Federal Court Decisions

     T-2565-93

B E T W E E N:

     LILY NURSE

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN IN RIGHT OF CANADA

     Defendant

REASONS FOR JUDGMENT

CAMPBELL J.

     At 9:30 a.m. on June 9, 1992, in a surprise, planned and well organized raid to search for contraband, Corrections Services of Canada (CSC) personnel at the Millhaven Institution raided a trailer in which Lily Nurse, her inmate husband, Darrell Nurse, and their three children were enjoying a conjugal visit. Ms. Nurse is suing in tort, alleging that those who participated in the raid assaulted her, illegally detained her, and in the planning and execution of the operation were negligent in their conduct. As a result, Ms. Nurse is asking for general and punitive damages, and costs of this action.

A. The grounds for suspicion, the plan, and approval for the raid

     Mr. P. Embury testified that as Preventative Security Officer at Millhaven between 1976 and 1996, one of his primary obligations was dealing with drug smuggling and related problems. In this respect, he testified that of 500 inmates in the institution, every third one is involved in drug smuggling, and that to deal with the problem he concentrated on four to six individuals. In the period immediately preceding the raid, Darrell Nurse and his brother Terrance¹, who was also an inmate, were within this small group that were specifically targetted.

     Mr. Embury testified at length as to his reasonable grounds for concern about the conduct of Darrell Nurse, a caption of which is contained in Exhibit 14 as cited below. I find on Mr. Embury's testimony and the supporting documentary evidence that the authorities at Millhaven had ample reason to believe that Darrell Nurse and Lily Nurse would act together to introduce contraband into the institution during the June 1992 conjugal visit.

     As a result, in the days leading up to the raid, Mr. Embury proposed a plan to Warden Blackler to catch Darrell and Lily Nurse in the trailer in possession of contraband. The following are the contents of Exhibit 14, being a memorandum dated June 5, 1992, from Mr. Embury to the Warden, which outlines the plan discussed, and on June 6th to which the Warden signed his approval²:

Subject: Drug Interdiction - Family Visiting Trailer (FVT) - Millhaven Inst.

(a)      The players:      NURSE Darrell FPS 220605B

NURSE Lily (wife)

(b)      The problem:      NURSE (and his brother Thomas), both inmates at Millhaven, have a long and documented history of substance abuse, both within the institutional setting and on the street. On 14 Jan 92 both NURSE brothers were found in possession of 75 valiums that had been smuggled into the inst. This was right after Darrell NURSE had a FVT with his wife, Lily. From 10-13 Apr 92 Darrell NURSE was again in the FVT with Lily. Following his return to segregation there were a number of drug related problems with inmates on his range. Source information at that time indicated that Nurse had again smuggled in a quantity of drugs via the FVT. Subsequent to this he was placed on a closed visiting status pending an investigation. His FVT's were recently restored to him. Source information recently received tends to indicate that drugs will again be smuggled in the next FVT (8 - 11 Jun 92).

(c)      The plan:      We are requesting permission to enter the FVT for a search of the premises, approximately 20 hours after NURSE and his wife has [sic] been in the FVT. The entry will be made by several staff members, all of whom have been fully briefed regarding their roles and what is expected in the search. Several methods of entry have been discussed and are presented as follows:

(i)      observe that both NURSE and his wife are in the FVT yard and then staff will enter their area as quickly as possible, advising them of what we are doing and remove NURSE from the area in order that the search may be conducted with a minimum of interference from him.

(ii)      observe that NURSE is alone in the FVT yard with either of his children. Staff will again enter the area, with male staff removing NURSE and female staff going into the trailer and advising Lily of what we are doing and solicit her cooperation for the search.

(iii)      observe that both NURSE and Lily are in the trailer and have CMOI arrange with him by telephone to enter the trailer and sign transfer documents. NURSE is expecting that this is to be done in the near future in any event. Once CMOI has gained access to the trailer, searching staff will then enter and advise NURSE and his wife of what our intentions are and remove NURSE from the area while the search is being done. (note - The CMOI is a member of the search team).

(d)      Contingency plan:      The trailer will be searched prior to the visit, thus ensuring that no drugs have been left by previous occupants.

During this search all sharpened knifes (butcher, paring type) will be removed or moved to negate their possible use. Complaints about them being missing will be looked into by V & C with a promise to replace them a.s.a.p.

All staff involved have been briefed and gone over the plans in detail on several occasions.

It is expected that there will be two children present and this has been stressed to staff that their welfare and well-being is paramount. It is not expected that searches will be conducted of the children, but in the event that the mother objects to them being present during a strip-search then they will be looked after by female staff in the trailer.

Any violence exhibited by NURSE towards staff will result in the termination of the FVT. This will be summarily relayed to him when staff enter the FVT area.

Staff are expected to follow the foremat [sic] of any one of the search plans outlined, however, it may be necessary to improvise at any given time, should circumstances change.

     As outlined in Exhibit 14, the principal objective of the raid was to search the trailer for contraband. However, in his evidence Mr. Embury confirmed that those who participated in the raid did so with an intention to strip search Lily Nurse if necessary. The apparent authority for this is evident on the face of Exhibit 2 which is a memorandum that was prepared for delivery to Lily Nurse following entry into the trailer. The document reads as follows:

Memorandum

To: Lily Nurse

From: Warden Millhaven Institution

Date: 1992 - 06 - 09

This is to inform you that there are reasonable and probable grounds to believe that you have received, or are about to receive contraband, which you intend to introduce into the institution.

According to Commissioner's Directive #571 we are conducting a search of this Private Family Visit Trailer and a search of your person. [Emphasis added]

[signed]

J.W. Blackler

     Mr. Embury testified that the raid was only designed for the purpose of finding contraband. However, based on a memorandum which he wrote a few days after the raid extolling the deterrent benefits of the exercise, I find that sending a signal to other inmates was also a planned purpose. The memorandum, which is Exhibit 4, reads as follows:

Memorandum

To: Deputy Warden

From: Preventative Security

Date: 17 Jun 92

Subject: Search of FVT - Millhaven - 9 Jun 92

1.      Attached are documents relative to the search of the Family Residing Trailer on 9 Jun 92, which at the time was occupied by inmate Darrell NURSE and his family.

2.      Both of the documents are considered to be self-explanatory and in way of follow-up, very little can be said that hasn't already been committed to paper.

3.      By way of analysis, the immediate impact is that a very clear message has been sent to the inmates that we can and will enter the trailers if the evidence and/or information indicates -that drugs are present. The long range prognosis will be to make the drug smugglers super cautious and as in the visiting room only the stupid ones will be caught. [Emphasis added]

[signed]

Paul Embury

IPSO

     Mr. Embury confirmed in his evidence that an important factor in planning and executing the raid was the element of surprise to prevent anyone in the trailer from flushing suspected drugs down the toilet. Accordingly, the persons who actually carried out the raid were given very short notice of the plan.

     In the planning of the raid there was a concern that there was a risk of violence in executing such a surprise entry into the trailer. Consequently, as described in paragraph 3 or Exhibit 14, the plan proposed use of a ruse to gain peaceful entry. In addition, the Deputy Warden appreciated that the surprise raid could cause trauma particularly to the children, and thus he arranged for the institution's psychologist and chaplain to be in attendance after entry was gained to provide emotional support for Ms. Nurse and the children.

     It is clear on the whole of the evidence, that the plans for the raid were carefully prepared in a sophisticated and professional manner.

B. Execution of the plan

     In fact method (c)(iii) of Exhibit 14 was the plan executed. On the whole of the evidence, I find that the plan was efficiently and professionally executed, but not without some contentious behaviour.

     The sequence of events is not disputed. To gain entry, a classification officer telephoned the trailer and told Mr. Nurse that staff member Cook wanted to enter the trailer to have Mr. Nurse sign some forms. Upon gaining Mr. Nurse's approval to the visit, Mr. Cook went to the front door of the trailer whereupon Mr. Nurse invited him in for coffee. Mr. Cook went in as invited, but was immediately followed by male staff members Goodberry and Marshall who quickly restrained Mr. Nurse in the kitchen area straight ahead of the front door. Entering through the door directly behind Mr. Goodberry and Mr. Marshall were female staff members Crisp and Schomberg who went to the left, down the hall, and confronted Ms. Nurse who was in the bathroom. Just after Mr. Nurse was taken from the trailer in handcuffs, psychologist Nugent, Chaplain Withers, and two community advisory members entered the trailer and went to the right into the living room where two of the children, ages 13 and 2, were located, the baby being in a bedroom sleeping. Very shortly after the arrival of this latter group, Ms. Nurse was brought to the living room by Ms. Crisp and Ms. Schomberg. This whole sequence of events took a matter of minutes. For approximately two hours the trailer was searched. No contraband was found.

     There is no doubt that the surprise entry into the trailer was a shock to the members of the Nurse family. But in addition to the shock of the surprise, it was considered necessary to use some force on Mr. Nurse to restrain him. While there is a dispute in the evidence as to the need to do this and the amount of force that was used, I find that at a minimum, immediately upon entering the trailer and without warning, Mr. Nurse was pinned against the wall with a night stick by staff member Goodberry. Not surprisingly, Mr. Nurse was very upset by this conduct and said so. He was then taken from the trailer in handcuffs.

     (1) The evidence respecting contact with Ms. Nurse

     The intrusion on Ms. Nurse occurred in very embarrassing circumstances to which Ms. Nurse, Ms. Crisp, and Ms. Schomberg were the only witnesses. Ms. Nurse and Ms. Crisp testified, but Ms. Schomberg did not due to illness. Their evidence is in dispute in some material particulars.

     Ms. Nurse's version of the events runs this way: she was in the bathroom preparing to take a bath and had no clothes on; she heard a commotion outside the door to the bathroom and the door was pushed in; thinking it was her children she pushed back; a female guard entered, grabbed her arm, placed it behind her back and a handcuff was placed on it; no one said she was under arrest; there was no mention of why she was detained; she asked what was going on and got no reply; a guard's hands were on her upper left and right arms "just holding" her; one guard was in the bathroom with her and the other was in the doorway; they decided not to strip search her; one or both of the guards dressed her by putting her robe and panties on her and took her to the living room area; they did not say anything about options to leave the trailer or Millhaven; after she was in the living room an officer handed her a paper regarding the search for contraband, but never said why the search was being conducted; about 45 minutes later, half-way through the search, the handcuff was removed; and regarding her concern about the whereabouts of her husband she was told that they had taken him to the institution until the search was completed.

     Ms. Crisp testified that she and Ms. Schomberg were designated to locate Ms. Nurse, bring her to the living room area, to have all the family members present there and to search the trailer. Ms. Crisp's evidence of the sequence of events is as follows: after entering the trailer she and Ms. Schomberg went to search the end of the trailer where a bedroom and the bathroom are located; she knocked on the closed bathroom door and said "security, coming in"; they entered, found Ms. Nurse wrapped in a towel and closed the door; Ms. Schomberg took Ms. Nurse by the right wrist and placed just one handcuff on it; she explained that they were in the trailer to search for contraband; Ms. Nurse was not resisting, did not say anything in the bathroom and did not appear upset; they gave Ms. Nurse her robe to put on; they did not have a key to remove the cuff; and Ms. Nurse was escorted to the living room area, where the key was quickly obtained and the cuff removed.

     Ms. Crisp also testified that: she did not think it was right for Ms. Schomberg to have cuffed Ms. Nurse, but because everything happened so fast she didn't have time to say it was wrong; she agreed that while she did not give Ms. Nurse the option to leave the institution or call a lawyer, that if Ms. Nurse had indicated that she wanted to leave, she would have been allowed to leave; she did not agree that there was an atmosphere of coercion during the situation in the trailer; she made no indication that Ms. Nurse was under arrest; regarding holding Ms. Nurse by the arm she said she did not recall putting hands on Ms. Nurse at all; and throughout the entire time in the trailer Ms. Nurse was calm and collected.

     Ms. Crisp essentially agreed that she entered the trailer with the intention to strip search Ms. Nurse since in answer to the question of whether this type of search was done, Ms. Crisp answered that when Ms. Nurse took the towel away she was naked and, thus, she said, "I could see her at the time".

     Regarding the cuffing of Ms. Nurse, an important observation came from the evidence of Mr. Embury being that he saw Ms. Nurse with the cuff on her left hand, with Ms. Schomberg holding the other cuff in her right hand. However, Mr.Embury agreed with the proposition that Ms. Nurse was not placed under arrest.

     (2) Findings of fact as they relate to Ms. Nurse

     I found both Ms. Nurse and Ms. Crisp to be credible witnesses. It is not surprising that their telling of the events of June 9th varies because five years has passed and each would have a different impression of aspects of the search due to their very different perspectives in the event. However, from the two accounts assisted by Mr. Embury's observation, I am able to make some critical findings of fact.

     I find: that in order to cuff Ms. Nurse it was necessary for Ms. Schomberg to at least hold her by the wrist; that the purpose for the laying on of hands and the cuffing was intended to communicate to Ms. Nurse that she was in the immediate custody and control of Ms. Crisp and Ms. Schomberg to facilitate a strip search; and that this custody and control continued by Ms. Schomberg holding the other handcuff as Ms. Nurse was taken to the living room after it was concluded that a strip search would not be necessary to establish that Ms. Nurse was not carrying contraband on her person.

C.The legal authority to conduct the raid

     (1) Statutory authority

     On June 9, 1992, the statutory authority to conduct searches within the institution was governed by the Penitentiary Act, R.S.C. 1985, c. P-5, and particularly the Penitentiary Service Regulations, C.R.C., c. 1251 passed thereunder. The only power given to search is contained within s.41 of the Regulations which reads as follows:

41. (1) Everyone who

(a) delivers or attempts to deliver contraband to an inmate,

(b) receives or attempts to receive contraband from an inmate,

(c) trespasses upon penitentiary lands, or

(d) assist any person to do anything mentioned in paragraph (a), (b) or (c),

is guilty of an offence punishable on summary conviction and is liable to imprisonment for six months or to a fine of $500 or to both.

(2) Subject to subsection (3), any member may search

(a) any visitor, where there is reason to believe that the visitor has contraband in his possession, and if the visitor refuses to be searched he shall be refused admission to or escorted from the Institution;

(b) any vehicle on Institution property where there is reason to believe that such a search is necessary in order to detect the presence of contraband or to maintain good order of the institution.

(3) No female person shall be searched pursuant to subsection (2) except by a female person.

(4) There shall be a sign posted at the entrance to an institution, in a conspicuous position, to give warning that all vehicles and persons on institution property are subject to search.

[Emphasis added]

     (2) The Commissioner's directive as authority

     The legislative scheme that prevailed under the above quoted legislation has been well settled and is that all standing orders of a warden of an institution, and all other orders of all members of the penitentiary service, are subordinate to the provisions of s.41(2) and are not lawful to the extent of their inconsistency with s.41(2). (see Gunn v. Yeomans, [1989] 2 F.C. 99 (T.D.), applied in Robertson v. Yeomans, [1982] 1 F.C. 52 (T.D.))

     "Contraband" is defined in s.2 of the Regulations as "anything that an inmate is not permitted to have in his possession". The following are the provisions the Commissioner's Directive #571 which were in effect on June 9th, 1992 respecting the search of visitors for contraband:

SEARCHES OF VISITORS

14. Visitors may be required to submit to a frisk search of their person and/or possessions by hand-held scanning device before being allowed to enter an institution. Those who refuse a search shall be denied admission and obliged to leave the institutional reserve. The Director may authorize a non-contact visit in such circumstances.

15. Visitors may be requested to submit to a frisk or strip search when there is reason to believe that they have contraband in their possession.

16. A search shall be conducted by a member of the Service or the employee of an agency under contract with the Service who is of the same sex as the individual being searched. Where only a hand-held scanning device is used, the person conducting the search may be of either sex.

17. A visitor shall be placed under arrest if the member has reason to believe that:

a. an offence is being or has been committed against any of the provisions of the Criminal Code or Penitentiary Act relating to prohibited weapons, firearms or ammunition; or

b. the visitor is in possession of a controlled or restricted drug constituting an offence under Parts III and IV of the Food and Drugs Act; or

c. the visitor is in possession of a narcotic constituting an offence under the Narcotic Control Act.

18. Visitors who have been placed under arrest may, subject to paragraph 17, be searched in one of the following manners:

a. The police force having jurisdiction shall be informed, and the visitor shall be kept in custody until the arrival of the police officers who will search the individual. If the Director deems it appropriate and if suspicions are confirmed, agreement with the police force shall be reached to determine who is to lay charges against the offender under the pertinent legislation;

or

b. The Director may order a search of such visitors by members using the minimum force necessary and, if suspicions are confirmed, may lay charges against the offenders under the pertinent legislation if he or she deems it appropriate.

19. Upon arrest and without delay, the visitor shall be informed of the reasons for the arrest and of the right to obtain counsel. Any search subsequent to arrest shall not normally occur until the individual has had a reasonable opportunity to instruct counsel.

[Emphasis added]

     By s.5 of Directive #571, "searches shall always be conducted with due regard for privacy and for the dignity of the individual being searched", and by s.7(b) a strip search is defined as "a visual search of a completely unclothed person and requires the individual to bend over to allow a visual inspection of cavity areas".

    

     I find that Directive #571, and in particular s.15, is consistent with s.41(2) of the Regulations. It is clear that on grounds to search for contraband which do not warrant an arrest, if any kind of search of a visitor is considered necessary that the visitor's consent must first be obtained, and if the consent is not given the only recourse is to exclude the visitor from the institution. On grounds that do warrant an arrest respecting prohibited weapons, firearms, ammunition, controlled or restricted drugs or narcotics, and an arrest is made, then a search may be conducted by police officers, or pursuant to s.18(b) the "Director", which I assume means the Warden, may order a search. It is clear by the provisions of s.18 that a Director's order to search can only be properly given after the arrest of a visitor has occurred.

     It was not contested that prison officials had the right to enter the trailer to conduct a search of that premises.

     (2) Ms. Nurse's prior consent as authority

     In order to gain visiting privileges, on March 24, 1990, Ms. Nurse signed a "Visiting Application and Information Form" which on the front asks for personal details and on the reverse cites s.41(1), (2), and (3) of the Regulations and which also contains the following "Acknowledgement and Consent" to which Ms. Nurse placed her signature:

1. I understand that the Correctional Service of Canada (Canadian Penitentiary Service) has the sole right to determine my suitability as an inmate's visitor. I further understand that approval of visiting privileges is conditional upon satisfactory results of a security screening and I hereby give consent to the Correctional Service of Canada (Canadian Penitentiary Service) to use the information provided on this form to conduct such a screening. To this end, I certify that the information I have submitted is true and accurate to the best of my knowledge, and I agree to notify Institutional authorities immediately should there be any changes to that information. I acknowledge that the submission of false or misleading information or the failure to advise of changes may result in denial or suspension of my visiting privileges for an indefinite period. Finally, I agree to observe all stated rules, regulations and policies while visiting this institution and understand that the failure to do so may likewise result in suspension of my visiting privileges for an indefinite period.

2.(a)      In consideration of my being granted visiting privileges, I hereby consent to submit, before each visit, to a search by a walk-through scanner or hand-held scanning device and to a search of my personal property. I also consent to such searches being performed by a person who is not a member of the Correctional Service of Canada (Canadian Penitentiary Service) in cases where appropriate Service staff are not available.

(b)      I understand that I may be asked to submit to more thorough types of searches where there is reason to believe that I am in possession of contraband or where the Warden considers it necessary for the good order and security of the Institution. Should any dangerous or prohibited article or substance be found in my possession, I may be denied visiting privileges and a report may be made and charges laid.

Finally, I understand that if I refuse to consent to search, I may be denied access to the institution. [Emphasis added]

     I find that the "Acknowledgement and Consent" cannot be taken to be prior consent to any of the actions taken with respect to Ms. Nurse during the raid.

D. What actions were taken without lawful authority and without Ms. Nurse's consent?

     It appears from Mr. Embury's testimony that, as the person responsible for the search operation, he knew the limits of the authority to search visitors. As to a strip search, Mr. Embury testified that under normal circumstances a visitor could refuse a request for such a strip search and leave the institution, but, if there was reason to believe that the visitor was carrying contraband, the visitor could be arrested and would then go through due process.

     However, it also appears that neither Mr. Embury or the Warden really understood Directive #571 respecting a Director's authority order a search, for if they did, Exhibit 2 would not have been worded as it was. I find that the Warden had no authority to issue the order contained in Exhibit 2 since when it was made Ms. Nurse was, of course, not under arrest, and the order could not be properly made until after she was.

     In any event, Ms. Nurse was not searched, nor was any attempt made to search her. However, Ms. Crisp's evidence establishes that this was the case only because under the circumstances in which Ms. Nurse was found it was unnecessary to go through the formal process of a search to gain the information that she and Ms. Schomberg needed. That is, because Ms. Nurse was naked when they found her, Ms. Crisp and Ms. Schomberg were presented with the information they would have sought by a strip search, being whether or not Ms. Nurse was carrying contraband on her person.

     But it is clear to me that the fact that the Warden gave the purported authority to search Ms. Nurse certainly created in Ms. Crisp's mind, and probably Ms. Schomberg's, that they were empowered to deal with Ms. Nurse in an aggressive and authoritarian way, which they did. I find that this conduct was without authority.

     I find on the whole of the evidence that Ms. Nurse was not given a real opportunity to consent to the action conducted with respect to her in the trailer. There is no question that her choice to comply with the requests made upon her were strategic on her part to avoid conflict in the face of strong and firm demands, and were not truly consensual.

     In particular, I find that the cuffing of Ms. Nurse, and the laying on of hands in the course of doing so, was without authority and without her consent.

E. What torts were committed?³

     (1) Assault⁴and battery⁵

     I find that in confronting and dealing with Ms. Nurse in the aggressive and authorative way they did in the bathroom and before she was left in the living room, Ms. Crisp and Ms. Schomberg intentionally created in her an apprehension of offensive contact, being the threat of a strip search, and consequently an assault was committed upon her. I also find that the laying on of hands and the cuffing in the bathroom was a battery.

     (2) False Imprisonment⁶

     I find that the custody and control exerted over Ms. Nurse by Ms. Crisp and Ms. Schomberg to facilitate a strip search, and the custody and control that continued by Ms. Schomberg holding the other handcuff as Ms. Nurse was taken to the living room constituted false imprisonment. It might very well be that Mr. Embury and Ms. Crisp are correct in believing that after Ms. Nurse was left in the living room while the search was conducted she was free to leave, but there is no doubt in my mind that from the point that she was confronted in the bathroom to when she was left in the living room she was not free to leave. I am sure that if she attempted to do so during this period she would have been restrained.

     (3) Negligence

     As I have said, the plans for the raid were carefully prepared in a sophisticated and professional manner and the plan was efficiently and professionally executed. Even though actions were taken beyond authority and consent as described, I find there is insufficient evidence to seriously support the contention of negligence.

F. Damages and costs

     Ms. Nurse's primary argument at trial was for punitive damages. In support of this application Peeters v. The Queen, [1994] 1 F.C. 562 (C.A.) was cited. MacGuigan J.A.'s decision in Peeters was mainly focussed on the liability of the Crown as employer for the acts of its employees, but at 568 MacGuigan J.A. affirms that punitive damages are awarded to deter, and to express the Court's outrage at, the defendant's malicious conduct causing the plaintiff's loss of dignity.

     Regarding the kind of conduct that must be established before a punitive damage award can be made, MacGuigan J.A. in Peeters at 573 cites the Supreme Court of Canada in Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085, where McIntyre at 1107 to 1108 says:

Moreover, punitive damages may only be awarded in respect of conduct which is of such nature as to be deserving of punishment, because of its harsh, vindictive, reprehensible and malicious nature. I do not suggest that I have exhausted the adjectives which could describe the conduct capable of characterizing a punitive award, but in any case where such an award is made the conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment.

     There is absolutely no evidence in this case of conduct which warrants punitive damages. There is no doubt that the circumstances of the raid were startling to Mr. and Ms. Nurse, and there is no doubt that due to happenstance Ms. Nurse was embarrassed about being found in the bathroom as she was, and there is no doubt that torts were committed as described, but the quality of the faults found fall within the range of honest, non-malicious professional conduct. Accordingly, I find that the kind of fault required for an award of punitive damages does not exist in this case.

    

     Regarding general damages, I am satisfied that Ms. Nurse did experience some short term trauma for the shock and embarrassment of the incident, but it is also clear that no greater impact was sustained. Both the psychologist and chaplain who offered support to Ms. Nurse and the children in the trailer during the search testified that, apart from some nervousness displayed by Ms. Nurse as observed by the psychologist, there was no cause for concern about the emotional state of either Ms. Nurse or the children. Indeed, apart from taking a mild sedative for a week following the incident to calm her anxiety and stress related to the incident, Ms. Nurse suffered no physical or psychological effects, and thus did not find it necessary to obtain any professional counselling.

     I consider it important to note that Ms. Nurse's mental state quickly stabilized after the incident to the point where her lawyer and she were able to meet with the Deputy Warden within ten days of the raid to complain about it. It is also important to note that because no contraband was found, the June 1992 family visit was extended by the time spent searching the trailer, and during the meeting with the Deputy Warden an apology was extended by him for the inconvenience and embarrassment experienced as a result of the raid.

     With these considerations in mind, on all the evidence I find that the general damages award in this case is appropriately set at $5,000. Since no evidence has been produced to substantiate the claim for special damages, no award in this respect is possible.

     By consent, the issue of costs was left to be decided following the presentation of written argument. Accordingly, costs will be the subject of a separate order.

                         Douglas R. Campbell

                         Judge

VANCOUVER

May 28, 1997

__________________

     ¹I am uncertain as to whether Darrell Nurse's brother's proper name is Terrance or Thomas as both names are used in the material filed.

     ²Although the words used in the memorandum appear to establish that at the time of its writing those that were to participate in the raid had been fully briefed, the evidence does not support this assertion. Having heard Mr. Embury's explanation that the memorandum was only the written confirmation of the plan which had already been fully discussed, I do not place any weight on this discrepancy.

     ³The law on each of the torts alleged is straightforward and, as there was no contention as to the state of the law in the arguments presented, I will deal with it merely by setting out in the following footnotes well recognized principles as cited by A. Linden, Canadian Tort Law (Toronto: Butterworths, 1977) without their supporting footnotes. The evidence will then be considered according to the principles set out.

     ⁴"Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault furnishes protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs. The underlying policy thrust of the tort of assault, like that of battery, is the reduction of violence. Because threatening to inflict harm is apt to attract retaliation in the same way as causing harm, it must also be discouraged by tort law. Assault should be distinguished from battery, although the two are often blurred together and called "assault". This does not usually matter because in most cases both assault and battery are committed in rapid succession. If a battery occurs, the assault tends to be ignored since the quantum of damages for it will be rather small. An assault can be committed without a battery and battery can occur without an assault preceding it. For example, swinging at someone and missing is an assault but not a battery; striking someone from behind, without their knowledge, is a battery but not an assault. Conduct which intentionally arouses apprehension of an imminent battery constitutes an assault." (p. 40)

     ⁵"A person who intentionally causes a harmful or offensive contact with another person is liable for battery. This nominate tort protects the interest in bodily security from deliberate interference by others. It seeks to reduce the incidence of violence in our society." (p.38)
"It is not necessary that a battery cause any actual harm to the plaintiff. Offensive contact is enough, however trivial it may seem, for it may trigger retaliatory measures by persons whose dignity and self-respect are threatened thereby. Better to permit an action for these seemingly minor intrusions than to invite violent counter-attacks by the aggrieved victims." (p. 39)

     ⁶"Anyone who intentionally confines another person within fixed boundaries is liable for the tort of false imprisonment. This tort protects the interest in freedom from restraint within particular limits. Its name is something of a misnomer. Firstly, there is no need for any prison to be involved. Although one can certainly imprison someone by incarcerating him behind prison walls, it can also be accomplished in other ways. Secondly, the confinement cannot be "false" in the sense of being unreal. The word "false" is intended to impart the notion of unauthorized or wrongful detention. Because this tort is a descendant of the trespass action, no actual loss is required as a pre-requisite of recovery. There can be no false imprisonment without a total confinement. The restraint must be complete within definite boundaries." (pp. 33-34)