Civil Jurisdiction of Canadian Courts over United States Military Personnel in Canada

Abstract

THE recent case of Gallant v. West' involved an action for an alleged libel committed in line of duty by a military commander of a United States air force base in Newfoundland. The claim alleged that a regulation issued by commander for troops under his command, placing offlimits a portion of plaintiff's hotel, was libellous and detrimental to his business. Walsh C.J. of Supreme Court of Newfoundland accepted commander's plea of privilege. He considered that the North Atlantic Treaty incorporates existing law in respect of civil claims, and that forces of a friendly state in Canadian territory by consent for public purposes of their state stand, in respect of civil claims against their commanders for acts done in performance of their duty, in same position as Her Majesty's Canadian Forces in any part of Canada.2 The learned Justice was quite correct in his conception of Canadian law in respect of status of visiting forces. A similar position has been taken in several British decisions. The case of Szalatnay-Stacho v. Fink3 concerned an action for libel allegedly committed within course of his official duty by public prosecutor of Czechoslovak military court of appeal, a tribunal established in United Kingdom under Allied Forces Act, 1940.4 It is significant that here also defence contained no plea of immunity, and was based entirely on absolute or qualified privilege. According to Czech law no action founded on libel could be brought against a state official for his actions in that capacity. Somervell L.J. held on appeal that comity of nations did not compel courts in Great Britain to apply Czechoslovak law to acts done in Great Britain and applying lex loci delicti commissi held defendant entitled only to defence of qualified privilege. A similar position was taken by Goddard C.J. in Reeves v. DeaneFreeman.5 The plaintiff was injured by a lorry belonging to Canadian army, which was being driven by defendant, a Canadian soldier, in course of his duty. Again, no plea of immunity was made. The claim was rejected on ground that by virtue of section 2(3) (b) of Visiting Forces (British Commonwealth) Act, 1933,' defendant was entitled to