the view
stated by him, at pp. 727-8, as follows:
The only illegal act done by the defendants was to make an
informal rate; they proceeded to collect it, and received from the plaintiff
the amount assessed upon him; in these transactions it is clear that the
defendants intended to act acording to the duties of their office as surveyors,
although they mistook the legal mode of carrying out their intention.
In my opinion the passage from Lightwood quoted above is a
correct statement of the general rule and sets out the test to be applied in
the case at bar. Cases may arise in which special circumstances complicate the
application of the rule and in which the statutory protection may extend to a
defendant who has proceeded partly on a bona fide mistake as to the
facts and partly on an erroneous view of the law; see, e.g., Cann v.
Clipperton, infra; but I find it difficult to suppose a case in which a
defendant who was perfectly acquainted with all the facts would be protected
merely because he entertained a mistaken opinion as to the law, and I am
satisfied that there is nothing in the facts of the case at bar to remove it
from the operation of the general rule.
In Cann v. Clipperton, a case to which my brother Kellock
referred with approval in Chaput v. Romain et al., the defendant had caused a policeman to arrest the
appellant on a charge of doing malicious injury to property contrary to 7 &
8 Geo. IV, c. 30 ; the arrest without warrant was justified only if the party
arrested was found committing the offence; the jury decided that when taken
into custody the plaintiff was not found committing any offence against the
Act; it was argued for the plaintiff that the defendant,
[Page 193]
who was a solicitor, was acting under the mistaken view of the
law, that the situation was covered by another statute under which the offender
could be arrested without warrant if he had actually committed the offence
although he was not found committing it, and that therefore the defendant was not entitled to notice of action. In giving
judgment Lord Denman C.J. said at p. 588:
The defendant seems not merely to have had that impression
which was suggested, as to the law, but to have thought that the mischief was
actually going on at the time. Else I am unwilling to say that, if a party acts
bona fide as in execution of a statute, he is justified at all events, merely
because he thinks he is doing what the statute authorises, if he has not some
ground in reason to connect his own act with the statutory provision. The
doctrine attributed to Bayley J. goes too far. But here the defendant might
reasonably think that, in point of fact, the circumstances were those to which
the protection of stat. 7 & 8 G. 4 c. 30 s. 41 attaches. The rule for a
nonsuit must therefore be absolute.
The reference to the doctrine attributed to Bayley J.
appears to be to the judgment of that learned judge in Cook v. Leonard et al., and particularly the following passage, at pp. 355-6:
These cases fall within the general rule applicable to this
subject, viz. that where an Act of Parliament requires notice before action
brought in respect of any thing done in pursuance or in execution of its
provisions, those latter words are not confined to acts done strictly in
pursuance of the Act of Parliament, but extend to all acts done bona fide which
may reasonably be supposed to be done in pursuance of the Act. But where there
is no colour for supposing that the act done is authorized, then notice of
action is not necessary.
In Burns v. Nowell, the
officer who seized the schooner "Aurora" knew of facts (i.e., that
she was carrying native labourers of the South Sea Islands not being part of
the crew and had no licence to do so) which would have been a good cause for
her arrest but for the circumstance, which appears to have been unknown to him
at the time of seizure that she had sailed prior to the date of the Kidnapping
Act, 1872, c. 19, coming into force. Baggallay L.J., who delivered the
unanimous judgment of the Court, appears to have accepted the general rule to
which I have referred above but to have regarded the case as an exception to
it. This is indicated by the following passage in his reasons at pp. 450-1:
It has been contended by Mr. Wills, on behalf of the
plaintiff, that an officer detaining or seizing a vessel, cannot properly be
considered either as having reasonable grounds to suspect that an offence has
been
[Page 194]
committed, or as acting in pursuance of the Act, unless he
believes in the existence of facts which if they did actually exist, would be
sufficient to establish the commission of the offence; and, in support of this
contention he has referred to decisions and dicta in cases in which notice of
intended action having been required by law to be given to persons sought to be
made responsible for having exceeded their powers, questions have arisen as to
the circumstances under which such persons are entitled to notice.
We are, however, unable to accede to the argument based upon
the supposed authority of these cases. We do not doubt their value as guides
for the decision of cases of a similar character, but the words, which we have
now to interpret, are contained in a statute of a very special character, and
their true meaning can only be arrived at by a consideration of the general
scope of the statute and of the circumstances under which, and the purposes for
which, it was avowedly passed. To adopt the limited construction, contended for
by Mr. Wills, would render the Act almost a dead letter; the practical effect
of so doing would be to make the justification of the officer depend, in almost
every case, upon the offence having been in fact committed; and he would
consequently have to discharge his duty at the risk of being held responsible
in damages, should he make a mistake in applying a newly made law to a state of
facts, believed or suspected by him to exist, but as to the existence of which
he can, speaking generally, have but very slight means of informing himself.
If the test set out in the passage from Lightwood, quoted
above, be applied in the case at bar it is obvious that neither of the
appellants had a bona fide belief, or any belief, in facts which if they
had existed would have afforded a justification under s. 15, for arresting the
respondent without a warrant. The facts were simple and obvious. It cannot, on
the evidence, be suggested that the respondent either appeared to be mentally
ill or was conducting herself in a disorderly manner at the time of her arrest.
The most favourable way in which, on the evidence, the case can be put for the
appellant Mackie is that he gave the order for the arrest in the honest belief
that the conditions prescribed by s. 15 had in fact coexisted at a time not
less than nine days prior to the day of the arrest, and under the mistaken
impression that that circumstance empowered him to proceed under s. 15. His
conduct was no mere mistake in the legal mode of carrying out a statutory duty;
rather it was, as Gordon J.A. points out, a violation of the common law rights
of the respondent without statutory authority.
If the test suggested by Lord Denman, in the passage quoted
above from Cann v. Clipperton, is applied, it is my view that there was
nothing upon which the appellants could reasonably found the belief that, in
point of fact, the conditions prescribed by s. 15 existed.
[Page 195]
Even if "the doctrine attributed to Bayley J.",
which Lord Denman regarded as going too far in favour of the defendant, were
adopted as the proper test it would not avail the appellants since there was,
in my opinion, no colour for supposing the arrest to be authorized and no
reasonable ground for thinking that s. 15 gave the appellants the authority
which they used.
The submission of the appellants on the points now under
consideration, if accepted, would bring about the result that, provided he is
acting honestly and with no improper motive, a defendant who arrests a person
without a warrant should be regarded as intending to act under the authority,
or in pursuance, of a section which empowers him so to act only if two
conditions coexist, although he is fully aware that in fact neither condition
exists. In my opinion the mere statement of such a proposition is sufficient to
refute it.
I conclude that neither s. 61 nor s. 64 affords a defence to
the appellants.
There remains the question whether the appellant Beatty took
any part in the arrest of the respondent. In my opinion her evidence given on
discovery and put in at the trial as part of the respondent's case shows that
she and the other two police officers acted together in carrying out the orders
of the appellant Mackie to arrest the respondent, and that from the time of her
apprehension until she was handed over to the authorities at the hospital the
respondent was in the joint custody of the appellant Beatty and the other two
officers.
No question was raised as to the amount at which the damages
were assessed or as to the terms of the formal judgment of the Court of Appeal.
I would dismiss the appeal with costs, including the costs
of the motion for leave to appeal.
Appeal dismissed with costs, Rand J. dissenting.
Solicitors for the defendants, appellants: Ferguson,
MacDermid & MacDermid, Saskatoon.
Solicitors for the plaintiff, respondent : Tucker
& Simpson, Rosthern.
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