Courts Martial

COURT MARTIAL

 

Citation: R v Semrau, 2010 CM 4015

Date: 20100616

Docket: 200945

 

General Court Martial

 

Kandahar Airfield

Kandahar Province, Afghanistan

Between:

Her Majesty the Queen

 

- and -

 

Captain R.A. Semrau, Accused

 

Before:  Lieutenant-Colonel J G Perron, M.J.

 

DECISION REGARDING RELIEVE OF COURT MARTIAL PANEL MEMBER

 

(Orally)

 

[1]        A hearing in the absence of the panel pursuant to article 112.60 of the Queen's Regulations and Orders was held on 16 June 2010 at Kandahar Airfield to discuss a matter involving a member of the panel.  This member of the panel, Lieutenant-Colonel Woodhall, did not make his way to KAF, KAF being Kandahar Airfield, with the rest of the panel because of an illness.  Only four members of the panel are presently in KAF.  The prosecution and defence counsel were initially advised of this situation by the Court Martial Administrator on 10 June 2010 and it was discussed during a teleconference involving the prosecution, defence counsel, and myself on 11 June 2010.

 

[2]        On 14 June 2010 the Court Martial Administrator forwarded two emails to counsel and to the court reporter.  These emails are found at Exhibit 42.  On one email Lieutenant-Colonel Woodhall requests to be relieved of his General Court Martial panel duty due to health reasons.  In the other email Major Patterson, the Base Surgeon for Canadian Forces Health Services Centre Ottawa, indicates that Lieutenant-Colonel Woodhall has a serious medical condition with medical needs and treatments that will affect his ability to do daily employment and can directly affect his ability to concentrate.  She states he requires access to acute care hospital emergency services 24/7 due to his medical condition.  She also specifies that these acute care medical needs cannot be met at the KAF Role 3 facility.  She states he is not fit for any employment and that he is on full-time sick leave.  He cannot perform any sort of employment, military or civilian, at this time.  She states the medical needs of Lieutenant-Colonel Woodhall are still unfolding and that his condition will remain for an undetermined period of time.

 

[3]        I must now decide whether this General Court Marital may continue its proceedings with four members on the panel or whether other options are preferable.  The prosecution has argued that the provisions of section 196.1 of the National Defence Act are clear and that the court may continue with four members of the panel.  Defence counsel argues the court must not proceed with only four members and that I should declare a mistrial.

 

[4]        In R v Trépanier, 2008 CMAC-3, the Court Martial Appeal Court agreed that the military justice system is a sui generis system that is subject to the constitutional law of the land.  This decision is the latest of numerous Court Martial Appeal Court decisions that have consistently held that courts martial are sui generis.  In other words, "a trial before a General Court Martial is not a jury trial although such court may share some of the characteristics of a civilian jury trial," (See paragraph 16 in R v Deneault, (1994) 5 C.M.A.R. 182.)

 

[5]        As described in R v Généreux, [1992] 1 S.C.R. 259, courts martial are designed to enforce the Code of Service Discipline.  The Supreme Court of Canada and the Court Martial Appeal Court have consistently upheld the concept of a separate system of military justice in Canada because it is based on the need to enforce the Code of Service Discipline.  While the Canadian Charter of Rights and Freedoms provides at section 11(f) for trials other than jury trials for offences under military law tried by a military tribunal, such military trials must still respect other rights found in the Charter.  The Court Martial Appeal Court at paragraph 102 of Trépanier confirmed the legitimacy of the panel court by stating:

 

... It may be that the denial, under paragraph 11f) [sic] of the Charter, of the right to jury trials for an accused tried before a military court was more easily accepted by Parliament because there was a long tradition of trials by a judge and panel members in the military justice system which afforded equivalent protection.

 

[6]        In his forward to the First Independent Review by the Right Honourable Antonio Lamer, P.C., C.C., C.D., of the provisions and operation of Bill C-25, an Act to amend the National Defence Act and to make consequential amendments to other Acts as required under section 96 of the Statutes of Canada 1998, c.35, the Right Honourable Lamer concluded that the military justice system is generally working well.  He also was "pleased to report that as a result of the changes made by Bill C-25, Canada has developed a very sound and fair military justice framework in which Canadians can have trust and confidence."  While he made numerous comments and recommendations for the improvement of the military justice system, the Right Honourable Lamer did not comment negatively on the composition of the General Court Martial.  Further at page 34, he states:

 

Bill C-25 allows for the first time that if an accused person is a non-commissioned member, a General and Disciplinary Courts Martial panel must include two non-commissioned members who are of the rank of warrant officer or above in order to more accurately reflect the spectrum of individuals responsible for the maintenance of discipline and morale in the military justice system.

 

[7]        While the military justice system does operate, one could say, in a parallel manner to the civilian criminal justice system; it cannot operate in a vacuum.  That is to say it cannot operate in a manner that would be contrary to Canadian law unless the provisions of the National Defence Act or of the Queens's Regulations and Orders would explicitly provide for it and this manner was not in breach of the Constitution.

 

[8]        Courts martial must then seek guidance in the appropriate Canadian case law when the National Defence Act and the Queen's Regulations and Orders are silent on an issue and the civilian case law pertains to matters analogous to the one before the court martial.  A proper analysis of the civilian case law by examining its legislative basis and its purpose in light of the National Defence Act and of the military justice system will thus ensure that an accused military member will be treated in a fashion similar to an accused person in a Canadian criminal court.  This will in turn ensure a fair trial.

 

[9]        Paragraph (1) of section 196.1 of the National Defence Act provides:

 

If, after an accused person has made a plea but before the court martial pronounces its finding, two or more members of the panel die or are for any reason unable to continue to act, the court martial is dissolved.

 

[10]  The National Defence Act does not contain any provisions similar to those found at section 644 of the Criminal Code of Canada.  Section 644 reads as follows:

 

(1)           Where in the course of a trial the judge is satisfied that a juror should not, by reason of illness or other reasonable cause, continue to act, the judge may discharge the juror.

 

(1.1)        A judge may select another juror to take the place of a juror who by reason of illness or other reasonable cause cannot continue to act, if the jury has not yet begun to hear evidence, either by drawing a name from a panel of persons who were summoned to act as jurors and who are available at the court at the time of replacing the juror or by using the procedure referred to in section 642.

 

(2)           Where in the course of a trial a member of the jury dies or is discharged pursuant to subsection (1), the jury shall, unless the judge otherwise directs and if the number of jurors is not reduced below ten, be deemed to remain properly constituted for all purposes of the trial and the trial shall proceed and a verdict may be given accordingly.

 

The National Defence Act provision at section 196.1 pertains to the condition that will lead to the dissolution of the General Court Martial while the Criminal Code provision found at 644 focuses on how the trial may continue in the event of the discharge of one or two jurors.  The National Defence Act and the Queen's Regulations and Orders do not provide the court with any procedure or guidance in the application of paragraph 196.1(1).

 

[11]      It is clear from the reading of section 196.1 and section 644 that they wish to achieve the same end; namely, to ensure that a General Court Martial and a jury trial may continue in the event that the original number of members of the panel or of jurors changes during the trial.  The National Defence Act simply states that after an accused person has made a plea but before the court martial pronounces its findings, the court martial is dissolved if two or more members of the panel die or are for any reason unable to continue to act.  Therefore, this article indicates that a court martial need not be dissolved if less than two members of the panel die or for any reason are unable to continue to act.  In simple terms, this means that a court martial need not be dissolved if one member dies or for any reason is unable to act.

 

[12]      Section 644 of the Criminal Code approaches this situation from a different angle.  Paragraph (1) provides that in the course of a trial the judge may discharge a juror if the judge is satisfied that the juror should not, by reason of illness or other reasonable cause, continue to act.  Paragraph (1.1) provides that a judge may then select another juror to take the place of a juror who by reason of illness or other reasonable cause cannot continue to act, if the jury has not yet begun to hear evidence.

 

[13]      Finally, paragraph (2) provides that in the course of a trial if a member of the jury dies or is discharged pursuant to paragraph (1), the jury shall, unless the judge otherwise directs and if the number of jurors is not reduced below 10, be deemed to remain properly constituted for all purposes of the trial and the trial shall proceed and a verdict may be given.

 

[14]      Section 644 of the Criminal Code allows a judge to discharge two jurors if the judge is satisfied that the juror should not, by reason of illness or other reasonable cause, continue to act, and that still permits the jury trial to proceed.  Section 644 deems a jury of 10 to remain properly constituted and may in turn render a verdict.

 

[15]      While the approaches taken to a situation may be different, I find the National Defence Act and the Criminal Code seek to achieve the same result.  They both provide the minimal number of members of the panel or of jurors deemed adequate to pursue the trial.

 

[16]      In R v Turpin, [1989] 1 S.C.R. 1296, Wilson J. writing for the court had the following to say on the subject of the jury trial:

 

... The right of the accused to receive a trial before a judge and jury of his or her peers is an important right which individuals have historically enjoyed in the common law world.  The jury has often been praised as a bulwark of individual liberty.  Sir William Blackstone, for example, called the jury "the glory of the English law" and "the most transcendent privilege which any subject can enjoy" ...

 

                The jury serves collective or social interests in addition to protecting the individual.  The jury advances social purposes primarily by acting as a vehicle of public education and lending the weight of community standards to trial verdicts.  Sir James Stephen underlined the collective interests served by trial by jury when he stated:

 

                ... trial by jury interests large numbers of people in the administration of justice and makes them responsible for it.  It is difficult to over-estimate the importance of this.  It gives a degree of power and of popularity to the administration of justice which could hardly be derived from any other source.

 

[17]  Having quoted this passage from R v Turpin, I also find paragraphs 25 and 26 of the Supreme Court of Canada decision in R v Chambers, [1990] 2 S.C.R. 1293, quite à propos in the present case.  They read as follows:

 

                The appellant argued that the American practice of providing alternate jurors was the real basis for the American decisions.  It was contended that since there were no alternate jurors in Canada, that the reasoning of the American authorities should not be applied to our country.  I cannot accept that argument.  It is not the presence or absence of alternate jurors that is basic to the American cases.  Rather, what is fundamental is the conclusion that excusing a juror for reasons of illness or hardship cannot reasonably be said to have a bearing on the substantive conduct of the trial or the guilt or innocence of the accused which is fundamental.  It is that principle which is as applicable to Canada as it is to the United States.

 

And at paragraph 26:

 

                In summary, the accused does not have an absolute right to be present at a hearing considering the dismissal of a juror for reasons of health.  However, due to the importance of the step, it would be preferable for the trial judge to advise counsel in court and in the presence of the accused of the nature of the health or hardship problem and to invite counsel to make submissions if they wished to do so.  The process need not necessarily take on all the trappings of a formal hearing with witnesses required to give evidence under oath on the issue.  This could result in unwarranted delays and the infliction of unnecessary hardship on jurors, their families and medical advisors.  Rather, an explanation of the problem by the judge with an opportunity given to counsel to make submissions may often suffice.  Such a procedure would serve to emphasize the importance of the decision and ensure that careful consideration was given to it.

 

[18]      I also find the following excerpt from R v Basarabas, [1982] 2 S.C.R. 730, to be on point.  It reads as follows:

 

... Second, subject to s. 573 an accused in a criminal jury trial is entitled to be tried by twelve jurors.  He is entitled to the unanimous verdict of the twelve jurors unless and until "in the course of a trial", that is to say, after it has commenced, the judge is satisfied that a juror should not, because of illness or other reasonable cause, continue to act.

 

[19]  Finally, in R v Lessard, [1992] R.J.Q. 1205, leave to appeal to the Supreme Court of Canada refused 145 N.R. 390n, the Quebec Court of Appeal found that the power to discharge one or two jurors pursuant to the provisions of subsection 644(2) does not infringe the right to a trial by jury provided by section 11(f) of the Canadian Charter of Rights and Freedoms.

 

[20]      As stated at paragraph 13 of the British Columbia Court of Appeal decision in R v Piche, 113 C.C.C. (3d) 149:

 

Section 644 is an exception to the general rule that an accused is entitled to be tried by a jury of twelve members.

 

[21]      It is clear from the jurisprudence that a jury trial must start with 12 jurors, but it may end with 10 jurors.  Section 644 of the Criminal Code provides for the reasons for the discharge of a juror during the trial and the minimal number of jurors required for a properly constituted jury.

 

[22]      I conclude from my reading of subsection 196.1(1) of the National Defence Act that the National Defence Act allows for a panel trial to proceed if only one member of the panel dies or for any reason is unable to continue to act.  The National Defence Act and the Queen's Regulations and Orders are silent on the procedure to be followed.  They are also silent on how to determine that a member of the panel is unable to continue to act.  It is, of course, evident that if a member of the panel dies during a General Court Martial, he or she will be unable to continue to act.

 

[23]      I do not conclude that I would be usurping the power of Parliament or that I would be appropriating some powers that are not mine to have.  Paragraph 196.1(1)'s intent is that a General Court Martial continue if one member dies or is unable to continue to act.

 

[24]      Section 191 of the National Defence Act provides that the military judge presiding at a General Court Martial determines all questions of law or mixed law in fact arising before or after the commencement of the trial.

 

[25]      I conclude that the combination of section 191 and of subsection 196.1 permit me to determine if a member of the panel may be discharged of his or her duty if he or she is unable to continue to act.  The case law pertaining to section 644 of the Criminal Code is useful to the court in addressing this issue.

 

[26]      This is an important decision.  The charges before this court are serious.  Second degree murder is one of the most serious charges under Canadian criminal law and it does provide a sentence of imprisonment for life.  Having said that, one must also note that sections 73 to 77 of the Code of Service Discipline also provide imprisonment for life as a minimum sentence under specific circumstances.  I also note that in the Lessard decision, the accused persons, where a juror had been discharged, had been found guilty of five murders.

 

[27]      Having sad this, I also remind myself of the following passage in paragraph 25 of the Supreme Court of Canada decision in Chambers, and I quote:

 

... Rather, what is fundamental is the conclusion that excusing a juror for reasons of illness or hardship cannot reasonably be said to have a bearing on the substantive conduct of the trial or the guilt or innocence of the accused which is fundamental.  It is that principle which is as applicable to Canada as it is to the United States.

 

[28]      It is clear from Major Patterson's email that Lieutenant-Colonel Woodhall would not be able to continue to act as a member of the panel even if we were still in Canada.  He has a serious medical condition with medical needs and treatments that can directly affect his ability to concentrate.  His medical needs are unfolding and Major Patterson indicates his condition will remain for an undetermined period of time.

 

[29]      The suggestion of a videoconference possibility to permit him to hear the evidence is not possible because of his medical condition.  I would also be very reluctant to consider this option in any case.  The option of having Lieutenant-Colonel Woodhall travel with a doctor is also not a feasible option based on the information provided by Major Patterson since it appears it could put his life in greater danger and would probably not be permitted by the treating physician.

 

[30]      I do not find that waiting three to four weeks to see if Lieutenant-Colonel Woodhall will become healthy enough to continue to act as a panel member is a reasonable option in the present circumstances.  The evidentiary portion of this General Court Martial began on 24 March 2010 and this court has already seen its fair share of adjournments.  This trial must proceed and such a lengthy adjournment would probably cause further hardships on the members of the panel.  Major Paterson also mentions that Lieutenant-Colonel Woodhall's condition will remain for an undetermined period of time.

 

[31]      Now, I am somewhat surprised by defence counsel's submission that Lieutenant-Colonel Woodhall's rank should be a factor to consider when deciding this issue.  Should the senior panel member be the person discharged, that person's rank and position could have an impact on the trial since section 167 of the National Defence Act requires that the senior member of the panel be an officer of or above the rank of colonel.  Section 167 also stipulates specific ranks for the senior panel member when the accused is an officer of or above the rank of colonel.

 

[32]      But I fail to see how the rank of any other member of the panel should have anything to do with this type of decision.  I find it even more puzzling that defence counsel should focus on the rank of lieutenant-colonel and its importance as the second most senior member of the panel after he has argued during a pre-trial motion that officers below the rank of captain and non-commissioned members below the rank of warrant officer should be included as possible members of the panel.  He had argued that members of the panel were only triers of fact and were not performing any leadership function.

 

[33]      Therefore, I cannot agree with defence counsel on that issue.  When I will give my final instructions to the panel, I will be telling them that rank has no place in their deliberations.  They are all equals when they discuss this case and they each arrive at their verdict.  Article 112.41 provides that they must vote starting from the most junior member to the most senior to prevent any influence during the vote.

 

[34]      Therefore I have come to the following conclusions:

 

            a.         I have the authority to discharge a member of the panel if he or she is for any reason unable to continue to act;

 

            b.         In light of the previously mentioned jurisprudence and of the information provided by Major Patterson, I have come to the conclusion that, because of his medical condition, Lieutenant-Colonel Woodhall cannot continue to act as a member of the panel and that I must discharge him of his duties; and

 

            c.         Lieutenant-Colonel Woodhall has now ceased to be a member of this panel.  The four member panel is still properly constituted for all purposes of the trial and the trial shall proceed.

 

 

Counsel:

 

Lieutenant-Colonel J.A.M.Léveillée and Captain T. Fitzgerald,

Canadian Military Prosecutions Service

Counsel for Her Majesty the Queen

 

Major S. Turner and Lieutenant-Colonel J-M Dugas,

Directorate of Defence Counsel Services

Counsel for Captain Semrau