Courts Martial

Citation: R. v. Captain (Ret) M.R. Benoît, 2008 CM 1010

Docket: 200763

STANDING COURT MARTIAL

5 AREA SUPPORT GROUP

LONGUE-POINTE GARRISON

MONTRÉAL, QUEBEC

Date: 2 April 2008

PRESIDING: COLONEL MARIO DUTIL, CHIEF MILITARY JUDGE

HER MAJESTY THE QUEEN

(Respondent)

v.

CAPTAIN (RET) M.R. BENOÎT

(Applicant)

DECISION RELATING TO AN APPLICATION UNDER PARAGRAPH 11(b) OF THE CHARTER IN RELATION TO A VIOLATION OF THE RIGHT TO BE TRIED WITHIN A REASONABLE TIME

(Rendered orally)

OFFICIAL ENGLISH TRANSLATION

Introduction

[1]                    This is the decision of the Court on the application filed by the defence under subparagraph 112.05(5)(e) of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) for a stay of proceedings under subsection 24(1) of the Canadian Charter of Rights and Freedoms because the right of the accused under paragraph 11(b) of the Charter to be tried within a reasonable time was violated.

[2]                    The evidence before this Court consists of the following:

First, the questions of judicial notice under Rule 15 of the Military Rules of Evidence;

Second, the exhibits filed with the Court:

a.   Exhibit R1-2 ‒‒ agreed statement of facts;

b.   Exhibit R1-3 ‒‒ resume of Christian Blanchette, psychologist; and

c.   Exhibit R1-4 ‒‒ A file containing an expert report by Christian Blanchette, psychologist, dated March 17, 2008; three psychological progress reports by the same author dated July 1, 2007, October 6, 2007, and January 29, 2008; and a consultation report based on a psychological consultation by Jean‑Bernard Dupuy, psychologist, dated August 10, 2006;

Third, the testimony of Christian Blanchette, psychologist, as an expert witness on the progress and treatment of patients suffering from psychological disorders related to stress and depression. Mr. Blanchette has been Captain (Ret) Benoît’s clinical psychologist since July 2007.

[3]                    The statement of the facts relevant to the consideration of this

application has been the subject of a joint summary of facts, which states the following:

1.     On February 14, 2007, 11 charges were brought against Captain (Ret) Benoît by Corporal Provencher, an investigator with the Canadian Forces National Investigation Service (CFNIS), Eastern Region (ER), for offences he allegedly committed between November 2005 and May 2006.

2.     On or about February 16, 2007, Lieutenant-Colonel Richardson, commander of Staff Support Services at 5 Area Support Group and Captain (Ret) Benoît’s commanding officer, contacted the medical authorities to find out whether there were any contraindications to the CFNIS-ER’s serving the charges.

3.     On February 16, 2007, Major Parizeau, medical officer, informed Lieutenant-Colonel Richardson that, according to a consultation with a clinical worker involved in the case, there was no medical contraindication against the legal steps that were to be taken the following week and that they would inform Captain (Ret) Benoît that proceedings against him would be held shortly and that, if necessary, medical support would be accessible and available to him following these proceedings.

4.     On February 19, 2007, Captain (Ret) Benoît signed the Record of Disciplinary Proceedings in the presence of Corporal Provencher and Lieutenant-Colonel Richardson.

5.     In the week of February 19, 2007, Lieutenant-Colonel Richardson, commander of Staff Support Services at 5 Area Support Group requested legal advice under article of the QR&O.

6.     On March 13, 2007, legal advice  under article of the QR&O was sent to Lieutenant-Colonel Richardson by Major Lortie, the unit’s legal adviser.

7.     On February 16, 2007, Lieutenant-Colonel Richardson applied to the Referral Authority, Brigadier-General Barabé, Commander of Land Force Quebec Area, for disposal of the charges because he did not have the jurisdiction for the offences listed in the Record of Disciplinary Proceedings and therefore asked that a standing court martial be convened in this case.

8.     On April 16, 2007, Brigadier-General Barabé, through his Chief of the Defence Staff, requested legal advice on the case.

9.     On May 1, 2007, Brigadier-General Barabé received legal advice from Lieutenant Colonel Mackay, Assistant Judge Advocate General (AJAG), Eastern Region.

10.   On May 23, 2007, Brigadier-General Barabé forwarded the charges to the Director of Military Prosecutions in Ottawa and recommended that they be judged by a standing court martial.

11.   On June 11, 2007, the Deputy Director of Military Prosecutions, Lieutenant-Colonel MacGregor, appointed Lieutenant-Commander Raymond as prosecutor.

12.   On June 15, 2007, Lieutenant-Commander Raymond applied for disclosure in the case.

13.   On June 20, 2007, Lieutenant-Commander Raymond received disclosure in the case.

14.   On June 22, 2007, Lieutenant-Commander Raymond forwarded the disclosure to the office of the Director of Defence Counsel Services  in Ottawa.

15.   In the week of July 2, 2007, Lieutenant-Commander Raymond acted as prosecutor in the trial of Ex-Petty Officer 1st Class Pelletier. During the trial, the military judge, Lieutenant-Colonel D’Auteuil, set the continuation of the proceedings for September 25, 2007, and asked counsel to set aside the first three weeks of October 2007 in their agenda to conclude the trial.

16.   In the week of July 14, 2007, Lieutenant-Commander Raymond acted as prosecutor in the trial of Sergeant Couture.

17.   On July 23, 2007, Lieutenant-Commander Raymond requested further investigation from Captain (Ret) Benoît’s chain of command.

18.   From July 31 to August 20, 2007, Lieutenant-Commander Raymond was on annual leave.

19.   On August 28, 2007, Lieutenant (N) Létourneau contacted Lieutenant-Commander Raymond for the first time and informed him that he was Captain (Ret) Benoît’s defence counsel, that his client was suffering from post-traumatic stress disorder and that it was very difficult for Captain (Ret) Benoît to have to wait to stand trial. He informed him that he had a lot of free time and that he would be willing to proceed as soon as possible, except for September 18 and 19, 2007, or the week of October 2, 2007. On the same day, Lieutenant-Commander Raymond answered him that the file had not yet been sent to the Court Martial Administrator and that, considering judicial availability, it was very unlikely that the trial would be held before 2008.

20.   On September 13, 2007, Lieutenant-Commander Raymond obtained the results of the investigation requested on July 23, 2007.

21.   On October 1, 2007, a charge sheet against Captain (Ret) Benoît was signed by the Deputy Director of Military Prosecutions.

22.   On October 2, 2007, the charges against Captain (Ret) Benoît were preferred by the Deputy Director of Military Prosecutions.

23.   On October 5, 2007, the Court Martial Administrator confirmed having been served with the preferment and asked counsel to mutually agree on a trial date within 30 days of the date of service.

24.   On November 2, 2007, Lieutenant-Commander Raymond informed defence counsel that a trial date had to be set and asked when he would be available.

25.   On November 5, 2007, Lieutenant-Commander Raymond informed the Deputy Court Martial Administrator that he and Captain (Ret) Benoît’s defence counsel were ready to set a trial date.

26.   On November 8, 2007, Lieutenant (N) Létourneau sent Lieutenant-Commander Raymond a letter from Captain (Ret) Benoît’s attending psychiatrist dated October 29, 2007, and addressed to Sylvie Léveillée at Veterans Affairs Canada.

27.   On November 8, 2007, the Deputy Court Martial Administrator informed counsel of record that there was judicial availability as of March 10, 2008, and counsel agreed to proceed on this date. 

28.   On November 9, 2007, the Deputy Court Martial Administrator informed counsel of record that the only Francophone military judge available was Justice D’Auteuil and that he could not hear the case because he had been the Assistant Judge Advocate General, Eastern Region, at the time the alleged offences were committed. The Deputy Court Martial Administrator also informed counsel of record that the next week in which there was judicial availability and in which a Francophone judge was available was March 31, 2008.

29.   On November 9, 2007, the trial was set for the first judicial date available, namely, April 1, 2007 [sic].

30.   On February 22, 2008, Lieutenant (N) Létourneau served a notice of application for unreasonable delay of the case.

[4]                    Christian Blanchette, psychologist, was accepted by the Court as an expert witness, and he testified extensively about his many meetings with Captain (Ret) Benoît, who is suffering from various psychological problems, including post-traumatic stress disorder, since summer 2007. He has met with Captain (Ret) Benoît at least 35 times since the latter’s arrival in the Rouyn-Noranda region of Abitibi following his release from the Canadian Forces. Mr. Blanchette testified that Captain (Ret) Benoît had been suffering from post-traumatic stress disorder for many years following events that occurred in the former Yugoslavia around 1993. He also told the Court that Captain (Ret) Benoît was still suffering from severe depression for which he was taking medication prescribed by a psychiatrist to control the symptoms. It appears from Mr. Blanchette’s testimony that, in his opinion, the various mental health and psychological support workers have not prescribed any treatment to date or undertaken a specific therapy to help Captain (Ret) Benoît to overcome his post-traumatic stress disorder, which he has been suffering from for almost 15 years. With regard to his own treatment of Captain (Ret) Benoît, Mr. Blanchette testified that, based on his knowledge and experience, he was of the opinion that it is contraindicated to specifically treat post-traumatic stress disorder in individuals if these individuals are simultaneously dealing with major psychosocial stress factors that are preventing them from drawing on the personal energy resources required to deal with post-traumatic stress disorder. He explained that when he first met with Captain (Ret) Benoît in April 2007, his file indicated that, in August 2006, he was suffering from generalized anxiety disorder, post-traumatic stress disorder and severe depression. Mr. Blanchette noted similar factors, namely, generalized anxiety with agoraphobic features and post-traumatic stress disorder complicated by depression. He listed the following psychosocial stress factors for Captain (Ret) Benoît :

1.     The transition from military to civilian life;

2.     His move to Abitibi-Témiscamingue;

3.     The separation proceedings from his long-time spouse, the disposition of their assets and the custody of their children; and

4.     The upcoming military trial.

He concluded that Captain (Ret) Benoît scored 60 on the 100-point Global Assessment of Functioning Scale. Mr. Blanchette testified that the treatment approach proposed in July 2007 involved treating his client’s serious depressive and psychosocial symptoms before treating the post-traumatic stress disorder. Mr. Blanchette testified that, in October 2007, he made similar observations in a second progress report. This third progress report dated January 29, 2008, nonetheless noted a certain improvement in Captain (Ret) Benoît’s condition, reporting that the generalized anxiety had reduced and that the post-traumatic stress disorder with depressed mood was under better control. He reported that the Captain had adapted to civilian life and was in a new romantic relationship. Mr. Blanchette also noted that the significant psychosocial stress factors, namely, the separation proceeding under appeal, increased financial pressure and the upcoming military trial. In his final report dated March 7, 2008, prepared at the request of counsel for the defence, he stated:

[TRANSLATION]

Lieutenant (N) Létourneau asked us on February 28, 2008, to inform the Court as to whether, to the best of our knowledge, an almost 14-month wait to stand trial might have caused Mr. Benoît to suffer harm, such as stress and increased anxiety because of his preexisting mental health condition, more serious harm to him, given his preexisting psychological condition, and slower rehabilitation in this context, to which we answer yes.

Mr. Blanchette clarified this affirmation in his testimony. He stated that he had noted an improvement or at least a development in the major psychosocial stress factors affecting Captain (Ret) Benoît between July 2007 and January 2008, both personally and on the basis of information given to him by his client. He testified that, to his knowledge, there had been no improvement or development concerning the upcoming military trial. In his view, this stress factor was of sufficient importance so as to prevent him from embarking on his therapeutic strategy for dealing with Captain (Ret) Benoît’s post-traumatic stress disorder, because, in his opinion, the Captain would not have had enough resources to deal with this treatment. For this reason, he decided to approach Captain (Ret) Benoît’s treatment slowly and to control the major psychosocial stress factors before dealing with the post-traumatic stress disorder. Referring to two items of correspondence from the psychiatrist to Captain (Ret) Benoît, he believes that there is a causal link between the 14-month wait to stand trial and a severe disruption in his client’s functioning and mood. In his report dated March 7, 2008, he reported the following:

[TRANSLATION]

Doctor Ferhat’s first letter, that of October 29, 2007, reported that “Mr. Benoît has to deal with a number of stressors, which sometimes leads to fluctuations in his mood”. In addition, “he is also facing a trial, pitting him against his employer”. The second letter, that of February 28, 2008, also reported that “even if Mr. Benoît wanted to move on and to engage in an occupational or professional activity, he is still confronted with major stressors”. In addition, “the fact of having to appear in court concerning a dispute pitting him against his employer causes him intense stress, giving rise to strong emotions of sadness and worry about the future and to mood fluctuations”.

In his testimony, Mr. Blanchette expressed the opinion that a major psychosocial stress factor can aggravate existing problems. He also testified that he had observed that Captain (Ret) Benoît had literally ceased to function after learning about the two significant events that had marked him in recent years, namely, his wife’s decision to leave him and the criminal charges that are at issue in this Court Martial. In spite of this, Mr. Blanchette nonetheless noted an improvement in Captain (Ret) Benoît’s general psychological state since January 2008. In short, it seems that some stress factors, such as the new romantic relationship, had a positive impact on him and that his inner resources allow him to better manage certain other major stress factors. Lastly, Mr. Blanchette expressed the opinion that the 14-month wait to bring Captain (Ret) Benoît before the Court Martial, a major stress factor for his client, had the effect of slowing down his therapeutic progress, the ultimate goal of which is to manage the post-traumatic stress disorder, but that the latter was nonetheless on the right track.

[5]                    Captain (Ret) Benoît is charged with offences under paragraph 125(a) of the National Defence Act and with fraud or, in the alternative, with committing an act of a fraudulent nature punishable under section 130 of the National Defence Act, contrary to section 380 of the Criminal Code and contrary to paragraph 117(f) of the National Defence Act. The various charges relate to allegations of false statements made by Captain (Ret) Benoît on general allowance claims between November 2005 and May 2006, as well as false statements made on accountable advance forms between April and May 2006. The charges involving acts of a fraudulent nature relate to allegations of illegal claims for about $14,500 in public funds between November 2005 and May 2006. Captain (Ret) Benoît argues that his right to be tried within a reasonable time under paragraph 11(b) of the Charter has been violated and that this Court should order a stay of proceedings under subsection 24(1) of the Charter, inter alia because of the Supreme Court of Canada’s decision in R. v. Morin, reported as [1992] 1 S.C.R. 771, and also the Court Martial Appeal Court of Canada’s decision in R. v. LeGresley 2008 CMAC 2 dated February 7, 2008. The defence argues that the time that should be considered by the Court is almost 14 months, that is, from the date of the initial charges on February 14, 2007. The applicant argues that he never waived his right to be tried within a reasonable time and that the time that has elapsed since the charges were filed is unwarranted. He argues that he informed the prosecution as early as August 28, 2007, of his wish to proceed quickly and that he declared himself to be available as quickly as possible because Captain (Ret) Benoît was suffering from post-traumatic stress disorder and because it was very difficult for him to have to wait to be tried. The applicant’s counsel nonetheless recognized, when questioned by the Court, that the Court Martial Administrator had not been informed of this situation when the parties inquired about a trial date for the case. On behalf of the applicant, he argues that Captain (Ret) Benoît’s stress and anxiety have increased substantially because of the charges preferred against him and because of the long time he has had to wait to stand trial by having substantially contributed to a postponement of the treatment of the Captain’s post-traumatic stress disorder for the reasons described by the applicant’s attending psychologist, Christian Blanchette. He consequently asks the Court to order a stay of proceedings.

[6]                    The respondent acknowledges that Captain (Ret) Benoît had not waived the delay and that none of the applicant’s actions contributed to the delay. The respondent argues that the facts of the case do not make it possible to draw any conclusions as to the unreasonableness of the delay according to the factors set out in Morin, but concedes that the delay was  sufficiently long to require an examination by the Court. The prosecution argues that this is a fraud case that may require more time than a simple case of assault, for example, and that the evidence as a whole, as it appears from the joint summary of facts, clearly indicates that the case progressed at a reasonable speed, even though some periods could have been shorter. The respondent argues that the complexity of the case can also be inferred from the fact that prosecuting counsel had to request further investigation, which in itself constitutes a delay. The respondent argues that, although the two parties had been ready to proceed with the case as of November 5, 2007, institutional resources being limited, the judicial system could not accommodate them before March 31, 2008. Lastly, the respondent argues that the applicant did not succeed in demonstrating that he suffered harm because of the delay. To the contrary, the testimony of Mr. Blanchette, the psychologist, indicates that the latter assessed only the potential harm of the delay and that he had not observed any real harm suffered by Captain (Ret) Benoît. The respondent therefore asks the Court to dismiss the application.

[7]                    The defence submits that the right of the accused to be tried within a reasonable time has been violated. Paragraph 11(b) of the Charter reads as follows:

11.     Any person charged with an offence has the right

(b)   to be tried within a reasonable time;

That section of the Charter has generated major decisions both by the Supreme Court of Canada and by appellate courts, including the Court Martial Appeal Court. Paragraph 11(b) focuses on each individual’s interest in liberty, security of the person and fair trial. However, paragraph 11(b) also has an implied social or community component. If the justice system fails to dispose of criminal trials quickly and effectively, there will inevitably be frustration with the justice system in the community, and ultimately a feeling of frustration directed at proceedings in the courts. This is true not only in the case of civilian courts of criminal jurisdiction, but also in courts martial. In the military law context, Parliament has also expressly provided in section 162 of the National Defence Act that charges under the Code of Service Discipline must be dealt with as expeditiously as the circumstances permit. Obviously, when a trial takes place within a reasonable time, with all the witnesses available and the memory of the events fresh in their mind, it is much more certain that guilty persons will be convicted and punished and that others will be acquitted and exonerated. The primary objective of paragraph 11(b) of the Charter is to protect both individual rights—the right to security of the person, the right to liberty and the right to a fair trial—and the interests of society as a whole. The general judicial approach to determining whether the right has been violated does not consist in the application of a mathematical or administrative formula but rather in balancing the interests which the paragraph is designed to protect and the factors which either lead to delay or are otherwise the cause of delay. As has been submitted by counsel present, the factors to be taken into account are set out for us in R. v. Morin [1992] 1 S.C.R. 771, according to which the factors to be considered in determining what length of time is reasonable are the following:

first, the length of the delay;

second, a waiver of certain time periods in the calculation;

third, the reasons for the delay, including the inherent time requirements of the case, the actions of the accused, the actions of the Crown, limits on institutional resources and other reasons for delay; and

fourth, prejudice to the accused.

The time must be considered in its entirety, and not divided into discrete events. The courts have always acknowledged that whether the right to be tried within a reasonable time has been violated will depend on the facts of each case. The Charter therefore does not impose a specific timetable that applies to all cases.

[8]                    With respect to the length of the time, the Court considers the starting point to have been February 14, 2007, namely the date on which the initial charges were brought by Corporal Provencher, police investigator with the Canadian Forces National Investigation Service. The total time was therefore almost 14 months. As the respondent suggested, this time period was sufficiently long to raise the question as to whether the time was reasonable, and the applicant has waived no period in this case for the calculation of the time.

[9]                    With regard to the reasons for the delay, it must be acknowledged that some delay is inevitable when people are to be brought before the courts for offences they have allegedly committed. That is true for all justice systems, be they civilian or military. In the military justice system, the statutory and regulatory framework governing the rules that apply to the charge and up to the court martial, where applicable, has set up a number of benchmarks that are primarily designed to protect the integrity of the system. They include the obligation to obtain legal advice before a person can be charged with certain categories of offences; a procedure for referring charges to a higher authority; and the exclusive authority assigned to the Director of Military Prosecutions to initiate a prosecution before the Court Martial by laying a charge against a person accused of committing a service offence as defined in section 2 of the National Defence Act, to prefer the charges of people to be tried by courts martial and to conduct prosecutions before the courts martial. As I have said in a previous decision, namely Master Corporal Lelièvre, the strengths of this kind of system are also its weaknesses. Even though the main objective of the system is to avoid abuses of process to the detriment of accused persons under the Code of Service Discipline, it must also be acknowledged that it carries with it an administrative complexity and inherent time requirements that are greater than in the civilian prosecution system.

[10]                  The facts of the case indicate that the nature of the charges obliged the Referral Authority to refer the charges to the Director of Military Prosecutions, because the initial charges had been brought by an investigator of the Canadian Forces National Investigation Service. The legal advice obtained was also required under the applicable rules, namely Chapter 107 of the QR&O. And what I mean by legal advice is the legal advice given by Major Lortie under article 107.11. When it comes to examining the inherent time requirements of a case, I think that it is recognized that some cases require more time because of their factual and legal difficulty. The Court also accepts that the inherent time requirements of a case of fraud, such as this one, are longer than a simple case of assault. But the burden to justify the time between the initial charge and the  charge by the Director of Military Prosecutions, that is, between February 14 and October 2, 2007, a seven-and-a-half-month period, is on the prosecution.

[11]                  There is no other evidence that makes it possible for the Court to rule on the inherent time requirements for processing this case. Fraud cases vary in complexity. It is therefore impossible for the Court to accept that the time itself was warranted on the basis of the very nature of the charges. However, a detailed examination of the sequence of events between February 14 and October 2, 2007, reveals that there was a continuous flow of activity in the case, which provides a fairly good explanation of the reasons for the time required. The Court, however, does not believe that it is justified, given the lack of an explanation from the prosecution, to draw a conclusion about the reasonableness of the delay caused by the Referral Authority’s second request for legal advice on April 16, 2007, an additional delay of three weeks between when the Referral Authority received the legal advice, on May 1, and when the file was forwarded to the Director of Military Prosecutions, on May 23, 2007. For the same reasons, the same is true of the slightly shorter period required to appoint the prosecutor of record. The Court can therefore not accept that the inherent time requirements of this case should have been more than six months between the initial charges and the preferral of the charges by the Director of Military Prosecutions instead of the seven and a half months that actually elapsed. It is also true that this case concerns false statements and acts of a fraudulent nature worth about $14,000, but the prosecution has not provided any evidence to support the claim that this case is complex. With regard to the actions of the accused, there is no evidence that he contributed to or waived the delay. Even if the Court accepted that the delay caused by the selection of a trial date that suited the accused and his lawyer could be blamed on him, the fact that, on November 8, 2007, he and prosecuting counsel mutually agreed to a trial date of March 10, 2008, is entirely acceptable in this context.

[12]                  One must attribute a two-month delay to the actions of the prosecution or the Crown, resulting from the request for and granting of further investigation. There is nothing in the evidence to challenge the merits of such a request, especially as the facts show that 11 charges were brought initially and the Director of Military Prosecutions eventually preferred four against the applicant, but this delay must nonetheless be attributed to the Director of Military Prosecutions. With the exception of this delay, the prosecution acted expeditiously in the conduct of this case, including when it came to disclosure.

[13]                  The respondent has acknowledged that the prosecution of record did not have the necessary information for commenting to the applicant’s counsel in a conversation dated August 28, 2007, that it was unlikely that the trial could be held before 2008. Recent cases are often tried in priority over older cases when the prosecution believes it is in the interests of the administration of military justice to do so. Sometimes, defence counsel will ask that a case be heard as quickly as possible, as was the case here, with the exception that the request was made to prosecuting counsel. In some cases, the parties agree on early dates; sometimes one of the parties applies to a judge to set a date before or after the one in the convening order. The management of a judicial calendar is not a static, immutable exercise in which the cases follow, one after the other, in a specific order. It has to take into account different and sometimes competing interests advanced by the parties, which have to be incorporated into a balancing process by the persons responsible for the administration of the courts, to ensure a proper administration of justice. The process of convening courts martial is no different, despite the constraints unavoidable in the absence of a standing court.

[14]                  In view of the evidence in this case, considered as a whole, the Court cannot deduct some specific time, or consider some portion of the delay to be neutral, for reasons relating to limits on institutional resources. Neither of the parties asked the  Court Martial Administrator for an earlier date to proceed with the case when the Deputy Court Martial Administrator informed them of the judicial availability as of March 10, 2008, nor did they see it fit to inform the Administrator of the reasons for such a request. They did not see it fit to do so. Neither of the parties saw it fit to file an application for a new trial date before the judge appointed to preside this court martial, an application that could have been filed as early as February 18, 2008, the convocation date. Even though the parties were ready to proceed as of November 5, 2007, there is no evidence that any period can be attributed to limits on institutional resources. Notified by the Deputy Court Martial Administrator on November 9, 2007, that a Francophone judge was available on March 31, 2008, the parties agree to proceed starting April 1, 2008. There is no evidence that, between November 5, 2007, the date on which prosecuting counsel informed the Court Martial Administrator that the parties were ready to set a trial date, and February 18, 2008, the date on which the court martial was convened, any pending cases could not have been reassigned to other judges or that the judge appointed to preside the court martial could not have set an earlier trial date following the filing of an application to that effect.

[15]                  As to the prejudice suffered by the accused, the Court is not satisfied that the total time of 14 or approximately 14 months that has elapsed is sufficiently long, in the circumstances, for it to infer that the accused suffered harm as a result. Although the delay is indeed significant, it is not abnormally long. As I indicated earlier, the applicant never informed the Court Martial Administrator nor made a request to him to proceed more expeditiously even though such a request was made to prosecuting counsel.

[16]                  We must therefore look at the evidence before the Court to determine whether the applicant suffered harm as a result of the time it has taken to proceed with this case. The evidence clearly establishes that Captain (Ret) Benoît has, for a number of years, been suffering from post-traumatic stress disorder, for which he has still not received psychological support from his psychologist, Mr. Blanchette. Mr. Blanchette told the Court that Captain (Ret) Benoît is still suffering from severe depression for which he is taking medication prescribed by a psychiatrist to control the symptoms. The psychologist’s testimony also reveals that, in his opinion, the various mental health and psychological support workers have not prescribed any treatment to date or undertaken a specific therapy to help Captain (Ret) Benoît overcome the post-traumatic stress disorder he has been suffering from for almost 15 years. As to his own treatment of Captain (Ret) Benoît, he testified that, based on his knowledge and experience, he was of the opinion that it is contraindicated to start giving individuals specific treatment for post-traumatic stress disorder when they are in the midst of dealing with major psychosocial stress factors or elements that prevent them from being able to draw on their own energy resources required to tackle the problem of post-traumatic stress disorder.

[17]                  The Court concludes from Mr. Blanchette’s testimony that a major psychosocial stress factor can indeed aggravate existing disorders. The Court also concludes from his testimony that Captain (Ret) Benoît’s general psychological state has evolved since January 2008. As he said, it seems that some stress factors, such as the new romantic relationship, may have had a positive impact on him and that his inner resources now help him to better manage certain other major stress factors.

[18]                  It is generally recognized that appearing in court on serious criminal charges entails a level of stress and anxiety in most cases. In the context at hand, the Court is satisfied that the applicant’s anxiety and level of stress were heightened by the charges before the Court and the resulting legal process, given the psychological problems the applicant has been suffering from for several years. However, the evidence reveals that the applicant’s psychological condition has been improving since January 2008, as I said earlier, and that it is continuing to do so, according to Mr. Blanchette’s testimony. In such circumstances, the Court cannot conclude that an accused has suffered serious harm, when the therapeutic approach chosen by the attending psychologist is based on expectations that a major psychosocial stressor, such as a legal proceeding for serious criminal charges, must fade before post-traumatic stress disorder can be treated, because the client is having to deal with several other major psychosocial stressors. There is nothing to prevent a therapist from reevaluating his or her approach according to extrinsic factors over which he or she has no control, such as the conduct of a legal proceeding. There is nothing to prevent a therapist from finding out from his or her client’s counsel about the whys and wherefores of the legal proceeding affecting the client in order to adapt treatment and follow-up accordingly. Although the applicant was not obliged to take measures to accelerate the date of his court martial and although his therapist was not obliged to underscore the importance of proceeding quickly in this case to the applicant’s counsel or to modify his therapeutic approach, the Court must take their inaction into account when evaluating the existence and extent of the harm that the delay that is the subject of the application may have caused. For example, Mr. Blanchette’s evidence suggests that a new major stressor undoubtedly put treatment of the applicant’s post-traumatic stress disorder on the back-burner. Similarly, the deterioration of or changes in the factors that recently contributed to an improvement in the global assessment of Captain (Ret) Benoît’s functioning, such as the new romantic relationship he was in or additional complications with regard to the custody of his children, would have the same effect on the therapeutic approach chosen by Mr. Blanchette. The delay in the treatment of the applicant’s post-traumatic stress disorder which is causing him harm has not resulted from the 14-month delay but from the therapeutic approach taken in the circumstances.

Decision

[19]                  In such a context, it is not suggested that the applicant’s harm is not real, but it must be evaluated in light of the delay and the causes for the delay. In this context, although the harm is real, it is minimal. After balancing the interests of the accused and those of society and applying the criteria set out in Morin, the Court is of the opinion that the applicant has not discharged his burden of proof considering the circumstances. The Court therefore dismisses the application.

                                                                                           COLONEL M. DUTIL, C.M.J.

Counsel:

Lieutenant-Commander M. Raymond, Director of Military Prosecutions, Eastern Region

Counsel for the prosecution/respondent

Lieutenant (N) M. Létourneau, Director of Defence Counsel Services

Counsel for the applicant, Captain (Ret) M.R. Benoît