Courts Martial

COURT MARTIAL

 

Citation: R v MacLellan, 2011 CM 3005

 

Date:  20110520

Docket:  201067

 

General Court Martial

 

Canadian Forces Base Halifax

Halifax, Nova Scotia, Canada

 

Between: 

 

Her Majesty the Queen

 

- and -

 

Captain J. C. MacLellan, Accused

 

 

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

 

 

REASONS ON APPLICATION MADE BY THE ACCUSED FOR MAKING A NEW CHOICE OF TYPE OF COURT MARTIAL

 

(Orally)

 

INTRODUCTION

 

[1]               Captain MacLellan is charged with three offences punishable under section 85 of the National Defence Act (NDA) for having used insulting language to a superior officer.  Essentially, it is alleged that he used insulting words at three different times while having a single heated verbal exchange with his Commanding Officer, Lieutenant-Colonel Lewis, on 24 July 2010 at the gliding school in Debert, Nova Scotia.

 

[2]               Further to a second preliminary hearing, prior to plea and after the oaths were taken, the defence counsel for the accused, in accordance with section 191 of the National Defence Act (NDA), wanted the military judge presiding at this court martial to hear and determine, in the absence of the members of the court martial panel, about the right for the accused to make a new choice of type of court martial in order to allow Captain MacLellan to re-elect to be tried before a Standing Court Martial.

 

[3]               This preliminary motion is brought by way of an application made under Queen's Regulations and Orders (QR&O) sub-subparagraph 112.05(5)(e) and article 112.07 as a question of law or mixed law and fact to be determined by the military judge presiding at this General Court Martial and the hearing was hold by videoconference on 21 April 2011.

 

THE PROCEEDINGS

 

[4]               The three charges set out in the charge sheet dated 29 November 2011 were preferred by the Director of Military Prosecutions on 1 December 2010.

 

[5]               Considering that sections 165.191 and 165.192 of the NDA don't have any application because of the nature of the offence the accused is charged with, which is insubordination pursuant to section 85 of the NDA, then Captain MacLellan was notified to make a choice by the Court Martial Administrator (hereinafter the CMA) pursuant to paragraph 165.193 (2) and he chose, according to his counsel, to be tried by a General Court Martial.

 

[6]               In accordance with section 165.25 of the NDA, the Chief Military Judge assigned me to preside at the court martial of Captain MacLellan.  On 1 March 2011, the CMA convened the General Court Martial of Captain MacLellan in order to be held on 4 April 2011 in Halifax.

 

[7]               On 4 April 2011, the court had to deal with a first preliminary application made by the prosecution concerning the admissibility of an unofficial confession made by the accused.  At the end of this first hearing, on 6 April 2011, the accused's defence counsel indicated to the court Captain MacLellan's interest to make a new choice of type of court martial.  The prosecutor told the court that he would like to discuss with DMP's authorities before taking any position on this issue.

 

[8]               The day after, before the start of the hearing on the accused's preliminary application under the Canadian Charter of Rghts and Freedoms (hereinafter the Charter) concerning an alleged abuse of process, the prosecutor indicated to the court that if the accused would like to make a new choice of type of court martial by choosing to be tried by a Standing Court Martial instead of a General Court Martial, he would not consent to such re-election by Captain MacLellan.

 

[9]               Then, I indicated to the defence counsel that if he wants the court to deal with this issue, he will have to do it through a preliminary application.  The defence counsel told the court that he didn't want to make such application at that moment.

 

[10]           At the end of the second hearing, on 16 April 2011, accused's defence counsel clearly indicated to the court that he intended to present an application for permitting his client to make a new choice of type of court martial.  The prosecutor reiterated that he would not consent to a re-election by the accused to be tried by a Standing Court Martial.  I told both parties that once I would have provided my decisions on the two preliminary applications, I would be ready to hear about this application.  However, I clearly stated to the defence counsel that he will have to present a written notice as required at paragraphs 112.04 (1) and (2) of the QR&O.  He said that he would do so in the next following two weeks.

 

[11]           However, on 20 April 2011, on my request, a conference call took place with the prosecutor and defence counsel where I told them that I would be ready to hear the accused's application concerning his right to make a new choice of type of court martial by videoconference, which is sooner as I announced initially, because I thought it would help to expedite the proceedings.  They both agree to proceed in that way and the hearing concerning the present preliminary application was held by the court on 21 April 2011, in the presence of Captain MacLellan.

 

POSITION OF THE APPLICANT

 

[12]           Captain MacLellan submits to the court that there is no rule or regulation governing re-election at this stage.  According to him, the military judge presiding at this General Court Martial has an inherent jurisdiction over its procedure pursuant to subparagraph 179(1) (d), as stated in the court martial decision in Lelièvre[1], and he can permit the accused to re-elect to be tried before a Standing Court Martial.

 

[13]           Defence counsel said to the court that according to the Court Martial Appeal Court (hereinafter the CMAC) decision in Trépanier[2], it was clearly established that the right for the accused to elect before the type of court martial of his choice is part of the fundamental principle of justice of full answer and defence under the Charter.

 

[14]           As such, the right to make an informed decision about the type of court martial an accused would like to see the charges dealt with is part of this principle of fundamental justice in accordance with our constitution.  Further to the discovery he made about the evidence through both previous voir dire, defence counsel is of the opinion that his client has the right to re-elect because his understanding of what he's facing is better now than it was on the first day of the proceedings.  By being allowed to make a new choice of type of court martial in order to be tried before a Standing Court Martial, defence counsel says that it will avoid some duplication in the evidence he intents to put before the court martial and that he is convinced that his client will have a fair trial before a Standing Court Martial presided by the same military judge who is presiding at the present General Court Martial.  Also, considering that the panel has not been sworn in yet, then it still an appropriate time for his client to proceed with a re-election.  Finally, he puts to the court that the right to elect includes the right to re-elect if circumstances changed, which he pretends to be the case.

 

[15]           Finally, if his client is allowed to re-elect, he would like the court to order that all the evidence adduced during both voir dire be transferred in the main trial.

POSITION OF THE RESPONDANT

 

[16]           The prosecutor submits to the court that paragraph 165.193(5) of the NDA provides all the answers about the procedure to be followed concerning a new choice by the accused to be tried by a different type of court martial.  Then, in order to do so, he takes the position that written consent of the DMP is necessary for the accused to re-elect in order to be tried by a Standing Court Martial, and it was decided that such consent won't be given.

 

[17]           He says that section 165.193 of the NDA was enacted in 2008 by Parliament, with some other provisions, in response to the CMAC's decision in Trépanier[3].  He suggests that paragraph 5 of this section is set up to balance prosecutorial discretion.  He tells the court that the DMP has the right to refuse such request made by the accused without providing any specific reason, and that the court has no right to review the prosecutorial discretion given to the DMP by the NDA to make a decision on this matter.

 

[18]           He submits that the accused elected first on the mode of trial, which is to be tried before a court martial and when asked, he made a choice about the type of court martial he would like to be tried before, which is a General Court Martial.  An informed decision was made each time by the accused, and the prosecutor is of the opinion that the panel can do the job without any problem on this court martial.

 

[19]           Finally, the prosecution says that the court has no authority to transfer any evidence in the main trial because, as a matter of best evidence to be presented to the court, such thing can not be done unless the prosecutor consents to do so.  Because there is no consent from the prosecution, then the only way to adduce evidence for both parties is to call the witnesses and to produce documents in accordance with the rules of evidence.

 

THE ISSUES

 

[20]           This application made by the applicant raises some issues, and in the light of the parties' respective position, they can be put as questions to be answered by this court as follows:

 

a.       Is paragraph 165.193(5) of the NDA must received application at this stage of this trial by General Court Martial, and if yes, how does it apply to this case?

 

b.      If the answer to the first question is no, then is there any other applicable provision in the NDA or in any other act that would indicate to this court if the accused may make or not a new choice to be tried by a Standing Court Martial?

 

c.       If there is no other applicable provision or act, does the court have any inherent power to decide if the accused may make a new choice to be tried by a Standing Court Martial?

 

d.      If Captain MacLellan is permitted by this court to choose to be tried by a Standing Court Martial, who will preside?

 

e.       If Captain MacLellan is tried by Standing Court Martial, is the evidence introduced during both voir dire can be transferred as evidence in the main trial?

 

THE ANALYSIS

 

Application of paragraph 165.193(5) NDA

 

[21]           On 24 April 2008, the CMAC issued its decision in Trépanier[4].  As I mentioned in my decisions in Strong[5] and Brisson[6] about the right for the accused to choose the type of court martial he would like to be tried by, it did two things:

 

a.       Declared void ab initio the authority given to the DMP in the NDA to determine the type of court martial that is to try an accused, and consequently, declare constitutionally invalid section 165.14 of the NDA and the words "in accordance with the determination of the Director of Military Prosecutions under section 165.14" in subsection 165.19(1) of the NDA and article 111.02(1) of the QR&O; and

 

b.       Established that a person subject to the Code of Service Discipline and charged with a service offence must be given the opportunity to exercise his right to choose the type of court martial he wants to be tried by further to the preferral of charges by the DMP, and that such right does belong only to that person.

 

[22]           Further to the Trépanier[7] decision, amendments were made to the NDA by Parliament in order to frame the right of an accused to choose the type of court martial he would like to be tried by.  These amendments were in force on 18 July 2008.

 

[23]           Among those amendments, sections 165.191 to 165.193 of the NDA were added in the Court Martial Administrator section of the act to permit an accused person, in certain circumstances, to choose the type of court martial that will be convened.  While section 165.191 of the NDA is about service offences for which a General Court Martial shall be convened by the CMA, and section 165.192 of the NDA is on the service offences for which the CMA shall convene a Standing Court Martial, section 165.193 of the NDA is for service offences for which the CMA shall convene the type of court martial chosen by the accused.  The accused made his initial choice in accordance with section 165.193 of the NDA because of the nature of the charges laid against him.

 

[24]           As a matter of fact, the correlative provisions in the regulation with this latter section of the NDA can be found in Chapter 111 of the QR&O which is entitled "Convening of Courts Martial and Pre-Trial Administration."  More specifically, sections 111.023, 111.024 and 111.025 of the QR&O addressed the issue of the choice of type of court martial by the accused.

 

[25]           A plain reading of section 165.193 of the NDA clearly reveals that this section was added by Parliament in order to provide the accused an opportunity to tell the CMA about the type of court martial he wants to be tried by.  Once the court martial has started, the CMA has no authority to impose a change of type of court martial.

 

[26]           Then, I conclude that the application of section 165.193 of the NDA is limited to permit an accused person, in certain circumstances, to choose the type of court martial that will be convened by the CMA and that it has no application once a court martial has started in accordance the convening order.

 

[27]           It is my conclusion that section 165.193 of the NDA has no application at this stage of these General Court Martial proceedings.

 

Is there any other applicable provision in the NDA or any other act?

 

[28]           The reading of the NDA makes also clear that there is no applicable provision for a new choice of type of trial by the accused once the court martial has started and before a plea is entered.  As a matter of procedure, there is nothing that can be found in the regulation other than section 101.07 of the QR&O providing that:

 

"When in any proceedings under the Code of Service Discipline a situation arises that is not provided for in QR&O or in orders or instructions issued to the Canadian Forces by the Chief of the Defence Staff, the course that seems best calculated to do justice shall be followed."

 

[29]           Very often, the other act that can be used by the court as a source of comparison on some procedural matters is the Criminal Code of Canada.  Interestingly enough, nobody mentioned the Criminal Code provisions on re-election in order to tell the court to what extent they could be relevant to the present issue.

 

[30]           As per section 536 of the Criminal Code, if the accused is charged with an offence allowing him to choose the mode of trial, which is to be tried by a judge alone or by a judge with a jury, he is allowed to make this choice.

 

[31]           As a matter of fact, if for some reasons, this accused wants to re-elect the mode of trial by asking to by tried by a judge alone instead of a judge and a jury, subparagraph 561(1)(c) of the Criminal Code provide some indication about such re-election.  It reads in part as follows:

 

561. (1) An accused who elects or is deemed to have elected a mode of trial other than trial by a provincial court judge may re-elect

 

...

 

(c)  on or after the fifteenth day following the completion of the preliminary inquiry, any mode of trial with the written consent of the prosecutor.

 

[32]           What it does mean to the court is that a superior court judge, presiding at a trial before a judge and jury, could allow an accused, in some circumstances such as when prior empanelling the jury or prior calling the jury to sit for the first time after a plea was entered, to re-elect his mode of trial.  However, it belongs to the judge presiding at this trial to assess the circumstances and also to request prosecution's consent in order to do so.

 

[33]           Case law made clear that prosecution's consent is necessary under this article and that the court cannot substitute his own discretion to the prosecutorial's discretion or challenge it without having clear indication that it was exercised in an abusive manner.

 

[34]           However, by itself, this provision has no application to the procedure to be followed by a court martial.

 

[35]           Then, it is the conclusion of this court that there is no other applicable provision in the NDA or in any other act that would indicate to this court if the accused may make or not a new choice to be tried by a Standing Court Martial.

 

Does the court have any inherent power to decide if the accused may make a new choice to be tried by a Standing Court Martial?

 

[36]           Considering the absence of any provision that would tell the court how to proceed on an application by the accused to make a new choice of type of court martial once it has started but before he entered any plea, then the court is allowed to ask itself if it is a matter that it is allowed to settle on the basis of its own authority.

 

[37]           As I indicated earlier, the CMAC's decision in Trépanier[8] provides the court with the very nature of the right of an accused to elect on the type of court martial.  In that regard, the CMAC established about this issue that:

 

a.       A person subject to the Code of Service Discipline and charged with a service offence must be given the opportunity to exercise his right to choose the type of court martial he wants to be tried by, further to the preferral of charges by the DMP, and

 

b.      The right to elect the type of court martial does belong only to that person.

 

[38]           At paragraph 93 of the Trépanier's decision[9], the CMAC talked about the nature of this right to elect and how it fits within the right to full answer and defence:

 

With respect, the right at play here is not the right to elect but the right for a person charged to make a full answer and defence and to control the conduct of his or her defence.  This right to full answer and defence and control thereof is guaranteed by paragraph 11d) of the Charter as part of the right to a fair hearing.  As previously mentioned, it is a constitutional right which has been found by the Supreme Court of Canada to be required by the principles of fundamental justice in the Swain case…  It is at this juncture, however, that the right to choose the trier of facts may so interfere with the accused's constitutional right to a full defence and to control the conduct of that defence as to deprive him or her of that constitutional right in violation of the principles of fundamental justice.

 

[39]           So, for the court, it is to decide if at this stage of the proceedings it will allow the accused to choose for a second time the trier of facts as part of the exercise of his constitutional right to a fair hearing, i.e., to make a full answer and defence and to control the conduct of his defence.

 

[40]           What would authorize the court to make such decision?  It was suggested by the accused that subparagraph 179(1) (d) of the NDA would be the provision that would authorize the court to make that decision.  This subparagraph reads as follows:

 

179. (1)  A court martial has the same powers, rights and privileges as are vested in a superior court of criminal jurisdiction with respect to

 

(a) the attendance, swearing and examination of witnesses;

 

(b) the production and inspection of documents;

 

(c) the enforcement of its orders; and

 

(d) all other matters necessary or proper for the due exercise of its jurisdiction, including the power to punish for contempt.

 

[41]           I do agree with the defence counsel that, as stated by the Chief Military Judge in Lelièvre:

 

… the Court Martial has an inherent power to control its procedure in respect of residual matters that are not dealt with in the Act or regulations.[10]

 

[42]           However, the court martial can do so if it is a matter within its authority, which mean something a superior court of criminal jurisdiction is empowered to do. Considering my comments on the application of subparagraph 561(1) (c), of the Criminal Code, I conclude that, while being at the same stage of the proceedings as this court is, a superior court of criminal jurisdiction is vested with the authority to allow an accused to re-elect the mode of trial in order to be tried by a judge alone instead of being tried by a judge with a jury.

 

[43]           Now, having concluded that the application made by the accused in order to determine if the court may allow him to make a new choice of type of court martial in order to be tried before a Standing Court Martial is a matter within the authority of this General Court Martial to decide, the court has to decide if it will permit Captain MacLellan to do so at this stage of the proceedings.

 

[44]           It is clear for the court that, absent of any provision in the NDA on this matter, the court shall give effect to the constitutional right of the accused to a fair trial by allowing him to choose to be tried by a Standing Court Martial instead of a General Court Martial.  By doing so, the court will permit the accused to make a full answer and defence and to control the conduct of his defence.

 

[45]           As a matter of fact, accused's defence counsel clearly stated to the court that circumstances have changed since his client initially chosen to be tried by a General Court Martial because, further to the hearing on both voir dire, his client has now a better understanding of the evidence concerning this case.  In essence, the court understands that, absent of any preliminary inquiry process in the court martial system, both voir dire has served also as a discovery process for the accused in order to prepare his case and it has led him to ask the court to give him another opportunity to choose who would be the trier of facts.

 

[46]           The court considers that what it is invoked by the accused in support of his application is exactly the reason why he shall be permitted to make a new choice of type of trial.  If the accused take the position that because he has a better knowledge now of the evidence disclosed to him about his case then before the trial started, he would like to be tried by and conduct his defence before a Standing Court Martial, he shall be allowed to do so as a matter of exercising his constitutional right to a fair trial.

 

[47]           Can it be done at this stage of this General Court Martial's proceedings?  The court concludes that in the circumstances of this case, it can be done because:

 

a.       The accused has not entered a plea yet;

 

b.      The panel has not been called and sworn in.  Consequently, no evidence whatsoever has been put before the trier of facts in order for it to make a determination about the innocence or guilt of the accused concerning the three charges on the charge sheet;

 

c.       Despite the two decisions I rendered on preliminary matters brought by both parties as matters law or mixed law and fact to be decided by the military judge presiding at the court martial, one concerning the admissibility of an unofficial confession made by the accused, and the other requesting a stay of the proceedings of the court martial, no matter what the type, the type of court martial was not considered as a factor on none of this issues.  Reality is that the decision would have been the same, no matter what is the type of court martial; and

 

d.      In spite it could be considered that the trial as commenced because the court martial started to hear evidence that goes to innocence or the guilt of the accused because I ruled on some of it further to the voir dire on the admissibility of the unofficial confession made by the accused, the military judge who is presiding at the court martial, no matter what is the type, would be the same, which will not affect the course or the fairness of the trial in any way. Moreover, I will expand on this specific issue while I will discuss later who may preside.

 

[48]           Now that I determined that the accused can be permitted to make a new choice of type of court martial and that choice can be exercised at this stage of these proceedings is the DMP approval is necessary to do so?

 

[49]           This court concludes that the DMP's approval in order for this court to permit the accused exercise his right to re-elect before a Standing Court Martial is not necessary.  In Trépanier, the CMAC clearly stated that he has not the same status as a prosecutor as defined in the Criminal Code.  The CMAC said:

 

… the Director is a recent statutory creation and that, unlike the Attorney General of Canada and the provincial Attorney Generals, he possesses none of the historical common law prerogatives and privileges held and exercised by the Attorney General of England.[11]

 

[50]           Then, if the CMAC concluded that the DMP has none of the common law prerogatives and privileges held by a prosecutor as this function is defined in the Criminal Code, and that nothing is provided in the NDA in order for the DMP to exercise such prerogatives and privileges at this stage, I conclude that there is no prosecutorial discretion to be exercised by the military prosecutor on behalf of the DMP in order for the court to permit the accused to make a new choice of type of court martial.

 

[51]           It is my conclusion that this General Court Martial has an inherent power to permit Captain MacLellan to choose to be tried by a Standing Court Martial and that DMP does not possess any prosecutorial discretionary authority that would require the court to get his consent to do such thing.

 

Who will preside at the court martial?

 

[52]           Now, if the accused chose to be tried by a Standing Court Martial, is the military judge presiding at the General Court Martial would be allowed to preside that different type of court martial.

 

[53]           The Chief Military Judge assigned judges to preside at a court martial, as stated at section 165.125 of the NDA, which reads as follow:

 

165.25 The Chief Military Judge assigns military judges to preside at courts martial and to perform other judicial duties under this Act.

 

[54]           The term "court martial" is defined at section 2 of the NDA and it reads as follows:

 

"Court martial" includes a General Court Martial and a Standing Court Martial

 

[55]           I conclude that once a military judge is assigned to preside at a court martial by the Chief Military Judge, he is assigned to preside at either types of court martial, no matter what if there is a change.  As a matter of facts, I can tell to both parties that I was assigned by the Chief Military Judge to preside at the court martial of Captain MacLellan.

 

[56]           Consequently, I consider that if Captain MacLellan, once permitted, chose to be tried by a Standing Court Martial, I will continue to preside at his court martial in accordance with his choice about the type of court martial.

 

Is the evidence introduced during both voir dire can be transferred as evidence in the main trial?

 

[57]           The court concludes that the evidence introduced during both voir dire during the General Court Martial could be used as evidence in the main trial of the Standing Court Martial only if both parties agree to do so.  The law is clear on such matter.  Evidence in a voir dire may be used in the main trial itself only if both parties agree[12].

 

DISPOSITION

 

[58]           Then, the court:

 

GRANTS in part the application made by Captain MacLellan

 

PERMITS Captain MacLellan to make a new choice of type of court martial in order to allow him to be tried by a Standing Court Martial.

 

DISMISSES Captain MacLellan's request to the court for ordering the transfer of the evidence adduced during both voir dire in the main trial.

 

 

 

 

 

Counsel:

 

Major P. Rawal, Canadian Military Prosecution Services

Counsl for Her Majesty the Queen

 

Mr Kevin MacDonald, Crowe Dillon Robionson Barristers and Solicitors, 2000-7075 Bayers Road, Halifax, Nova Scotia, B3L 2C1

Counsel for Captain John C. MacLellan