Court File Number: _______ IN THE COURT OF QUEENS BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON

BETWEEN: ANDR MURRAY Plaintiff, -andTHE CITY OF FREDERICTON, FREDERICTON POLICE FORCE, CHIEF OF POLICE BARRY MACKNIGHT, Defendants,

NOTICE OF ACTION WITH STATEMENT OF CLAIM ATTACHED (FORM 16A)

TO:
(the above-named defendants)

DESTINATAIRE:
(le dfendeur susmentionn)

The City of Fredericton

Legal Services Division, Suite 100, 412 Queen Street, Fredericton, New Brunswick, Canada, E3B 4Y7 Phone: (506) 460-2115 Fax: (506) 460-2128

TO:

Fredericton Police Force 311 Queen Street Fredericton, N.B. E3B 1B1 Phone: (506) 460 2300 Fax: (506) 460 2316
TO:

Chief of Police Barry MacKnight FREDERICTON POLICE FORCE 311 Queen Street, Fredericton, NB E3B 1B1 General Information Telephone Number: 506 460 - 2300 Fax Number: (506) 460 2316
LEGAL PROCEEDINGS HAVE BEEN COMMENCED AGAINST YOU BY FILING THIS NOTICEOF ACTION WITH STATEMENT OF CLAIM ATTACHED. If you wish to defend these proceedings, either you or a New Brunswick lawyer acting on your behalf must prepare your Statement of Defence in the form prescribed by the Rules of Court and serve it on the plaintiff or the plaintiffs lawyer at the address shown below and, with proof of such service, file it in this Court Office together 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 or in the United States of America, WITHIN 40 DAYS after such service, or (c) if you are served anywhere else, WITHIN 60 DAYS after such service. PAR LE DPT DU PRSENT AVIS DE POURSUITE ACCOMPAGN DUN EXPOS DE LA DEMANDE, UNE POURSUITE JUDICIAIRE A T ENGAGE CONTRE VOUS. Si vous dsirez prsenter une dfense dans cette instance, vous-mme ou un avocat du Nouveau-Brunswick charg de vous reprsenter devrez rdiger un expos de votre dfense en la forme prescrite par les Rgles de procdure, le signifier au demandeur ou son avocat ladresse indique ci-dessous et le dposer au greffe de cette Cour avec un droit de dpt de $50 et une prevue de sa signification : a) DANS LES 20 JOURS de la signification qui vous sera faite du prsent avis de poursuite accompagn dun expos de la demande, si elle vous est faite au NouveauBrunswick ou b) DANS LES 40 JOURS de la signification, si elle vous est faite dans une autre rgion du Canada ou dans les tatsUnis dAmrique ou c) DANS LES 60 JOURS de la signification, si elle vous est faite ailleurs.

If you fail to do so, you may be deemed to have admitted any claim made against you, and without further notice to you, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE. You are advised that: (a) you are entitled to issue documents and present evidence in the proceeding in English or French or both; (b) the plaintiff intends to proceed in English language; and (c) your Statement of Defence must indicate the language in which you intend to proceed

Si vous omettez de le faire, vous pourrez tre repute avoir admis toute demande formule contre vous et, sans autre avis, JUGEMENT POURRA TRE RENDU CONTRE VOUS EN VOTRE ABSENCE. Sachez que : a) vous avez le droit dans la prsente instance, dmettre des documents et de prsenter votre preuve en franais, en anglais ou dans les deux langues; b) le demandeur a lintention dutiliser la langue . . . . . . . . . . . . . . . . . . . ; et c) lexpos de votre dfense doit indiquer la langue que vous avez lintention dutiliser.

THIS NOTICE is signed and sealed for the Court of Queens Bench by . . . . . . . . . . . . . . . . . . . . . . . . . . . . , Clerk of the Court at . . . . . . . . . . . . . . . . . . . . . . . . , on the . . . day of . . . . . . . . . . . , 2012

CET AVIS est sign et scell au nom de la Cour du Banc de la Reine par. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., greffier de la Cour . . . . . . . . . . . . . ., ce . . . . . . . . . . . . . 2012

Court Seal

Sceau de la Cour

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

......................... (greffier).
(adresse du greffe)

(address of court office)

Justice building 427 Queen street P.O. box 6000 Fredericton, NB 3B 5H1

STATEMENT OF CLAIM / EXPOS 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 A. La qualit de toutes les personnes qui are parties to the proceeding. sont parties linstance.
1. The Plaintiff, Andr Murray, resides at 31 Marshall Street, Fredericton, New Brunswick.

2. Defendant, The City of Fredericton, place of business City Hall is located at 397 Queen Street, Fredericton, New Brunswick, Canada. 3. Defendant FREDERICTON POLICE FORCE Office is located at 311 Queen Street, 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 originally Court 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 Andr Murray is the victim in this matter; a innocent man on all accounts who 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, who while obstructing justice did provide false witness and or evidence, further, who intended to commit unlawful acts and or cause harm to Plaintiff Andr Murray; moreover, for the herewithin stated reasons Plaintiff Andr Murray, without any recognizable proper standard of probable cause, for that reason, further at the hands of Members of FREDERICTON CITY POLICE suffered: assault, battery, wrongful / false arrest unlawful detention and False imprisonment, excessive use of force causing harm, transportation against his will, intentional infliction of mental suffering and or nervous shock , violation of his rights contrary to the Charter of Rights and Freedoms et al., at the hands of the herewithin named Defendants at his residential civic address of 29 Marshall Street, Fredericton, New Brunswick, on the 5th day of March 2009. 6. Defendant, The City Of Fredericton, has vicarious liability as the employer of the FREDERICTON POLICE FORCE in which numerous members are herein named as Defendants 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 FREDERICTON POLICE FORCE, regarding the location of innocent Plaintiff Andr Murray.

8. Defendant, FREDERICTON POLICE FORCE, has vicarious liability, having dispatched on Date March 5, 2009, three members of FREDERICTON POLICE FORCE who Andr Murray alleges did conduct themselves unprofessionally, further, in an offensive manner against Plaintiff Andr Murray; as such these individuals are named Defendants in this matter. 9. Defendant Chief Barry MacKnight of FREDERICTON POLICE FORCE, in the capacity of Chief of Police is vicariously liable, as he is responsible for the professional conduct of his members of FREDERICTON POLICE FORCE, as such these individuals are named Defendants in this matter.
The capacity of all persons who are parties to 7th day of May 2008 Defendant therefore to be joined in this September 7, 2011, AMENDED Statement of Claim.

Observations from incidents 7th day of May 2008 10. Plaintiff Andr Murray is the victim in this matter; a innocent man on all accounts who 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 while obstructing justice did provide false witness and or evidence, further, who intended to commit unlawful acts and or cause harm to Plaintiff Andr Murray; moreover, for the herewithin stated reasons Plaintiff Andr Murray, without any recognizable proper standard of probable cause, for that reason, further at the hands of Members of FREDERICTON CITY POLICE suffered: assault, battery, wrongful / false arrest unlawful detention and False imprisonment, excessive use of force causing harm, intentional infliction of mental suffering and or nervous shock , violation of his rights contrary to the Charter of Rights and Freedoms et al., at the hands of the herewithin named Defendants, Fredericton, New Brunswick, May 07, 2008. 11. Defendant, The City of Fredericton in capacity of principal/agent and or employer has vicarious liability as the employer of the FREDERICTON POLICE FORCE in which numerous members are herein named as Defendants for matters occurring on the 7th day of May 2008. 12. John Doe 2 is the unidentified individual or party, reportedly, who on the 7th day of May 2008, by telephone communicated advise to members of FREDERICTON POLICE FORCE, the location of innocent Plaintiff Andr Murray. 13. Defendant, Fredericton Police Force, Defendant, FREDERICTON POLICE FORCE, has vicarious liability, having on Date 7th day of May 2008, dispatched three members (Defendants in this matter) of FREDERICTON POLICE FORCE who allegedly conducted themselves unprofessionally, further in an offensive manner against Plaintiff Andr Murray.

14. Defendant Chief Barry MacKnight of FREDERICTON POLICE FORCE, in the capacity 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 named Defendants in this matter.
(2.) The place of residence of the plaintiff.

B. The place of residence of the plaintiff.

B. Le lieu de rsidence du demandeur.

The Plaintiff ANDR MURRAY Address for service within New Brunswick: 31 Marshall Street Fredericton, 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 allgations de fait dterminant sur lesquelles est fonde la demande.

15. Plaintiff Andr Murray, has no warrant(s) for his arrest, has never had an arrest warrant for his arrest, never had a criminal record and is a productive member of society therefore maintaining the peace. 16. Plaintiff Andr 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 Andr Murray was removing snow by hand shovelling the driveway to his residential Marshall Street Duplex, in the City of Fredericton. Plaintiff Andr Murrays facial features and physical body shape was clearly identifiable, as Andr Murray was wearing only a thin light wool sweater 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 Andr Murray was now walking back towards his residential house entrance, therefore, past the arbour gated enclosed area. 19. Plaintiff Andr Murray had earlier removed all heavy/warm winter clothing and was now actively retrieving / collecting and or reassembling the winter clothing & accessories. At this point Plaintiff Andr Murray was accosted by unidentified people.

20. Plaintiff Andr Murray now hearing sounds turned around to see what was the commotion and saw someone (since identified as Constable Fox) quickly approaching Plaintiff Andr Murray at running speed, from the street side of 29 Marshall Street and down the same driveway, from which Plaintiff Andr Murray had just finished removing the snow. Plaintiff Andr Murray was surprised by this man in black, because, as of that time Andr Murray had no prior indication that anyone else was in the area. 21. This unidentified man rapidly approaching Plaintiff Andr Murray, dressed in black and not wearing a hat, (now known as Constable Mike Fox) was yelling in a manner and speaking quickly that could best be described as verbalizing in a stressed tone and incoherent manner. As Constable Fox rapidly approached Plaintiff Andr Murray, (who is standing still ) he immediately did and without warning grab Plaintiff Andr Murrays right arm, first contact was by Constable Fox seizing the right wrist thereby, immediately inflicting pain to Plaintiff Andr Murrays wrist as Constable Mike Fox simultaneously forced and caused Plaintiff Andr Murrays right arm to become twisted around and behind Plaintiff Andr Murrays back. 22. Constable Fox, now having control of Andr Murrays right arm and wrist, did immediately sweep Andr Murrays feet out from under him, sending Andr Murrays body to the frozen ground, with Constable Foxs body applying further force against Andr Murray as they hit the ground, with Constable Fox, now on top of Andr Murray; now continuing to apply pressure to the wrist and using arm lock techniques, which Constable Fox had without warning initiated and would not relent. Immediately prior to Constable Mike Fox attacking Plaintiff Andr Murray, Plaintiff Andr Murray was holding in his hands his usual winter clothing accessories. 23. Despite Plaintiff Andr Murrays attempts at reasoning with Constable Mike Fox, (now lying on his stomach face down) Constable Fox continued in the extremely painful application of force, which was disproportional in the situation, unnecessary, and without reason. Plaintiff Andr 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, extended in front of face on the icy snow surface fortunately protecting Plaintiff Andr Murrays face from further injury by impacting the ground as Constable Mike Fox was at that point literally, physically on top of Plaintiff Andr Murrays back continuing to cause pain by applying 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 and Constable Mike Fox continued battering, twisting pushing and generally manipulating the Plaintiffs body into a further submissive position. 25. Further to the application of the above mentioned force used against Andr Murray, which had by this point in time been extremely disproportional to the situation, absolutely unnecessary, and unreasonable, and unquestionably sufficient to contain the Plaintiff Andr Murray, (as he is now prostrated on the ground) further, despite the fact that resistance is not occurring, however, Constable Mike Fox instructs Constable Patrick

Small to pepper spray Plaintiff Andr Murray directly into the eyes and face despite the fact that both Constable Mike Fox and Constable Patrick Small controlled and held Plaintiff Andr Murray down on the ground. 26. Plaintiff Andr Murray experienced knees digging into his back as both of Plaintiff Andr Murrays arms were simultaneously being pulled backwards and away from Plaintiff Andr Murrays back with great force. 27. The process of handcuffing Plaintiff Andr Murray wrists involved several extreme and severe repetitions of lifting Plaintiff Andr Murray arms backwards while preventing Plaintiff Andr Murrays body from moving off the surface of the ground, as pressure was applied into Plaintiff Andr Murrays back sides. 28. Plaintiff Andr Murray was subsequentially (after being hand cuffed) physically lifted up off the ground, by Constable Mike Fox and Constable Patrick Small, while the Plaintiff Andr Murrays wrists were handcuffed; this lifting of Plaintiff Andr Murrays body procedure included being first dragged for a short distance, then literally suspended by using Plaintiff Andr Murrays forearms as the fulcrum point (while wrists are hand cuffed) to lift and carry Plaintiff Andr Murray reasonably nothing less than 30 feet; hereafter, members of FREDERICTON POLICE FORCE Constable Mike Fox and Constable Patrick Small continued to cause Plaintiff Andr Murray to be suspended through the air by using Plaintiff Andr Murrays forearms as the fulcrum point (while wrists are hand cuffed) to finally arrive at a sudden impact with what sounded like the trunk hood of a motor vehicle; please note: as the Plaintiff Andr Murray at this point was completely blind from having had pepper spray, placed directly into Andr Murrays eyes, by Constable Patrick Small from a distance which was approximately less than 2 inches away from Plaintiff Andr Murrays eyes. 29. Plaintiff Andr Murray was subsequentially shoved forward into the back seat compartment area of the motor vehicle which had become forced upon unwelcome transportation, causing his head to impact the top edge of (what is believed to be) the door opening as Plaintiff Andr Murray (not permitted to gain his balance) was shoved into the motor vehicle (a compartment area of a seat less vehicle) which had now become his unwelcome transportation, which did not have seats instead only a hard surface. 30. Plaintiff Andr Murray was subsequently transported against his will, while still experiencing burning sensations to his eyes including other injuries endured and sustained to his shoulders, arms and wrists during the arrest procedure and pain from the impact to his head, caused by the reckless and careless placement of Plaintiff Andr Murray into a motor vehicle. 31. Plaintiff Andr Murray upon arriving at a unknown location, and while still experiencing the blinding effect of the pepper spray in his eyes Plaintiff Andr Murray was removed from the motor vehicle, which had been unwelcome transportation, then escorted inside a building (what he now knows to be the Fredericton Police Station)

where he was allowed to use (what was described to him) by the attending Police Officers, as a Eye Washing Station. 32. Plaintiff Andr Murray did not have his Miranda rights read to him until sometime after 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 Andr Murray his rights. 33. Plaintiff Andr Murray while being illegally detained, was not being permitted to contact a lawyer. 7th day of May 2008 34. Wednesday, May 07, 2008 at 6:30 pm Plaintiff Andr Murray was traveling by bicycle along Two Nations Crossing, on the North side of Fredericton, New Brunswick. 35. Plaintiff Andr Murray was intercepted and stopped by members of FREDERICTON POLICE FORCE. 36. Constable Stafford of FREDERICTON POLICE FORCE did accost Plaintiff Andr Murray, demanding Plaintiff Andr Murray identify himself, which Plaintiff Andr 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 Andr Murray, with arrest and or potential fines to pay, if Plaintiff Andr 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 as Constable Saunders departed the unmarked car; 39. Constable Michael Saunders and Constable Stafford proceeded to arrest Plaintiff Andr Murray. 40. At this time one more marked police car arrived with a single male occupant constable Small, who jumped out of the police patrol car and ran over to join in, therefore, assisting on the arrest of Plaintiff Andr Murray 41. Plaintiff Andr Murray was arrested, handcuffed, detained and imprisoned within FREDERICTON POLICE FORCE Marked Police Cruiser, then released without charge, given a written warning for not having a helmet and Constable Stafford claimed to have issued a ticket for not having a bell in the bicycle, but would not provide same unless Andr Murray agreed to place his signature on the ticket.
(5.) The plaintiffs claim.

D. Andre Murray claims against the defendants as follows: 9

D. Les mesures de redressement demandes.

The Plaintiffs Claim includes the following: Defendant, The City of Fredericton 42. Defendant, The City of Fredericton has vicarious liability for the actions and damages caused by members of FREDERICTON POLICE FORCE in their negligent behaviour, involving assault, battery, wrongful / false arrest and false imprisonment, employing excessive use of force, therefore causing intentional infliction of mental suffering and or nervous shock of Plaintiff Andr Murray. 43. Defendant, The City of Fredericton has vicarious liability for the actions and damages caused by the subject defendant members of FREDERICTON POLICE FORCE in the application of force, which was disproportional in the situation, unnecessary, and unreasonable, furthermore, there was a breach of Plaintiff Andr Murrays Charter rights under sections 7, 9 and 12 especially the most egregious denial of Plaintiff Andr Murrays Charter rights under section 11(d) the presumption of innocence. 44. The City of Fredericton is also liable to the Plaintiff Andr Murray for damages under 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 police force in the performance or purported performance of his or her responsibilities under section 12 in the same manner as a master is liable, in respect of a tort committed, by the masters servant in the course of the servants 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.

5th day of March 2009 45. Defendant, The City of Fredericton, has a department called Fredericton Police Force, which, did dispatch three members of FREDERICTON POLICE FORCE to the 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 the North side of Fredericton, New Brunswick May 07, 2008. Defendant Fredericton Police Force 47. Defendant, FREDERICTON POLICE FORCE has vicarious liability for the actions and damages caused by members of FREDERICTON POLICE FORCE in negligent, assault, battery, wrongful / false arrest and false imprisonment, excessive use

10

of force, intentional infliction of mental suffering and or nervous shock of Plaintiff Andr Murray. 48. Defendant, FREDERICTON POLICE FORCE has vicarious liability for the actions and damages caused by members of FREDERICTON POLICE FORCE in the application of force, which was disproportional to that which determines or that should have been considered in determining a correct course of action, thereby avoiding unnecessary, unreasonable breach of Plaintiff Andr Murrays Charter rights under sections 7, 9 and 12 especially the most egregious denial of Plaintiff Andr Murrays Charter 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 liability for negligent conduct, and where acting unreasonably they are not entitled to the statutory immunity they could otherwise rely upon. 50. Defendant, Fredericton Police Force members of which have taken this oath:
NEW BRUNSWICK REGULATION 81-18 under the POLICE ACT (O.C. 81-143) OATH OF OFFICE CANADA PROVINCE OF NEW BRUNSWICK I, , do swear that I will well and truly serve Her Majesty Queen Elizabeth II, Her Heirs and Successors, in the office of police officer for the Province of New Brunswick without favour or affection, malice or illwill and that I will to the best of my power cause the peace to be kept and preserved and will prevent all offences against the persons and property of Her Majestys subjects and against all the laws enforceable in the Province of New Brunswick and that while I continue to hold this office, I will to the best of my skill, ability and knowledge discharge all the duties thereof faithfully according to the law. So help me God.

5th day of March 2009 51. Defendant, FREDERICTON POLICE FORCE, on March 5, 2009, did dispatch three 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 Andr Murray.

11

52. Members of FREDERICTON POLICE FORCE, March 5, 2009, responding to and or attending 29 -31 Marshall Street, Fredericton New Brunswick, should have confined themselves only to acting in a capacity of maintaining the peace and acting in the publics best interest. Moreover, Defendant Members of the Fredericton Police were under a duty of care regarding maintaining the safety of Plaintiff Andr Murray and anyone else encountered at civic address 29 -31 Marshall Street, Fredericton. 53. Here within mentioned Defendant Members of FREDERICTON POLICE FORCE 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, further, City Police Officers who are obliged to Maintain the peace and act in the publics best interest, further, while in performance of their duty as City Police Officers that their conduct must remain lawful and or legal, moreover, consistent with the circumstances and situation as discovered (in this instance) at the residential duplex of 29 - 31 Marshall Street, in the City 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 Andr Murray was performing an obviously mundane task evidentially not likely to give offense or to arouse strong feelings or hostility, furthermore Plaintiff Andr Murrays snow shovelling activities could not possibly be harmful or injurious to the observer; irregardless of the passive, non offensive, state in which Plaintiff Andr Murray was discovered March 5, 2009, the Defendant Members of the FREDERICTON POLICE FORCE did boldly and aggressively accost Plaintiff Andr Murray despite observing Plaintiff Andr Murray maintaining the peace. 54. March 5, 2009 while responding to radio dispatch from Headquarters here within mentioned Defendant Members of FREDERICTON POLICE FORCE further following directions did attend the 29 -31 Marshall Street residential duplex property 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 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 Andr 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 conduct caused injury to the plaintiff Andr Murray; March 5, 2009 great harm and injury to Plaintiff Andr Murray occurred, at the hands of the here within mentioned Defendant Members 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 Andr Murrays residential address at Marshall Street, Fredericton New Brunswick, March 5, 2009, is prima face evidence of Police mis-conduct, as they interfered with the liberty of law

12

abiding Plaintiff Andr Murray, who was at that time maintaining the peace; subject Police conduct, as did occur that midday March 5, 2009, is not within the scope of a Police officers duty, although connected with an authorized act, was however though an improper 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 Marshall Street, Fredericton, New Brunswick, March 5, 2009. The first negligent act by attending members of Fredericton, Police Force, was to dispense with any attempt to identify Plaintiff Andr Murray, instead (upon making visual contact on a bright well light midday) the Police immediately assaulted Plaintiff Andr Murray while simultaneously verbalizing (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 Andr Murray. March 5, 2009 the subject Defendants - members of FREDERICTON POLICE FORCE were Negligent in that DUTY OF CARE while uttering threats, simultaneously enforcing illegal battery, wrongful / false arrest and false imprisonment, excessive use of force, intentional infliction of mental suffering and or nervous shock of Plaintiff Andr Murray. 58. The subject Defendant Fredericton City Police officers breached the DUTY OF CARE they owed the plaintiff and were negligent. Their negligence resulted in Plaintiff Andr Murray suffering injury. Defendant Fredericton City Police officers did cause a breach of Plaintiff Andr Murrays Charter rights under sections 7, 9 and 12 especially the most egregious denial of Plaintiff Andr Murrays Charter rights under section 11(d) the presumption of innocence. The subject Fredericton City Police officers are jointly and severally liable to the plaintiff for their tortuous actions demonstrating malice an intent to commit unlawful acts and or cause harm to Plaintiff Andr Murray without legal justification or excuse. 59. The subject Defendant Fredericton City Police officers where acting unlawfully, in the negligent, assault, battery, wrongful / false arrest and false imprisonment, excessive use of force, intentional infliction of mental suffering and or nervous shock of Plaintiff Andr Murray. Defendant Fredericton City Police officers where Negligent in the execution of their duties and that in all the here within related circumstances, the police conduct constitutes unjustifiable interference with the individual liberty of Plaintiff Andr Murray. 7th day of May 2008 60. Wednesday, May 07, 2008 at 6:30 pm Plaintiff Andr Murray was traveling by bicycle along Two Nations Crossing, on the North side of Fredericton, New Brunswick.

13

61. Defendant, FREDERICTON POLICE FORCE, May 07, 2008, did dispatch three City of Fredericton Police Officers to attend Two Nations Crossing, on the north side of Fredericton, New Brunswick, who participated in negligent, assault, battery, wrongful / false arrest and false imprisonment, for that reason inexplicably using excessive force, causing intentional infliction of mental suffering and or nervous shock of Plaintiff Andr Murray. 62. Members of FREDERICTON POLICE FORCE, May 07, 2008, responding to and or attending Two Nations Crossing, on the North side of Fredericton, New Brunswick, should have confined themselves, only, to acting in a capacity of maintaining the peace and acting in the publics best interest, additionally, Defendant Members of the Fredericton Police were under a duty of care regarding maintaining the safety of Plaintiff Andr Murray. 63. Here within mentioned Defendant Members of FREDERICTON POLICE FORCE 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 Police Officers who are obliged to Maintain the peace and act in the publics best interest, further, while in performance of their duty as City Police Officers that their conduct must remain lawful and or legal, moreover, consistent with the circumstances and situation as discovered (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 approach and address of (someone) not observed to be breaking the law as Plaintiff Andr Murray was only performing a obviously mundane task of travelling by bicycle, as such therefore, not likely to give offense or to arouse strong feelings or hostility, furthermore Plaintiff Andr Murrays peaceful travelling activities could not possibly be harmful or injurious to the observer; moreover and despite the passive non offensive state in which Plaintiff Andr Murray was first encountered by the herein named Defendants/Members of Fredericton Police Force, however, nevertheless and despite the evident passive nature of Plaintiff Andr 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, Defendant Members of Fredericton Police Force did despite having Plaintiff Andr Murray identify himself, continue with great prejudice, to attack Plaintiff Andr Murray thereby inflicting harm and physical injury. 65. The Defendant Members of Fredericton Police Force, who, May 07, 2008, actually attended Two Nations Crossing, on the North side of Fredericton, New Brunswick, where under a Duty of Care, to take reasonable steps to ensure that no unlawful or illegal conduct caused injury to the plaintiff Andr Murray. May 07, 2008, despite a Duty of

14

Careharm and injury did befall to Plaintiff Andr Murray and occurred, at the hands of the here within mentioned Defendant Members of Fredericton Police Force, who while attending Two Nations Crossing, on the North side of Fredericton, New Brunswick, May 07, 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 the matter of interference with Plaintiff Andr Murrays liberty. Subject conduct, as did occur at or about 6:30 pm May 07, 2008, is within the scope of employment and or within the course of employment of Police officers duty, althought in this particular case an improper mode in performing said duties occurred; 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 (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 Andr Murray, assaulted Plaintiff Andr Murray verbalizing (shouting) commands of instruction (stop and do not move) as they actually without hesitation seamlessly transitioned to physically attacking battering Plaintiff Andr Murray. Furthermore, the subject Defendants members of FREDERICTON POLICE FORCE were Negligent in that DUTY OF CARE uttering threats, illegally enforcing battery, wrongful / false arrest and false imprisonment, excessive use of force, intentional infliction of mental suffering and or nervous shock of Plaintiff Andr Murray. 68. Defendant named members of FREDERICTON POLICE FORCE were negligent and breached the DUTY OF CARE they owed the plaintiff. Their negligence resulted in plaintiff Andr Murray suffering injury. Defendant; named members of FREDERICTON POLICE FORCE did cause a breach of Plaintiff Andr Murrays Charter rights under sections 7, 9 and 12 especially the most egregious denial of Plaintiff Andr Murrays Charter rights under section 11(d) the presumption of innocence. Subject Fredericton City Police officers are jointly and severally liable to the plaintiff for their actions. 69. Defendant named members of FREDERICTON POLICE FORCE where acting unlawfully, in the negligent, assault, battery, wrongful / false arrest and false imprisonment, excessive use of force, intentional infliction of mental suffering and or nervous shock of Plaintiff Andr Murray. Defendant named members of FREDERICTON POLICE FORCE where Negligent in the execution of their duties and that in all the here within related circumstances, the police conduct constitutes unjustifiable interference with the individual liberty of Plaintiff Andr Murray. Defendant Chief of Police Barry MacKnight

15

5th day of March 2009 70. Defendant Barry MacKnight as Chief of Police on the 5th day of March 2009, is responsible for the dispatch of three members of FREDERICTON POLICE FORCE, to therefore, attend the residential duplex at 29 31 Marshall Street, Fredericton, New Brunswick, Police officers who upon arriving at 29 31 Marshall Street did discover a law abiding and peaceful Plaintiff Andr Murray. Regardless of the peaceful circumstances which existed, the attending Defendant Police officers negligently and with apparent prejudice and entirely without probable cause did assault, then unlawfully and illegally dispensed a prolonged physical beating on Plaintiff Andr Murray, including inhumanely spraying of PEPPER SPRAY directly into Plaintiff Andr Murray eyes while he was pinned down on the ground. Violence disproportionate to the circumstances, which was morally unwarranted, a physical battery of plaintiff Andr Murray, which was absolutely unnecessary as Plaintiff Andr Murray had not yet been observed 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 and subsequent false imprisonment, involving excessive use of force, intentional infliction of mental suffering and or nervous shock upon Plaintiff Andr Murray as he was transported against his will on the 5th day of March 2009, please note, physical injuries which continue to plague Plaintiff Andr Murray till this day. 71. Defendant Chief of Police Barry MacKnight as Chief of Police has vicarious liability for the actions and damages caused by the here within named Defendant members of FREDERICTON POLICE FORCE who in their negligence did assault, battery, wrongful / false arrest and falsely imprison, Plaintiff Andr Murray using therefore, excessive use of force, causing intentional infliction of mental suffering and or nervous shock of Plaintiff Andr Murray while attending a peaceful law-abiding man at his residential civic address of 29 Marshall Street, Fredericton, New Brunswick, on the 5th 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 Fox Badge number: 346, Defendant Constable Patrick Small Badge number: 355, Defendant Constable 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 performance of 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 fundamental importance in a free and democratic society. It is constitutionally recognized in our country. Everyone must not only be secure, but feel, secure in their residence. A society that tolerates significant criminal intrusions into the privacy of one's home is a society that 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

16

themselves in anticipation of a need to defend themselves against such criminal enterprises. A society like that is not ours today, has not been ours in the past, and hopefully will not become ours in the future. The obligation of the Court is to give proper recognition to the sanctity of the home, to protect all citizens against such intrusions, and to preserve the public's confidence in the administration of justice. 74. For the here within named Defendant members of FREDERICTON POLICE FORCE to violate the sanctity of one's home and threaten to enter into their dwelling house to accost the Plaintiff is considered as an aggravating circumstances, the fact that the 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 was reckless 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 the attendant 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 for the dispatch of the here within named Defendant members of FREDERICTON POLICE FORCE to attend Two Nations Crossing, Fredericton, New Brunswick, Police officers who upon arriving at Two Nations Crossing, Fredericton, New Brunswick did discover a law abiding and peaceful Plaintiff Andr Murray. Regardless of the peaceful circumstances, the attending Defendant Police officers negligently with apparent prejudice and entirely without probable cause did assault, than unlawfully and illegally dispensed a prolonged physical beating on Plaintiff Andr Murray. Violence disproportionate to the circumstances, a physical battery of plaintiff Andr Murray, which was absolutely unnecessary as Plaintiff Andr Murray had not yet been observed or identified as breaking the law. The wrongful / false arrest and false imprisonment, involving excessive use of force, intentional infliction of mental suffering and or nervous shock upon Plaintiff Andr Murray May 07, 2008, caused physical injuries to Plaintiff Andr Murray with lingering psychological mental aguish. 76. Defendant Chief of Police Barry MacKnight as Chief of Police has vicarious liability for the actions and damages caused by the here within named Defendant members of FREDERICTON POLICE FORCE who in their negligence did assault, commit battery, wrongful / false arrest and false imprisonment, using therefore excessive use of force, causing intentional infliction of mental suffering and or nervous shock of Plaintiff Andr 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 Stafford badge number: 358, Defendant Constable Saunders, (badge number refused), and Defendant Constable Small Badge number: 355.

17

78. Defendant Barry MacKnight as Chief of Police was negligent in the performance of his duties, particularly in his failure to properly instruct Defendants: Constable Stafford, Police badge number 358, Defendant Constable Saunders, ( Police badge number refused when requested by victim Andr Murray), and Defendant Constable Small, Police Badge number 355; regarding the principle of a presumption of innocence as set out in Section 11 (d) of the Charter Rights and Freedoms. The principle of the presumption of innocence is of fundamental importance in a free and democratic society. It is constitutionally recognized in our country. For the here within named Defendant members of FREDERICTON POLICE FORCE to violate the principle of the presumption of innocence as set out in Section 11 (d) of the Charter Rights and Freedoms, who did accost the Plaintiff and used random violence and or threats of violence against a reasonably innocent person is especially egregious. The presumption of innocence requiring therefore an investigation of the circumstances, as they may have appeared to attending members of FREDERICTON POLICE FORCE was in this matter denied Plaintiff Andr Murray. The efforts of governments and Courts to uphold these fundamental rights of a democratic society must never cease. These rights are entrenched in the Charter of Rights and Freedoms. DAMAGES
79.

As a result of the negligent behaviour, actions of the subject named Defendant members of Fredericton Police Force, on the 7th day of May 2008, for that reason, thereby. inflicted upon Plaintiff Andr Murray, numerous bruises, cuts and abrasions, pulled muscles, painfully stretched tendons and joints, a damaged back, injury to the Plaintiffs right wrist, which has resulted in limited mobility of the Plaintiffs wrists for that reason reduced to short durations of activity. The Plaintiff as an Artist is consequentially suffering, limitation of mobility of the his 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 in both arms, has resulted in a loss of quality of life for the Plaintiff and limited earning capacity.
Plaintiff Andr Murray claims damages for negligence. Plaintiff Andr Murray claims damages for assault. Plaintiff Andr Murray claims damages for battery. Plaintiff Andr Murray claims damages for wrongful / false arrest. Plaintiff Andr Murray claims damages for wrongful / false imprisonment. Plaintiff Andr Murray claims damages for excessive use of force.

80.

81. 82. 83. 84. 85. 86.

18

87. Plaintiff Andr Murray claims damages for intentional infliction of mental suffering and or nervous shock. 88. Plaintiff Andr Murray claims damages for suffering transportation against his will and conscience. 7th day of May 2008 89. Plaintiff Andr Murray claims damages that on the 7th day of May 2008, the herewithin named defendant members of Fredericton Police Force used unnecessary and excessive force when they arrested and detained innocent Plaintiff Andr Murray. The application of force was disproportional in the circumstances, unnecessary, and unreasonable and that did cause a breach of Plaintiff Andr Murrays Charter rights under sections 7, 9 and 12 especially the most egregious denial of Plaintiff Andr Murrays Charter 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, consequently victimizing innocent Plaintiff Andr Murray, a violation of the Plaintiffs 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 Andr Murray claims that on the 7th day of May 2008 to have suffered at the hands of herewithin named members of FREDERICTON POLICE FORCE, who used excessive 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 damages for injuries sustained as a result of, as alleged herewithin was a unprovoked, therefore unnecessary and excessive use of force inflicted against Plaintiff Andr Murray at the hands 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 using unreasonably disproportional force, the Plaintiff has sustained, and will continue to suffer currently debilitating, likely prolonged and or permanent personal injury including but not limited to:
(a) (b) (c) (d) Feeling of humiliation, loss of self-esteem and selfconfidence. Anxiety. Depression. Emotional trauma.

19

94.

The Plaintiff claims damages because of demeaning and humiliating treatment suffered, on the 7th day of May 2008, traumatically sufficient that every time he sees the City 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 dignity and self-respect. These have been referred to as damages for "hurt and humiliation". The Plaintiff claims damages for loss of wages: past, current and future.

96. 97.

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

98.

The Plaintiff claims special damages for assault and battery. Plaintiff claims general 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 false imprisonment including transportation against ones will and or conscience. The Plaintiff Andr Murray is claiming punitive and exemplary damages with respect to all causes of action found or realized within. The Plaintiff claims damages for unlawful confinement/imprisonment, occurring on 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. The Plaintiff claims damages for unlawful confinement/imprisonment, on the 7th day of May 2008, from the time he was arrested at Two Nations Crossing, Fredericton, New Brunswick.

99.

100.

101. The Plaintiff Andr Murray seeks compensation payable to Plaintiff Andr Murray and, in particular, for the quantum of the Plaintiffs:

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

20

102.

The Plaintiff claims that the Defendants should pay the costs of the herewithin Notice of Action and any subsequent Notices of Motions as are required.
DATED at . . . . . . . . . . . . . . . . . . . . . . . , this . . . . .day of . . . . . . . . . . . . . . . , 2012. FAIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .le . . . . . . . . . . . . . . . . . . . . . . 2012
Avocat du demandeur (ou demandeur, sil nest pas reprsent par un avocat)

_______________________________________

Plaintiff: ANDR MURRAY Name of plaintiff: ANDR MURRAY Address for service within New Brunswick:

31 Marshall Street Fredericton, N.B. E3A 4J8

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

21