Courts Martial

COURT MARTIAL

 

Citation:  R. v. Semrau, 2010 CM 1002

 

Date:  20100125

Docket:  200945

 

General Court Martial

 

Asticou Centre courtroom

Gatineau, Québec, Canada

 

Between: 

 

Her Majesty the Queen

 

- and -

 

Captain R.A. Semrau, Applicant

 

 

Before:  Colonel M. Dutil, C.M.J.

 

 

DECISION RELATING TO AN APPLICATION UNDER S. 191 OF THE NATIONAL DEFENCE ACT AND ARTICLE 112.03 OF THE QUEEN'S REGULATIONS AND ORDERS FOR THE CANADIAN FORCES IN RELATION TO A VIOLATION OF SS. 7 AND 11(d) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS SEEKING AN ORDER TO AMEND PARAGRAPH 10 OF THIS COURT MARTIAL ADMINISTRATIVE INSTRUCTION ISSUED BY THE COURT MARTIAL ADMINISTRATOR ON 17 DECEMBER 2009 WITH REGARD TO THE DRESS OF COURT MARTIAL PARTICIPANTS.

 

(Orally)

 

INTRODUCTION

 

[1]               This is an application by the defence under section 191 of the National Defence Act and article of 112.03 of the Queen's Regulations and Orders for the Canadian Forces, on the ground that paragraph 10 of the administrative instruction issued on 17 December 2009 by the Court Martial Administrator for this General Court Martial, (Docket 2009-45), (Exhibit M1-2) in this application, violates the rights of the accused under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms, hereafter the Charter.

 

[2]               Counsel for the defence attacks the validity of this instruction, which states the order of dress for the court martial participants as DEU 3, because it implies that the members of the court martial panel and military counsel wearing such service uniform improperly and unlawfully identifies and highlights differences in rank and status of court martial participants and counsel that would affect the appearance of fairness of the trial.  Paragraph 10 of this instruction reads as follows:

 

10.       Dress will be DEU3 for participants, dress of the day for spectators, civilian counsel shall be gowned.

 

Section 7 of the Charter reads as follows:

 

                Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

Whereas s. 11(d) provides:

 

            Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

 

EVIDENCE

 

[3]               In support of his motion, the applicant relies on the court taking judicial notice of the Queen's Regulations and Orders for the Canadian Forces; more particularly, Chapter 3, Chapter 19, and Chapter 112, as they relate to precedence and seniority among members of the Canadian Forces, including the fact that members of a court martial panel shall vote orally in succession beginning with the member lowest in rank when they deliberate as to finding.  The applicant also relies on the court taking judicial notice of the Canadian Forces Dress Instructions, A-AD-265-000/AG-001.

 

[4]               The evidence laid during this application is completed by the document issued under the authority of the Chief Military Judge, last modified on 18 July 2008, (Exhibit M1-3), entitled "Court Martial Procedures - Guide for Participants and Members of the Public," A-LG-007/AG-001, and a directive issued in December 2003 by the Chief Justice of the Court Martial Appeal Court with regard to the wearing of medals at the CMAC by judges and practitioners, (Exhibit M1-4).

 

POSITION OF THE PARTIES

 

Applicant

 

[5]               The applicant submits that paragraph 10 of the court martial administrative instruction 2009-45 violates the accused's right to a fair trial.  He argues that the wearing of a military uniform by panel members and military counsel highlights the difference amongst them through their respective rank, distinctive uniforms, medals and decorations, qualification and experience.  According to the applicant, the wearing of military uniform, as stated in the administrative instruction, creates a prima facie appearance of unfairness towards the accused.

 

[6]               He further submits that this alleged unfairness could only be assessed effectively if one could have the knowledge of what takes place during the deliberations of a court martial panel with regard to the effect that their uniform may have on each other as to their respective status and stature.

 

[7]               In other words, the applicant suggests that the profound meaning of a military uniform ought to have an effect on the weight of opinions or views expressed by those of a higher status, experience, or stature that are identifiable on a serviceperson's DEU 3 uniform

 

[8]               Similarly, the applicant also suggests that the fact that military counsel wear a similar military uniform may lead the panel to apply improper reasoning and ultimately give more weight to the arguments of one counsel over those expressed by opposite counsel based on their uniform and its attributes related to the counsel's experience, training, seniority, decorations, and awards.

 

Respondent

 

[9]               The respondent submits that the issue raised in the application does not engage the Charter and that the applicant has not laid any evidentiary foundation in support of his assertions.

 

DECISION

 

[10]           Raising the Charter implies that an evidentiary threshold must be established by any applicant before a court embarks on a legal analysis.  I strongly disagree with the applicant's submission that evidence as to the history and traditions behind the decorum that participants at courts martial in Canada, or in countries with similar traditions and values with regard to the wearing of a military uniform, would not be relevant.  That evidence is not required only for the purposes of determining the validity of that provision or situation under s. 1 of the Charter.  As stated by Cory, J. in MacKay v. Manitoba, [1989] 2 S.C.R. 357, at paragraph 9: "Charter decisions should not and must not be made in a factual vacuum."

 

[11]           The dress of court martial participants, including panel members and military counsel, does not engage the Charter in absence of any evidentiary foundation.  A challenge to the fairness of trials based purely on differences in uniforms that would reflect the inequality of arms, status, experience, and awards, is without merit unless there is some cogent evidence, as opposed to mere assertions and speculations, that would establish on a balance of probabilities that would tend to prove the issue.

[12]           The applicant has chosen not to call evidence that would point to unfairness.  His arguments are solely based on assertions and speculations.

 

[13]           Let me be clear, I find it wholly appropriate that service personnel on duty at courts martial wear a military uniform.  The type of uniform to be worn at courts martial is, as with any other court, a matter of court decorum that falls within the inherent jurisdiction of the court.  In civilian courts, these matters are normally covered in the rules of court, regulations, or practice directives.  In the context of courts martial, since 1998, these matters are covered in the document entitled "Court Martial Procedures - Guide for Participants and Members of the Public."  Decorum at courts martial is intra vires of the Chief Military Judge.

 

[14]           The administrative instruction challenged by the applicant simply reflects the dress requirements issued by the Chief Military Judge at paragraphs 3 to 5 of the Court Martial Procedures - Guide for Participants and Members of the Public. The purpose of this guide is to ensure the proper decorum at courts martial presided by military judges who have inherent power to control its procedure in respect of residual matters that are not dealt with in the Act or regulations.

 

[15]           Absence of proper evidentiary basis, this application must fail.  However, should the interest of efficiency and proper administration of justice require that special directives be issued by the presiding judge with regard to the dress of court martial participants for any portion of the proceedings, I will issue such directives.  As a matter of courtesy, I will seek counsel's input as officers of the court.

 

[16]            For all these reasons the application is dismissed.

 

 

Counsel:

 

Lieutenant-Colonel J.A.M. Léveillée, Major A.M. Tamburro, and

Captain T,K, Fitzgerald, Canadian Military Prosecutions Service

Counsel for Her Majesty The Queen (Respondent)

 

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

Directorate of Defence Counsel Services

Counsel for Captain R.A. Semrau (Applicant)