[2001] 1 F.C. 545
A-907-97
Claude-Rolland M. du-Lude, C.D. (Appellant)
v.
Her Majesty the Queen (Respondent)
Indexed as: Du-Lude v. Canada (C.A.)
Court of Appeal, Richard C.J., Létourneau and Noël JJ.A.—Ottawa, August 30 and September 7, 2000.
Armed Forces — Appellant released from Armed Forces for violation of counselling, probation notice — Left base contrary to express orders given by superior — Military police ordered to arrest him, bring him back to base — Whether arrest unlawful — Trial Judge misunderstanding nature of actions taken by military officers, rule of law applicable — Officers exercising discretionary power of arrest conferred by National Defence Act, ss. 154, 156 — Charter, Criminal Code placing limits on exercise of discretionary power — Appellant’s presence at place of duty on day of arrest not necessary in public interest, for military objectives — Arrest was futile, unjustified demonstration of authority.
Constitutional law — Charter of Rights — Enforcement — Soldier, about to be released from Canadian Forces for bad attitude, showing up at base to collect severance pay — Ordered to remain at base — Disobeying order by going home — Military Police executing order to locate, arrest soldier — Damages claimed for wrongful arrest — Police exercising discretionary power under National Defence Act — Limits imposed on such power by Charter — Arrest unnecessary for military objectives — Futile, unjustified demonstration of authority — As constitutional rights infringed, entitled to appropriate remedy under Charter, s. 24 — As to quantum of damages, pre-Charter cases of limited value as reflecting societal values at time when right not to be unlawfully arrested accorded less significance than at present.
Damages — Compensatory — Soldier illegally arrested at home by military police when about to be released from Armed Forces — Unnecessary to prove material damage where constitutional rights infringed — Financial compensation for moral injury proper remedy — Case law on compensatory damages reviewed — Pre-Charter cases of limited assistance as reflecting societal values at time when breach of right against unlawful arrest not considered as significant as at present — In view of seriousness of unlawful arrest at residence, force used, assaults committed, $10,000 appropriate compensation — Absence of malice — Not a case for awarding punitive, exemplary damages.
This was an appeal from a Trial Division decision dismissing the appellant’s claim for damages resulting from his arrest by the military police at his residence. The appellant was a member of the Armed Forces from January 1976 to the fall of 1988. During the period 1985-1988 he served at CFB Trenton. In April 1988, he received a counselling and probation notice by reason of his “unacceptable attitude to military authority” and his “failure to follow orders”. Two months later, it was recommended that the appellant be released from the Armed Forces for violation of his counselling and probation. He did not object to that recommendation. Having been absent, apparently without leave for some time, he showed up for release purposes and to collect severance pay. On that occasion, contrary to express orders given by one of his superiors, he left the base. Upon being informed that he had done so, his superior ordered the military police to arrest him and to return him to the base. The appellant claimed damages for illegal arrest and detention. The Trial Judge held that the arrest was legal because the appellant had committed the offence specified in subsection 90(1) of the National Defence Act, namely being absent from his place of duty without authority. He concluded that, even if injuries or damage had been incurred, they were not caused by the military police officers, who only used the force necessary to make the arrest. Two issues were raised on appeal: (1) whether the appellant had been legally arrested and, in doing so, whether the police used more force than was necessary, and (2) whether the appellant had a valid claim for damages in respect of the injuries allegedly suffered in the course of his arrest.
Held, the appeal should be allowed.
(1) The Trial Judge misunderstood the nature of the actions taken by the military officers, and consequently the rule of law applicable herein. These officers were not performing a duty imposed by law, but were exercising a discretionary power of arrest conferred by sections 154 and 156 of the National Defence Act. Because of this misunderstanding, the Judge failed to ask whether the exercise of that power was justified in the circumstances. The existence of a power of arrest without warrant must not be confused with its exercise. The Canadian Charter of Rights and Freedoms and the Criminal Code have placed limits on the exercise of such a discretionary power. The evidence indicated that a decision had been taken by the military authorities to terminate the appellant’s employment and that the latter was released from the Armed Forces only a few hours after his arrest. The appellant’s presence at his place of duty on the day of his arrest was not necessary in the public interest or for military objectives. Even though the lack of approval from the commanding officer was an important factor in determining whether the appellant had committed the offence mentioned in section 90 of the Act, namely being absent without authority, this could not by itself justify the use made of the power of arrest. This use of the power of arrest was an unlawful exercise of the discretionary power conferred by sections 154 and 156 of the Act and a demonstration of authority and force which was both futile and unjustified.
(2) Since the appellant’s constitutional rights had been infringed, he was entitled, under section 24 of the Charter, to a just and appropriate remedy. As the harm resulted from illegal acts (unlawful imprisonment and assault), the existence of damages was not a prerequisite for obtaining compensation. Though unintentional and without malice, the infringement was nonetheless serious and unjustified. The appellant should not, however, be awarded punitive and exemplary damages. Financial compensation for the moral injury sustained was the proper remedy in the circumstances. The rights to freedom and security of the person and to protection against arbitrary detention are fundamental constitutional rights, and the victim of a breach of these rights has a constitutional right to suitable compensation. As to quantum of damages, pre-Charter decisions are of limited value in that they reflect the values of a time when these rights lacked the significance which they are now accorded. In all the circumstances, the sum of $10,000 as moral damages represents a just and appropriate compensation.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 24.
Canadian Forces Administrative Orders, 16-1, ss. 67, 68, 69.
Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 127, 128, 129.
Criminal Code, R.S.C., 1985, c. C-46, ss. 264 (as enacted by S.C. 1993, c. 45, s. 2; 1997, c. 16, s. 4; c. 17, s. 9), 265, 266, 267 (as am. by S.C. 1994, c. 44, s. 17), 269 (as am. idem, s. 18), 271 (as am. by R.S.C., 1985 (3rd Supp.), c. 19, s. 10; S.C. 1994, c. 44, s. 19), 348 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 47; S.C. 1997, c. 18, s. 20), 495 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 75), 553 (as am. idem, s. 104; S.C. 1992, c. 1, s. 58; 1994, c. 44, s. 57; 1995, c. 22, s. 2; 1996, c. 19, s. 72; 1997, c. 18, s. 66; 1999, c. 3, s. 37).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 36 (as am. by S.C. 1990, c. 8, s. 9), 37 (as am. idem).
National Defence Act, R.S.C., 1985, c. N-5, ss. 90(1),(2), 154 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 48), 156 (as am. idem, s. 49, Sch. I, s. 45).
CASES JUDICIALLY CONSIDERED
APPLIED:
Gauthier v. Canada, CACM-414.
CONSIDERED:
Scott v. Canada (1975), 61 D.L.R. (3d) 130; 24 C.C.C. (2d) 261; 12 N.R. 477 (F.C.A.); Wheaton v. Canada, [1980] F.C.J. No. 121 (T.D.) (QL); Buck v. Canada, [1985] F.C.J. No. 1040 (T.D.) (QL); Rumsey v. Canada, [1984] F.C.J. No. 529 (T.D.) (QL); Corrigan v. Montreal Urban Community, [1980] C.S. 853 (Que.); Danis v. Poirier, [1986] R.R.A. 200 (Que. Sup. Ct.); Montminy v. Brossard (Ville de), [1991] R.R.A. 299 (Que. Sup. Ct.); Stewart v. Dugas, [1992] R.R.A. 66 (Que. Sup. Ct.); Chartier v. Montréal (Communauté urbaine de), [1993] R.R.A. 66 (Que. Sup. Ct.); Leroux v. Montréal (Communauté Urbaine de), [1997] R.J.Q. 1971 (Sup. Ct.); Mitchell v. Québec (Procureur général), [1995] R.J.Q. 1836 (Sup. Ct.); Stewart v. Canada (Attorney General), [1999] F.C.J. No. 1996 (T.D.) (QL); Davidson v. Toronto Blue Jays Baseball Ltd. (1999), 170 D.L.R. (4th) 559; 89 O.T.C. 64 (Ont. Gen. Div.); Miller v. Stewart, [1991] O.J. No. 2238 (Gen. Div.) (QL); Cunningham v. Welsh, [1984] O.J. No. 939 (S.C.) (QL).
REFERRED TO:
Rodrigue v. C.U.M., [1981] C.S. 442 (Que.).
AUTHORS CITED
Fridman, G. H. L. Torts. London: Waterlow Publishers, 1990.
Linden, Allen M. Canadian Tort Law, 3rd ed. Toronto: Butterworths, 1982.
APPEAL from a Trial Division decision ((1997), 138 F.T.R. 301) dismissing the appellant’s claim for damages resulting from his arrest by the military police at his residence. Appeal allowed.
APPEARANCES:
Claude-Rolland M. du-Lude for himself.
Alain Préfontaine for respondent.
SOLICITORS OF RECORD:
Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for judgment rendered by
[1] Létourneau J.A.: This appeal raises two questions: was the appellant legally arrested by the military police on June 29, 1988 and, in proceeding to that arrest, did the police use more force than was necessary? Incidental to these issues is the appellant’s claim for the damages in respect of the injuries he alleges he suffered in the course of the arrest.
Facts and procedure
[2] The Trial Judge clearly summarized the facts surrounding the incident: see the judgment reported at (1997), 138 F.T.R. 301. I do not intend to rewrite them. I propose to adopt the parts of the said summary that are necessary in order to adequately dispose of the appeal at bar, adding to them if required [at pages 303-305]:
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”).
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.
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.
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.
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.
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.
The military police reported to Major Caldwell that they could not find the plaintiff. He then requested them to continue their search of [sic] 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.
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.
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.
…
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.
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.
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 15 to 20 minutes. During that time, the military police and Cst. Hall, the other Trenton Police Officer, waited outside.
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.
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”.
Trial Judge’s decision
[3] The Trial Judge concluded that the arrest was legal because the plaintiff had committed the offence specified in subsection 90(1) of the National Defence Act, R.S.C., 1985, c. N-5 (the Act), namely being absent from his place of duty without authority. Section 90 reads:
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.
[4] At the conclusion of the trial, which did not deal with the plaintiff’s guilt, but with the validity of his claim for damages, the Trial Judge was satisfied that, even if he had obtained sick leave from a military doctor, the plaintiff had failed to obtain from his commanding officer the approval required by sections 67 to 69 of the Canadian Forces Administrative Orders 16-1: the Trial Judge’s judgment, at pages 307-308.
[5] The Trial Judge further considered that more force than was necessary had not been used to make the arrest. He also made the following finding of fact: the police had attempted, but in vain, to persuade the appellant to submit to arrest peacefully and he had finally resisted arrest. This fact is in any case admitted by the appellant: hence the need to use the necessary force to immobilize him, put handcuffs on him and take him to the police car parked in front of the house: see the judge’s judgment, at page 309.
[6] On the injuries which the appellant claimed to have suffered, the Trial Judge found that the appellant had presented no evidence of physical or other injury, whether psychological or emotional. Further, he considered that if injuries or damage had been incurred, they were due only to the appellant’s own fault and not to any fault by the military police officers, who only used the force necessary to make the arrest: see the Trial Judge’s judgment, at page 309.
[7] Finally, the Trial Judge expressed the opinion that Major Caldwell, who had ordered the appellant’s arrest, and officers Wannamaker and Ball, who made the arrest, were only doing their duty and that their conduct was irreproachable. The Trial Judge wrote: “They simply carried out the duties which were theirs in the circumstances”: see the Trial Judge’s judgment, at page 310.
Analysis
[8] With respect, I feel that the Trial Judge misunderstood the nature of the actions taken by Major Caldwell and officers Wannamaker and Ball and consequently misunderstood the rule of law applicable in the case at bar. These officers were not performing a duty imposed by law as he concluded, but were actually exercising the discretionary power of arrest mentioned in sections 154 [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 48] and 156 [as am. idem, s. 49] of the Act:
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.
…
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 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. [My emphasis.]
[9] Because of this misunderstanding he failed to ask whether, as the Court Martial Appeal Court held in Gauthier v. Canada, CACM-414, June 23, 1998, at page 9, because of the particularly prejudicial nature of this discretionary power to an individual’s rights and freedoms, its exercise was justified in the circumstances.
Nature and exercise of powers conferred by sections 154 and 156 of Act
[10] The combined effect of sections 90, 154 and 156 of the Act is both singular and necessary: those sections permit the arrest of a soldier who is absent from his place of duty or who leaves it. It is inconceivable that in civilian life an employer could be given the power to arrest without warrant an employee who does not report to work or is absent without leave. However, the Armed Forces are not an ordinary employer. They have been given the function and duty of providing for the defence of Canada, and as such the offence mentioned in section 90 and the powers of constraint that flow from it are fully justified. Having said that, however, the existence of a power of arrest without warrant must not be confused with its exercise.
[11] As the Court Martial Appeal Court pointed out in Gauthier, supra, the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter) and the Criminal Code [R.S.C., 1985, c. C-46] (the Code) have placed limits on the exercise of such a discretionary power. For example, although he enjoys the power to arrest a person who has committed offences as serious as assault (sections 265 and 266 of the Code), assault with a weapon (section 267 [as am. by S.C. 1994, c. 44, s. 17]), unlawfully causing bodily harm (section 269 [as am. idem, s. 18]), sexual assault (section 271 [as am. by R.S.C., 1985 (3rd Supp.), c. 19, s. 10; S.C. 1994, c. 44, s. 19]), breaking and entering a dwelling-house with intent (section 348 [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 47; S.C. 1997, c. 18, s. 20]), theft or fraud of less than $5,000 (section 553 [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 104; S.C. 1992, c. 1, s. 58; 1994, c. 44, s. 57; 1995, c. 22, s. 2; 1996, c. 19, s. 72; 1997, c. 18, s. 66; 1999, c. 3, s. 37]) or criminal harassment (section 264 [as enacted by S.C. 1993, c. 45, s. 2; 1997, c. 16, s. 4; c. 17, s. 9]), a police officer has an obligation and duty under section 495 [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 75] of the Code not to do so “if he or she believes on reasonable grounds that the public interest may be satisfied without arresting the person and has no reasonable grounds to believe that the person will fail to attend court”: see Gauthier, at page 9. In this connexion, the Court Martial Appeal Court wrote, at page 10:
With the advent of the Charter and the constitutionalization of the protection against arbitrary arrest and detention, the requirements governing the exercise of the power of arrest which are found in the Criminal Code and which, surprisingly, are not found in the N.D.A., except in section 158 where they apply only as criteria for release from custody, have become minimum requirements for the valid exercise of the power of arrest. [My emphasis.]
[12] There is no doubt, in view of the Armed Forces’ mission, that the public interest may, for example, in wartime or in peacekeeping or peace-restoring missions, or in training periods for such missions, justify the arrest without warrant of a soldier who fails to be present at his place of duty or remain there. Such conduct may be much more than a breach of discipline: it may threaten the military objectives and safety of property or of other civilian or military personnel. In saying that, I do not in any way suggest that military objectives or operations cannot be threatened or affected by such conduct in peacetime or that it may not then be permissible, even essential, to use the power of arrest; however, the circumstances in the case at bar are clearly not of that kind: quite the contrary.
[13] The evidence before the Trial Judge indicated that a decision had been taken by the military authorities to terminate the appellant’s employment. On June 9, 1988 a recommendation to this effect was made to the superior authorities and accepted by them. At the time of the arrest on June 29, the termination of the appellant’s employment with the Armed Forces was imminent. In fact, he had of his own account reported at 8:00 a.m. that morning, in the hours preceding his arrest, to collect his release papers and severance pay. His employment in fact terminated that very day, and he was released from the Armed Forces only a few hours after his arrest.
[14] Further, the appellant’s presence at his place of duty on the day of his arrest was not necessary in the public interest or for military objectives. Moreover, in his testimony Major Caldwell stated that the reason he asked the military police to investigate the appellant’s absence was simply because he allegedly feared for the appellant’s safety: see the Trial Judge’s judgment, at page 303.
[15] Third, in answer to a question put to him by Major Caldwell in the hours preceding the arrest, as to the reason for his absence, the appellant told him that he was on sick leave: see the Trial Judge’s judgment, at page 304. The appellant in fact had obtained sick leave from his attending physician and another medical certificate, valid for a two-day absence, from a military physician. As already mentioned, however, he had not obtained his commanding officer’s approval. This lack of approval from the commanding officer was undoubtedly an important factor to be considered in determining whether the appellant had committed the offence mentioned in section 90 of the Act, namely being absent without authority. However, it could not by itself justify the use made of the power of arrest. Major Caldwell, who ordered the appellant’s arrest after he had left the military base on the morning of June 29, 1988, knew that the appellant was claiming justified absence for sick leave. It should be noted in passing that the appellant was never charged with the offence mentioned in section 90, and for which he was arrested and detained. Major Caldwell further knew, at the time of the appellant’s arrest, that the latter was on the point of leaving the Armed Forces since he had been told by the National Defence Headquarters authorities in Ottawa that a decision had been taken to terminate the appellant’s employment: see the Trial Judge’s judgment, at page 304. He had also taken the decision, after consulting the Judge Advocate’s office, to release the appellant from his commitments as quickly as possible: ibid.
[16] In these circumstances, use of the power of arrest was in my opinion nothing less than an unlawful exercise of the discretionary power conferred by sections 154 and 156 of the Act: it was nothing but a demonstration of authority and force which was as futile as it was unjustified. Consequently, the arrest and the use of force and detention that followed were unlawful and unjustified.
Compensation for harm suffered
[17] As I have already mentioned, the Trial Judge concluded that the appellant had not submitted evidence of the material damage he claimed to have suffered. There is nothing in the evidence or in the appellant’s oral or written submissions to allow this Court to intervene in this finding of fact.
[18] However, the appellant’s constitutional rights were infringed and, under section 24 of the Charter, he is entitled to a just and appropriate remedy in the circumstances. As the harm results from illegal acts (unlawful imprisonment and assault), the existence of damages is not a prerequisite for obtaining compensation: see A. M. Linden, Canadian Tort Law, 3rd ed., Toronto: Butterworths, 1982, at pages 44 and 45; G. H. L. Fridman, Torts, Waterlow Publishers: London, 1990, at pages 124 and 125. Though unintentional and not from malice, the infringement is nonetheless serious and unjustified. The appellant faced the system unaided, without financial resources, and represented himself in this Court. It is quite apparent that the establishment and legal vindication of his constitutional rights was a source of anxiety, anguish and frustration for himself and his family. The respondent’s defensive attitude only increased his feeling of injustice and persecution. The appellant claimed damages, including punitive and exemplary damages. I do not feel that he should be awarded punitive and exemplary damages, but I believe that financial compensation for the moral injury sustained is the proper remedy in the circumstances. It only remains to determine the nature and extent of this.
[19] There is some disparity between the amounts awarded for an unlawful arrest and detention. This disparity has to do with the special facts of each case and the circumstances surrounding them. I hasten to add that on the question of quantum, pre-Charter decisions are of limited use and value. To begin with, they are many years old and the amounts awarded reflect the values of the time. Secondly, and this in my opinion is the important point, the rights to freedom and security of the person and the right to protection against arbitrary detention did not have the status and scope before the advent of the Charter that they now have. They are three fundamental constitutional rights, the unjustified infringement of which also involves a constitutional right to suitable compensation, whereas in the past the right to compensation was much more uncertain. The more recent court decisions have taken these new facts into account. The compensation awarded, both for moral damages and for exemplary damages, and sometimes for both at once, reflect this change in judicial thinking. A brief review of some of the decisions on this point makes this clear and indicates the efforts made by the courts to adapt the amount of the compensation to the circumstances of the case at bar.
[20] In Scott v. Canada [(1975), 61 D.L.R. (3d) 130 (F.C.A.)], in which judgment was rendered prior to the Charter in August 1975, this Court awarded a complainant the sum of $200 for unlawful arrest and assault committed by police officers. Thurlow J., in dissent, would have ordered the defendants to pay $1,000. He considered that the amount of $200 was a very low valuation of the complainant’s right to his personal safety and freedom. The police officers unlawfully placed pressure on the complainant’s throat, handcuffed him in public, arrested him and dragged him out of the tavern, finally taking him to the police station.
[21] The sum of $250 was awarded as general damages by the Trial Division in February 1980 to a plaintiff who was unlawfully arrested by the police. In the course of the arrest, the plaintiff suffered facial injuries. His glasses and his dental prosthesis were broken and specific compensation was in fact awarded for them. The Court considered that the plaintiff was partly responsible for what happened and took this into account in awarding the general damages: see Wheaton v. Canada, [1980] F.C.J. No. 121 (T.D.) (QL).
[22] In November 1985, Muldoon J. of the Trial Division felt bound by this Court’s judgment in Scott. He awarded the plaintiff, who had been forcibly arrested in public and held for 15 to 20 minutes, the sum of $360. But for Scott, Muldoon J. would have awarded damages of at least $2,500: see Buck v. Canada, [1985] F.C.J. No. 1040 (T.D.) (QL).
[23] This position contrasts with the judgment by Strayer J. (as he then was) in June 1984 in Rumsey v. Canada, [1984] F.C.J. No. 529 (T.D.) (QL). After concluding that in the circumstances the force used by the police was in excess of what was reasonable and necessary, our brother judge approved the agreement reached between the parties and awarded the complainant $25,000 as general damages and the sum of $26,495 as special damages. He dismissed a claim for punitive damages as, in his opinion, the conduct of the police officers was not “oppressive”, “arbitrary”, “high-handed”, “abusive” or “insulting”. The use of some force was justified, but the force used in fact exceeded what was necessary.
[24] In 1980, The Quebec Superior Court ordered the defendants to pay the plaintiff $5,000 in moral and physical damages for an unlawful and malicious arrest in public which humiliated him and which was a source of great anxiety throughout the civil proceedings which he had to initiate in order to obtain justice: Corrigan v. Montreal Urban Community, [1980] C.S. 853. Six years later, the same Court awarded $8,500 moral damages for an unlawful arrest followed by arbitrary detention for one night, in the course of which the complainant was subjected to intensive examination in an effort to elicit admissions: Danis v. Poirier, [1986] R.R.A. 200.
[25] In Montminy v. Brossard (Ville de), [1991] R.R.A. 299 (Que. Sup. Ct.), the plaintiff received $7,000 for her unlawful arrest, the violation of her domicile and unjustified use of force by a bailiff. The Court referred to Rodrigue v. C.U.M., [1981] C.S. 442 (Que.), appeal to the Court of Appeal dismissed, in which a plaintiff who was unjustly arrested and detained for over four hours at the police station was awarded the sum of $10,000.
[26] The plaintiff Stewart obtained $10,000 for moral and psychological damage and for the hardship caused by her unlawful arrest and unjustified detention for three and a half hours. The infringement of the plaintiff’s fundamental rights was not deliberate and the police officers did not act maliciously or in bad faith. Consequently, no punitive damages were awarded: Stewart v. Dugas, [1992] R.R.A. 268 (Que. Sup. Ct.). See also Chartier v. Montréal (Communauté urbaine de), [1993] R.R.A. 66 (Que. Sup. Ct.), in which Mr. Chartier and another plaintiff received sums of $6,000 and $4,000 respectively for the humiliation, anxiety and anguish resulting from their unlawful arrest and the excessive means used by the police to make it.
[27] I conclude this illustration of judicial precedents by reference to two current decisions. In Leroux v. Montréal (Communauté Urbaine de), [1997] R.J.Q. 1971 (Sup. Ct. Que), the defendants, civilian police officers at the time of the events, were ordered to pay the victim of an unlawful arrest and detention and the use of unjustified force the sum of $45,000, namely $5,000 for the arrest, $5,000 for the detention and $25,000 for the moral damage suffered. Additionally, although infringement of the victim’s rights was not deliberate but accidental, the Court ordered them to also pay the sum of $10,000 as exemplary damages: see also Mitchell v. Québec (Procureur général), [1995] R.J.Q. 1836 (Sup. Ct. Que.), in which $5,000 was awarded to the victims for unlawful arrest, $4,000 for arbitrary detention and $6,000 for exemplary damages.
[28] Finally, our fellow judge Sharlow J., as she then was, came to the conclusion in Stewart v. Canada (Attorney General), [1999] F.C.J. No. 1996 (T.D.) (QL), that the force used in arresting the plaintiff was not excessive. If her conclusion had been different regarding the defendants’ liability, she would have awarded general damages of $12,500 for minor injury and slight psychological damage and $12,500 for punitive damages.
[29] Since the case at bar arose in Ontario, I should add that the position there is no different: see Davidson v. Toronto Blue Jays Baseball Ltd. (1999), 170 D.L.R. (4th) 559 (Ont. Gen. Div.), in which a jury awarded a person unlawfully arrested and subjected to the use of force and detention general damages totalling $35,000, aggravated damages of $50,000 and punitive damages of $125,000; Miller v. Stewart, [1991] O.J. No. 2238 (Gen. Div.) (QL), in which general damages for unlawful arrest, unlawful detention and assault were assessed at $10,000; Cunningham v. Welsh, [1984] O.J. No. 939 (S.C.) (QL), where the victim who suffered partial permanent disability in one arm as the result of excessive force used by police officers, received $25,003 in general damages.
[30] In view of the earlier decisions, the seriousness of the breach committed in the appellant’s private residence in the presence of his wife, the infringement of the residence, the force used, the assaults committed and the short period of detention following the arrest (about two to three hours), I feel that the sum of $10,000 in moral damages represents just and appropriate compensation.
[31] For these reasons, I would allow the appeal with costs and quash the judgment of the Trial Judge. Making the judgment that should have been rendered, I would allow the plaintiff’s action with costs and order the respondent to pay the plaintiff the sum of $10,000 with, as authorized by sections 36 [as am. by S.C. 1990, c. 8, s. 9] and 37 [as am. idem] of the Federal Court Act [R.S.C., 1985, c. F-7] and sections 127, 128 and 129 of the Ontario Courts of Justice Act, [R.S.O. 1990, c. C.43] interest before and after the judgment.
Richard C.J.: I concur.
Noël J.A.: I concur.