Courts Martial

 

COURT MARTIAL

 

Citation:  R. v. Pear, 2015 CM 3020

 

Date:  20150409

Docket:  201366

 

Standing Court Martial

 

Canadian Forces Base Petawawa

Petawawa, Ontario, Canada

 

Between: 

 

Her Majesty the Queen

 

- and -

 

Warrant Officer W.L. Pear, Applicant

 

 

Before:  Lieutenant-Colonel L.-V. d’Auteuil, M.J.

 

DECISION ON AN APPLICATION BY THE ACCUSED ON STRIKING CHARGES LAID PURSUANT TO SECTION 85 OF THE nATIONAL dEFENCE ACT

 

(Orally)

 

[1]               Warrant Officer Pear is charged with one service offence punishable pursuant to section 97 of the National Defence Act for drunkenness while at a mess dinner on Canadian Forces Base (CFB) Petawawa, on or about 1 November 2012, and with two service offences punishable under section 85 of the National Defence Act (NDA) for having used insulting language to a superior officer at the same mess dinner.

 

[2]               This application was made prior to the accused entering a plea pursuant to paragraph 112.05(5)(e) of the Queen’s Regulations and Orders for the Canadian Forces (QR&O). Essentially, Warrant Officer Pear is seeking an order from the court that charges laid under section 85 of the NDA be struck from the charge sheet because of the wording of Note (H), at article 103.18 of the QR&O.

 

[3]                Essentially, the evidence put before the court on this issue is the affidavit of Mrs. Nicole Bélanger-Drapeau. Just to summarize briefly the facts:

 

(a)                an alleged incident occurred on 1 November 2012;

 

(b)               a complaint was made the day after, 2 November 2012, regarding this issue;

 

(c)                charges were laid on 22 March 2013;

 

(d)               the matter was referred by the referral authority to the Director of Military Prosecutions on 26 July 2013;

 

(e)                charges were preferred by the Director of Military Prosecutions' representative on 2 August 2013; and

 

(f)                 this court was convened as a General Court Martial on 5 November 2014 and, I would say, reconvened as a Standing Court Martial on 22 January 2015.

 

[4]               Does the court have authority to strike charges laid under section 85 of the NDA? If yes, should those charges be struck from the charge sheet as requested by the applicant?

 

[5]               I note that, as stated by the Supreme Court of Canada in R. v. Anderson, 2014 SCC 41, at paragraph 1:

 

[T]he prosecutor’s decision is a matter of prosecutorial discretion which is reviewable by the courts only for abuse of process.

 

[6]               Also, note (H) of article 103.18 reads as follows:

 

Mere abusive or violent language used by, or contemptuous behaviour on the part of, a drunken person should not be charged under section 85 of the National Defence Act. As a general rule, the interests of discipline would be served by laying a charge under section 97 of the National Defence Act (see article 103.30 - Drunkenness) or section 120 [and I would suspect it is a referral to section 129] of the National Defence Act (see article 103.60 - Conduct to the Prejudice of Good Order and Discipline).

 

[7]               As stated at article 1.095 of the QR&O, a note, such as this one, is for guidance of members and has no force and effect.

 

[8]               The decision to prefer any charge in the military justice system before a court martial is a matter of prosecutorial discretion by the Director of Military Prosecution and his representatives.

 

[9]               The court has no authority to strike, on its own, a charge preferred by the Director of Military Prosecutions or his representative. The trial proceedings do not include a preliminary inquiry and, in the absence of such proceedings, being at trial, the court must proceed with the charges on the charge sheet.

 

[10]           The Note has no binding effect on the court and is more a guidance for authorities who lay or prefer charges in the military justice system.

 

[11]           He is only in the context of an abuse of process application concerning the conduct of the prosecution that the court may review the decision to prefer charges by the prosecution; and, it is from that perspective only. Here, no such thing has been claimed by the applicant; it is not an application for an abuse of process.

 

FOR THESE REASONS, THE COURT:

 

[12]           DISMISSES the application made by the applicant regarding the striking of charges laid pursuant to section 85 of the National Defence Act.

 

Counsel:

 

The Director of Military Prosecutions as represented by Major A.-C. Samson and Captain M.L.P.P. Germain

 

Mr M. Drapeau and Mr J.M. Juneau, Michel Drapeau Law Office, 192 Somerset Street West, Ottawa, Ontario  K2P 0J4, Counsel for Warrant Officer W.L. Pear