Courts Martial

Citation: R. v. Corporal B.L. Harris, 2009 CM 3012

Docket: 200877

STANDING COURT MARTIAL                                                             

CANADA

NEW BRUNSWICK

CANADIAN FORCES BASE GAGETOWN

Date: 25 July 2009

PRESIDING: LIEUTENANT-COLONEL L-V.  D'AUTEUIL, M.J.

HER MAJESTY THE QUEEN

v.

CORPORAL B.L. HARRIS

(Offender)

CHARTER DECISION

(Rendered Orally)

[1]        By the way of an application to this Standing Court Martial, the accused, Corporal Harris, raises constitutional issues concerning his arrest made by a military police member, and about his release with conditions by a custody review officer appointed by his commanding officer further to an incident that occurred in the early morning of 23 September 2007.  More specifically, he is claiming that he was the subject of an arbitrary arrest and detention by the military police authorities in that the absence of any provision in the National Defence Act (thereafter the NDA), concerning the laying of charges in an expeditious manner against a person subject to the Code of Service Discipline released with conditions following his or her arrest, constitutionally invalidates some sections of the NDA.

[2]        Corporal Harris is charged with one offence punishable under section 130 of the NDA for assault contrary to section 266 of the Criminal Code.  In alternative to the latter, he is charged with one offence of having fought with a person subject to the Code of Service Discipline contrary to section 86 of the NDA, and finally, he is charged with one offence of having used provoking speeches toward a person subject to the Code of Service Discipline also contrary to section 86 of the NDA.

[3]        At the opening of this trial by Standing Court Martial on 13 July 2009, prior to plea and after the oaths were taken, Corporal Harris made an application for which a written notice was received by the prosecutor and the office of the Court Martial Administrator on 19 June 2009.  The applicant is looking for two things from this court:

First, an order declaring sections 156 to 158 of the NDA to be contrary to sections 7 and 9 of the Canadian Charter of Rights and Freedoms (thereafter the Charter), and if so, as a remedy, an order declaring those NDA provisions to be of no force or effect under subsection 52(1) of the Constitution Act, 1982; and

Second, an order declaring that the applicant's rights under sections 7 and 9 of the Charter have been violated, and if so, as a remedy, an order staying the proceedings made pursuant to subsection 24(1) of the Char­ter.  In addition, he is looking for, also as a remedy, an order from this court to exclude the statement made by Corporal Harris to the MP on 23 September 2007.

[4]        The preliminary motion is brought by way of an application made under Queen's Regulations and Orders (QR&O) article 112.05(5)(e) as a question of law or mixed law and fact to be determined by the military judge presiding at this Standing Court Martial.

[5]        Considering the constitutionality issue raised by the applicant concerning sections 156 to 158 of the NDA, the court requested from the applicant, during a recorded pre-trial conference phone call that took place on 30 June 2009, to serve a notice of constitutional question upon the Attorney General for Canada.  Such thing was done that same day by the applicant according to the Affidavit of Service he produced to the court, and nobody contacted counsel or appeared on behalf of the Attorney General for Canada in court the day of the hearing of the application or thereafter.

[6]        In addition, considering that the Supreme Court of Canada delivered, on 17 July 2009, it's decisions in R. v. Grant, [2009] S.C.C. 32, R. v. Harrison, [2009] S.C.C. 34, and R. v. Shepherd, [2009] S.C.C. 35 which all are on the issue of the application of sections 7 and 9 of the Charter, I decided to reassemble the court on 21 July 2009, which is before providing my decision in order to give an opportunity to both parties to comment on those decisions and on their impact on the present application. 

THE EVIDENCE

[7]        The evidence on the application, heard in a voir dire that I opened, consisted of:

The testimonies heard in the order of their appearance before the court, the testimony of Captain Daviau, Corporal Reansbury, and

Corporal Glass;

The admissions made by the prosecution in accordance with subsection 8(d) of the Military Rules of Evidence which are:

The military police investigation was concluded on 30 September 2007; and

Private Thompson was not interviewed by the military police concerning the incident of 23 September 2007 before her arrest on 29 September 2007;

Exhibit VD1-1, the written Notice of Application made by the accused;

Exhibit VD1-2, a bundle of documents which are an Affidavit of Service from Catherine Ewing dated 30 June 2009, a facsimile transmittal sheet from Major Poland to the Attorney General of Canada dated 30 June 2009, a communication result report concerning the facsimile transmittal sheet also dated 30 June 2009, and the written Notice of Application;

Exhibit VD1-3, a Record of Disciplinary Proceedings (RDP) concerning Corporal Harris signed by Warrant Officer Girvan on 21 May 2008;

Exhibit VD1-4, an Account in Writing from Corporal Glass to Corporal Mantha concerning the arrest of Corporal Harris dated 23 September 2007;

Exhibit VD1-5, a Direction on Release from Custody concerning Corpo­ral Harris and dated 23 September 2007;

Exhibit VD1-6, a bundle of documents which are an information form of a military police officer concerning Ashley Thompson dated 30 Septem­ber 2007, a Recognizance of Bail form concerning Ashley Thompson dated 30 September 2007, a Judicial Interim Release Order form con­cerning Ashley Thompson dated 30 September 2007 and its appendix;

Exhibit VD1-7, an excerpt of the Canada Gazette, Part III, Statutes of Canada, 1998, Chapter 35, section 42, concerning the wording of section 162 of the NDA in force on 1 September 1999;

Exhibit VD1-8, an excerpt of Chapter 29, section 3, concerning the wording of section 162 of the NDA in force on 18 July 2009;

Exhibit VD1-9, the minutes of the Standing Committee on National Defence, NDDN-32 dated 16 June 2008;

Exhibit VD1-10, excerpts of the Military Police Policies and Technical Procedures Manual (A-SJ-100-004/AS-000);

Exhibit VD1-11, a DVD containing the video recorded statement made by the applicant on 23 September 2007 to Corporal Glass;

Exhibit VD1-12, a certified written transcript of the statement made by the applicant on 23 September 2007 to Corporal Glass; and

The judicial notice taken by the court of the facts and issues under Rule 15 of the Military Rules of Evidence.

[8]        The court considers that it would be appropriate to deal first with the issue raised by the applicant about the constitutional validity of sections 156 to 158 of the NDA considering the importance of it.  By doing so, the court would also have to expose once the legal framework concerning the arrest and the pre-trial custody within the military justice system necessary to the analysis of both issues raised by the applicant, and if the court declares invalid those sections, it may render unnecessary to proceed with the analysis of the second legal issue raised by the applicant, which is related directly to the an alleged infringement of his rights under the Charter.

THE CONSTITUTIONAL VALIDITY OF SECTIONS 156 TO 158 OF THE NDA

[9]        The application made by Corporal Harris raises the issue of the constitutional validity of sections 156 to 158 of the NDA with respect to persons subject to the Code of Service Discipline who are released with conditions following their arrest by authorized officers and non-commissioned members.  More specifically, the question raised is whether the regime set out by Parliament for releasing those persons with conditions further to their arrest is unconstitutional under sections 7 and 9 of the Charter.

The facts

[10]      On 23 September 2007, early in the morning around 3 a.m., the military police pulled over a car on the Canadian Force Base Borden.  The three occupants of the car were looking for a female, Private Thompson, and an unidentified male involved in a physical altercation that occurred previously at a building used as quarters on the base with one of the occupant of the car, Private MacGillivary.  A military police member, Corporal Glass, was then dispatched to the building in order to gather information and investigate on that incident.  He did so by meeting Private Williams.  At the end of his shift, the male suspect was still unidentified.

[11]      At the beginning of his night shift on the same day around 6 p.m., Corporal Glass was dispatched with one of his military police colleagues, Corporal Reansbury, to the room of the unidentified male suspect who was identified and located earlier that day, who was Corporal Harris.  Both MPs met Corporal Harris at his room and he was asked by Corporal Reansbury if he could step out in the hallway very briefly to talk about an assault, and if he would come with them to the military police detachment for questioning about the assault incident that occurred very early that morning.  There was no intent to arrest Corporal Harris at that time because the idea of meeting him was to advance the investigation considering that he was known by the MPs that he had some involvement in the assault incident.  Corporal Harris agreed to the request made by Corporal Reansbury, and he went with his own car to the MP detachment some time later.

[12]      When he entered at the MP detachment, Corporal Harris was brought to the interview room where Corporal Glass placed him immediately under arrest, provided him his legal rights and cautions, and obtained a video recorded statement from him.  About two hours after his arrest, the Custody Review Officer, Captain Daviau, directed that Corporal Harris be released if the latter agreed to comply with some conditions and sign the appropriate form.  Corporal Harris agreed and signed the form, he was then released with conditions.

[13]      On 21 May 2008, which is eight months after his release from custody following his arrest by the MP, three charges were laid against Corporal Harris.

The NDA Statutory provisions on arrest and pre-trial custody

[14]      It has been long recognized that the purpose of a separate system of military justice or tribunals is to allow the Armed Forces to deal with matters that pertain to the respect of the Code of Service Discipline and the maintenance of efficiency and morale among the Canadian Forces.  As stated by the Supreme Court of Canada in R. v. Généreux, [1992] 1 S.C.R. 259, at page 293:

The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military.   The safety and well-being of Canadians depends considerably on the willing­ness and readiness of a force of men and women to defend against threats to the nation's security.  To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently.  Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct.  As a result, the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs.  In addition, special service tribunals, rather than the ordinary courts, have been given jurisdiction to punish breaches of the Code of Service Discipline.  Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military.  There is thus a need for separate tribunals to enforce special disciplinary standards in the military.

[15]      An overview of the NDA indicates clearly that the military justice system has a two-tiered tribunal structure that includes the summary trial system and the court martial system in order to have enough flexibility to appropriately respond to specific opera­tional and disciplinary requirements.  Essentially, summary trials conducted by authori­ties within the chain of command provide prompt and fair justice of minor service offences, while courts martial are presided by a judicial authority, a military judge, and conducted in accordance with rules of evidence and procedure similar to those followed by civilian criminal courts in Canada in order to deal usually with more serious legal matters, whether it is in relation to the nature of the offence or any other issue such as a constitutional or a Charter question.

[16]      The military justice system set up by Parliament in the NDA, in order to consider the specific needs of the Canadian Armed Forces, applies to a variety of essential aspects, including the one related to arrest and pre-trial custody of those who are subject to the Code of Service Discipline.

[17]      Division 3 of part III of the NDA, which is in fact Division 3 of the Code of Service Discipline, is about this specific topic and it consists of sections 153 to 159.9.

[18]      Those who are subject to the Code of Service Discipline may be placed under arrest.  The non-commissioned members (thereafter NCM) and officers appointed as military police under the regulation have the legal authority to arrest without warrant (see section 156 of the NDA).  Other NCMs and officers have also a power to arrest without warrant, but for limited circumstances and in relation to their own rank and the nature of the offence (see section 155 of the NDA).  Commanding officers and delegated officers have authority to issue an arrest warrant (see section 157 of the NDA).

[19]      Section 158 of the NDA does establish that depriving a person of his or her liberty is the exception unless some circumstances, which are listed in the section, are met.  A person who commits a person under arrest to service custody shall deliver to the officer or NCM responsible for the custody an account in writing setting out the reasons for custody.

[20]      Then, the officer or NCM responsible for custody shall deliver to the custody review officer a report of custody in writing within 24 hours of the arrest.  However, before doing so, the report and the account in writing must be provided to the person in custody, and he or she must be given the opportunity to make representations concern­ing his or her release, and if so, they must be reduced in writing or recorded by any other means.

[21]      A specific regime has been put in place in the NDA for dealing with the situation following the arrest of a person subject to the Code of Service Discipline.  Sections 158.2 to 158.6 of the NDA address the question of the review by the custody review officer.  This person is the commanding officer or a delegated officer of the unit of the person in custody.  As a matter of practice, usually it is a delegated officer who exer­cises the function, as it was the case in this matter.

[22]      Subsection 158.2(2) of the NDA reiterates the principle that after the review, the custody review officer shall direct that the person committed to custody be released immediately.  The custody review officer may release the person in custody with or without conditions.

[23]      It is important to note that a custody review officer has a limited authority to release, considering that when the person in custody is charged with a designated offence, he has no other choice as when he decides to not direct the release, to cause the person to be taken before a military judge for a custody review hearing as soon as practicable.  It means that the custody review officer is allowed to deal only with persons in custody who are detained for matters involving offences for which serious­ness is less than those included in the definition of designated offence at section 153 of the NDA. 

[24]      If the person committed to custody is released by the custody review officer with or without conditions, the NDA has a mechanism that allows the review of that decision on application of any party.  However, if the custody review officer does not direct the release of the person from custody, he must cause the person to be taken, as soon as practicable, before a judicial authority, which is a military judge, for a custody review hearing.

[25]      In summary, an authorized officer or NCM, including those appointed as military police, decide to arrest without warrant a person subject to the Code of Service Discipline, and a decision to retain this person in custody is made in accordance with the circumstances listed at subsection 158(1) of the NDA, the person arrested shall be placed in service custody.  Then, a process will be initiated in order for a custody review officer to decide if the person detained shall be released with or without conditions or that he or she shall be detained.  If the person in custody is released, then a review of that decision may be done.  If the person is not released from custody considering the nature of the offence laid or the circumstances of the matter, including those listed at subsection 158(1) of the NDA, then a judicial review will take place.  Essentially, a custody review officer has a quite large discretionary power to release a person in custody.  His authority to do so is limited mainly by the nature of the offence and the circumstances of the matter, and if he takes the decision to maintain in custody, then his decision to do so is subject, in all cases, to a custody review hearing presided by a judicial authority.

[26]      The custody review hearing presided by a military judge is very similar to the one set up by the provisions on judicial interim release in the Criminal Code.  Onus to prove the necessity to retain in custody or not may vary depending if the person in custody is charged with a designated offence or not.  The military judge may order that the person in custody be released without conditions or on the giving of an undertaking.  Variation of undertaking may be made by a military judge on application or with the written consent of the person and the Director of Military Prosecutions.  The review of any direction made by a military judge may be made by the Court Martial Appeal Court on application.  If a military judge directs that a person be retained in custody, then the person in custody shall be brought before a military judge if the trial has not taken place within 90 days of the initial military judge’s decision.

[27]      Finally, the provisions addressing the laying of a charge are sections 161, 161.1 and 162 of the NDA.  They establish the fact that proceedings commence by the laying of a charge, that it shall be referred to a commanding officer, and that once it is laid it shall be dealt with as expeditiously as the circumstances permit.

The position of the applicant

[28]      The applicant has narrowed the constitutional question in issue that he raised in his application by attacking only NDA provisions that are related to the situation where a person subject to the Code of Service Discipline is arrested and released with conditions without having charges laid.  He is asking this court to declare sections 156 to 158 of the NDA constitutionally invalid, which means of no force or effect.

[29]      More specifically, the applicant argues that those NDA provisions have some shortcomings concerning such situations, leaving in the dark for an indefinite period of time a person released with conditions for which a charge has not been laid.  In fact, he is claiming that without any provisions putting on the military justice system the obligation to take action at some point in time, a person could see restrictions put on his liberty without knowing when it will end while he or she is not yet the subject of a charge.

[30]      As a point of comparison for the court and as an illustration of his point, he used, as an example, the scheme for such situations set up in the Criminal Code, and more particularly, what can be found at section 505 of the Criminal Code.  Essentially, pursuant to that section, further to his or her arrest, if a person is released in the circum­stances listed at sections 497 and 498 of the Criminal Code, which is when a peace officer releases a person if he or she signed a promise to appear or is compelled to appear by way of summons, then section 505 of the Criminal Code puts on the Cana­dian criminal justice system the obligation to lay an information before the time stated in the promise to appear delivered previously by the peace officer.

[31]      As an illustration of his argument, counsel for the applicant submitted as a comparison, the situation of Private Thompson.  Private Thompson was involved in the same incident as the applicant.  However, for unknown reasons, her case was dealt with by the civilian justice system.  Investigation on Private Thompson and the applicant was completed seven days after the alleged incident occurred.  Private Thompson was arrested, charged and released with conditions on the day prior to the completion of the investigation, made five appearances in court from the time of her initial arrest, and the matter was disposed of by civilian courts three months after the incident, further to a guilty plea.  It means that five months prior to the time the applicant was charged, the case of Private Thompson was already dealt with, even though the investigation was completed for few months.

[32]      Counsel for the applicant submitted to the court that the lack of judicial over­sight when a person is released with conditions in the Canadian military justice system is very harmful.  He pointed out to the court that Parliament has considered in the NDA, the situation for which a person detained is entitled, pursuant to the NDA provisions, to such judicial overview, but it has remained silent for the one where a person is released with conditions.  Also, he highlighted the fact that section 162 of the NDA put on the military justice system the obligation to proceed expeditiously as the circumstances permit when a charge is laid, but that nothing equivalent to that effect exists when a person is released with conditions. 

[33]      In his notice of application and during his address, counsel for the applicant told the court that he was looking for a declaration of invalidity by this court for sections 156 to 158 of the NDA.  However, during the hearing, the court pointed out that section 156 of the NDA is dealing with powers of military police to arrest without warrant and that section 157 of the NDA is about the issuance of a warrant for arrest by a commanding officer or delegated officer, and that both provisions do not have something to do with the situation put at issue by the applicant.  The latter agreed with the court and stated that the situation he submitted has a lot more to do with section 158 of the NDA which is dealing with the release of a person from custody.

[34]      So the applicant submitted to the court that considering the absence of a specific mechanism at section 158 of the NDA, such as the one contemplated in section 505 of the Criminal Code, on the issue of a definite period of time within which a charge shall be laid when a person is released with conditions further to his or her arrest, any person subject to the Code of Service Discipline arrested and released with conditions within having charges laid against him or her is subject to an indefinite period of jeopardy, and then this situation would constitute a violation by section 158 of the NDA of the applicant's Charter rights pursuant to sections 7 and 9 of the Charter.

[35]      Counsel for the applicant did not expand a lot on the application of section 9 of the Charter to the issue he raised.  However, the court understands that he is claiming that in some circumstances, a person arrested may be released with conditions, and that those conditions could amount to a detention which would trigger, from his perspective, section 9 of the Charter.  Then, considering that the provisions on arrest and pre-trial custody do not contemplate at what point a decision shall be made on the fact that a person released with conditions must be charged or not, then that person would be, in such situation, arbitrarily detained.

[36]      For the application of section 7 of the Charter, counsel for the applicant submitted to the court that the shortcomings of the provisions on arrest and pre-trial custody triggered the right to liberty of the accused.  He also submitted to the court that the deprivation of applicant's liberty right was not done in accordance with the follow­ing principle of fundamental justice:  a person being arrested and released with condi­tions shall be charged as soon as practicable by legal authorities.

[37]      Concerning the application of section 1 of the Charter to an infringement of section 7 or 9, applicant's rights, not much helpful things were said on that issue.

[38]      As the court concludes to the infringement of section 7 or 9 of the Charter by section 158 of the NDA, the applicant is requesting this court, as a remedy, to declare invalid that specific section of the NDA pursuant to section 52 of the Constitution Act, 1982.  He also requested, for the same reason, that this court order a stay of proceedings pursuant to subsection 24(1) of the Charter, and if not, alternatively, it reserve its decision in order to consider mitigating the sentence.

[39]      Finally, always as a remedy, and if a stay is not ordered by this court, the applicant requested that it excludes as evidence the statement made to the military police by the applicant on 23 September 2007 pursuant to subsection 24(2) of the Charter, considering that it is conscriptive evidence obtained pursuant to the infringe­ment of the Charter rights of the applicant.

The position of the respondent

[40]      Considering that this application is contested, it is not surprising that the respondent for this application took the position that sections 156 to 158 of the NDA are valid and constitutional.  Counsel for respondent quickly pointed out the fact that sections 156 (powers of military police to arrest without a warrant) and 157 (warrant for arrest) had no application to this case, and were not properly put as an issue before the court because they have nothing to do with the question raised by the applicant, which is about action to be taken once a person subject to the Code of Service Discipline is released from custody with conditions further to his or her arrest.

[41]      Essentially, the respondent is of the opinion that considering the existence of a review mechanism that could be triggered by the person released, and subject to the conditions or by a review authority in order to vary the conditions of release, it allows the military justice system to have an opportunity to review if any conditions imposed for the release of the person are still appropriate, and to have a look to the status of the charges considered to be laid from a timeliness perspective.

[42]      Counsel for the respondent submitted that provisions on arrest and pre-trial custody do not result in an infringement of section 9 of the Charter because they do not result in an arbitrary detention when a person subject to the Code of Service Discipline is released with conditions from custody further to his or her arrest without seeing charges laid for some period of time.

[43]      The respondent does agree that the right triggered by the application made by Corporal Harris is the right to liberty.  However, he submits that if the principle of fundamental justice suggested by the applicant is accepted by the court, the provisions on arrest and pre-trial custody in the NDA deprive of liberty a person subject to the Code of Service Discipline in conformity with that principle because those provisions were enacted by Parliament with the understanding that legal authorities shall always act with dispatch, i.e., with promptness and efficiency, within the legal frame set up by those provisions.

[44]      Concerning the application of section 1 of the Charter to an infringement of sections 7 or 9, applicant’s Charter rights, the respondent did not say much on that issue either.

[45]      As the court concludes to the infringement of section 7 or 9 of the Charter by section 158 of the NDA or any other provision on arrest and pre-trial custody, the respondent did not tell much to the court about the ability for it to declare such provi­sions constitutionally invalid in accordance with section 52 of the Charter.

[46]      However, the respondent is requesting this court, if it proceeds to the assessment of the application of subsection 24(1) of the Charter to the case at bar, as a remedy to reserve its decision on sentence in order to consider mitigating it.  The respondent is of the opinion that this court is not facing the clearest of cases and that a staying of proceedings would be inappropriate in the circumstances.

[47]      Concerning the exclusion as evidence of the statement of Corporal Harris made on 23 September 2007 to the military police, pursuant to subsection 24(2) of the Charter, if a stay of proceedings is not considered by this court, the respondent never really commented on that issue.

The issues

[48]      Basically, the applicant is raising a very specific situation which is once a person subject to the Code of Service Discipline is released with conditions from custody further to his or her arrest, what is going on with the limitation imposed to his or her liberty while waiting for charges being laid?

[49]      The applicant is submitting that the NDA legal framework governing this question does not cover that specific situation.  More specifically, counsel for the applicant submitted to the court that section 158 of the NDA is the provision that should have contained some reference to the issue of the laying of charges while a person is released with conditions.  However, as explained earlier, this section is about the obligation for the person proceeding with the arrest of the person to release him or her unless some specific circumstances arise, justifying the arrest authority to retain in custody the person arrested.  It also covers the obligations for the arrest authority to put in service custody the person arrested and to provide an account in writing.  It does not cover the situation when a person in custody is released with conditions.

[50]      Despite the uncertainty coming from the fact that the applicant failed to properly rely on the legal issue he raised with a specific and relevant provision in the NDA, the court made the decision to proceed with its analysis, considering that this constitutional question is worthwhile and it has some merit.

[51]      From the court's perspective, the only relevant provision dealing with the issue raised by the applicant is section 158.6 of the NDA.  This section talks about the authority for the custody review officer to release, with or without conditions, the person in custody, and also consider actions that could be taken following his or her release from custody.

[52]      Then, the issues could be formulated as follows:

Does section 158.6 of the NDA violate the rights of the applicant under sections 7 and 9 of the Charter?

If the court considers that this section violates the rights of the applicant under the Charter, what would be the appropriate remedy in respect of section 52, subsections 24(1) and 24(2) of the Charter?

The analysis

[53]      Section 158.6 of the NDA reads as follows:

"(1) The custody review officer may direct that the person be released without conditions or that the person be released and, as a condition of release, direct the person to comply with any of the following conditions:

(a) remain under military authority;

(b) report at specified times to a specified military authority;

(c) remain within the confines of a specified defence

establishment or at a location within a geographical area;

(d) abstain from communicating with any witness or specified

person, or refrain from going to any specified place; and

(e) comply with such other reasonable conditions as are

specified.

(2) A direction to release a person with or without conditions may, on applica­tion, be reviewed by

(a) if the custody review officer is an officer designated

by a commanding officer, that commanding officer; or

(b) if the custody review officer is a commanding officer,

the next superior officer to whom the commanding officer is

responsible in matters of discipline.

(3) After giving a representative of the Canadian Forces and the released person an opportunity to be heard, the officer conducting the review may make any direction respecting conditions that a custody review officer may make under subsection (1).

[54]      As mentioned earlier, this section provides authority to the custody review officer to release with conditions a person in custody.  It also provides the commanding officer or the superior officer next to him for disciplinary matters to review, on applica­tion, the release conditions.  Decision on review can be made only further to a hearing of a representative of the Canadian Forces and the released person.  Nothing is said in this section about the laying of a charge while a person is released with conditions.  As I stated earlier, the laying of a charge is specifically dealt with by sections 161, 161.1 and 162 of the NDA without any reference to the latter situation.

[55]      Section 158.6 of the NDA is not about imprisonment and does not involve arrest.  As I already stated earlier, this section is about the authority for a custody review officer to release, with or without conditions, the person in custody and also consider actions that could be taken following his or her release from custody.  However, is a person released with conditions detained as it is contemplated by section 9 of the Charter?  From the court's perspective, it would be necessary to do so in order to engage section 9 of the Charter.

The infringement of section 9 of the Charter

[56]      Section 9 of the Charter reads as follows:

“9. Everyone has the right not to be arbitrarily detained or imprisoned.”

[57]      As stated recently at paragraph 20 by the majority decision in R. v. Grant, [2009]  S.C.C. 32, issued on 17 July 2009:

The purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference.

[58]      The definition of detention has been recently reviewed by the Supreme Court of Canada in that same decision.  Prior to that decision, detention was defined as a restraint of liberty by an agent of the state, other than arrest, in which a person may reasonably require the assistance of counsel.  In addition to physical restraint, there was detention with the assumption of control over the movement of a person by a demand that may have significant legal consequences and that prevents or impedes access to counsel.

[59]      Even without legal consequences, there was also a detention known as psycho­logical detention when a person submits to a deprivation of liberty reasonably believing that there is no other choice because most citizens are not aware of the precise legal limits of police authority.

[60]      Now, for the purpose of section 9 of the Charter, the Supreme Court of Canada has defined detention in its majority decision in Grant aforementioned, at paragraph 44, as follows:

In summary, we conclude as follows:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint.  Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.  To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual:  whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

                b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[61]      After a reading of the conditions listed at subsection 158.6(1) of the NDA, I note that it would allow a custody review officer to proceed to a suspension of individual's liberty by imposing conditions, taken individually or combined, to a person subject to the Code of Service Discipline that would have significant physical and psychological restraints.  The custody review officer, if he decides to release a person in custody with conditions, may impose to an individual to report himself at a specific time and at any frequency to any authority, he may confine the person to a specific area or location, he may order the person to abstain from communicating with any other person and refrain from going to any location, and he may also impose any other reasonable conditions that may impact on the liberty of the individual.  All of this could be done without having the person charged of any offence.

[62]      Then, I conclude that section 156.8 of the NDA gives to a custody review officer the authority to impose conditions for the release from custody of person that would amount to a detention in the meaning of section 9 of the Charter.

[63]      It is true that the impact of the conditions imposed for release may vary on individual, it could be perceived as lenient or stringent.  However, this section offers a clear and real possibility to impose significant limits to the liberty of an individual that make it sufficient to constitute detention in the meaning of section 9 of the Charter.

[64]      Considering that I come to the conclusion that section 158.6 of the NDA fell within the general concept of detention that was applied in Grant, I must now consider if it authorizes arbitrary detention in order to determine if it violates the applicant's section 9 Charter rights.

[65]      In Grant, aforementioned, the majority expresses its view on arbitrary detention at paragraph 54:

The s. 9 guarantee against arbitrary detention is a manifestation of the general principle, enunciated in s. 7, that a person's liberty is not to be curtailed except in accordance with the principles of fundamental justice.  As this Court has stated: "This guarantee expresses one of the most fundamental norms of the rule of law.  The state may not detain arbitrarily, but only in accordance with the law": Charkaoui v. Canada (Citizenship and Immigra­tion), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 88.  Section 9 serves to protect individual liberty against unlawful state interference.  A lawful detention is not arbitrary within the meaning of s. 9 (Mann, at para. 20), unless the law authorizing the detention is itself arbitrary.  Conversely, a detention not authorized by law is arbitrary and violates s. 9.

[66]      Then, is section 156.8 of the NDA arbitrary law?  In order to make this determina­tion, I should first deal with the meaning of the word "arbitrary" in that specific context.

[67]      In the decision R. v. Hufsky, [1988] 1 S.C.R 621, the Supreme Court of Canada  came to the conclusion that the Highway Traffic Act of Ontario was lawfully authorizing police officers to proceed with random stopping of motor vehicles for spot check of driver's licences and proof of insurance, mechanical fitness of vehicles and sobriety of drivers.  However, while proceeding to the analysis of that disposition in the context of section 9 of the Charter, the court came to the following conclusion at paragraph 13:

Although authorized by statute and carried out for lawful purposes, the random stop for the purposes of the spot check procedure nevertheless resulted, in my opinion, in an arbitrary detention because there were no criteria for the selection of the drivers to be stopped and subjected to the spot check procedure.  The selection was in the absolute discretion of the police officer.  A discretion is arbitrary if there are no criteria, express or implied, which govern its exercise.

[68]      In R. v. Duguay, [1989] 1 S.C.R. 93, Justice l'Heureux-Dubé confirmed in her dissenting decision this approach in the context of a section 9 Charter analysis by saying that:

.... A detention is arbitrary if it is the product of an untrammelled discretion.

In  R. v. Ladouceur, [1990] 1 S.C.R. 1257, even though the Supreme Court of Canada provided a split decision on the application of section 1 of the Charter, judges were unanimous to conclude that the legal provision of the Highway Traffic Act of Ontario which was the subject of the analysis, was inconsistent with section 9 of the Charter, confirming then the definition of “arbitrary detention” provided in Hufsky, aforemen­tioned, by saying that:

... A discretion is arbitrary if there are no criteria, express or implied, which govern its exercise.

[69]      However, the most illustrative Supreme Court decision on this very issue is R. v. Swain, [1991] 1 S.C.R. 933.  At trial, the accused was found not guilty by reason of insanity on all counts.  Defence counsel then moved to have section542(2) of the Criminal Code, which provides for the automatic detention at the pleasure of the Lieutenant Governor of an insanity acquittee, declared inoperative on the basis that it violated the Charter.  The application was dismissed at trial and appeal levels.  However, the majority decision at the Supreme Court level concluded differently by saying that the accused's section 9 right not to be detained arbitrarily was restricted because there are no criteria at section 542(2) of the Criminal Code for the exercise of the trial judge's power to detain.  Essentially, the majority  said on the issue concerning section 9 of the Charter:

In conclusion, because s. 542(2) requires a trial judge to automatically order strict custody based on no criteria or standards and before any kind of hearing can be conducted on the issue of present mental condition, this provision infringes the appellant's rights under ss. 7 and 9 of the Canadian Charter of Rights and Freedoms.  I turn now to the issue of whether the provision can be saved under s. 1.

[70]      Now, how a custody review officer exercises discretionary power to release with conditions a person committed to custody?  First, an account in writing will be prepared by the person who carried out the arrest, setting out why the person under arrest is committed to custody as stated at section 158 of the NDA.

[71]      Then, as indicated at section 158.1 of the NDA, a report of custody will be prepared by the officer or the NCM into whose custody of the person arrested is committed, stating the name, an account of the offence alleged to have been committed, and the name of the person who proceeded to the arrest.

[72]      Both documents must be provided to the person in custody in order to give him or her the opportunity to make representations concerning his or her release from custody.  Those representations must be reduced to writing or recorded by any other means.

[73]      All the documentation; the account in writing, the report of custody and the representations by the person in custody, if any, must be given to the custody review officer.  If the person in custody does not provide representations, a statement must be provided to the custody review officer confirming that such opportunity was given but it was declined.

[74]      As provided at sections 158.2 to 158.6 of the NDA, the custody review officer shall proceed to a review of the documentation within 48 hours after the arrest of the person, and shall direct that the person committed to custody be released.

[75]      However, if the custody review officer believes on reasonable grounds that it is necessary to maintain the person in custody considering the circumstances, including those listed at subsection 158(1) of the NDA, or if the person in custody is charged with a designated offence as defined at section 153 of the NDA, then he shall direct that the person be retained in custody.  In such situations, the person in custody will be taken before a military judge for a formal custody review hearing.

[76]      If the custody review officer makes the decision to release the person in custody, he may decide to impose conditions as those listed at section 158.6 of the NDA or such other reasonable ones.

[77]      Finally, as I mentioned before, the custody review officer’s decision to release a person in custody with or without conditions may be reviewed on application by a superior authority within the chain of command in the Canadian Forces, and the person released from custody must be given an opportunity to be heard before any decision being made.  It then provides an opportunity to the person released with conditions to formally request a removal or a change of the conditions imposed by the custody review officer if they become to stringent or onerous.

[78]      This review leads the court to conclude that the custody review officer’s discretion­ary authority to release with conditions a person in custody is governed by some criteria, and this situation may be varied by a decision from an higher authority which is also governed by some criteria.

[79]      The legal framework set up by the NDA clearly provides some criteria and standards on which a custody review officer and a review authority must rely in order to knowingly decide if conditions must be imposed when a person subject to the Code of Service Disci­pline is released from custody and he or she is waiting a decision on charges to be laid.

[80]      Then, it is the conclusion of this court that the detention resulting from the decision of the custody review officer, and also from the reviewing authority decision, made in accordance with section 158.6 of the NDA to release with conditions a person in custody while waiting charges to be laid, is not arbitrary within the meaning of section 9 of the Charter.

The infringement of section 7 of the Charter

[81]      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."

[82]      The Chief Justice of the Supreme Court of Canada expressed in a very clear manner what is legally required by that section, when she said at paragraph 12 of the decision of Charkaoui v. Canada (aforementioned):

Section 7 of the Charter guarantees 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.  This requires a claimant to prove two matters: first, that there has been or could be a deprivation of the right to life, liberty and security of the person, and second, that the deprivation was not or would not be in accordance with the principles of fundamental justice.  If the claimant succeeds, the government bears the burden of justifying the deprivation under s. 1, which provides that the rights guaranteed by the Charter are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[83]      Considering the previous conclusion of this court on the fact that section 158.6 of the NDA is involving detention in the meaning of section 9 of the Charter, it appears obvious to the court that the matter raised by the applicant through section 158.6 of the NDA engages the right to liberty.  It is also not surprising that both counsel agreed on that specific matter.

[84]      Now, does that section of the NDA deprive a person subject to the Code of Service Discipline of his or her right to liberty in accordance with the principles of fundamental justice?

[85]      Interestingly enough, the matter of arrest and pre-trial custody has been a subject of interest for the Court Martial Appeal Court in the last ten years.  In R. v. Gauthier, [1998] C.M.A.J. No. 4, Justice Létourneau delivered the judgment for the court.  Corporal Gauthier was arrested by the military police in operational theatre while deployed overseas.  Justice Létourneau provided that interesting comment at paragraph 26 of the decision about NDA provisions on arrest and pre-trial custody:

With the advent of the Charter and the constitutionalization of the protection against arbitrary arrest and detention, the requirements governing the exercise of the power of arrest which are found in the Criminal Code and which, surprisingly, are not found in the N.D.A., except in section 158 where they apply only as criteria for release from custody, have become minimum requirements for the valid exercise of the power of arrest.

[86]      Those comments were reaffirmed later by Justice Létourneau in a Federal Court of Appeal decision for a civil matter involving the arrest of a person subject to the Code of Service Discipline by the military police (see Dulude v. Canada, [2001] 1 C.F. 545, at paragraph 11).

[87]      But it is in the decision of R. v. Larocque, [2001] C.M.A.C. 002, where a deep analysis can be found by Justice Létourneau on the issue of arrest and detention pursuant to the NDA provisions in the light of sections 7 and 9 of the Charter, that this court may find some direction.  It still unclear today if the opinion of Justice Létourneau constitutes the opinion of the majority for the court, considering the comments made by Justice Meyers, but it still important to consider what was said.

[88]      Master Corporal Larocque was a military police patrolman suspected of criminal harassment toward an employee of the non-public funds at St-Jean Garrison, in the province of Quebec.  He was arrested and released with some conditions in accordance with the NDA provisions.  His credentials as a military police were suspended and he was assigned to a different duty not related to usual military police work and duties.  Sixteen months elapsed between the time the custody review officer directed his release with conditions and the moment charges were laid.

[89]      When proceeding to the second stage of the analysis concerning the breach of the right to liberty of Master Corporal Larocque under section 7 of the Charter, which is the determination of the applicable principle of fundamental justice, Justice Létourneau relied on the provisions of the Criminal Code pertaining to the appearance of an accused in court and his release as a good source for identifying or determining the principles of fundamental justice.  As the applicant, he made some reference, among other things, to section 505 of the Criminal Code which imposes some time requirements on the Canadian criminal justice system to lay an information before the time stated in the promise to appear delivered previously by a peace officer.

[90]      Then, on the issue of the applicable principal of fundamental justice, Justice Létourneau said, at paragraph 17 of the decision:

All in all, the provisions of both the Code and the Act, notwithstanding the deficiencies and shortcomings in the latter, identify the following principle of fundamental justice: a person who is arrested without a warrant because the authorities have reasonable grounds to believe he has committed an offence, whether that person is detained or released, shall be charged as soon as materially possible and without unreasonable delay unless, in the exercise of their discretion, the authorities decide not to prosecute.

[91]      Even though this principle was enunciated in a timeliness perspective, it reflects also the CMAC’s fundamental justice concern about the impact of the wait on a person who was arrested and waiting for being charged.

[92]      While examining, in the context of the Immigration and Refugee Protection Act or IRPA, the impact of extensive detention or the situation of a person released with conditions for a long period of time in the decision of Charkaoui, aforementioned, the Supreme Court of Canada identified the applicable principle of fundamental justice in its analysis of section 7 of the Charter in those terms at paragraph 107:

The principles underlying Lyons must be adapted in the case at bar to the immigration context, which requires a period of time for review of the named persons right to remain in Canada.  Drawing on them, I conclude that the s. 7 principles of fundamental justice and the s. 12 guarantee of freedom from cruel and unusual treatment require that, where a person is detained or is subject to onerous conditions of release for an extended period under immigration law, the detention or the conditions must be accompanied by a mean­ingful process of ongoing review that takes into account the context and circumstances of the individual case.  Such persons must have meaningful opportunities to challenge their continued detention or the conditions of their release.

[93]      Then, I draw from those two principals of fundamental justice identified by those higher courts that there is a section 7 Charter's principle of fundamental justice, which require that where a person is detained or is subject to onerous conditions of release for an extended period of time further to his or her arrest, and while waiting a decision for being charged or not, the detention or the release with conditions must be accompanied by a meaningful process of review that takes into account the context and circumstances of the individual case.  Such person must have a meaningful opportunity to challenge their continued detention or the conditions of their release.

[94]      I consider that this principal of fundamental justice fits the requirements set up in the Supreme Court of Canada decision in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, as they are enunciated at paragraph 8:

Jurisprudence on s. 7 has established that a “principle of fundamental justice” must fulfill three criteria: R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 113.  First, it must be a legal principle.  This serves two purposes.  First, it "provides meaningful content for the s. 7 guarantee"; second, it avoids the "adjudication of policy matters":  Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503.  Second, there must be sufficient consensus that the alleged principle is "vital or fundamental to our societal notion of justice": Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 590.  The principles of fundamental justice are the shared assumptions upon which our system of justice is grounded.  They find their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens.  Society views them as essential to the administration of justice.  Third, the alleged principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results.  Examples of principles of fundamental justice that meet all three requirements include the need for a guilty mind and for reasonably clear laws.

[95]      The applicant submitted to the court that he was not challenging the NDA provisions on arrest and pre-trial custody from a reasonable time perspective to make a decision to lay charges while a person, subject to the Code of Service Discipline, is released with conditions further to his arrest, but from the angle that, according to the scheme set up in the NDA, while a person is released with conditions further to his or her arrest, he or she may be left in limbo with limitations imposed to his or her liberty without seeing meaningful means imposed on the military justice system to make decisions on the necessity to lay a charge or not, which would result by having this person left in an indefinite jeopardy.

[96]      To illustrate his argument, counsel for the applicant submitted that section 505 of the Criminal Code is an example how such similar provision could fix this alleged shortcom­ings identified in the NDA.  To support his position, he refers to the decision of the Court of Appeal for Ontario in R. v. Markovic, docket C42755, 11 November 2005, where the court  identified the purpose of section 505 of the Criminal Code at paragraph 16:

Thus, as indicated in Gougeon, the purpose of the time requirement in s. 505(b) with which we are concerned, that is, the requirement that an information be laid before a Justice of the Peace "in any event before the time stated in the…promise to appear", is "to ensure that there will be an information before the Court on the return of the process" concerning the accused.  The purpose of the other time requirement, which directs that an information be laid before a Justice of the Peace "as soon as practicable", is to provide an opportunity for "judicial intervention to cancel the process if it should not…have issued in the first place".

[97]      Then, as a matter of  what must occur to a person arrested and released with a promise to appear delivered previously by the peace officer, the Court of Appeal for Ontario says about the application of section 505 of the Criminal Code in the same decision at paragraph 23:

... The time requirements in s. 505(b) are related and, in combination, establish a finite time within which an information must be laid in order to ensure that an accused whose attendance in court is required by a promise to appear does not face an indefinite period of jeopardy.

[98]      Then, would the deprivation of liberty resulting from the application of section 158.6 of the NDA, which is the decision by a custody review officer to release a person with conditions while awaiting a decision by a military authority about the laying of charges, occur in accordance with the relevant principal of fundamental justice, which requires that where a person is detained or is subject to onerous conditions of release for an extended period of time, further to his or her arrest and while awaiting a decision for being charged or not, the detention or the release with conditions must be accompanied by a meaningful process of review that takes into account the context and circumstances of the individual case?

[99]      Simply put, the answer is yes.  A person subject to the Code of Service Discipline released with conditions, which could be potentially onerous and for an extensive period of time, pursuant to the authority given to the custody review officer by section 158.6 of the NDA, may initiate a meaningful review of those conditions in accordance with paragraphs 2 and 3 of the same section.  I am of the opinion that this review mechanism is sufficient in order to allow a person in custody to have a review of relevancy of the direction to release him or her with conditions, and how suitable are the release conditions while awaiting a decision from authorities to have charges laid or not.

[100]    It is important to remember that the custody review officer's authority to review suffers some limitation in reason of the nature of the charges that could be considered, and depending of the circumstances of the arrest.  In some situations, the officer has no other choice but to order detention which will result in any case, with a custodial review hearing presided by a military judge.  In some other cases, further to the review, he may decide to engage the custody review hearing by a military judge by simply directing that the person be retained in custody despite the fact he has authority to release.  In any case, the review mechanism may be triggered in both instances by the person in custody, no matter if a decision is made to release or not.

Conclusion

[101]    Then, it is the conclusion of this court that section 158.6 of the NDA does not violate the rights of the applicant under sections 7 and 9 of the Charter.

THE VIOLATION OF THE RIGHTS OF THE ACCUSED UNDER SECTIONS 7 AND 9 OF THE CHARTER FURTHER TO HIS ARREST AND RELEASE WITH CONDITIONS

[102]    The application made by Corporal Harris raised also a Charter issue about his arrest and the decision of the custody review officer to release him from custody with conditions.  He is claiming that both decisions were made in violation of his rights under sections 7 and 9 of the Charter.

THE FACTS

[103]    On 23 September 2007, early in the morning around 3 a.m., the military police pulled over a car on Canadian Force Base Borden.  The three occupants of the car were looking for a female, Private Thompson, and an unidentified male involved in a physical altercation that occurred previously at a building used as quarters with one of the occupant of the car, Private MacGillivary.  A military police member, Corporal Glass, was then dispatched to the building in order to gather information and investigate on that incident.  He did so by meeting Private Williams.  At the end of his shift, the male suspect was still unidentified.

[104]    At the beginning of his night shift on the same day, around 6 p.m., Corporal Glass was dispatched with one of his military police colleagues, Corporal Reansbury, to the room of the unidentified male suspect who was identified and located during that day, who is Corporal Harris.  Both MPs met Corporal Harris at his room and he was asked by Corporal Reansbury if he could step out in the hallway very briefly to talk about an assault, and if he could come with them to the military police detachment for questioning about the altercation that occurred very early that morning.  Corporal Harris agreed, and he went with his own car to the MP detachment some time later.

[105]    When he entered the MP detachment, Corporal Harris was brought to the interview room where Corporal Glass placed him immediately under arrest, provided him his legal rights and cautions, and obtained a video recorded statement from him.  According to Corporal Reansbury, Corporal Glass took over the investigation concerning Corporal Harris because it was a good case for a MP who was new in the trade.

[106]    According to Corporal Glass, he put Corporal Harris under arrest because of the need to prevent the repetition of the offence of assault and to ensure the safety of the complainant, who was Private MacGillivary.

[107]    On completion of the statement made by Corporal Harris, the MP called the Custody Review Officer, Captain Daviau, in order for him to deal with the release from custody of Corporal Harris.

[108]    The custody review officer went immediately to the MP detachment where he was debriefed by the military police about the situation of Corporal Harris.  He never received a report of custody and a statement confirming that Corporal Harris was given the opportunity to make representations concerning his release from custody as requested by the NDA.  However, an account in writing was produced to him and he was shown a draft form of Direction on Release of Custody with suggested conditions that were prepared by the military police.

[109]    The custody review officer met Corporal Harris in the interview room with the military police in order to expose to him the conditions for his release.  After Corporal Harris agreed and signed the form, the custody review officer directed that Corporal Harris be released from custody.  He was then released with conditions.

[110]    On 30 September 2007, which is seven days after the arrest and release from custody of Corporal Harris, the military police investigation was concluded.

[111]    Private Thompson, which was the other person involved as an alleged perpetrator with Corporal Harris in the same incident, was arrested and interviewed by the MP on 29 September 2007.  Criminal charges were laid against her on 30 September 2007 in order to be dealt with by the civilian justice system, and she was released with conditions on the same day.  The matter concerning her criminal responsibility found an end on 19 December 2007 when one charge was withdrawn by the Crown and she pleaded guilty to another charge and received an absolute discharge as sentence.

[112]    On 21 May 2007, which is eight months after his release from custody following his arrest by the MP, three charges were laid against Corporal Harris.

The position of the applicant

[113]    Counsel for the applicant submitted to the court that Corporal Harris was arbitrarily detained in the meaning of section 9 of the Charter because he was unlawfully arrested by Corporal Glass.  In addition, he argued that because of some defects in the process con­ducted by the custody review officer to release with conditions Corporal Harris, the latter was also arbitrarily detained in the meaning of section 9 of the Charter further to his release from custody.

[114]    It was also submitted by applicant's counsel that Corporal Harris was deprived of his right to liberty enunciated at section 7 of the Charter, not in accordance with the principle of fundamental justice, which requires that a person released with conditions further to his or her arrest be charged as soon as practicable.

The position of the respondent

[115]    Counsel for respondent argued that Corporal Harris was not arbitrarily detained in the meaning of section 9 of the Charter because Corporal Glass arrested him on reasonable grounds to believe that he committed the offence of assault.  Also, he submitted to the court that despite the minor defects in the process that resulted in the release with conditions of Corporal Harris by the custody review officer, the essence of it was respected, and because of that, it does not amount to a violation of the right of Corporal Harris under section 9 of the Charter.

[116]    Finally, he totally rejected the proposition made by the applicant that his right to liberty under section 7 of the Charter was infringed.  He suggested to the court that the applicant failed to prove on a balance of probabilities that the deprivation of his right was not made in accordance with the principles of fundamental justice.

The issues

[117]    It is not contested by the respondent that Corporal Harris was detained in the meaning of section 9 of the Charter, further to his arrest without warrant, by Corporal Glass, on 23 September 2007, at the MP detachment at CFB Borden.

[118]    The real issue is the following one: was Corporal Harris arbitrarily detained in the meaning of section 9 of the Charter further to his arrest and his release with conditions?

[119]    If the court concludes to an infringement of the applicant’s Charter rights, then it would have to find out if Corporal Harris’ right to liberty in the meaning of section 7 of the Charter was deprived, in accordance or not with the applicable principal of fundamental justice for the same both situations?

[120]    If the answer to one of those two questions is yes, the court will have to establish what would be the appropriate remedy pursuant to section 24 of the Charter?

The analysis

[121]    The court does not intend to review the law about sections 7 and 9 of the Charter, considering that it was done previously in its analysis of the constitutionality of section 158.6 of the NDA.  I would just mention the fact that the concept of detention and arbitrary detention as defined in Grant, aforementioned, would be applied to the actual issue.           

Was Corporal Harris arbitrarily detained in the meaning of section 9 of the Charter?

[122]    First, the court will deal with the arrest of Corporal Harris, and then after, it will deal with his release with conditions from custody.

[123]    It is clear for the court that Corporal Harris was detained further to his arrest by Corporal Glass on 23 September 2007 in the meaning of the reviewed definition of deten­tion by the Supreme Court of Canada in Grant at paragraph 44.

[124]    The Supreme Court of Canada said also in Grant at paragraph 54 that:

.... A lawful detention is not arbitrary within the meaning of s. 9 (Mann, at para. 20), unless the law authorizing the detention is itself arbitrary.  Conversely, a detention not authorized by law is arbitrary and violates s. 9. 

Said differently, unlawful detention is arbitrary detention.

[125]    Then, what was legally required for Corporal Glass to proceed with a lawful arrest?  Section 156 of the NDA indicates clearly that an officer or NCM appointed as military police may detain or arrest a person subject to the Code of Service Discipline if that person is believed, on reasonable grounds, to have committed a service offence.

[126]    The existence of reasonable grounds for an arrest relies upon the police officer’s subjective belief and upon objective grounds.  Put differently, it means that the police officer must have an honest belief that the suspect committed the offence, and there must be reasonable grounds for this belief (see R. v. Shepherd, [2009] S.C.C. 35, at paragraph 17).  The existence of such a situation must be determined on the totality of the circumstances (see R. v. Debot, [1989] 2 S.C.R. 1140, at page 1168).

[127]    An arrest on reasonable grounds to believe can be made on the basis of hearsay evidence passed by other colleagues.  Considering the manner investigations are conducted by police authorities these days, including the military police, which is a teamwork ap­proach, taking this issue differently would put on those organizations and on investigators a burden that would be very difficult to meet.  However, it does not disengage a police officer who proceeds to the arrest of a suspect to make sure that the information received has some kind of reliability.

[128]    Corporal Glass, the military police who proceeded to the arrest of Corporal Harris on 23 September 2007, testified during this voir dire.  He told the court that just prior to the arrest he was able to form a personal belief that all the essential elements of the offence of assault were supported by the information he gathered.  He was able to provide from whom he obtained it.  Essentially, he got the information concerning the assault through a witness he interviewed that day, who is Private Williams; concerning the identification of the male perpetrator of the offence, it came from his fellow MP he was working with.

[129]    However, Corporal Glass was unable to provide, during his testimony before the court, the information he used at that time in order to form his honest belief that Corporal Harris committed the offence of assault on Private MacGillivary.  Despite the notes he took at the time of the investigation, which appeared to be useless to him because they were not very detailed, according to his testimony, he was incapable to substantiate the basis for his personal findings at the time of the arrest.

[130]    Despite the fact that Corporal Glass testified in a straightforward manner, he had difficulty to remember many things concerning the facts of this case, particularly the ones supporting his decision to arrest and detain Corporal Harris.  In such situation, his incapacity to recollect some events related to the investigation and to the arrest and detention of Corporal Harris make it difficult for the court to consider his testimony reliable.

[131]    Being left in the dark about the exact information Corporal Glass had in hand to constitute his subjective belief about the commission of an offence by Corporal Harris, it makes it very difficult for the court to assess such situations and to make any conclusion on that issue other than that Corporal Glass had no grounds to have a subjective belief that Corporal Harris committed the offence of assault.

[132]    Moreover, the court not being able to know on what grounds Corporal Glass relied on to constitute his subjective belief, it makes impossible for the court to conclude that those grounds were reasonable from an objective perspective.

[133]    The court would add that the testimony of Corporal Reansbury does not help it to think that on the same perspective, Corporal Glass had reasonable grounds to believe.  Corporal Reansbury testified in a calm, clear and straightforward manner.  He indicated to the court that he had an independent recollection of the events, which appeared to the court to be really the case.  He demonstrated that he had a good memory of the events despite his limited involvement in the case and the time elapsed.  His testimony is credible and reliable.

[134]    Corporal Reansbury told to the court that some time prior to Corporal Harris’s arrest, he met him at his room with Corporal Glass.  He clearly indicated to the court that at that time he had no grounds to proceed with the arrest of Corporal Harris, and that he invited the latter to come to the MP detachment in order to advance the investigation on the alleged assault.  Then, knowing that nothing changed from the time of that meeting with the MP to the time Corporal Harris went on his own will to the MP detachment and was arrested, what would have prevented Corporal Glass to proceed to the arrest without warrant of Corporal Harris went he met him first?

[135]    Corporal Glass advanced on that specific issue that he would have needed a Feeney warrant in order to arrest him because he was in his room.  This legal argument does not stand, considering the very cooperative attitude Corporal Harris had at that time and that the latter, according to Corporal Reansbury, did step out of his room to talk to him.

[136]    This set of facts leads the court to conclude that Corporal Glass did not have, from an objective perspective, reasonable grounds to believe that Corporal Harris committed the offence of assault.  Then, it is the conclusion of the court that Corporal Harris was unlaw­fully arrested.

[137]    Furthermore, Corporal Glass had no grounds to detain Corporal Harris further to his arrest.  As expressed by the majority decision of the Supreme Court of Canada in R. v. Clayton, [2007] 2 S.C.R. 725, at paragraph 30:

The justification for a police officer's decision to detain, as developed in Dedman and most recently interpreted in Mann, will depend on the "totality of the circumstances" underlying the officer's suspicion that the detention of a particular individual is "reasonably neces­sary".  If, for example, the police have particulars about the individuals said to be endan­gering the public, their right to further detain will flow accordingly.  As explained in Mann, searches will only be permitted where the officer believes on reasonable grounds that his or her safety, or that of others, is at risk.

[138]    Here, Corporal Glass told to the court that he detained Corporal Harris further to his arrest in order to prevent the repetition of the offence alleged and to ensure the safety of Private MacGillivary.  It was advanced without supporting evidence by counsel for the respondent that considering the potential for the alleged offender and the alleged complain­ant to meet each other on the base, like being at the same juniors' rank mess, this reasoning would support the MP conclusion.  In the total absence of any particulars indicating that the repetition of the offence could occur or that the safety of the complainant was at stake, the court concludes that it became difficult for Corporal Glass to justify the decision to further detain Corporal Harris.  It is the conclusion of the court that Corporal Harris was unlawfully detained by the MP further to his arrest.

[139]    Finally, the proceedings followed by the custody review officer in order to decide if Corporal Harris shall be released with or without conditions or detained and brought before a military judge for the purpose of a custody review hearing suffered some important shortcomings.  Captain Daviau was not provided the mandatory report of custody and the mandatory statement confirming that Corporal Harris was given the opportunity to make representation concerning his release from custody.  These minimum requirements could not be replaced by a simple conversation with the MP involved in the case.  Such manner to proceed does clearly indicate to the court that the custody review officer made a decision without following some of the minimal requirements set up in the NDA.

[140]    However, concerning that specific set of facts, the court concludes that the applicant failed to prove on balance of probabilities that he was detained.  The applicant has not proven on a balance of probabilities that the conditions imposed by the custody review officer to release him amounted to a detention in the meaning of section 9 of the Charter, and as defined in the second part of paragraph 44 of the Supreme Court decision in Grant.  Considering that it was not proved on a balance of probabilities that it was a situation where there was significant physical or psychological restraint, he did not adduce evidence in order to provide to the court an opportunity to appreciate how he would reasonably perceive the situation.

[141]    Despite the fact that the decision of the custody review officer appeared to the court to be arbitrary because it was not made fully in accordance with the applicable NDA provisions, the court cannot conclude that the process followed by the custody review officer, and the result of it, constitute an arbitrary detention in the meaning of section 9 of the Charter, considering that it was not proven on a balance of probabilities that his release with conditions from custody is detention, also in the meaning of section 9 of the Charter.

[142]    Considering that the arrest and the detention by the MP of Corporal Harris on 23 September 2007 are unlawful, the court concludes that the applicant was arbitrarily detained in the meaning of section 9 of the Charter.

Was Corporal Harris deprived of his right to liberty under section 7 of the Charter in accordance with the principle of fundamental justice?

[143]    Considering the conclusion of the court about the infringement of section 9 Charter rights of the applicant, it becomes unnecessary for this court to proceed with an analysis under section 7 of the Charter.

THE APPROPRIATE REMEDY

[144]    Counsel for the applicant suggested that further to such findings by the court, the only appropriate remedy would be a stay of the proceedings pursuant to subsection 24(1) of the Charter which says:

"Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circum­stances."

[145]    The stay of proceedings must be applied in the clearest of cases (see R. v. O'Connor, [1995] 4 S.C.R. 411, at paragraph 68).  As stated by the Supreme Court of Canada in the decision of R. v. Regan, [2002] 1 S.C.R. 297, at paragraph 54:

Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met:

(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2) no other remedy is reasonably capable of removing that prejudice. [O’Connor, at para. 75]

[146]    The court considers that regarding of the circumstances of the infringement of the right of the accused pursuant to section 9 of the Charter, it concludes that it won't be manifested, perpetuated or aggravated through the conduct of the trial.  Moreover, this court is convinced that there is another remedy reasonably capable of removing the prejudice caused by the infringement.

[147]    In the CMAC decisions of Gauthier and Larocque, aforementioned, the reduced sentence imposed by the trial court was confirmed as an applicable remedy following such a breach of the Charter.  Considering the circumstances disclosed in this voir dire by the evidence, mainly that the detention of Corporal Harris was limited in time which is about two hours and that he did not suffer any substantial prejudice resulting from it, the court is of the opinion that a reduced sentence constitutes an appropriate remedy.  Then, if this trial reaches the sentencing procedure stage, then the court will reduce the sentence to be imposed accordingly.

[148]    The applicant also requested that the statement he made to the MP on 23 September 2007 be excluded in accordance with the application of subsection 24(2) of the Charter, which reads as follows:

"Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the pro­ceedings would bring the administration of justice into disrepute."

[149]    In Grant, aforementioned, the Supreme Court of Canada established a revised approach to subsection 24(2) of the Charter.  At paragraph 71, the court said:

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective.  When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.  The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.  These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurispru­dence.

[150]    However, before dealing with the issue of the exclusion of the statement, it would have been appropriate for this court to deal first with the admissibility of the statement pursuant to the common law confessions rule.  As stated by the Supreme Court of Canada in Grant at paragraph 90:

However, it is important to note at the outset that the common law confessions rule, quite apart from s. 24(2), provides a significant safeguard against the improper use of a state­ment against its maker.  Where a statement is made to a recognized person in authority, regardless of whether its maker is detained at the time, it is inadmissible unless the Crown can establish beyond a reasonable doubt that it was made voluntarily.  Only if such a statement survives scrutiny under the confessions rule and is found to be voluntary, does the s. 24(2) remedy of exclusion arise.  Most commonly, this will occur because of added protections under s. 10(b) of the Charter.

[151]    Consequently, knowing that it was announced at the beginning of this trial by the prosecution that it was it's intent to deal with the admissibility of the statement of the accused in the context of a blended voir dire for which the applicant wanted to raise an issue under subsection 10(b) of the Charter, the court will reserve its decision on this specific matter until the question of the admissibility of the statement made by the accused is dealt with by this court pursuant to the common law confessions rule.

CONCLUSION

[152]    The application is dismissed in part concerning the legal issue raising the constitu­tional validity of section 158.6 of the NDA.

[153]    The application is granted in part concerning the legal issue about a violation of the right of the applicant under section 9 of the Charter when he was arrested and detained by the MP on 23 September 2007.

[154]    The court reserves its decision concerning the appropriate remedy pursuant to section 24 of the Charter, and more specifically:

About its decision to mitigate the sentence in accordance with subsection 24(1) of the Charter, and only if this court martial reaches the sentencing procedure stage; and

About its decision to exclude the statement made by the applicant to the MP on 23 September 2007 in accordance with subsection 24(2) of the Charter, and until this court has dealt with the issue of the admissibility of this statement under the common law confessions rule.

[155]    The voir dire is now closed.

                                                              LIEUTENANT-COLONEL L-V. D'AUTEUIL, M.J.

COUNSEL

Major P. Rawal, Canadian Military Prosecution Service

Counsel for Her Majesty the Queen

Captain M.A. Pecknold, Canadian Military Prosecution Service

Assistant Counsel for Her Majesty the Queen

Major M.T. Poland, Directorate of Defence Counsel Services

Counsel for Corporal B.L. Harris

Captain D.L. Eastlake, Combat Training Centre Deputy Judge Advocate Gagetown

Assistant Counsel for Corporal B.L. Harris