Breen v. Saunders and Fredericton (City), (1986) 71 N.B.R.(2d) 404 (TD)

• Judge: Stevenson, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: March 20, 1986
• Jurisdiction: New Brunswick
• Citations: (1986), 71 N.B.R.(2d) 404 (TD)

Breen v. Saunders (1986), 71 N.B.R.(2d) 404 (TD);

    71 R.N.-B.(2e) 404; 182 A.P.R. 404

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Breen v. Saunders and Fredericton (City)

(F/C/276/85)

Indexed As: Breen v. Saunders and Fredericton (City)

Répertorié: Breen v. Saunders and Fredericton (City)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Stevenson, J.

April 18, 1986.

Summary:

Résumé:

A policeman apprehended the driver of the car in which Breen was a passenger because he suspected the driver was impaired. The vehicle was stopped and there ensued a scuffle between Breen and the officer, when Breen attempted to remove a case of beer from the vehicle. The policeman struck Breen in the face and Breen suffered injuries. Breen brought an action against the policeman and the City claiming damages for battery and infringement of his constitutional rights.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the action. The court found that there was no legal justification for the force that was applied and that Breen was entitled to damages of $1,500.00.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - A police officer apprehended the driver of a vehicle because he suspected the driver was impaired - There ensued a scuffle between the policeman and the passenger, when the passenger attempted to remove a case of beer from the vehicle - The policeman struck the passenger in the face - The New Brunswick Court of Queen's Bench, Trial Division, awarded the passenger damages for assault and battery and stated that even if the battery had infringed or deprived him of his right to security of the person, no additional damages should be awarded as a remedy under s. 24 of the Charter when the tort itself was compensated for according to the usual measure of damages - See paragraph 24.

Damage Awards - Topic 628

Torts - Torts affecting the person - Assault and battery - There was an altercation between a man and a policeman when the man attempted to remove a case of beer from a vehicle the policeman had stopped - The policeman struck the man in the face and the man suffered a fracture of the nose and cheek bone - The New Brunswick Court of Queen's Bench, Trial Division, awarded damages of $1,500.00 for pain, suffering and temporary loss of amenities - See paragraph 24.

Police - Topic 5145

Actions against police - For assault - Excessive force - A police officer apprehended the driver of a vehicle because he suspected the driver was impaired - There ensued a scuffle between the policeman and a passenger, when the passenger attempted to remove a case of beer from the vehicle - The policeman struck the passenger in the face and the passenger suffered injuries - The passenger brought an action for assault and battery - The New Brunswick Court of Queen's Bench, Trial Division, held that there was no legal justification for the force that was applied and that the passenger was entitled to damages - See paragraph 23.

Cases Noticed:

Foster v. Pawsey (1980), 28 N.B.R.(2d) 334; 63 A.P.R. 334, refd to. [para. 19].

Canadian Pacific Ltd. v. Gill, [1973] S.C.R. 654, refd to. [para. 19].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 24 [para. 24].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 25, sect. 450 [para. 18].

Authors and Works Noticed:

Phipson on Evidence (13th Ed.), paras. 33-49 [para. 7].

Wigmore on Evidence (Chadbourn revision), para. 1124 [para. 7].

Counsel:

Thomas R. Evans, for the plaintiff;

David T. Hashey, Q.C., for the defendants.

This case was heard on March 20, 1986, before Stevenson, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following judgment on April 18, 1986.