NATIONAL

A SOLDIER BECOMES A TARGET

The victim of a hazing in Afghanistan seeks redress in the courts

MICHAEL FRISCOLANTI October 8 2007
NATIONAL

A SOLDIER BECOMES A TARGET

The victim of a hazing in Afghanistan seeks redress in the courts

MICHAEL FRISCOLANTI October 8 2007

A SOLDIER BECOMES A TARGET

The victim of a hazing in Afghanistan seeks redress in the courts

MICHAEL FRISCOLANTI

Officially, Glenn Brownhall served three years in the Canadian army. He enlisted in April 2002 and was released in April 2005. But if you ask him when his career truly ended, he can pinpoint the precise date: Nov. 24,2003. “I loved the job,” he says now, sitting in his backyard in Barrie, Ont. “I miss it all the time. If this had not happened, I would still be there.” Brownhall was assaulted by two fellow soldiers during his one and only deployment to Afghanistan. The incident was never publicized, but both his assailants were later courtmartialled, fined $1,000, and in one case, sentenced to 10 days of house arrest. Brownhall barely knew his attackers; he had been flown into theatre halfway through the tour and assigned to a unit of strangers. “I heard someone say: ‘Let’s f-k the new guy,’ ” he recalls.

“There was a whole group of people from my I section there, and they were laughing their heads off. The next thing I know I’ve got my head rammed into the side of the tent, catchI ing punches.” He was kicked, slapped and choked. At one point, his comrades pinned ■ him to the ground and “dry-humped” him || from behind.

Pte. Brownhall reported the hazing to his superiors, but that only led to more harassI ment, he says. One warrant officer allegedly called him a “narc” and “a little girl,” and warned him, in no uncertain terms, not to approach the military police. “From the get-go, I it was ‘Glenn, shut up,’ ”

Brownhall says. Within days, the entire Canadian camp in Kabul was hearing rumours about the big-mouthed “whiner” who tattled on his section. “I was afraid,” the 31-year-old says. “When everybody else came back from a patrol, they could go to bed and feel fairly safe in the camp. I stopped sleeping. And for a long time,

I stopped eating.” Brownhall asked the brass to send him home, but instead they merely transferred him from job to job until the tour was over. He essentially spent three months looking over his shoulder. “They kept me there and mentally tortured me,” he says.

Injured from the beating, unemployed and suffering from post-traumatic stress disorder (PTSD), Brownhall is now suing the federal government for damages. He is not the first Canadian soldier to take the Forces to court. Countless others have tried, with little or no success. But Brownhall’s case (and that of Cpl. John Cross, another former serviceman) could force the military to rethink

the way it compensates some of Canada’s wounded troops—not those who are shot by the enemy or injured in a training accident, but those who are intentionally harmed by their own side. “What happened to me was not ‘in the course of my military duty,’ ” says Brownhall, who now collects a 60 per cent disability pension that the military concedes is “related to those traumatic events” he endured overseas. “This is certainly not what I signed up for.”

According to the Crown Liability and Proceedings Act, a soldier cannot sue the government for further compensation if he already receives a pension for the same set of circumstances. Simply put, the system protects Ottawa from having to pay twice for the same claim. Georges Dumont is a prime example. A onetime sergeant who served in Haiti, Cyprus and Somalia, he was diagnosed with PTSD and medically released from the army. He and 25 other veterans have long demanded—in court

OF THE TENT, CATCHING PUNCHES,’ HE SAYS. AFTER REPORTING IT, HE WAS LABELLED A ‘NARC.’

and in the media—a combined $80 million from the feds, saying the military was negligent by failing to provide proper counselling and support. Their lawsuits, though, have repeatedly failed. In the latest decision, the Federal Court of Appeal ruled that because Dumont and his comrades already receive disability pensions for their mental health problems, they have no legal grounds to sue.

But Glenn Brownhall and John Cross are asking the courts to consider a very distinct question: what if the circumstances leading to a soldier’s release are not just negligent, but deliberate? Should they be allowed to sue for compensation above and beyond their pensions? “The question ofintentional harmintentional damage to a career—is what is at the heart of this case,” says John Ryder-Burbidge, a Kingston lawyer who represents

Cross. “As a soldier, you accept the risk of injury or harm or even death at the hands of your enemies or other unavoidable accidents. But the question changes when a soldier is deliberately injured.”

Cross was a 13-year veteran of the Forces when he discovered that some of his commanders had submitted a bogus evaluation on his file. One of his superiors has since confessed that he was coerced by his bosses into signing the negative performance review, even though Cross did nothing to deserve a black mark on his record. Cross filed an official grievance with the Department of National Defence, and after waiting nearly four years for an answer, the chief of the defence staff finally ruled that he was not treated “in a fair and equitable manner.” It was too late, however. Cross was on sick leave by then, suffering from depression and anxiety. When he was medically released in 2001, Veterans Affairs awarded him a 50 per cent disability pension.

That’s enough, as far as Ottawa is concerned. Crown attorneys have filed motion after motion, asking the courts to dismiss both lawsuits before they ever reach trial. They argue that the current law is both straightforward and fair: the pension system—not the court system—compensates all wounded soldiers whose injuries are “attributable to or incurred during military service.” If a pension is paid for a particular injury, it doesn’t matter

how or why that injury occurred. The government is still immune to civil litigation.

In Cross’s case, however, that argument didn’t stick. Madame Justice Cheryl Lafreniere of the Ontario Superior Court ruled that the corporal’s claim should proceed to trial because the central issue—“the allegation of deliberate wrongdoing”—deserves its day in court. “While Cross may receive a pension that compensates him for the injury caused by this wrongdoing, he has not been compensated for the wrongdoing itself,” she wrote last November. “I find that Cross is not seeking double or enhanced recovery. He is seeking recovery for injuries and losses that are not necessarily covered by the disability pension.” The Crown is appealing.

If history is any suggestion, the Crown may also seek a deal. A handful of other soldiers

have tried to sue the military on the grounds of intentional harm, and, as with Cross, three of those cases were approved for trial. Yet in each one—despite the government’s repeated claims that a pension is sufficient—the feds chose to settle out of court. The most famous plaintiff was Matt Stopford, a retired warrant officer who was poisoned by his own troops during a 1993 tour in Croatia; he and the Crown finally reached a confidential agreement last summer. For Stopford, it was a satisfying end to years of bitter legal wrangling. But Ottawa was the real winner. Not only did the government avoid an embarrassing trial, but it maintained the legal status quo. To this day, there is arguably no courtordered precedent on how to deal with troops whose careers are deliberately derailed. “Is a pension the only recourse?” asks lawyer James G. Cameron, who represents Stopford. “Does it really give DND carte blanche to do whatever it wants with its soldiers? In our view, the answer is no.”

For Brownhall, that question has yet to be answered. Last month, Ontario’s Divisional Court ruled that parts of his lawsuit—including the “intentional infliction of mental suffering”—should proceed to trial. However, the same court also invoked Section 111 of the Pension Act, which states that before a lawsuit can continue, the plaintiff must exhaust all his options at the Department of Veterans Affairs. In other words, Brownhall must now apply for a further disability pension based on the same grounds laid out in his statement of claim. He isn’t optimistic. “I’m at a point where the law is just stacked so against me,” he says. “Basically, the army can do anything they want to and say: ‘Well, now you’ve got a pension. Suck it up.’ ”

Today, Brownhall spends most of his time

looking after his two young children while his wife works. He continues to suffer from chronic soreness in his neck and back, but the physical aches and pains are nothing compared to the mental hell he has endured. Until now, he never spoke publicly about what happened in that tent. “I am not the person I once was,” he says. “And I don’t really relish the idea of anybody knowing about this. A lot of people will think I’m a whiner. I’ve tried to do this as quietly as possible, get the law changed, get things sorted out, and get an apology.

“Nobody has ever once said: ‘Glenn, we’ve mistreated you,’ ” he continues. “Every time I pick up the newspaper and I see something about Afghanistan-which is constant—I think: God, these guys who are going over there really have no idea how unprotected they are from their own system. They need to know.” M