The shocking and incredible elements of the case against the government.
Lawyers filed statements of claim in federal court in Toronto yesterday on behalf of eight Canadian veterans who are suing the federal government. Details of the suit were made available Wednesday night and,in an internet exclusive, I am publishing the details of the suit as described in the statements of claim.
The plaintiffs have presented a number of factual elements which they intend to prove in court, that will show that the government committed the following:
- Negligence
- Negligent Misrepresentation
- Breach of Fiduciary Duty
- Breach of the plaintiffs Section 7 Charter rights
- Battery
- Wilful Concealment
- Affected defendants mental and psychological state
- Misdiagnosis
Were the defendant in this case an individual or a corporation, it’s highly likely that they would also be facing criminal charges in Court of Queen’s Bench. But this is the government, and the only punishment available to them comes in the financial form. This means that the taxpayer is ultimately on the hook to serve the sentence whenever the government commits a crime.
What this is meant to do is to teach the government a lesson, that flouting the law comes at a price. It will then be up to voters to decide if the government deserves clemency or the death penalty, metaphorically of course.
Some of what is contained here could be upsetting. It is unfathomable that any government would treat its soldiers the way these defendants were treated, but yet it happened. It must be held accountable for these actions so that it never happens again.
CAUSES OF ACTION
65. Pursuant to s. 3 of the
Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, the Defendant is
directly and vicariously liable for any wrongs committed by DND, CAF or any of
its employees and agents.
Negligence
The Government owed a duty of care to CAF Members. The Government knew or ought to have known that if it carried out its duties negligently, it could reasonably cause the kind of harm that was in fact suffered by the Plaintiffs.
The Government was required to:
a. use reasonable care to ensure
the safety and well-being of the Plaintiffs;
b. obtain the införmed consent
of the Plaintiffs before requiring them to take Mefloquine; and
c. use reasonable care in the
operation, administration, prescribing, dispensing, managing, supervising, and
monitoring of the use of Mefloquine.
The Government breached that duty of care by:
ordering the Plaintiffs, on pain of court martial, to take a drug that it knew or ought to have known was not safe and could have serious and long term adverse health effects;
ordering the Plaintiffs to take Mefloquine without conducting a proper medical screening for contraindications;
failing to provide a medication guide or other information to the Plaintiffs regarding the proper use of Mefloquine;
failing to adequately warn the Plaintiffs of the risks associated with taking Mefloquine;
failing to warn the Plaintiffs not to consume alcohol while taking Mefloquine because of the risk of adverse interactions with alcohol, including the greatly increased risk of experiencing mental problems;
failing to tell the Plaintiffs to immediately stop taking Mefloquine if they experienced any of the following symptoms: mental problems, including anxiety, depression, paranoia, hallucinations, feeling restless, confused or disoriented, unusual behavior or changes to mood; nervous system changes, including dizziness, spinning, ringing in the ears, loss of balance, seizures or convulsions; or issues with nerves, including prickling or tingling sensations, numbness and loss of an ability to feel pain or changes in temperature, a burning or sharp pain, loss of balance or co-ordination, feeling pain from a very light touch, or muscle weakness or paralysis;
ordering the Plaintiffs to continue taking Mefloquine after the above symptoms were reported;
failing to monitor or record adverse reactions and complications experienced by the Plaintiffs and other CAF Members as a result of taking Mefloquine
failing to properly investigate the side effects, adverse reactions and complications experienced by the Plaintiffs and other CAF Members as a result oftaking Mefloquine;
failing to consider and account for the risk of interaction of Mefloquine with other psychological conditions and injuries commonly experienced by CAF Members including anxiety, depression, post-traumatic stress disorder and traumatic brain injury;
failing to provide and/or consider suitable alternative anti-malarial drugs to mefloquine;
requiring that the Plaintiffs take an anti-malarial drug that was unsuitable for use in a military or combat setting;
failing to provide necessary medical treatment to the Plaintiffs in a timely manner;
failing to refer the Plaintiffs to appropriate medical specialists in a timely manner, or at all;
failing to administer Mefloquine to the Plaintiffs in a safe and competent manner;
putting its own interests ahead ofthe interest of the Plaintiffs by ignoring and remaining wilfully blind to the risks of Mefloquine to individual CAF Members; and
such further and other particulars as may become apparent and counsel may advise.
As a result of the Government’s breach of its duty of care, the Plaintiffs suffered damages as set out below.
Negligent Misrepresentation
The Plaintiffs were highly dependent on information provided by the Government regarding the risks posed by Mefloquine. The Government knew that the Plaintiffs would rely on information provided by DND and CAF to the Plaintiffs in order to make decisions regarding risks to their health and safety.
DND and CAF repeatedly represented to the Plaintiffs and CAF Members as a whole that Mefloquine was safe. These representations specifically downplayed or denied the risks associated with Mefloquine and were inaccurate, incomplete, false, deceptive and/or misleading.
Canada knew or ought to have known that the representations made by CAF and DND regarding the safety of Mefloquine were inaccurate, incomplete, false, deceptive and/or misleading.
The Plaintiffs state that Canada owed a duty of care to the Plaintiffs and is liable in deceit and/or negligent misrepresentation for the Representations that were inaccurate, incomplete, false, deceptive and/or misleading and as a result of which the Plaintiffs’ suffered damages as set out below.
Breach of Fiduciary Duty
The Government owed the Plaintiffs a fiduciary duty. The relationship between the Plaintiffs and the Defendant is one of complete trust, reliance and dependency. While in the Canadian Armed Forces, the Government had extraordinary and unilateral powers over the lives of CAF Members. Because of the hierarchical and authoritarian command structure of the CAF, the binding nature of enrolment in the CAF, the oaths and declarations required by CAF Members, and the strict requirement to follow all orders of superiors, the Plaintiffs were in a position of complete vulnerability and dependence on the CAF and DND. In particular, the Plaintiffs were at the Government’ s mercy regarding what drugs they were ordered to take prior to and during deployment. Prior to and while deployed, the Government was solely responsible for the protection of the health, safety and well-being of the Plaintiffs.
The Government breached its fiduciary duties to the Plaintiffs. The particulars of the breach include:
putting its own interests ahead of the interest of the Plaintiffs by ignoring and remaining wilfully blind to the risks of Mefloquine to individual CAF Members;
ordering the Plaintiffs to take Mefloquine;
ordering the Plaintiffs to take Mefloquine without conducting a proper medical screening for contraindications;
ordering the Plaintiffs to continue taking Mefloquine after adverse symptoms were reported; and
failing to safeguard the physical and psychological health of the CAF Members.
Charter claim (breach of s.7)
I’m just going to note here that Omar Khadr claimed that the government violated his section 7 charter rights. Should the plaintiffs win this case, they could get the $5,000,000 they are asking just for this cause alone. It’s still less than half of what was paid to a confessed murderer.
The Government’ s action in forcing the Plaintiffs to take a drug that seriously impaired the Plaintiffs mental and physical health and caused severe psychological harm is an infringement of the Plaintiffs right to security of the person as enshrined in s. 7 of the Canadian Charter ofRights and Freedoms. This infringement is not justified in accordance with the principles of fundamental justice.
The breaches of the Plaintiffs’ Charter rights are not demonstrably justified in a free and democratic society.
The Plaintiffs are entitled to a declaration that their Charter rights were infringed.
The Plaintiffs are also entitled to a monetary remedy pursuant to section 24(1) of the Charter in order to:
compensate the Plaintiffs for pain and suffering;
vindicate the Plaintiffs’ fundamental human rights; and
deter systematic violations of a similar nature by the Government in future.
Battery
The Plaintiffs assert that the forced ingestion of Mefloquine without their informed consent, in the circumstances pleaded above, amounts to battery.
Wilful Concealment
The Government has and continues to willfully conceal the fact that the injuries suffered by the Plaintiffs were caused by the fact that the Government ordered the Plaintiffs to take mefloquine.
Mental and psychological state
The Plaintiffs have suffered severe and debilitating mental and psychological conditions as described above as a result of taking Mefloquine and otherwise. As a result of these severe and debilitating mental and psychological conditions, the Plaintiffs were previously incapable of commencing a claim against the Defendant.
Misdiagnosis
The Plaintiffs have been misdiagnosed by doctors, including doctors employed by the government, as suffering only PTSD or Traumatic Brain Injuries, when in fact, the PlaintifTs were suffering from neurological and psychological injuries caused by mefloquine.
Stay tuned, there will be a lot more to follow.
D.B.
The Advocate-Equalizer 