Notice of Action Example 3

8/3/2019 Notice of Action Example 3

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Court File Number: _______

IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF FREDERICTON

BETWEEN:

ANDRÉ MURRAY

Plaintiff,-and-

THE CITY OF FREDERICTON,FREDERICTON POLICE FORCE, CHIEF OF POLICE BARRY MACKNIGHT,

Defendants,

NOTICE OF ACTION WITH STATEMENT OFCLAIM ATTACHED

(FORM 16A)

TO:(the above-named defendants)

The City of FrederictonLegal Services Division,Suite 100, 412 Queen Street,Fredericton, New Brunswick,Canada, E3B 4Y7Phone: (506) 460-2115Fax: (506) 460-2128

DESTINATAIRE:(le défendeur susmentionné)



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TO:Fredericton Police Force 311 Queen StreetFredericton, N.B.E3B 1B1

Phone: (506) 460 2300Fax: (506) 460 2316

TO:Chief of Police Barry MacKnightFREDERICTON POLICE FORCE311 Queen Street,Fredericton, NBE3B 1B1General Information Telephone Number:506 460 - 2300Fax Number: (506) 460 – 2316

LEGAL PROCEEDINGS HAVE BEENCOMMENCED AGAINST YOU BYFILING THIS NOTICEOF ACTION WITHSTATEMENT OF CLAIM ATTACHED.

If you wish to defend these proceedings,either you or a New Brunswick lawyeracting on your behalf must prepare yourStatement of Defence in the form prescribed

by the Rules of Court and serve it on theplaintiff or the plaintiff’s lawyer at theaddress shown below and, with proof of such service, file it in this Court Officetogether with the filing fee of $50,

(a) if you are served in New Brunswick,WITHIN 20 DAYS after service on you of this Notice of Action With Statement of Claim Attached, or

(b) if you are served elsewhere in Canada orin the United States of America, WITHIN40 DAYS after such service, or

(c) if you are served anywhere else,WITHIN 60 DAYS after such service.

PAR LE DÉPÔT DU PRÉSENT AVIS DEPOURSUITE ACCOMPAGNÉ D’UNEXPOSÉ DE LA DEMANDE, UNEPOURSUITE JUDICIAIRE A ÉTÉENGAGÉE CONTRE VOUS.

Si vous désirez présenter une défense danscette instance, vous-même ou un avocat duNouveau-Brunswick chargé de vousreprésenter devrez rédiger un exposé de

votre défense en la forme prescrite par lesRègles de procédure, le signifier audemandeur ou à son avocat à l’adresseindiquée ci-dessous et le déposer au greffede cette Cour avec un droit de dépôt de $50et une prevue de sa signification :

a) DANS LES 20 JOURS de la significationqui vous sera faite du présent avis depoursuite accompagné d’un exposé de lademande, si elle vous est faite au Nouveau-Brunswick ou

b) DANS LES 40 JOURS de lasignification, si elle vous est faite dans uneautre région du Canada ou dans les États-Unis d’Amérique ou

c) DANS LES 60 JOURS de la signification,si elle vous est faite ailleurs.



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If you fail to do so, you may be deemed tohave admitted any claim made against you,and without further notice to you,JUDGMENT MAY BE GIVEN AGAINSTYOU IN YOUR ABSENCE.

You are advised that:

(a) you are entitled to issue documents andpresent evidence in the proceeding inEnglish or French or both;

(b) the plaintiff intends to proceed inEnglish language; and

(c) your Statement of Defence must indicatethe language in which you intend to proceed

THIS NOTICE is signed and sealed for theCourt of Queen’s Benchby . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,Clerk of the Court at. . . . . . . . . . . . . . . . . . . . . . . . , onthe . . . day of . . . . . . . . . . . , 2012

Court Seal

. . . . . . . . . . . . . . . . . . . . . . . . . . . .Clerk

(address of court office) Justice building427 Queen streetP.O. box 6000

Fredericton, NB 3B 5H1

Si vous omettez de le faire, vous pourrezêtre repute avoir admis toute demandeformulée contre vous et, sans autre avis,JUGEMENT POURRA ÊTRE RENDUCONTRE VOUS EN VOTRE ABSENCE.

Sachez que :

a) vous avez le droit dans la présenteinstance, d’émettre des documents et deprésenter votre preuve en français, enanglais ou dans les deux langues;

b) le demandeur a l’intention d’utiliser lalangue . . . . . . . . . . . . . . . . . . . ; et

c) l’exposé de votre défense doit indiquer lalangue que vous avez l’intention d’utiliser.

CET AVIS est signé et scellé au nom de laCour du Banc de la Reine par. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . ., greffier de la Courà . . . . . . . . . . . . . ., ce . . . . . . . . . . . . . 2012

Sceau de la Cour

. . . . . . . . . . . . . . . . . . . . . . . . .(greffier).

(adresse du greffe)



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STATEMENT OF CLAIM / EXPOSÉ DE LA DEMANDE

Set out in separate, numbered paragraphs the following:

(1) The capacity of all persons who are parties to the proceeding.THE PARTIES:

A. The capacity of all persons who

are parties to the proceeding.

A. La qualité de toutes les personnes qui

sont parties à l’instance.

1. The Plaintiff, André Murray, resides at 31 Marshall Street, Fredericton, New Brunswick.

2. Defendant, The City of Fredericton, place of business ‘City Hall’ is located at 397Queen Street, Fredericton, New Brunswick, Canada.

3. Defendant FREDERICTON POLICE FORCE Office is located at 311 QueenStreet, Fredericton, NB, E3B 1B1 Canada.

4. Defendant Chief of Police Barry MacKnight FREDERICTON POLICE FORCE.Office is Located at 311 Queen Street, Fredericton, NB, E3B 1B1.

The capacity of all persons who are parties to the proceeding of the Action as originallyCourt File Date Stamped 4th day of March 2011 and as AMENDED September 7, 2011.

Observations from incidents occurring 5th day of March, 2009

5. Plaintiff André Murray is the victim in this matter; a innocent man on all accountswho was forced to suffer because of criminal negligence and Malice on the part of

Members of FREDERICTON CITY POLICE and Malice on the part of witnesses, whowhile obstructing justice did provide false witness and or evidence, further, who intendedto commit unlawful acts and or cause harm to Plaintiff André Murray; moreover, for theherewithin stated reasons Plaintiff André Murray, without any recognizable properstandard of probable cause, for that reason, further at the hands of Members of FREDERICTON CITY POLICE suffered: assault, battery, wrongful / false arrestunlawful detention and False imprisonment, excessive use of force causing harm,transportation against his will, intentional infliction of mental suffering and or nervousshock , violation of his rights contrary to the Charter of Rights and Freedoms et al., at thehands of the herewithin named Defendants at his residential civic address of 29 MarshallStreet, Fredericton, New Brunswick, on the 5th day of March 2009.

6. Defendant, The City Of Fredericton, has vicarious liability as the employer of theFREDERICTON POLICE FORCE in which numerous members are herein named asDefendants for matters occurring on Date March 5, 2009.

7. John Doe 1 is the unidentified individual or party reportedly, who on the 5th day of March 2009, by telephone communicated advice to members of FREDERICTONPOLICE FORCE, regarding the location of innocent Plaintiff André Murray.



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8. Defendant, FREDERICTON POLICE FORCE, has vicarious liability, havingdispatched on Date March 5, 2009, three members of FREDERICTON POLICE FORCEwho André Murray alleges did conduct themselves unprofessionally, further, in anoffensive manner against Plaintiff André Murray; as such these individuals are named

Defendants in this matter.9. Defendant Chief Barry MacKnight of FREDERICTON POLICE FORCE, in thecapacity of ‘Chief of Police’ is vicariously liable, as he is responsible for the professionalconduct of his members of FREDERICTON POLICE FORCE, as such these individualsare named Defendants in this matter.

The capacity of all persons who are parties to 7th day of May 2008 Defendant therefore tobe joined in this September 7, 2011, AMENDED Statement of Claim.

Observations from incidents 7th day of May 2008

10. Plaintiff André Murray is the victim in this matter; a innocent man on all accountswho was forced to suffer because of negligence and Malice on the part of Members of FREDERICTON CITY POLICE and Malice on the part of witnesses, who whileobstructing justice did provide false witness and or evidence, further, who intended tocommit unlawful acts and or cause harm to Plaintiff André Murray; moreover, for theherewithin stated reasons Plaintiff André Murray, without any recognizable properstandard of probable cause, for that reason, further at the hands of Members of FREDERICTON CITY POLICE suffered: assault, battery, wrongful / false arrestunlawful detention and False imprisonment, excessive use of force causing harm,intentional infliction of mental suffering and or nervous shock , violation of his rightscontrary to the Charter of Rights and Freedoms et al., at the hands of the herewithinnamed Defendants, Fredericton, New Brunswick, May 07, 2008.

11. Defendant, The City of Fredericton in capacity of principal/agent and oremployer has vicarious liability as the employer of the FREDERICTON POLICEFORCE in which numerous members are herein named as Defendants for mattersoccurring on the 7th day of May 2008.

12. John Doe 2 is the unidentified individual or party, reportedly, who on the 7th dayof May 2008, by telephone communicated advise to members of FREDERICTONPOLICE FORCE, the location of innocent Plaintiff André Murray.

13. Defendant, Fredericton Police Force, Defendant, FREDERICTON POLICEFORCE, has vicarious liability, having on Date 7th day of May 2008, dispatched threemembers (Defendants in this matter) of FREDERICTON POLICE FORCE who allegedlyconducted themselves unprofessionally, further in an offensive manner against Plaintiff André Murray.



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14. Defendant Chief Barry MacKnight of FREDERICTON POLICE FORCE, in thecapacity of ‘Chief of Police’ is vicariously liable, for the incidents as set out below,occurring the 7th day of May 2008, as he is responsible for the professional conduct of his members of FREDERICTON POLICE FORCE, as such his members namedDefendants in this matter.

(2.) The place of residence of the plaintiff . B. The place of residence of the

plaintiff.

B. Le lieu de résidence du

demandeur.

The Plaintiff ANDRÉ MURRAY Address for service within New Brunswick:

31 Marshall StreetFredericton, N.B.E3A 4J8

(4.) Each allegation of a material fact relied upon to substantiate the claim.

C. Each allegation of a material

fact relied upon to substantiate

the claim.

C. Chacune des allégations de faitdéterminant sur lesquelles est fondéela demande.

15. Plaintiff André Murray, has no warrant(s) for his arrest, has never had an arrestwarrant for his arrest, never had a criminal record and is a productive member of societytherefore maintaining the peace.

16. Plaintiff André Murray has been a Residential Tenant of 29 -31 Marshall Street

Duplex, City of Fredericton for 6 plus years and is known by the neighbours.

5th day of March 2009

17. March 5, 2009, early afternoon, day light hours, Plaintiff André Murray wasremoving snow by hand shovelling the driveway to his residential Marshall StreetDuplex, in the City of Fredericton. Plaintiff André Murray’s facial features and physicalbody shape was clearly identifiable, as André Murray was wearing only a thin light woolsweater and pants, without wearing coats, hats and or even gloves…. the day was well lit.

18. Having just finished shovelling snow from the driveway, Plaintiff André Murray

was now walking back towards his residential house entrance, therefore, past the arbourgated enclosed area.

19. Plaintiff André Murray had earlier removed all heavy/warm winter clothing andwas now actively retrieving / collecting and or reassembling the winter clothing &accessories. At this point Plaintiff André Murray was accosted by unidentified people.



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20. Plaintiff André Murray now hearing sounds turned around to see what was thecommotion and saw someone (since identified as Constable Fox) quickly approachingPlaintiff André Murray at running speed, from the street side of 29 Marshall Street anddown the same driveway, from which Plaintiff André Murray had just finished removingthe snow. Plaintiff André Murray was surprised by this man in black, because, as of that

time André Murray had no prior indication that anyone else was in the area.21. This unidentified man rapidly approaching Plaintiff André Murray, dressed inblack and not wearing a hat, (now known as Constable Mike Fox) was yelling in amanner and speaking quickly that could best be described as verbalizing in a stressedtone and incoherent manner. As Constable Fox rapidly approached Plaintiff AndréMurray, (who is standing still ) he immediately did and without warning grab Plaintiff André Murray’s right arm, first contact was by Constable Fox seizing the right wristthereby, immediately inflicting pain to Plaintiff André Murray’s wrist as Constable MikeFox simultaneously forced and caused Plaintiff André Murray’s right arm to becometwisted around and behind Plaintiff André Murray’s back.

22. Constable Fox, now having control of André Murray’s right arm and wrist, didimmediately sweep André Murray’s feet out from under him, sending André Murray’sbody to the frozen ground, with Constable Fox’s body applying further force againstAndré Murray as they hit the ground, with Constable Fox, now on top of André Murray;now continuing to apply pressure to the wrist and using arm lock techniques, whichConstable Fox had without warning initiated and would not relent. Immediately prior toConstable Mike Fox attacking Plaintiff André Murray, Plaintiff André Murray washolding in his hands his usual winter clothing accessories.

23. Despite Plaintiff André Murray’s attempts at reasoning with Constable Mike Fox,(now lying on his stomach face down) Constable Fox continued in the extremely painfulapplication of force, which was disproportional in the situation, unnecessary, and withoutreason. Plaintiff André Murray was at this point in a awkward position, therefore‘pinned’ on the ice and had his left arm pinned between his shoulder and face, extendedin front of face on the icy snow surface fortunately protecting Plaintiff André Murray’sface from further injury by impacting the ground as Constable Mike Fox was at that pointliterally, physically on top of Plaintiff André Murray’s back continuing to cause pain byapplying extreme force, in various twisted upward motions towards the back direction of his head.

24. At this point Constable Patrick Small arrived on the scene and both he andConstable Mike Fox continued battering, twisting pushing and generally manipulating thePlaintiff’s body into a further submissive position.

25. Further to the application of the above mentioned force used against AndréMurray, which had by this point in time been extremely disproportional to the situation,absolutely unnecessary, and unreasonable, and unquestionably sufficient to contain thePlaintiff André Murray, (as he is now prostrated on the ground) further, despite the factthat resistance is not occurring, however, Constable Mike Fox instructs Constable Patrick



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Small to “pepper spray” Plaintiff André Murray directly into the eyes and face despitethe fact that both Constable Mike Fox and Constable Patrick Small controlled and heldPlaintiff André Murray down on the ground.

26. Plaintiff André Murray experienced knees digging into his back as both of Plaintiff

André Murray’s arms were simultaneously being pulled backwards and away fromPlaintiff André Murray’s back with great force.

27. The process of handcuffing Plaintiff André Murray wrists involved severalextreme and severe repetitions of lifting Plaintiff André Murray arms backwards whilepreventing Plaintiff André Murray’s body from moving off the surface of the ground, aspressure was applied into Plaintiff André Murray’s back sides.

28. Plaintiff André Murray was subsequentially (after being hand cuffed) physicallylifted up off the ground, by Constable Mike Fox and Constable Patrick Small, while thePlaintiff André Murray’s wrists were handcuffed; this lifting of Plaintiff André Murray’s

body procedure included being first dragged for a short distance, then literally suspendedby using Plaintiff André Murray’s forearms as the fulcrum point (while wrists are handcuffed) to lift and carry Plaintiff André Murray reasonably nothing less than 30 feet;hereafter, members of FREDERICTON POLICE FORCE Constable Mike Fox andConstable Patrick Small continued to cause Plaintiff André Murray to be suspendedthrough the air by using Plaintiff André Murray’s forearms as the fulcrum point (whilewrists are hand cuffed) to finally arrive at a sudden impact with what sounded like thetrunk hood of a motor vehicle; please note: as the Plaintiff André Murray at this pointwas completely blind from having had pepper spray, placed directly into André Murray’seyes, by Constable Patrick Small from a distance which was approximately less than 2inches away from Plaintiff André Murray’s eyes.

29. Plaintiff André Murray was subsequentially shoved forward into the back seatcompartment area of the motor vehicle which had become ‘forced upon’ unwelcometransportation, causing his head to impact the top edge of (what is believed to be) thedoor opening as Plaintiff André Murray (not permitted to gain his balance) was shovedinto the motor vehicle (a compartment area of a seat less vehicle) which had now becomehis unwelcome transportation, which did not have seats instead only a hard surface.

30. Plaintiff André Murray was subsequently transported against his will, while stillexperiencing burning sensations to his eyes including other injuries endured andsustained to his shoulders, arms and wrists during the arrest procedure and pain from theimpact to his head, caused by the reckless and careless placement of Plaintiff AndréMurray into a motor vehicle.

31. Plaintiff André Murray upon arriving at a unknown location, and while stillexperiencing the blinding effect of the pepper spray in his eyes Plaintiff André Murraywas removed from the motor vehicle, which had been unwelcome transportation, thenescorted inside a building (what he now knows to be the Fredericton Police Station)



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where he was allowed to use (what was described to him) by the attending PoliceOfficers, as a Eye Washing Station.

32. Plaintiff André Murray did not have his Miranda rights read to him until sometimeafter arriving at the Police Station and not until after Sgt. Myers questioned Constable

Mike Fox, as to why Constable Mike admitted that he had not read Plaintiff AndréMurray his rights.

33. Plaintiff André Murray while being illegally detained, was not being permitted tocontact a lawyer.

7th day of May 2008

34. Wednesday, May 07, 2008 at 6:30 pm Plaintiff André Murray was traveling bybicycle along Two Nations Crossing, on the North side of Fredericton, New Brunswick.

35.

Plaintiff André Murray was intercepted and stopped by members of FREDERICTON POLICE FORCE.

36. Constable Stafford of FREDERICTON POLICE FORCE did accost Plaintiff André Murray, demanding Plaintiff André Murray identify himself, which Plaintiff André Murray did provide a given name and family name to Constable Stafford.

37. Constable Stafford of FREDERICTON POLICE FORCE did demand photo I.D.and threatened Plaintiff André Murray, with arrest and or potential fines to pay, if Plaintiff André Murray did not immediately produce photo I.D.

38. Constable Michael Saunders arrived at the scene at this time, in an unmarked car,which appeared to have possibly three (not in uniform) people, observing from within asConstable Saunders departed the unmarked car;

39. Constable Michael Saunders and Constable Stafford proceeded to arrest Plaintiff André Murray.

40. At this time one more marked police car arrived with a single male occupantconstable Small, who jumped out of the police patrol car and ran over to join in,therefore, assisting on the arrest of Plaintiff André Murray

41. Plaintiff André Murray was arrested, handcuffed, detained and imprisoned withinFREDERICTON POLICE FORCE Marked Police Cruiser, then released without charge,given a written warning for not having a helmet and Constable Stafford claimed to haveissued a ticket for not having a bell in the bicycle, but would not provide same unlessAndré Murray agreed to place his signature on the ticket.

(5.) The plaintiff’s claim. D. Andre Murray claims against the

defendants as follows:

D. Les mesures de redressement

demandées.



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The Plaintiff’s Claim includes the following:

Defendant, The City of Fredericton

42. Defendant, The City of Fredericton has vicarious liability for the actions anddamages caused by members of FREDERICTON POLICE FORCE in their negligentbehaviour, involving assault, battery, wrongful / false arrest and false imprisonment,employing excessive use of force, therefore causing intentional infliction of mentalsuffering and or nervous shock of Plaintiff André Murray.

43. Defendant, The City of Fredericton has vicarious liability for the actions anddamages caused by the subject defendant members of FREDERICTON POLICE FORCEin the application of force, which was disproportional in the situation, unnecessary, andunreasonable, furthermore, there was a breach of Plaintiff André Murray’s Charter rightsunder sections 7, 9 and 12 especially the most egregious denial of Plaintiff AndréMurray’s Charter rights under section 11(d ) the presumption of innocence.

44. The City of Fredericton is also liable to the Plaintiff André Murray for damagesunder the Police Act, S.N.B. 1977, c. P-9.2, as amended. According to of the Police Act,section 17(1) “A municipality is liable in respect of a tort committed by a member of the policeforce in the performance or purported performance of his or her responsibilities under section 12in the same manner as a master is liable, in respect of a tort committed, by the master’s servant inthe course of the servant’s employment where (a) a municipality is maintaining a police force, (b)

a municipality is contracting under paragraph 4 (c) for the services of a municipal police force,and (c) a municipality has established a board under section 7.” Accordingly The City of Fredericton is liable in respect of a tort committed by a member of FREDERICTON POLICE

FORCE in the performance or purported performance of his or her responsibilities.


45. Defendant, The City of Fredericton, has a department called Fredericton PoliceForce, which, did dispatch three members of FREDERICTON POLICE FORCE tothe 29 -31 Marshall Street Fredericton, New Brunswick on March 5, 2009.

7th day of May 2008

46. Defendant, The City of Fredericton, has a department called Fredericton Police

Force and did send 3 Fredericton Police Force members to Two Nations Crossing, on theNorth side of Fredericton, New Brunswick May 07, 2008.

Defendant Fredericton Police Force

47. Defendant, FREDERICTON POLICE FORCE has vicarious liability for theactions and damages caused by members of FREDERICTON POLICE FORCE innegligent, assault, battery, wrongful / false arrest and false imprisonment, excessive use



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of force, intentional infliction of mental suffering and or nervous shock of Plaintiff AndréMurray.

48. Defendant, FREDERICTON POLICE FORCE has vicarious liability for theactions and damages caused by members of FREDERICTON POLICE FORCE in the

application of force, which was disproportional to that which determines or that shouldhave been considered in determining a correct course of action, thereby avoidingunnecessary, unreasonable breach of Plaintiff André Murray’s Charter rights undersections 7, 9 and 12 especially the most egregious denial of Plaintiff André Murray’sCharter rights under section 11(d ) the presumption of innocence.

49. As required by their oath of office, Fredericton City Police officers must act“according to the law”. The law is clear that police officers are not exempt from liabilityfor negligent conduct, and where acting unreasonably they are not entitled to the statutoryimmunity they could otherwise rely upon.

50.

Defendant, Fredericton Police Force members of which have taken this oath:NEW BRUNSWICKREGULATION 81-18under thePOLICE ACT(O.C. 81-143)OATH OF OFFICE

CANADAPROVINCE OF NEW BRUNSWICK

I, ………………………………… , do swear that I willwell and truly serve Her Majesty Queen Elizabeth II, HerHeirs and Successors, in the office of police officer for theProvince of New Brunswick without favour or affection,malice or illwill and that I will to the best of my powercause the peace to be kept and preserved and will preventall offences against the persons and property of Her Majesty’ssubjects and against all the laws enforceable in theProvince of New Brunswick and that while I continue tohold this office, I will to the best of my skill, ability andknowledge discharge all the duties thereof faithfully accordingto the law. So help me God.


51. Defendant, FREDERICTON POLICE FORCE, on March 5, 2009, did dispatchthree Members, City of Fredericton Police Officers, to attend 29 -31 Marshall Street,Fredericton, New Brunswick, who participated in negligent, assault, battery, wrongful / false arrest and false imprisonment, transportation against his will, excessive use of force,intentional infliction of mental suffering and or nervous shock of Plaintiff André Murray.



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52. Members of FREDERICTON POLICE FORCE, March 5, 2009, responding toand or attending 29 -31 Marshall Street, Fredericton New Brunswick, should haveconfined themselves only to acting in a capacity of maintaining the peace and acting inthe public’s best interest. Moreover, Defendant Members of the Fredericton Police were

under a duty of care regarding maintaining the safety of Plaintiff André Murray andanyone else encountered at civic address 29 -31 Marshall Street, Fredericton.

53. Here within mentioned Defendant Members of FREDERICTON POLICEFORCE were Negligent in their duty, as they breached a Duty of Care, to takereasonable steps to ensure that in the capacity of City Police Officers, further, City PoliceOfficers who are obliged to Maintain the peace and act in the public’s best interest,further, while in performance of their duty as City Police Officers that their conduct mustremain lawful and or legal, moreover, consistent with the circumstances and situation asdiscovered (in this instance) at the residential duplex of 29 - 31 Marshall Street, in theCity of Fredericton, on that subject March 5, 2009, midday afternoon, involving the

approach and address of (someone) not observed to be breaking the law, as Plaintiff André Murray was performing an obviously mundane task evidentially not likely to giveoffense or to arouse strong feelings or hostility, furthermore Plaintiff André Murray’ssnow shovelling activities could not possibly be harmful or injurious to the observer;irregardless of the passive, non offensive, state in which Plaintiff André Murray wasdiscovered March 5, 2009, the Defendant Members of the FREDERICTON POLICEFORCE did boldly and aggressively accost Plaintiff André Murray despite observingPlaintiff André Murray maintaining the peace.

54. March 5, 2009 while responding to ‘radio dispatch’ from ‘Headquarters’ herewithin mentioned Defendant Members of FREDERICTON POLICE FORCE furtherfollowing directions did attend the 29 -31 Marshall Street residential duplex propertysubsequentially, upon arrival, failed to observe the limits of what is permitted orappropriate, consequentially, going beyond what is right or proper, the Defendant Policehaving dispensed with properly identifying the situation Defendant Members of FREDERICTON POLICE FORCE immediately (without any preliminary process of first identifying the circumstances, person and situation) and with great prejudice,attacked Plaintiff André Murray inflicting harm and physical injury.

55. The Defendant Members of FREDERICTON POLICE FORCE who, March 5,2009, actually attended 29 -31 Marshall Street residential duplex property, were under a‘Duty of Care’, to take reasonable steps to ensure that no unlawful or illegal conductcaused injury to the plaintiff André Murray; March 5, 2009 great harm and injury toPlaintiff André Murray occurred, at the hands of the here within mentioned DefendantMembers of FREDERICTON POLICE FORCE, who while attending Marshall Street,Fredericton, New Brunswick, March 5, 2009 were Negligent in ‘Duty of Care’.

56. The here within mentioned incident occurring at Plaintiff André Murray’sresidential address at Marshall Street, Fredericton New Brunswick, March 5, 2009, isprima face evidence of Police mis-conduct, as they interfered with the liberty of law



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abiding Plaintiff André Murray, who was at that time maintaining the peace; subjectPolice conduct, as did occur that midday March 5, 2009, is not within the scope of aPolice officers duty, although connected with an authorized act, was however though animproper mode, moreover, the conduct of the Defendant Police officers that day,involved an unjustified use of powers not consistent with and outrageously

disproportional to the observable circumstances, as was discovered, upon Police arriving(shortly after high noon) at the residential duplex 29-31 Marshall Street, Fredericton,further, as would be associated with that duty. 57. The attending members of Fredericton Police Force, where, also under a ‘Duty of Care’ to act lawfully and legally, while attending the residential duplex 29-31 MarshallStreet, Fredericton, New Brunswick, March 5, 2009. The first negligent act by attendingmembers of Fredericton, Police Force, was to dispense with any attempt to identifyPlaintiff André Murray, instead (upon making visual contact on a bright well lightmidday) the Police immediately assaulted Plaintiff André Murray while simultaneouslyverbalizing (shouting) commands of instruction (stop and do not move) Police continued

uttering threats of violence and promises of injury, as they actually, without hesitation,seamlessly transitioned to physically attacking Plaintiff André Murray. March 5, 2009the subject Defendants - members of FREDERICTON POLICE FORCE wereNegligent in that ‘DUTY OF CARE’ while uttering threats, simultaneously enforcingillegal battery, wrongful / false arrest and false imprisonment, excessive use of force,intentional infliction of mental suffering and or nervous shock of Plaintiff André Murray.

58. The subject Defendant Fredericton City Police officers breached the ‘DUTY OFCARE’ they owed the plaintiff and were negligent. Their negligence resulted in Plaintiff André Murray suffering injury. Defendant Fredericton City Police officers did cause abreach of Plaintiff André Murray’s Charter rights under sections 7, 9 and 12 especially themost egregious denial of Plaintiff André Murray’s Charter rights under section 11(d ) thepresumption of innocence. The subject Fredericton City Police officers are jointly andseverally liable to the plaintiff for their tortuous actions demonstrating malice an intentto commit unlawful acts and or cause harm to Plaintiff André Murray without legal justification or excuse.

59. The subject Defendant Fredericton City Police officers where acting unlawfully, inthe negligent, assault, battery, wrongful / false arrest and false imprisonment, excessiveuse of force, intentional infliction of mental suffering and or nervous shock of Plaintiff André Murray. Defendant Fredericton City Police officers where Negligent in theexecution of their duties and that in all the here within related circumstances, the policeconduct constitutes unjustifiable interference with the individual liberty of Plaintiff AndréMurray.

7th day of May 2008

60. Wednesday, May 07, 2008 at 6:30 pm Plaintiff André Murray was traveling bybicycle along Two Nations Crossing, on the North side of Fredericton, New Brunswick.



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61. Defendant, FREDERICTON POLICE FORCE, May 07, 2008, did dispatchthree City of Fredericton Police Officers to attend Two Nations Crossing, on the northside of Fredericton, New Brunswick, who participated in negligent, assault, battery,wrongful / false arrest and false imprisonment, for that reason inexplicably usingexcessive force, causing intentional infliction of mental suffering and or nervous shock of

Plaintiff André Murray.62. Members of FREDERICTON POLICE FORCE, May 07, 2008, responding toand or attending Two Nations Crossing, on the North side of Fredericton, NewBrunswick, should have confined themselves, only, to acting in a capacity of maintainingthe peace and acting in the public’s best interest, additionally, Defendant Members of theFredericton Police were under a duty of care regarding maintaining the safety of Plaintiff André Murray.

63. Here within mentioned Defendant Members of FREDERICTON POLICEFORCE were Negligent in their duty as they breached a Duty of Care to take reasonable

steps to ensure that in the capacity of City Police Officers, furthermore, as City PoliceOfficers who are obliged to Maintain the peace and act in the public’s best interest,further, while in performance of their duty as City Police Officers that their conduct mustremain lawful and or legal, moreover, consistent with the circumstances and situation asdiscovered (in this particular instance) at Two Nations Crossing, on the North side of Fredericton, New Brunswick, May 07, 2008 at or about 6:30 pm involving the approachand address of (someone) not observed to be breaking the law as Plaintiff André Murraywas only performing a obviously mundane task of travelling by bicycle, as suchtherefore, not likely to give offense or to arouse strong feelings or hostility, furthermorePlaintiff André Murray’s peaceful travelling activities could not possibly be harmful orinjurious to the observer; moreover and despite the passive non offensive state in whichPlaintiff André Murray was first encountered by the herein named Defendants/Membersof Fredericton Police Force, however, nevertheless and despite the evident passive natureof Plaintiff André Murray he was boldly and aggressively accosted.

64. May 07, 2008 while responding to ‘radio dispatch’ from Fredericton Police Force‘Headquarters’ here within mentioned Defendant Members of Fredericton Police Force,further, following directions did attend Two Nations Crossing, on the North side of Fredericton, New Brunswick subsequentially, upon arrival, failed to observe the limits of what is permitted or appropriate, consequentially, going beyond what is right or proper,the Defendant Police having dispensed with properly identifying the situation, DefendantMembers of Fredericton Police Force did despite having Plaintiff André Murray identifyhimself, continue with great prejudice, to attack Plaintiff André Murray therebyinflicting harm and physical injury.

65. The Defendant Members of Fredericton Police Force, who, May 07, 2008, actuallyattended Two Nations Crossing, on the North side of Fredericton, New Brunswick, whereunder a ‘Duty of Care’, to take reasonable steps to ensure that no unlawful or illegalconduct caused injury to the plaintiff André Murray. May 07, 2008, despite a ‘Duty of



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Care’harm and injury did befall to Plaintiff André Murray and occurred, at the hands of the here within mentioned Defendant Members of Fredericton Police Force, who whileattending Two Nations Crossing, on the North side of Fredericton, New Brunswick, May07, 2008, Fredericton Police Force were Negligent in ‘Duty of Care’.

66.

The here within mentioned Two Nations Crossing, Fredericton, New Brunswick,May 07, 2008, incident of Police prima facie serious misconduct , initially refers to thematter of interference with Plaintiff André Murray’s liberty. Subject conduct, as didoccur at or about 6:30 pm May 07, 2008, is within the scope of employment and orwithin the course of employment of Police officers duty, althought in this particular casean improper mode in performing said duties occurred; moreover, the conduct of theDefendant Police officers that day, involved an unjustified use of powers not consistentwith and outrageously disproportional to the observable circumstances, as wasdiscovered, upon Police arriving (at or about 6:30 pm) Two Nations Crossing,Fredericton, New Brunswick,

67.

The attending members of Fredericton Police Force where also under a ‘Duty of Care’ to act lawfully and legally, while attending Two Nations Crossing, Fredericton,New Brunswick, May 07, 2008. The first negligent act by the attending members of Fredericton Police Force was to, despite having identified Plaintiff André Murray,assaulted Plaintiff André Murray verbalizing (shouting) commands of instruction (stopand do not move) as they actually without hesitation seamlessly transitioned to physicallyattacking battering Plaintiff André Murray. Furthermore, the subject Defendants -members of FREDERICTON POLICE FORCE were Negligent in that ‘DUTY OFCARE’ uttering threats, illegally enforcing battery, wrongful / false arrest and falseimprisonment, excessive use of force, intentional infliction of mental suffering and ornervous shock of Plaintiff André Murray.

68. Defendant named members of FREDERICTON POLICE FORCE were negligentand breached the ‘DUTY OF CARE’ they owed the plaintiff. Their negligence resultedin plaintiff André Murray suffering injury. Defendant; named members of FREDERICTON POLICE FORCE did cause a breach of Plaintiff André Murray’s Charter rights under sections 7, 9 and 12 especially the most egregious denial of Plaintiff AndréMurray’s Charter rights under section 11(d ) the presumption of innocence. SubjectFredericton City Police officers are jointly and severally liable to the plaintiff for theiractions.

69. Defendant named members of FREDERICTON POLICE FORCE where actingunlawfully, in the negligent, assault, battery, wrongful / false arrest and falseimprisonment, excessive use of force, intentional infliction of mental suffering and ornervous shock of Plaintiff André Murray. Defendant named members of FREDERICTON POLICE FORCE where Negligent in the execution of their duties andthat in all the here within related circumstances, the police conduct constitutesunjustifiable interference with the individual liberty of Plaintiff André Murray.

Defendant Chief of Police Barry MacKnight



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70. Defendant Barry MacKnight as Chief of Police on the 5th day of March 2009, isresponsible for the dispatch of three members of FREDERICTON POLICE FORCE,

to therefore, attend the residential duplex at 29 – 31 Marshall Street, Fredericton, NewBrunswick, Police officers who upon arriving at 29 – 31 Marshall Street did discover alaw abiding and peaceful Plaintiff André Murray. Regardless of the peacefulcircumstances which existed, the attending Defendant Police officers negligently andwith apparent prejudice and entirely without probable cause did assault, then unlawfullyand illegally dispensed a prolonged physical beating on Plaintiff André Murray,including inhumanely spraying of PEPPER SPRAY directly into Plaintiff André Murrayeyes while he was pinned down on the ground. Violence disproportionate to thecircumstances, which was morally unwarranted, a physical battery of plaintiff AndréMurray, which was absolutely unnecessary as Plaintiff André Murray had not yet beenobserved or identified as breaking the law and was not, nor had any intention to avoid

questioning or arrest, this was a most significant part of the wrongful / false arrest andsubsequent false imprisonment, involving excessive use of force, intentional infliction of mental suffering and or nervous shock upon Plaintiff André Murray as he wastransported against his will on the 5th day of March 2009, please note, physical injurieswhich continue to plague Plaintiff André Murray till this day.

71. Defendant Chief of Police Barry MacKnight as Chief of Police has vicariousliability for the actions and damages caused by the here within named Defendantmembers of FREDERICTON POLICE FORCE who in their negligence did assault,battery, wrongful / false arrest and falsely imprison, Plaintiff André Murray usingtherefore, excessive use of force, causing intentional infliction of mental suffering and ornervous shock of Plaintiff André Murray while attending a peaceful law-abiding man athis residential civic address of 29 Marshall Street, Fredericton, New Brunswick, on the5th day of March 2009.

72. Defendant Chief of Police Barry MacKnight was negligent in the performance of his duties, particularly in his failure to properly supervise Defendant Constable Mike FoxBadge number: 346, Defendant Constable Patrick Small Badge number: 355, DefendantConstable Rideout Badge number: 320 and Defendant Sgt. Myers Badge number: 281.who was on duty as supervisor at the Police station.

73. Defendant Barry MacKnight as Chief of Police was negligent in the performanceof his duties, particularly in his failure to properly instruct Constable Mike Fox,Defendant Constable Patrick Small, Defendant Constable Rideout and Defendant Sgt.Myers about the sanctity of one's home. The sanctity of one's home is of fundamentalimportance in a free and democratic society. It is constitutionally recognized in ourcountry. Everyone must not only be secure, but feel, secure in their residence. A societythat tolerates significant criminal intrusions into the privacy of one's home is a societythat forces it citizens to resort to self-help to protect themselves against such wrongs.Absent effective responses from the judiciary, the alternative is for citizens to arm



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themselves in anticipation of a need to defend themselves against such criminalenterprises. A society like that is not ours today, has not been ours in the past, andhopefully will not become ours in the future. The obligation of the Court is to give properrecognition to the sanctity of the home, to protect all citizens against such intrusions, andto preserve the public's confidence in the administration of justice.

74. For the here within named Defendant members of FREDERICTON POLICEFORCE to violate the sanctity of one's home and threaten to enter into their dwellinghouse to accost the Plaintiff is considered as an aggravating circumstances, the fact thatthe dwelling-house would have been occupied at the time of the promised commission of the offence and that the person in committing the offence, were aware, knew that, or wasreckless as to, whether the dwelling-house was occupied, and used violence or threats of violence to a person or property is especially egregious. The presence of the occupants of their home, with the violation of their sense of sanctity and security in that place, and theattendant exposure to the threat (express or implied) of physical or psychological harm,that sets the home invasion apart from other offences committed in relation to a home.

7th day of May 2008

75. Defendant Barry MacKnight as Chief of Police May 07, 2008, is responsible forthe dispatch of the here within named Defendant members of FREDERICTONPOLICE FORCE to attend Two Nations Crossing, Fredericton, New Brunswick, Policeofficers who upon arriving at Two Nations Crossing, Fredericton, New Brunswick diddiscover a law abiding and peaceful Plaintiff André Murray. Regardless of the peacefulcircumstances, the attending Defendant Police officers negligently with apparentprejudice and entirely without probable cause did assault, than unlawfully and illegallydispensed a prolonged physical beating on Plaintiff André Murray. Violencedisproportionate to the circumstances, a physical battery of plaintiff André Murray,which was absolutely unnecessary as Plaintiff André Murray had not yet been observedor identified as breaking the law. The wrongful / false arrest and false imprisonment,involving excessive use of force, intentional infliction of mental suffering and or nervousshock upon Plaintiff André Murray May 07, 2008, caused physical injuries to Plaintiff André Murray with lingering psychological mental aguish.

76. Defendant Chief of Police Barry MacKnight as Chief of Police has vicariousliability for the actions and damages caused by the here within named Defendantmembers of FREDERICTON POLICE FORCE who in their negligence did assault,commit battery, wrongful / false arrest and false imprisonment, using therefore excessiveuse of force, causing intentional infliction of mental suffering and or nervous shock of Plaintiff André Murray while attending Two Nations Crossing, North side of Fredericton, New Brunswick, May 07, 2008.

77. Defendant Chief of Police Barry MacKnight was negligent in the performance of his duties, particularly in his failure to properly supervise Defendant Constable Staffordbadge number: 358, Defendant Constable Saunders, (badge number refused), andDefendant Constable Small Badge number: 355.



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78. Defendant Barry MacKnight as Chief of Police was negligent in the performanceof his duties, particularly in his failure to properly instruct Defendants: ConstableStafford, Police badge number 358, Defendant Constable Saunders, ( Police badge

number refused when requested by victim André Murray), and Defendant ConstableSmall, Police Badge number 355; regarding the principle of a presumption of innocenceas set out in Section 11 (d) of the Charter Rights and Freedoms. The principle of thepresumption of innocence is of fundamental importance in a free and democratic society.It is constitutionally recognized in our country. For the here within named Defendantmembers of FREDERICTON POLICE FORCE to violate the principle of thepresumption of innocence as set out in Section 11 (d) of the Charter Rights andFreedoms, who did accost the Plaintiff and used random violence and or threats of violence against a reasonably innocent person is especially egregious. The presumptionof innocence requiring therefore an investigation of the circumstances, as they may haveappeared to attending members of FREDERICTON POLICE FORCE was in this

matter denied Plaintiff André Murray. The efforts of governments and Courts to upholdthese fundamental rights of a democratic society must never cease. These rights areentrenched in the Charter of Rights and Freedoms.

DAMAGES

79. As a result of the negligent behaviour, actions of the subject named Defendantmembers of Fredericton Police Force, on the 7th day of May 2008, for that reason,thereby. inflicted upon Plaintiff André Murray, numerous bruises, cuts and abrasions,pulled muscles, painfully stretched tendons and joints, a damaged back, injury to thePlaintiff’s right wrist, which has resulted in limited mobility of the Plaintiff’s wrists forthat reason reduced to short durations of activity.

80. The Plaintiff as an Artist is consequentially suffering, limitation of mobility of thehis right wrist (results of this subject attack by members of Fredericton Police Force)further, continuous pain in both shoulders and reduction of nerve ending sensitivity inboth arms, has resulted in a loss of quality of life for the Plaintiff and limited earningcapacity.

81. Plaintiff André Murray claims damages for negligence.

82. Plaintiff André Murray claims damages for assault.

83. Plaintiff André Murray claims damages for battery.

84. Plaintiff André Murray claims damages for wrongful / false arrest.

85. Plaintiff André Murray claims damages for wrongful / false imprisonment.

86. Plaintiff André Murray claims damages for excessive use of force.



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87. Plaintiff André Murray claims damages for intentional infliction of mental sufferingand or nervous shock.

88. Plaintiff André Murray claims damages for suffering transportation against his willand conscience.

7th day of May 2008

89. Plaintiff André Murray claims damages that on the 7th day of May 2008, theherewithin named defendant members of Fredericton Police Force used unnecessary andexcessive force when they arrested and detained innocent Plaintiff André Murray. Theapplication of force was disproportional in the circumstances, unnecessary, andunreasonable and that did cause a breach of Plaintiff André Murray’s Charter rights undersections 7, 9 and 12 especially the most egregious denial of Plaintiff André Murray’sCharter rights under section 11(d ) the presumption of innocence.

90. The Defendant members of FREDERICTON POLICE FORCE, on the 7th day of May 2008, used excessive force, an incident as conveyed herewithin, consequentlyvictimizing innocent Plaintiff André Murray, a violation of the Plaintiff’s right to life,liberty and security of the person, under s. 7 of The Charter of Rights and Freedoms,further, not in accordance with any principle of fundamental justice.

91. Plaintiff André Murray claims that on the 7th day of May 2008 to have suffered atthe hands of herewithin named members of FREDERICTON POLICE FORCE, who usedexcessive force and are therefore liable for damages for assault and battery.

92. The Plaintiff claims, as a victim, general damages, loss of income and punitive damagesfor injuries sustained as a result of, as alleged herewithin was a unprovoked, thereforeunnecessary and excessive use of force inflicted against Plaintiff André Murray at thehands of members of FREDERICTON POLICE FORCE.

93. As a result of negligence of the herewithin listed Defendants, on the 7th day of May 2008, actions involving illegal and unlawful arrest of the Plaintiff thereby usingunreasonably disproportional force, the Plaintiff has sustained, and will continue to suffercurrently debilitating, likely prolonged and or permanent personal injury including butnot limited to:

(a) Feeling of humiliation, loss of self-esteem and self-

confidence. (b) Anxiety.

(c) Depression.

(d) Emotional trauma.



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94. The Plaintiff claims damages because of demeaning and humiliating treatmentsuffered, on the 7th day of May 2008, traumatically sufficient that every time he sees theCity of Fredericton Police Agents he experiences feelings of pain, humiliation and fear.

Damages Continued

95. The Plaintiff claims general damages for mental anguish and injury to his dignityand self-respect. These have been referred to as damages for "hurt and humiliation".

96. The Plaintiff claims damages for loss of wages: past, current and future.

97. Finally Plaintiff claims damages for punitive and or aggravated damages in orderto "send a message" to the Defendants that conduct of this sort will not and or cannot betolerated in our society.

98. The Plaintiff claims special damages for assault and battery. Plaintiff claimsgeneral damages for the injuries he suffered as a resulting from the following, as well as

for damages for the psychological injuries associated with unlawful and illegal or falseimprisonment including transportation against ones will and or conscience. The Plaintiff André Murray is claiming punitive and exemplary damages with respect to all causes of action found or realized within.

99. The Plaintiff claims damages for unlawful confinement/imprisonment, occurringon the 5th day of March, 2009, from the time he was arrested at his residential duplex 29-31 Marshall Street, Fredericton, until released from Fredericton City Police Station.

100. The Plaintiff claims damages for unlawful confinement/imprisonment, on the 7thday of May 2008, from the time he was arrested at Two Nations Crossing, Fredericton,

New Brunswick.

101. The Plaintiff André Murray seeks compensation payable to Plaintiff AndréMurray and, in particular, for the quantum of the Plaintiff’s:

I. hurt and humiliation;

II. general damages;

III. exemplary damages;

IV. aggravated damages;

V. punitive damages;

VI. special damages;

VII. any other monetary compensation that he may be entitled to; and



102. The Plaintiff claims that the Defendants should pay the costs of the herewithinNotice of Action and any subsequent Notices of Motion’s as are required.

DATED at . . . . . . . . . . . . . . . . . . . . . . . ,this . . . . .day of . . . . . . . . . . . . . . . , 2012.

_______________________________________Plaintiff: ANDRÉ MURRAY

Name of plaintiff: ANDRÉ MURRAYAddress for service within New Brunswick:

31 Marshall StreetFredericton, N.B.E3A 4J8

FAIT à. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .le . . . . . . . . . . . . . . . . . . . . . . 2012

Avocat du demandeur (ou demandeur, s’il n’est pasreprésenté par un avocat)

Nom du demandeur :. . . . . . . . . . . . . . . . . . .Adresse aux fins de signification auNouveau- Brunswick :

Documents

Notice of Action Example 3